[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                         NEW FEES FOR FILMING 
                            AND PHOTOGRAPHY 
                            ON PUBLIC LANDS 
=======================================================================
                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                      Wednesday, December 12, 2007

                               __________

                           Serial No. 110-56

                               __________

       Printed for the use of the Committee on Natural Resources



  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                                   or
         Committee address: http://resourcescommittee.house.gov

                     U.S. GOVERNMENT PRINTING OFFICE

39-581 PDF                 WASHINGTON DC:  2008
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office  Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800  Fax: (202) 512-2250 Mail Stop SSOP, 
Washington, DC 20402-0001





























                     COMMITTEE ON NATURAL RESOURCES

               NICK J. RAHALL II, West Virginia, Chairman
              DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan             Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii             Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas              Chris Cannon, Utah
Frank Pallone, Jr., New Jersey       Thomas G. Tancredo, Colorado
Donna M. Christensen, Virgin         Jeff Flake, Arizona
    Islands                          Stevan Pearce, New Mexico
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Luis G. Fortuno, Puerto Rico
Madeleine Z. Bordallo, Guam          Cathy McMorris Rodgers, Washington
Jim Costa, California                Bobby Jindal, Louisiana
Dan Boren, Oklahoma                  Louie Gohmert, Texas
John P. Sarbanes, Maryland           Tom Cole, Oklahoma
George Miller, California            Rob Bishop, Utah
Edward J. Markey, Massachusetts      Bill Shuster, Pennsylvania
Peter A. DeFazio, Oregon             Dean Heller, Nevada
Maurice D. Hinchey, New York         Bill Sali, Idaho
Patrick J. Kennedy, Rhode Island     Doug Lamborn, Colorado
Ron Kind, Wisconsin                  Mary Fallin, Oklahoma
Lois Capps, California               Vacancy
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South 
    Dakota
Heath Shuler, North Carolina

                     James H. Zoia, Chief of Staff
                   Jeffrey P. Petrich, Chief Counsel
                 Lloyd Jones, Republican Staff Director
                 Lisa Pittman, Republican Chief Counsel
                                 ------                                




































                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, December 12, 2007.....................     1

Statement of Members:
    Boren, Hon. Dan, a Representative in Congress from the State 
      of Oklahoma................................................     3
        Prepared statement of....................................     8
    Duncan, Hon. John J., Jr., a Representative in Congress from 
      the State of Tennessee.....................................     3
    Fortuno, Luis G., the Resident Commissioner in Congress from 
      Puerto Rico................................................     9
    Rahall, Hon. Nick J., II, a Representative in Congress from 
      the State of West Virginia.................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Butler, Mitchell J., Deputy Assistant Secretary for Fish and 
      Wildlife and Parks, U.S. Department of the Interior........     9
        Prepared statement of....................................    11
    Cochran, Barbara, President, Radio-Television News Directors 
      Association................................................    29
        Prepared statement of....................................    31
    Overman, Tony, President, National Press Photographers 
      Association................................................    33
        Prepared statement of....................................    35
    Perlman, Victor S., General Counsel and Managing Director, 
      American Society of Media Photographers (ASMP).............    45
        Prepared statement of....................................    47
    Scott, Steven, Chairman of the Board, Professional Outdoor 
      Media Association..........................................    39
        Prepared statement of....................................    40
    Weldon, Leslie A. C., External Affairs Officer, Office of the 
      Chief, Forest Service, U.S. Department of Agriculture......    15
        Prepared statement of....................................    16
    Wheeler, Timothy B., President, Society of Environmental 
      Journalists................................................    24
        Prepared statement of....................................    27

Additional materials supplied:
    American Fly Fishing Association, Archery Trade Association, 
      et al., Letter submitted for the record....................     5
    Dorsey, Chris, President, Orion Multimedia, Letter submitted 
      for the record.............................................     4
    Lee, Raymond, President, Foundation for North American Wild 
      Sheep, Letter submitted for the record.....................     7


 OVERSIGHT HEARING ON ``NEW FEES FOR FILMING AND PHOTOGRAPHY ON PUBLIC 
                                LANDS''

                              ----------                              


                      Wednesday, December 12, 2007

                     U.S. House of Representatives

                     Committee on Natural Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to call, at 10:05 a.m. in Room 
1324, Longworth House Office Building. Hon. Nick J. Rahall, II 
[Chairman of the Committee] presiding.
    Present: Representatives Rahall, Young, Christensen, 
Grijalva, Boren, Duncan, Fortuno, and Bishop.

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A REPRESENTATIVE 
          IN CONGRESS FROM THE STATE OF WEST VIRGINIA

    The Chairman. The Committee on Natural Resources will come 
to order. The Committee is meeting this morning to hear 
testimony on proposed new fees for commercial filming and 
photography in our national parks, forests, refuges, and public 
lands.
    Let me first thank our witnesses for being here today. 
Several of them are with us in their capacity as volunteer 
leaders of journalism organizations, and we appreciate them 
taking the time away from their day jobs to join us today. The 
organizations they represent are only a sampling of the many 
which have filed formal comments expressing concerns regarding 
these proposed fees. In particular, these organizations argue 
that the definition of what does and what does not count as 
``use'' is far too broad and could work to actually limit 
legitimate news coverage of Federal land management issues.
    Of course, there is reason to view the proposed regulation 
with some skepticism. The Bush Administration will go down in 
history as one of the most secretive and least transparent, I 
believe, in our American history. This President has shown 
nothing short of open hostility to the public's right to know. 
As a result, we take seriously the possibility that in 
formulating these new regulations, governing media activity on 
Federal lands, the administration may have exceeded 
congressional intent when we passed the legislation authorizing 
these fees back in 2000.
    This administration's record on resource management is 
dismal. Maintenance in our national parks, listing of 
endangered species, fire preparedness and responsible energy 
development are just a few examples of the serious policy 
failures by the Bush Administration.
    Any hint that this new permit and fee structure could limit 
the free flow of public information regarding the very real 
consequences of these failures is simply unacceptable. A 
reasonable return to the Federal Treasury for the commercial 
use of Federal lands is one thing. Trying to hide the damage 
done to those lands from the public under a mound of fees and 
permits is quite another.
    Furthermore, as with any policy governing public resources, 
these proposed regulations must be examined not only on behalf 
of the millions of Americans who visit our parks, forests, our 
refuge and public lands each year, but also on behalf of the 
millions of Americans who do not.
    For many of our Federal citizens, the incredible beauty and 
richness of our Federal lands are sources of enormous pride, 
but for a variety of reasons are not destinations for personal 
visits. For these folks then, news reports, documentaries and 
magazine articles are the only way that they can monitor the 
health and vitality of the places they have never seen and yet 
they hold so very dear. Nothing we do should prevent those who 
are not able to visit our Federal lands from enjoying them as 
fully as possible from afar.
    So I look forward to today's testimony, and I will first 
recognize our Acting Ranking Member, Mr. Duncan, of Tennessee.
    [The prepared statement of Chairman Rahall follows:]

       Statement of The Honorable Nick J. Rahall, II, Chairman, 
                     Committee on Natural Resources

    This morning the Committee will hear testimony on proposed new fees 
for commercial filming and photography in our National Parks, Forests, 
Refuges and Public Lands.
    Let me first thank our witnesses for being here. Several of them 
are with us in their capacity as volunteer leaders of journalism 
organizations and we appreciate them taking time away from their day 
jobs to join us.
    The organizations they represent are only a sampling of the many 
which have filed formal comments expressing concerns regarding these 
proposed fees.
    In particular, these organizations argue that the definition of 
what does--and what does not--count as ``news'' is far too broad and 
could work to actually limit legitimate news coverage of federal land 
management issues.
    Of course, there is reason to view the proposed regulation with 
some skepticism. The Bush Administration will go down in history as one 
of the most secretive and least transparent in American history.
    This President has shown nothing short of open hostility to the 
public's right to know.
    As a result, we take seriously the possibility that in formulating 
these new regulations governing media activity on federal lands, the 
Administration may have exceeded Congressional intent when we passed 
the legislation authorizing these fees back in 2000.
    This Administration's record on resource management is dismal--
maintenance in our National Parks, listing of endangered species, fire 
preparedness, and responsible energy development--are just a few 
examples of serious policy failures by the Bush Administration.
    Any hint that this new permit and fee structure could limit the 
free-flow of public information regarding the very real consequences of 
these failures is simply unacceptable.
    A reasonable return to the federal treasury for the commercial use 
of federal lands is one thing--trying to hide the damage done to those 
lands from the public under a mound of fees and permits, is quite 
another.
    Furthermore, as with any policy governing public resources, these 
proposed regulations must be examined not only on behalf of the 
millions of Americans who visit our parks, forests, refuges and public 
lands each year, but also on behalf of the millions of Americans who do 
not.
    For many of our fellow citizens, the incredible beauty and richness 
of our federal lands are sources of enormous pride but--for a variety 
of reasons--are not destinations for personal visits.
    For these folks, news reports, documentaries and magazine articles 
are they only way they can monitor the health and vitality of places 
they have never seen and yet hold very dear.
    Nothing we do should prevent those who are not able to visit our 
federal lands from enjoying them as fully as possible from afar.
    I look forward to hearing today's testimony.
                                 ______
                                 

       STATEMENT OF THE HONORABLE JOHN J. DUNCAN, JR., A 
     REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE

    Mr. Duncan. Thank you, Mr. Chairman. Thank you for calling 
the hearing. As you have noted, I am sitting here as designated 
at the request of--designated at the request of Ranking Member 
Young, and I could say that you were so complimentary of the 
administration that I am just at a loss for words, but I won't 
say that.
    The Chairman. That is a good thing.
    Mr. Duncan. No. I will simply say that Ranking Member Young 
has no statement at this time, and we will look forward to 
hearing from the witnesses. Thank you very much.
    The Chairman. Thank you, Jimmy.
    The gentleman from Oklahoma, Mr. Boren.

   STATEMENT OF THE HONORABLE DAN BOREN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF OKLAHOMA

    Mr. Boren. Thank you, Mr. Chairman.
    I also want to thank the Chairman and the Ranking Member 
for holding this hearing to discuss the proposed regulations 
for filming on public lands. I appreciate the Committee's 
prompt attention to the concerns that have surfaced on this 
issue.
    Much of the debate has centered around the definition of 
news coverage and the effect it will have on the news media, 
but I also wanted to discuss concerns I have on how these 
regulations affect the interests of sportsmen. As an avid 
sportsman, I take great interest both professionally and 
personally in issues affecting hunters and anglers, including 
producers of outdoor television programs who largely contribute 
to the conservation, promotion, and enjoyment of our national 
treasures.
    I think everyone can understand the agency's desire to 
limit potential impact on activity on public lands, but much of 
the filming that occurs on public lands is done by small, 
independent producers with crews of only a few people with no 
harmful impacts on the landscape or the public's use of the 
resource.
    Despite this reality, these small crews, often one 
cameraman and one operator, are subject to the same fees as a 
location crew for a major Hollywood-style production. These 
proposed regulations do not appear to take into account this 
inequity. Regulations and fee schedules need to be truly 
reflective of the impact of the activity on the resource.
    Outdoor film producers and photographers do our nation a 
service in promoting our public lands and through their 
publications have played a significant role in the very 
establishment of Federal protections for the lands in the first 
place. These producers play a critical role in furthering the 
message of conservation and providing access to public lands 
for citizens who may otherwise never have the chance to 
experience our national treasures.
    Mr. Chairman, I have here several letters from outdoor 
media producers and dozens of organizations representing 
millions of hunters, anglers, and fish and wildlife 
professionals that I ask to be inserted into the record with 
unanimous consent.
    The Chairman. Without objection, so ordered.

    [A letter submitted for the record by Chris Dorsey, 
President, Orion Multimedia, follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    [A letter submitted for the record by the American Fly 
Fishing Association, Archery Trade Association, et al., 
follows:]

 American Fly Fishing Trade Association * Archery Trade Association * 
     Bass Pro Shops * Berkley Conservation Institute * Bowhunting 
    Preservation Alliance * Congressional Sportsmen's Foundation * 
      Conservation Force * Dallas Safari Club * Ducks Unlimited * 
  International Hunter Education Association * Mule Deer Foundation * 
National Rifle Association * National Trappers Association * Orion--The 
  Hunters Institute * Pheasants Forever * Pure Fishing * Quality Deer 
 Management Association * Quail Forever * Safari Club International * 
     Texas Wildlife Association * Theodore Roosevelt Conservation 
Partnership * Tracker Marine Group * Trout Unlimited * U.S. Sportsmen's 
                      Alliance * Wildlife Forever

December 6, 2007

U.S. House of Representatives
Committee on Natural Resources
Hon. Nick Rahall II, Chairman
1324 Longworth House Office Building
Washington, DC 20515

Dear Chairman Rahall and Committee Members:

    On behalf of the millions of hunters and anglers, fish and wildlife 
professionals, and fish and wildlife businesses, the undersigned groups 
would like to express our concerns about the newly proposed rules for 
filming and photographing on federal lands. While we certainly 
understand the need to implement controls to limit the potential damage 
of large crews from major motion picture productions, it must be 
understood that the majority of filming and still photography that 
takes place on public lands has no deleterious impacts on the 
landscape, the people who visit them, or the fish and wildlife that 
reside on them. In fact, many of our most treasured public lands, such 
as Yellowstone and Yosemite National Parks, would never have been set 
aside for the enjoyment of millions of citizens had their unique 
resources not been photographed and disseminated to the American 
public.
    Several of the undersigned organizations sponsor or are major 
contributors to televised hunting and fishing programs that air on a 
variety of popular and widely disseminated networks. These programs, 
which would be seriously affected by the newly proposed rules, reach 
millions of American taxpayers each week with messages that celebrate 
America's outdoor heritage, its public lands, and our shared fish and 
wildlife resources. These programs are tailored to an audience--those 
who actively use public lands for pursuits like hunting and fishing--
that is of supreme importance to the future conservation of these 
lands. Our viewers fuel state fish and wildlife budgets through license 
sales, while they boost the local economies that depend on seasonal 
influxes of activity from hunting and fishing. Bearing in mind that the 
leading reason that active sportsmen become former sportsmen is that 
they can no longer find places to hunt and fish, television has become 
an important, even primary, means for educating them about the 
remaining opportunities to access hunting and fishing spots.
    Our production schedules and budgets for producing these programs 
are both characteristically tight. Even under the current rules, a 
substantial amount of time and money is spent procuring necessary 
permits and permissions; we fear that these newly proposed standards 
will cause significant increases in both the time and money required to 
bring these programs to air. In some cases, these increases may cause 
producers to focus less time and attention on public lands. In others, 
the newly proposed standards may cause producers to avoid public lands 
entirely.
    Initially, we suggest that you create a threshold below which no 
filming permits are required. Since the intent is to protect the lands 
and their integrity for current and future users, we believe that this 
can be done easily and in a way that will greatly reduce the noise from 
the media world. If, for instance, you were to exempt any film/
television crews consisting of four or fewer members from any permits/
fees, you would greatly minimize the burden on agencies while at the 
same time focusing on the larger production crews who would be the. 
most likely to impact the public lands.
    Furthermore, establishing one central location for film/TV/
photographic permitting would be wise, as the amount of energy required 
to simply locate governmental employees scattered across remote 
stretches of the country is often daunting. Once these employees are 
located, there are wide variations in the interpretation of the rules 
between agencies and even between regions of the same agencies. A 
central permit distribution location could begin to remedy this 
situation.
    We thank you for taking the time to understand our concerns and 
invite you to contact us for any additional information.

Sincerely,

American Fly Fishing Trade Association
Archery Trade Association
Bass Pro Shops
Berkley Conservation Institute
Bowhunting Preservation Alliance
Congressional Sportsmen's Foundation
Conservation Force
Dallas Safari Club
Ducks Unlimited
International Hunter Education Association
Mule Deer Foundation
National Rifle Association
National Trappers Association
Orion-The Hunters Institute
Pheasants Forever
Pure Fishing
Quality Deer Management Association Quai.! Forever
Safari Club International
Texas Wildlife Association
Theodore Roosevelt Conservation Partnership
Tracker Marine Group
Trout Unlimited
U.S. Sportsmen's Alliance
Wildlife Forever
                                 ______
                                 

    [A letter submitted for the record by Raymond Lee, 
President, Foundation for North American Wild Sheep, follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Boren. Thank you, and again I thank the Chairman 
for your leadership on this issue and look forward to 
continuing these discussions.
    [The prepared statement of Mr. Boren follows:]

        Statement of The Honorable Dan Boren, a Representative 
                 in Congress from the State of Oklahoma

    I would like to thank both Chairman Rahall and Ranking Member Young 
for holding this hearing to discuss the proposed regulations for 
filming on public lands. I appreciate the committee's prompt attention 
to the concerns that have surfaced on this issue.
    Much of the debate has centered around the definition of news 
coverage and the effect it will have on the news media, but I also 
wanted to discuss concerns I have on how these regulations affect the 
interest of sportsmen.
    As an avid sportsman, I take great interest both professionally and 
personally in issues affecting hunters and anglers, including producers 
of outdoor television programs, who largely contribute to the 
conservation, promotion, and enjoyment of our national treasures.
    I think everyone can understand the agencies' desire to limit 
potential impact an activity can have on our public lands. But much of 
the filming that occurs on public lands is done by small independent 
producers with crews of only a few people and with no harmful impacts 
on the landscape or the public's use of the resource.
    Despite this reality, these small crews, often only one cameraman 
and one operator, are subject to the same fees as a location crew for a 
major Hollywood-style production. These proposed regulations do not 
appear to take into account this inequity.
    Regulations and fee schedules need to be truly reflective of the 
impact of the activity on the resource.
    Outdoor film producers and photographers do our nation a service in 
promoting our public lands and through their publications have played a 
significant role in the very establishment of federal protections for 
the lands in the first place.
    These producers play a critical role in furthering the message of 
conservation and providing access to public lands for citizens who may 
otherwise never have the chance to experience our national treasures.
    Mr. Chairman, I have here several letters from outdoor media 
producers and dozens of organizations representing millions of hunters, 
anglers, and fish and wildlife professionals that I ask to have 
inserted into the record.
    Again, I thank the Chairman for his leadership on this issue and 
look forward to continuing these discussions.
                                 ______
                                 
    The Chairman. Any other members wish to make opening 
statements? Mr. Fortuno, yes.

   STATEMENT OF THE HONORABLE LUIS G. FORTUNO, THE RESIDENT 
           COMMISSIONER IN CONGRESS FROM PUERTO RICO

    Mr. Fortuno. Thank you, Mr. Chairman, and I want to commend 
you and the Ranking Member for holding this hearing. I am 
especially concerned with how these new proposed fees would 
affect the filming that takes place on a regular basis in a 
rain forest, and certainly I am looking forward to what they 
have to say.
    Thank you.
    The Chairman. Thank you. Ms. Christensen?
    Ms. Christensen. I really don't have an opening statement. 
I would like to submit one for the record, but I am interested 
in hearing the testimony, and thank you for having this 
hearing.
    The Chairman. We again welcome our first panel to the 
Committee hearing this morning composed of Mr. Mitch Butler, 
the Deputy Assistant Secretary for Fish and Wildlife and Parks, 
U.S. Department of the Interior, and Ms. Leslie Weldon, 
External Affairs Officer, Office of the Chief, U.S. Forest 
Service.
    Mitch and Leslie, we welcome you. You may proceed in 
whatever order you wish, and as you know, we have your prepared 
testimony and it will be made part of the record as if actually 
read, and you may proceed in any manner you wish.

STATEMENT OF MITCHELL J. BUTLER, DEPUTY ASSISTANT SECRETARY FOR 
  FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Butler. Mr. Chairman and members of the Committee, 
thank you for the opportunity to be here today to present the 
Department of the Interior's views on permitting fees for 
filming and photography on public lands under our jurisdiction.
    I have provided a written copy of my statement which 
contains additional detail regarding our proposed regulation 
and how the bureau is currently implementing the authority in 
Public Law 106-206 for the record. I would like to provide a 
brief summary here this morning.
    Public Law 106-206 directed the Secretaries of the Interior 
and Agriculture to require a permit and establish a reasonable 
fee for commercial filming activities for similar projects as 
well as certain still photography activities on Federal lands 
in our jurisdiction. The law also directed the Secretaries to 
recover costs incurred by the agencies as a result of the 
permitted activities.
    Fees collected under this authority are to provide a fair 
return to the United States. We may set a minimum on certain 
listed criteria and be retained by the agencies so that they 
can be available to the Secretary without further 
appropriation, to be used consistent with the formula and 
purposes established for the recreational fee demonstration 
program.
    Enacting Public Law 106-206, Congress repealed an existing 
regulatory prohibition on the charging of location fees for 
commercial filming on Fish and Wildlife and National Park 
Service lands. The law also requires that the Secretary not 
permit any filming, photography or other related activities, if 
he determines there is a likelihood of resource damage, there 
being unreasonable disruption of the public's use and enjoyment 
of the site, or that the activity poses health or safety risks 
to the public.
    Since passage of this authority, the Department and its 
bureaus have been in the process of reconciling the 
requirements of the law with the complexities of its 
implementation which is compounded by the diverse mission 
requirements of our bureaus and the uniqueness, location and 
visitation patterns of the various lands and facilities under 
their jurisdiction.
    Despite these differences, our bureaus have worked 
cooperatively to develop a coordinated approach to 
implementation that will achieve balance between the mission 
and providing clarity to the public, creating certainty for the 
industry, and ensuring that the media continues to have the 
ability to inform the public about news related to our public 
lands.
    Like the land management agencies, the Bureau of 
Reclamation lands are also subject to Public Law 106-206, and 
Reclamation has recently addressed that authority and proposed 
amendments to its use regulations.
    After passage of Public Law 106-206, in 2000, the Secretary 
established a task force of specialists in land management 
agencies and the Solicitor's Office to develop a proposed rule 
to implement the act and also to develop a proposed location 
fee schedule. That draft rule underwent lengthy review and 
associated economic analysis before it was released for public 
comment.
    Under our proposal, as mandated by the act, all commercial 
filming would require a permit and would be subject to cost 
recovery fees as well as location fees. Commercial filming is 
defined in the proposed regulation as the digital or film 
recording of a visual image or sound recording by a person, 
business or other entity for market audience such as a 
documentary, television or feature film. It does not include 
news coverage or visitor use.
    Under the law, two things are clear:
    First, traditionally news is clearly excepted from location 
fees. For example, coverage of a fire in Yellowstone would 
absolutely fall within this exception and location fees would 
not be charged.
    Second, when a major studio wants to use the national park, 
refuge or other DOI lands as a setting for a movie, Congress 
has instructed that the administrative agencies to protect the 
public resources require advance permits and collect fees for 
access and cost recovery only.
    However, in developing this proposed regulation, it became 
clear that the distinction between news and commercial filming 
can be difficult to determine. Developing a process that allows 
for this determination on ensuring content neutrality has 
admittedly been a challenge. The current proposal will allow 
each activity at a site-specific level to answer the question: 
Does the proposal fall under the news exception or is a permit 
required because the proposal meets the definition of 
commercial film or photography?
    In short, the act requires us to ask not so much what is 
news, but whether or not an organization with a proposal must 
obtain a permit.
    The proposed regulation seeks to standardize how this 
decision is made in an area that will create consistency and 
certainty across agencies while also ensuring that our staff on 
the ground have the ability to consider the diverse 
characteristics of proposed projects.
    We have seen the concerns raised by journalists 
organizations with regard to all of these issues, and we take 
the comments received, including those expressed here today, 
very seriously. It is our intention, in order to assist the 
departmental task force in developing these regulations, with 
the specific nature of working journalists' concerns, to 
convene a group of Solicitor's Office and bureau Communications 
Office personnel to provide their expert opinion as we develop 
the final product.
    Also consistent with the act, the proposal states the 
agencies will issue permits except in those instances where 
there is a likelihood that an activity will damage a resource, 
cause unreasonable disruption or conflict with the public's use 
and enjoyment of the site, or pose a health or safety risks. 
Again, permits will not be issued if there are major threats to 
the resources or to human safety.
    The permit requirements for still photography are also very 
narrowly tailored, and permit requirements will be the 
exception and not the rule. Permits for still photography will 
only be necessary when the activity is taking place in areas 
close to the public, when using models, sets or props that are 
not part of the location's natural or cultural resources or 
administrative facilities when the agency needs to monitor the 
activity to ensure resources are protected.
    Cost recovery charges and locations fees would only apply 
to photography if a permit is required. We believe that the 
vast majority of still photography activities that occur on 
public lands administered by the Department would not require a 
permit.
    Mr. Chairman, we have had to make difficult decisions 
during this process, but we assure you that the Department is 
striving to ensure that these regulations are consistent with 
the clear language of Public Law 106-206.
    This concludes my statement and I would be happy to answer 
any questions you or any of the other members of the Committee 
might have.
    [The prepared statement of Mr. Butler follows:]

 Statement of Mitchell J. Butler, Deputy Assistant Secretary for Fish 
        and Wildlife and Parks, U.S. Department of the Interior

    Mr. Chairman and Members of the Committee, thank you for the 
opportunity to appear before you today to present the Department of the 
Interior's (Department's) views on permitting and fees for filming and 
photography on public lands under its jurisdiction.
Public Law 106-206
    Enacted on May 26, 2000 Public Law 106-206 directed the Secretaries 
of the Interior and Agriculture to require a permit and establish a 
reasonable fee for commercial filming activities or similar projects, 
as well as certain still photography activities, on federal lands under 
their respective jurisdictions. The law also directed the Secretaries 
to recover costs incurred by the agencies as a result of the permitted 
activity. Fees collected under this authority are to provide a fair 
return to the United States; be based, at a minimum, on certain listed 
criteria; and be retained by the Agencies to be available to the 
Secretary without further appropriation to be used consistent with the 
formula and purposes established for the Recreational Fee Demonstration 
Program, Public Law 104-134.
    That law also requires that the Secretary, in the course of 
carrying out this program, not permit any filming, photography or other 
related activity if he determines there is a likelihood of resource 
damage; there would be an unreasonable disruption of the public's use 
and enjoyment of the site; or that the activity poses health or safety 
risks to the public.
    Through enactment of Public Law 106-206, Congress repealed an 
existing regulatory prohibition on the charging of location fees for 
commercial filming for the U.S. Fish and Wildlife Service (FWS) and the 
National Park Service (NPS). Since passage of this authority, the 
Department and its bureaus have been in the process of reconciling the 
requirements of the law with the complexities of its implementation on 
the ground. This complexity is compounded by the diverse mission 
requirements of departmental bureaus and the uniqueness, location and 
visitation patterns of the various lands, facilities, and icons under 
their jurisdiction.
    Each of the Department's land management agencies has an 
individualized approach to managing commercial filming and still 
photography activities on their lands that is consistent with the 
unique missions and authorities that apply to each. Despite these 
differences, NPS, the Bureau of Land Management (BLM), and FWS have 
worked cooperatively to develop a coordinated approach to 
implementation of P.L. 106-206 that will achieve balance between the 
need to achieve it's mission while concurrently providing clarity to 
the public, creating certainty for the commercial filming and 
photography industries, and ensuring that the media continues to have 
the ability to inform the public about news related to the public lands 
that they administer. Like the land management agencies, Bureau of 
Reclamation lands are also subject to Public Law 106-206, and 
Reclamation has recently addressed that authority in proposed 
amendments to its use regulations.
    As discussed below, an additional issue, which was raised during 
consideration of Public Law 106-206 and has resulted in extended 
deliberation, is the potential impact of enforcement of this Act on 
First Amendment rights. Through the lengthy process of developing this 
proposed rule, bureau and Departmental staff have been sensitive to 
these concerns and have tried to balance the Act's requirement to 
establish a fee for ``commercial filming activities'' with Congress's 
statement that the legislation was not intended to affect ``newsreel or 
television news activities.'' Committee on Resources Report No. 106-75 
at page 3.
    While the Act requires the Secretary to carry out a number of non-
discretionary duties, we understand the importance of clarity in any 
implementing regulation, of transparency and, most important, of 
ensuring appropriate public review and consideration of comments 
received during that process. For example, we have received and are 
reviewing comments from a number of journalistic organizations relating 
their concerns with the proposed rule. We take these, and all of the 
comments that were received during the period, seriously. In order to 
assist the Departmental task force developing these regulations with 
the specific nature of working journalists' concerns, we plan to 
convene a group of personnel from the Solicitor's Office and the bureau 
Communications Offices to provide expert input as we develop the final 
product. A more detailed update on the status of implementing 
regulations for Public Law 106-206 is discussed more fully below.
Current Implementation
National Park Service
    Approximately one half of the 391 units in the National Park System 
do not issue any commercial filming or photography permits. Of those 
that do, the vast majority issue 15 permits or less each year. Some of 
the parks that issue the most permits include Grand Canyon, 
Yellowstone, Golden Gate, Santa Monica Mountains, Independence, 
Jefferson National Expansion Memorial, and parks in the National 
Capital Region, especially the National Mall and other downtown 
locations. However, individual parks may have an increased number of 
filming and photography requests based on the year (historic 
commemorations) or current events.
    The Government Accountability Office (GAO) conducted a review of 
NPS permit procedures from May 2004, to May 2005. The review 
concentrated, in part, on the approximately 2,000 filming and 1,000 
photography permits issued during Fiscal Year 2003. Based on the data 
received, the GAO estimated that the NPS could have received $1.7 
million in location fees during Fiscal Year 2003, in addition to the 
cost recovery charges that the NPS was collecting under a preexisting 
authority.
    The GAO recommended that the NPS expedite the implementation of the 
location fee provision of Public Law 106-206. On Apr. 13, 2006, the NPS 
published a final rule in the Federal Register that amended 43 CFR 5.1 
by removing a prohibition on collecting fees for filming to allow the 
NPS to begin to collect location fees.
    The NPS is currently using a location fee schedule developed by the 
BLM that is based on the number of people associated with the permitted 
activity and the number of days the permitted activity is using park 
lands. Cost recovery charges are based on the actual costs incurred by 
the NPS to accept and process a permit request and monitor a permitted 
activity.
    The NPS conducted a review of commercial filming and still 
photography permits issued between May 15 and September 30, 2006, to 
gauge the success of the implementation of the new guidance regarding 
the collection of location fees. The review found few problems with 
implementation. A further review is being conducted on permits issued 
during Fiscal Year 2007 where the NPS collected $460,000 dollars in 
location fees and slightly less than $1 million in cost recovery.
    Commercial filming projects in NPS units that are either taking 
place, or have recently finished, include filming at Mount Rushmore, 
the Grand Canyon, sites within the National Capitol Region, Valley 
Forge, and the Roger Williams National Memorial in Rhode Island.
Bureau of Land Management
    The Bureau of Land Management has long permitted the use of public 
lands for commercial filming. While Public Law 106-206 further 
clarified its authority, the BLM had preexisting authority under the 
Federal Land Policy and Management Act (FLPMA) as implemented through 
our regulations (43 CFR 2920) to collect cost reimbursement and rental 
fees. In response to Public Law 106-206, the BLM issued an Instruction 
Memorandum in December of 2003 (IM 2004-073) providing guidance for the 
implementation of that Act. A copy of IM 2004-073 is attached to this 
testimony.
    The BLM charges both cost recovery fees (which are kept at the 
local field office to cover the application processing costs of 
permitting and monitoring the filming activity) as well as rental 
(location) fees. In Fiscal Year 2007, approximately $212,000 in rental 
fees were collected for commercial filming on BLM-managed lands.
    The BLM issues, on average, approximately 350 filming permits a 
year. Permits are issued for a wide range of projects including 
television and print commercials, feature films, television series, and 
documentaries. If you go to the movies, you've probably seen BLM-
managed lands featured in films such as: ``Pirates of the Caribbean--At 
World's End,'' ``Mr. and Mrs. Smith,'' ``Letters from Iwo Jima,'' and 
``Gladiator.'' Not surprisingly, California-BLM issues the most permits 
for filming on public lands while Utah and Nevada are also frequent 
filming locations.
U.S. Fish and Wildlife Service
    The FWS hosts a number of commercial filming and still photography 
ventures on many of its national wildlife refuges and other lands. As 
part of an Office of the Inspector General review, the Service 
collected data on Special Use Permits (permits) issued between 2001 and 
2005. Among these were approximately 500 permits issued for commercial 
filming and still photography on 81 refuges which totaled $26,750 for 
the five year period.
    The FWS may charge a permit fee, as well as require a bond and 
general liability insurance for commercial filming activities. It may 
also charge for any overtime costs for staff members who accompany and 
monitor the filming. Under current FWS special use permitting 
authority, managers may accept in some cases in-kind donations of DVDs, 
photographic books, or rights to photographs in lieu of fees.
Bureau of Reclamation
    Under current Reclamation practice and use regulations, in order to 
carry out commercial filming on agency lands, facilities or 
waterbodies, a person or entity must file an application and pay a 
processing fee. Whether Reclamation would consider a user fee necessary 
would depend on the commercial activity being proposed. A calculation 
of the amount of fees collected for these activities was not 
immediately available to Reclamation, as it necessitates compiling 
information from the bureau's different regions.
    Before permitting these activities, Reclamation must take 
infrastructure security and operational issues under special 
consideration during its review of an application. Under the agency's 
proposed rule, it would continue this approach.
Update on Implementing Regulations
    After passage of Public Law 106-206 in 2000, the Secretary 
established a task force of specialists from the land managing 
agencies, the NPS, the FWS and the BLM, as well as representatives from 
the Department's Office of the Solicitor. The task force met to draft a 
proposed regulation on commercial filming and still photography on 
public lands and to develop a proposed location fee schedule. That 
draft regulation underwent lengthy review before it was released for 
public comment, and an associated economic analysis, which took 
approximately one year to complete, was carried out prior to its 
publication.
    As drafted, the proposed regulation would implement the provisions 
of Public Law 106-206. As mandated by the law, all commercial filming 
would require a permit, and would be subject to cost recovery charges 
and location fees. Commercial filming is defined in the proposed 
regulation as ``the digital or film recording of a visual image or 
sound recording by a person, business, or other entity for a market 
audience such as a documentary, television or feature film, 
advertisement, or similar project. It does not include news coverage or 
visitor use.''
    We understand that concerns have been raised about the fact that 
the proposed regulations do not include a definition of ``news'' and do 
cover documentaries. Today, with 24 hour news programs and television 
shows that bill themselves as news but are, in reality, entertainment, 
these are difficult questions. The debate that has ensued is informing 
us as we move forward. Unfortunately, the only guidance we have on 
these questions in the law is a requirement to permit all ``commercial 
filming'' and subject it to cost recovery charges and location fees. 
Likewise, the Committee Report advises to exempt ``news reel and 
television news.'' We will take all comments received on these issues, 
including those being expressed here today, under serious consideration 
before a final rule is promulgated.
    As mentioned earlier in my testimony, the location fee receipts for 
commercial filming will be retained without further appropriation for 
expenditure by the Secretary. Therefore, those who pay a small fee to 
profit from the unique characteristics of our publicly owned federal 
lands can rest assured that the fee they pay for this privilege will be 
used to ensure the preservation and maintenance of that resource into 
the future. There are also those who chose to film on federal public 
lands, not because of the unique characteristics, but because they are 
a more inexpensive place to film than other areas. P.L. 106-206 was not 
intended to make public lands prohibitively expensive. Rather, it was 
to ensure that the American public was receiving a fair rental rate 
that is consistent with what is charged by state and private 
landowners. In addition, states and private landowners should have the 
ability to receive a fair rate for renting their land without federal 
public lands acting as an artificial market force.
    The proposed rule is inclusive when it comes to determining whether 
or not to issue a permit for commercial filming. Consistent with Public 
Law 106-206, the proposed rule states that agencies will issue permits 
except in those instances when there is the likelihood that the 
activity will damage the resources; cause unreasonable disruption or 
conflict with the public's use and enjoyment of the site; or pose 
public health or safety risks. In addition, permits will not be issued 
where park resources or values are impaired, when issuance would be 
inappropriate or incompatible with the purposes of a refuge, or where 
issuance would violate other applicable laws or regulations. As you can 
see, the criteria are tailored only to ensuring that uses do not 
threaten resources or the visiting public. There is no intention in 
these proposed regulations for censorship by the agencies based on 
content. In fact, we believe that telling the story of our resources 
benefits not only our public lands but the visiting public, as well.
    This proposal is also narrowly tailored to ensure that permit 
requirements for still photography would be the exception and not the 
rule. A still photography permit would only be necessary when the 
photography is taking place in areas closed to the public, when using 
models, sets, or props that are not part of the location's natural or 
cultural resources or administrative facilities, when the agency needs 
to monitor the activity to insure resources are protected, or to 
minimize impacts to the visiting public. Cost recovery charges and 
location fees would only apply to still photography if a permit is 
required. We believe that the majority of still photography activities 
that occur on public lands administered by the Department would not 
require a permit.
    The proposed regulation was published in the Federal Register on 
August 20, 2007, with a sixty day comment period. The comment period 
closed on October 19, 2007, and 57 comments were received. The task 
force has begun the process of considering and responding to the 
comments. The task force has also developed, in cooperation with the 
U.S. Forest Service, a draft location fee schedule which has been 
submitted to the Department's Appraisal Services Directorate for 
review.
    I would also note that the proposed amendment to Reclamation's use 
authorization regulations, published on July 18, 2007, adds specific 
language to address, among other things, the authority provided in 
Public Law 106-206. The proposal delineates particular uses of 
Reclamation land, facilities, or waterbodies that require an 
authorization from the agency, including commercial filming and 
photography. It also sets an application fee, provides for the 
collection of administrative costs by the agency, and for a use fee, to 
be based on a valuation or competitive bidding. The comment period has 
closed, and Reclamation staff is reviewing comments received and the 
proposed rule to ensure that the final rule, when published, is 
compliant with the requirements of P.L. 106-206.
    Mr. Chairman, as noted above, while we have had to make difficult 
decisions during this process, the Department is striving to ensure 
that these regulations are consistent with the clear language of Public 
Law 106-206. This concludes my prepared remarks. I would be pleased to 
answer any questions you or other members of the Committee may have.
                                 ______
                                 

  STATEMENT OF LESLIE A.C. WELDON, EXTERNAL AFFAIRS OFFICER, 
    OFFICE OF THE CHIEF, FOREST SERVICE, U.S. DEPARTMENT OF 
                          AGRICULTURE

    Ms. Weldon. Mr. Chairman and members of the Committee, 
thank you for inviting me today to discuss fees for filming and 
photography on National Forest System lands. My brief comments 
will focus on Forest Service practices and policies regarding 
commercial filming and still photography.
    The Forest Service issues special use permits for 
commercial filming and still photography and collects land use 
fees for these activities. The current authority for these 
permits is Public Law 106-206, which was signed in May of 2000. 
Prior to this law, the Forest Service had authority to issue 
special use permits and collect land use fees for these 
activities under our Organic Act of 1897, and its implementing 
regulations.
    Public Law 106-206 supplemented the Forest Service's 
existing authority by allowing the agency to collect, retain, 
and spend without further appropriation land use fees for these 
activities.
    Since Fiscal Year 2001, the Forest Service has collected 
over $2.3 million under this authority for commercial filming 
and still photography, and in Fiscal Year 2007, the Forest 
Service collected about $388,000 for these activities.
    In 2003, the Forest Service amended its agency directives 
to make them consistent with Public Law 106-206 and to 
implement the new authority. These directives provided a 
definition for commercial filming that establishes the types of 
filming activities for which a permit is required. This 
definition excludes ``breaking news'' as an activity requiring 
a permit because the need for commercial filming and still 
photography to cover breaking news arises suddenly, evolves 
quickly, and may cease to be newsworthy by the time a permit is 
issued.
    Still photography does not require a permit or land use 
fees unless it takes place in a location where the members of 
the public are generally not allows or where additional 
administrative costs are likely, or when still photography 
involves the use of models, sets or props that are not part of 
the site's natural or cultural resources or administrative 
facilities.
    The Forest Service collects land use fees for commercial 
filming and still photography based on regional and forest fee 
schedules. Some of these fees have been in place for well over 
20 years, and most of the current Forest Service fee schedules 
have not been updated or indexed for inflation since 1995. We 
believe these fees need to be revised in order to ensure a 
continued fair return to the United States as required by 
Public Law 106-206.
    We have coordinated with the Department of Interior to 
develop a proposed fee schedule for commercial filming and 
still photography.
    The Forest Service recognizes the value and importance of 
the role of the media in providing essential information to the 
American public. Our public affairs officers, line officers, 
incident management teams, and permit administrators across the 
country work closely with members of the media to provide 
information and access so they can cover important natural 
resource issues in a timely manner.
    We understand coverage of breaking news may not be limited 
to a one-time event. Examples include the coverage of 2003 
Columbia Shuttle recovery efforts in Texas or stories on 
resource issues such as road damage due to flooding such has 
occurred in the Northwest. Forest Service policy provides for 
this type of media coverage without requiring a permit.
    In conclusion, the Forest Service has longstanding 
practices in place for commercial filming and still photography 
that have worked well for the agency, industry, media, and the 
public. We will continue to work with members of the commercial 
filming and still photography industries to ensure our policies 
are implemented fairly and equitably.
    Thank you for the opportunity to discuss these issues with 
the Committee, and I would be happy to answer any questions you 
may have.
    [The prepared statement of Ms. Weldon follows:]

 Statement of Leslie A.C. Weldon, External Affairs Officer, Office of 
       the Chief, Forest Service, U.S. Department of Agriculture

    Mr. Chairman and members of the Committee, thank you for inviting 
me today to discuss fees for filming and photography on National Forest 
System lands. My name is Leslie Weldon, and I serve as the External 
Affairs Officer for the Forest Service. My national program 
responsibilities include the press office, legislative affairs, the 
office of communications, and partnerships.
    I will focus my comments on Forest Service policies and practices 
regarding commercial filming and still photography.
Background
    The Forest Service issues special use permits for commercial 
filming and still photography and collects land use fees for these 
activities. The current authority for these permits is Public Law 106-
206, which was signed into law on May 26, 2000, and is codified at 16 
U.S.C. 460l-6d. Prior to enactment of P. L. 106-206, the Forest Service 
had authority to issue special use permits and collect land use fees 
for these activities. This authority was provided by the Organic Act of 
1897; it's implementing regulations at 36 C.F.R. part 251, subpart B; 
and directives in the Forest Service Handbook.
    The legislative history for P. L. 106-206 states that it is 
intended to supplement the Forest Service's existing authorities to 
regulate commercial filming and still photography. P. L. 106-206 
supplemented the Forest Service's existing authority by allowing the 
agency to collect, retain, and spend without further appropriation the 
land use fees collected for these activities.
    Beginning in Fiscal Year 2001, the Forest Service has collected 
$2,333,000 under this authority for commercial filming and still 
photography. In Fiscal Year 2007, the Forest Service collected $388,000 
for these activities.
    P. L. 106-206 was necessary to give the National Park Service and 
the U.S. Fish and Wildlife Service the authority to regulate commercial 
filming and still photography, standardize the authorities for all 
Federal land management agencies, and allow them to retain all fees and 
costs collected. Prior to enactment of P. L. 106-206, neither of these 
agencies had the authority to regulate these activities. On August 20, 
2007, the Department of the Interior published a proposed rule in the 
Federal Register to implement P. L. 106-206.
Current Policy
    In 2003, the Forest Service amended agency directives to make them 
consistent with P. L. 106-206 and to implement the new authority to 
retain and spend land use fees for commercial filming and still 
photography.
    These directives provide a definition for ``commercial filming'' 
that establishes the types of filming activities for which a permit is 
required. This definition specifically excludes ``breaking news'' as an 
activity requiring a permit because the need for commercial filming and 
still photography to cover breaking news arises suddenly, may evolve 
quickly, and may cease to be newsworthy by the time a permit is issued.
    Still photography does not require a permit or land use fee unless 
the still photography takes place at a location where members of the 
public are generally not allowed or where additional administrative 
costs are likely, or when the still photography uses models, sets, or 
props that are not a part of the site's natural or cultural resources 
or administrative facilities.
Land Use Fees
    As it did before enactment of P. L. 106-206, the Forest Service 
collects land use fees for commercial filming and still photography 
based on regional and forest fee schedules. In accordance with P. L. 
106-206, the Forest Service collects, retains, and spends these fees 
without further appropriation. Ninety percent of the fee revenues are 
retained and spent at the local units where they were collected to 
improve customer service for commercial filming and still photography.
    Land use fees are currently established in either regional or 
forest fee schedules which have been in place well over 20 years. Most 
of the current Forest Service fee schedules have not been updated or 
indexed for inflation since 1995. We believe these fees need to be 
revised in order to ensure a continued fair return to the United 
States, as required by P.L. 106-206.
    To that end, and to enhance consistency in the management of 
federal lands and to improve its delivery of services to the public, 
the Forest Service has coordinated with the Department of the Interior 
to develop a proposed fee schedule for commercial filming and still 
photography.
Policy in Practice
    The Forest Service fully recognizes the value and importance of the 
role of the media in providing essential information to the American 
public. Our public affairs officers, line officers, incident management 
teams, and permit administrators across the country work closely with 
members of the media to provide information and access so they can 
cover important natural resource issues in a timely manner.
    We understand coverage of breaking news may not be limited to a 
one-time event. Examples include ongoing coverage of the Columbia 
Shuttle recovery effort or stories on resource issues such as road 
damage due to flooding. Forest Service policy provides for this type of 
media coverage without requiring a permit.
Conclusion
    The Forest Service has longstanding policies in place for 
commercial filming and still photography that have worked well for the 
agency, industry, media and the public. We will continue to work with 
members of the commercial filming and still photography industries, the 
media, and other interested parties to ensure our policies are 
implemented fairly and equitably.
    Thank you for the opportunity to discuss these issues with the 
Committee. I would be happy to answer any questions you may have.
                                 ______
                                 
    The Chairman. Thank you very much.
    My first couple questions concern, I guess, definitions 
that are used in the proposed rule, or not used I should say. 
The draft rule, for example, says news coverage does not 
require a permit or fee. However, the term ``news coverage'' is 
not defined. So my question is, what is your definition of news 
coverage for either or both of you?
    Mr. Butler. Mr. Chairman, again, in developing the proposed 
regulation one of our major struggles was to define exactly the 
differences between when the news exception would be triggered 
vis-a-vis when commercial filming--the commercial filming 
definition was applicable.
    By way of illustration, the legislation calls for location 
fees for commercial filming, and that is defined as any 
recording that will--if we were to define that as any recording 
that ultimately turned a profit from a market audience, almost 
every permit application would result in a location fee charge.
    Alternatively, if the news exception set forth was 
interpreted to include anything that would inform the public 
about what is happening on public lands, then few, if any, 
permit applications would result in a location fee, and our 
belief is that that wouldn't be consistent with the legislative 
intent either.
    So through this process we sought to standardize exactly 
how to define commercial filming while also keeping the 
decision as to what triggers the news exception at the local 
level so that the unique characteristics of the proposal would 
be built into the agency's decision about whether it is news or 
whether it is commercial filming. And so each agency has its 
own process for making that determination on the ground.
    Ms. Weldon. I would add that our focus is on the 
requirements for that actual land use more so than how or where 
it would be delivered. For example, if the need for land use is 
based on advertising of product or service creating a product, 
be it a documentary or another item for sale defined as 
commercial, or the use of prop, sets or models, as a guide for 
determining the requirements for use of the land more so than 
where it would be delivered, and clearly we have the exceptions 
for breaking news as items that require us to act quickly to 
get that information and news to the public without going 
through the time frames and the process for determining the 
need for a permit or putting a permit in place.
    The Chairman. So just so I am clear on it, you are not 
proposing that the rule specifically define national coverage, 
but you are leaving that up to the individual parks or refuge 
managers to decide on their own?
    Ms. Weldon. Leaving it to decide based on the actual needs 
for use of land and the timeliness for our ability to assess 
that and make a determination if it is going to be an activity 
that requires a permit or fee.
    The Chairman. OK.
    Mr. Butler. And I believe Ms. Weldon's statement is 
consistent with our agency's as well.
    The Chairman. Let me ask you one other question about what 
the terms mean in the proposed rule. The draft rule says, for 
example, commercial filming does require a permit and fees. The 
rule defines commercial filming as recording something ``for a 
market audience''. So my question is what does the term 
``market audience'' mean?
    Are folks watching at six o'clock news, is that a market 
audience, and what about PBS, for example?
    Ms. Weldon. For the Forest Service, our implementing 
regulations don't use the language of market audience. We focus 
predominantly again on what the requirements are for land use 
and what those impacts may be to the resource or to our 
administrative costs, or to other uses by the public. So we 
don't use the language of market audience.
    The Chairman. Mike.
    Mr. Butler. Mr. Chairman, I don't believe that our 
regulation defines market audience, but I think that it would 
come under the determination as to whether or not its 
commercial filming, and the definitions of market audience, for 
example, are just exactly the types of things that we are 
considering during this comment process and through the 
proposed rule, and difficulties with ensuring that these 
criteria are established and that the definitions are sound and 
exactly what we are trying to reconcile now.
    The Chairman. OK. I guess, as I conclude this line of 
questioning, that it is the same concern I had with my previous 
question. If the term ``market audience'' is not defined in the 
rule, then who will decide what it means and how is a park 
ranger supposed to determine if a film crew intends to sell the 
film to a ``market dominance''?
    So I guess I come down favoring the Forest Service approach 
as opposed to the DOI approach in defining this term.
    Let me ask you a third question. The law Congress passed in 
2000 focused on fees based on impacts, that is, the number of 
people, the number of days, the amount of equipment involved, 
however the rule focuses on the intended use of a recording. In 
other words, is it for a market audience or not? And why is the 
focus of the rule so different from the focus of the law? That 
would be for DOI, I guess, basically.
    Mr. Butler. Mr. Chairman, I apologize. I am unclear as to 
the question.
    The Chairman. Well, the rule that you are proposing focuses 
on the intended use of a recording. In other words, is it for 
market audience or not? Why is the focus of your rule different 
from what I interpret to be the focus of the law?
    Mr. Butler. Thanks for the clarification.
    My understanding is that the market audience criteria falls 
under the definition of commercial filming. So if and when the 
commercial filming definition is met by a proposal, then we 
trigger a permit which triggers location fees and therefore we 
look to determine how much of a location fee would be charged 
based on the criteria which you mention, which are number of 
crew, number of days, type and amount of equipment. So I 
believe at they are separate and distinct, but are accounted 
for in the proposed regulation.
    The Chairman. OK. I may have some follow-up questions on 
the second round. Let me recognize the Acting Ranking Member, 
Mr. Duncan.
    Mr. Duncan. Well, thank you, Mr. Chairman, and I will say 
for the record that I agree and I think almost everyone agrees 
with the statement by the gentleman from Oklahoma, Mr. Boren, 
that small independent producers, cameraman and one operator 
should not be charged the same as some big giant studio that is 
going to bring in all kinds of people, but I noticed in your 
last--Mr. Secretary Butler, in the response to the last 
question from the Chairman that you basically said all that 
will be taken into consideration, and we were told in our 
briefing paper that fees will be determined by several factors, 
including the number of days the filming takes place, the size 
of the film crew, the amount and type of equipment present and 
so forth.
    So do both of you feel that you have enough flexibility to 
make those decisions and that you will make that clear to the 
people on site so that the people who are going to actually 
implement the rule will know that it is not a one-size-fits-all 
type rule?
    Mr. Butler. Yes. There are competing concepts in the law, I 
believe, and we are working and assessing each of them and 
attempting to reconcile each and ensure that all of the 
directives are given effect, and trying to find a regulation 
language that will meet each and meet the intent of the 
legislation as well.
    Mr. Duncan. Ms. Weldon.
    Ms. Weldon. Thank you. Based on our current experience 
implementing our existing regulations, I think we have seen it 
demonstrated that there is a lot of flexibility when those 
proposals actually come to the local level, and an example of 
that is that our early information in summarizing the permit 
requests for 2007, we had a little over a thousand permits, 
1,056 permits for activities, and only 690 of those actually 
required a fee based on what the type of use was, and the rest 
of them did not require a fee. So that adjustment flexibility 
based on what is happening locally and that determination and 
applying that, I think, has the flexibility that it needs and 
will continue operating in that fashion.
    Mr. Duncan. Do either of you see any opposition from career 
people down in the lower ranks that they just don't want to 
issue these permits because they are getting too many or do 
they feel it is a nuisance?
    I mean, you mentioned that you just had 1,056 permits last 
year.
    Ms. Weldon. I will respond to that first.
    We are going to continue to get the requests come in, you 
know, and we feel it is a real important role that the national 
forests can serve. Having the authority to retain costs like we 
currently do to support our implementation and management of 
the programs has been extremely helpful. So that gives us that 
place where if the requests are of the nature that really do 
require us assessing administrative cost fees and cost 
recovery, we can do that to allow us to keep supporting those 
programs.
    So 106-206 was very helpful in helping in that aspect, 
especially with the amount of requests we do receive.
    Mr. Duncan. All right.
    Mr. Butler. I have heard of no opposition from career 
staff. In fact, we would venture to say that our career staff 
are very interested in the benefits and ensuring the 
preservation of the public lands, and therefore have an 
interest in implementing this legislation so that the fees can 
be retained so that 80 percent of what location fees are 
charged go back into the resource through the recreational fee 
demonstration formula.
    Obviously, while they are not going to proactively issue 
multiple permits to raise dollars, I think that that could be a 
factor in why I haven't heard any opposition.
    Mr. Duncan. How do you handle the situation where some of 
the programs such as National Geographic and the Discovery 
Channel and others perhaps are informative and educational, but 
nevertheless documentary? How do you respond to the criticisms 
or opinions that these types of media should be exempt because 
they are also informative?
    Mr. Butler. Through our regulation development process, 
documentaries were obviously one that was difficult. I mean, 
there is a wide gradation between the two examples I mentioned 
which is, obviously, breaking news and then the major Hollywood 
productions. Documentaries through the development process for 
the proposed regulations were viewed as commercial filming 
activity. We have received a number of comments that disagree 
with that and we are taking them all into consideration as we 
develop the final rule.
    Mr. Duncan. Of course, you have had some recent 
documentaries that have made a lot of money, the ``Inconvenient 
Truth'', ``Planet Earth'' and several others. So it seems that 
that should be taken into consideration as well. How would you 
take that into consideration or would you?
    Ms. Weldon. I think just reiterating what Michael said, you 
know, clearly even though they are educational, it is a 
question of what are the requirements and needs for using 
public lands for being able to deliver those, and our ability 
to assess and be able to assist and support those activities 
occurring without impacting resources is the goal of what the 
fee process and assessment and skills are covering.
    Mr. Duncan. All right. One last question. Mr. Butler, the 
staff tells me that there is rumors that the Park Service is 
charging fees for couples for taking their wedding photographs 
on Park Service property around national monuments. Is that 
occurring, to your knowledge, and what is the situation in 
regard to that?
    Mr. Butler. Congressman, my understanding is that there is 
no intent for that to be the way that this works, and I can 
provide additional detail on this. But I understand that the 
time, place and use restrictions surrounding how many folks can 
be in one particular unit at one time have required that the 
park staff make sure that there is no conflicts, and that there 
is not multiple weddings parties in one place at one time, and 
we can get additional information about whether that intent has 
been misinterpreted or misapplied to you as soon as possible.
    Mr. Duncan. All right. Thank you very much.
    The Chairman. The gentleman from Oklahoma, Mr. Boren.
    Mr. Boren. Thank you, Mr. Chairman. I just have a few 
questions for our panelists.
    For Mr. Butler, these groups that I mentioned earlier, 
these wildlife groups, and let me just read off a few of them: 
Ducks Unlimited, Safari Club International, Trail Unlimited, 
Wildlife Forever, U.S. Sportsmen's Alliance, American Fly 
Fishing Trade Association, Bass Pro Shops, Mule Deer 
Foundation, National Rifle Association, and others.
    Have you all actually sat down with these organizations and 
talked to them about how they would be impacted? And let me 
state for the record most of these organizations spend millions 
of dollars protecting wildlife and protecting habitat. Have you 
all physically sat down and just kind of asked their opinion?
    Mr. Butler. Congressman, the first I understood of what the 
sportsmen's groups were was when I received a letter that they 
had sent just the other day. I initially touched base with a 
couple of them, have plans to sit down with each of them and 
explain exactly how this would apply to their programs.
    I think one thing just on the face of what I saw in their 
letter that may be misinterpreted or may be further explanation 
is that the fee schedule, while it is still under development, 
will be tailored specifically to the size of the production, 
i.e., the amount of crew, the amount of equipment, the number 
of days, et cetera, and from what I have gathered, at least 
anecdotally, and what you mentioned earlier, many of the 
filming productions of some of these groups are relatively 
small in size, one or two cameramen, one or two individuals 
hunting and/or fishing. So we will sit down with them and make 
sure that----
    Mr. Boren. Ms. Weldon, would you give me the same 
recommendation?
    Ms. Weldon. We, of course, aren't part of this current 
proposed rule, but in general we have very strong partnerships 
with all those groups, and my understanding is that we have a 
strong history of good cooperation, collaboration as they come 
forward with projects that they would like to do of that nature 
on the national forest. But we haven't had any special 
conversations to sit down to talk with them specifically about 
the DOI rule.
    Mr. Boren. OK. That is great, and one follow-up question. 
Going back to the timing, we talked about the number of people 
that are physically on the land, but in hunting and outdoor 
situations different from let us say if you are filming a 
commercial that is a half-day commercial and it is an ad with a 
bear or something, you are selling a car or a product.
    A lot of these outdoor programs, they literally take a 
week, two weeks. You are spending 10 hours watching an animal, 
and if you look at the daily, again going back to, and I think 
Mr. Butler kind of answered this question already, but going 
back to the daily rate.
    Most of these outdoorsmen are spending actually more time 
in the field, and so the time period also, I think, is really 
important when you all go back and work on these regs. because 
not just for people who hunt, but I mean, if you are doing a 
documentary on the wolves or anything else, I mean, you are 
spending a lot of time out there. You are not just going to be 
there for one day like filming a commercial, you are actually 
going to be doing a program.
    Would you all agree with that?
    Ms. Weldon. I would agree. A lot of it is about the nature 
of the activity and wildlife aren't predictable as far as when 
they choose to show up. I think the big concern is where that 
activity is occurring. Is it going to be something that is 
going to interfere with other public use as far as 
considerations more so than the length of time for the 
occupancy. There is a difference if someone is filming at an 
intersection of a major road where people are coming and going 
compared with perhaps being in the back country trying to track 
a specific species that is not having that much impact.
    Mr. Boren. Because we were talking about the media earlier, 
you know, so much of this is really subjective and it is left 
up to a manager at a local level. I mean, do you all think that 
that is the best way to handle it, to have a person, because, 
you know, I have dealt with a lot of different agencies in my 
district, for instance, and you come across a really good park 
manager or a very good--let us say they are with the Corps, 
they are really good, and then you also come across someone who 
they may have a local beef with someone or there is a problem.
    I know there has been an instance--Larry Csonka, for 
instance, there was, I think, a little bit too much harm done 
to him personally with his outdoor show. But I mean, is this 
kind of--I mean, do you all feel that it is the right thing to 
do, to kind of be more subjective and put it to the local level 
or do you think it is best to just have one approach and 
everyone has to follow that direct guideline?
    Let us start with Mr. Butler.
    Mr. Butler. Again, the purpose of the proposed regulations 
are really to standardize implementation of P.L. 106-206, but I 
think that because of the uniqueness of each of the proposals 
and the uniqueness of each of the land units where they are 
proposed for filming or photography, a determination as to 
whether a particular project will fall under the commercial 
filming definition or under the news exception is oftentimes 
best made on the ground.
    At the same time we are standardizing much of this at the 
national level to ensure continuity and to ensure that we are 
consistent, and again, the legislation and the proposed 
regulations are precedent setting, and issues like you are 
raising are very much a part of our comment and consideration 
process in our development of the final regulation. So we will 
take all of these into serious consideration and that issue has 
been raised.
    Mr. Boren. Well, I just want to say thank you both for what 
you do. In the interest of time, I will turn it back to the 
Chairman.
    The Chairman. Ms. Christensen.
    Ms. Christensen. I don't think I have any additional 
questions. I can appreciate how difficult it is to apply this 
law to many different kinds of parks and many different parts 
of the country and other public lands, and I just look forward 
to hearing the rest of the testimony from the journalists, and 
I encourage that there be some meetings between the Department 
of Interior, the Park Service, and the other agencies involved 
with the media and the news agencies to try to make sure that 
we come up with an implementation that can reach some kind of 
consensus.
    The Chairman. Mr. Grijalva.
    Mr. Grijalva. Thank you, Mr. Chairman. Just one quick 
question for Mr. Butler just for my own clarification.
    As I understand your comments, each agency within the 
Department implements to some extent its own definition of what 
commercial use is or national coverage is, and the question I 
am asking, assuming that that is true, understanding the unique 
situations of every land use that we are talking about, but 
shouldn't there be at least a standard criteria, a uniformity 
of definition, something that is part of the guidelines rather 
than the interpretation by a specific land manager on a 
specific national park?
    Mr. Butler. Just to clarify, Congressman, do you mean a 
specific definition of how the news on newsreel exception that 
was in the house report language would apply?
    Mr. Grijalva. Would apply and also what the criteria is, 
what is the parameters? What are the benchmarks? People that 
are utilizing, people that are providing coverage, journalists 
and others at least know what departure point they are at, and 
whether to object or to go along with the particular 
regulation. At this point what is left to an interpretation and 
it kind of makes it difficult. No one knows what the rules are.
    Mr. Butler. We believe that the proposed regulation, in 
defining what is commercial news and also providing a fee 
schedule ultimately as to how much to charge when a permit is 
required and a location fee triggered does standardize and does 
provide a great deal of guidance. At the same time there is a 
definition. It is in the proposed regulation, but we have had 
at least one and possibly multiple comments requesting that we 
do include a definition of news, and that is something that is 
being considered in putting together the final package.
    Mr. Grijalva. Thank you, Mr. Chairman.
    The Chairman. Thank you all for your testimony.
    Ms. Weldon. Thank you.
    The Chairman. The Chair will now call Panel II, Mr. Timothy 
Wheeler, President of the Society of Environmental Journalists; 
Barbara S. Cochran, President, Radio-Television News Directors 
Association; Tony Overman, President, National Press 
Photographers Association; Steven Scot, Chairman of the Board, 
Professional Outdoor Media Association; and Victor S. Perlman, 
General Counsel and Managing Director, American Society of 
Media Photographers, Incorporated.
    While the panel is coming forward, I would note that the 
first gentleman I introduced, Mr. Timothy Wheeler, it is my 
understanding that you were born and raised in Charleston, West 
Virginia. In that regard, I do want to thank Ken Ward, who is a 
well respected and professional reporter with our Charleston 
Gazette, for bringing this issue to my attention. Welcome, and 
you may proceed first, Timothy.
    As with all witnesses, we do have your prepared testimony, 
and it will be made part of the record as if actually read, and 
you may proceed as you desire.

          STATEMENT OF TIMOTHY B. WHEELER, PRESIDENT, 
              SOCIETY OF ENVIRONMENTAL JOURNALISTS

    Mr. Wheeler. Thank you. Chairman Rahall, Acting Ranking 
Member Duncan, members of the Committee, I am Tim Wheeler, 
President of the Society of Environmental Journalists.
    I am grateful for the invitation to appear before this 
Committee to explain why journalists are concerned about the 
Interior Department's efforts to regulate commercial filming 
and photography in our national parks and on Federal lands. It 
is an issue that affects all journalists and should concern all 
citizens in all parts of the country, and not just the majestic 
parks of the West.
    Bound as I am too often to my desk in Baltimore where I am 
a reporter for The Sun, I have had the pleasure of visiting 
personally and professionally many of our Federal lands, 
particularly the National Park System units in my home state of 
Maryland, and in your state, Mr. Chairman, where I was born and 
grew up.
    SEJ is the world's largest and oldest organization of 
individual working journalists covering environmental issues. 
Founded in 1990, SEJ consists of some 1,300 journalists, 
educators and students dedicated to improving the quality, 
accuracy and visibility of environmental reporting.
    One of the services SEJ provides to its members through its 
First Amendment Task Force and Watch Dog Project is to keep an 
eye out for real and potential infringements of their ability 
to do their job.
    Mr. Chairman, our Federal lands are a public trust. Many of 
them are reservoirs of the bio diversity that was once more 
abundant in our nation. As such, they are magnets for 
journalists seeking to understand our environment and how it is 
changing. How they are managed is of great public interest.
    A couple months ago an SEJ member named Kinna Ohman called 
Yellowstone National Park to set up an interview with a wolf 
biologist. She was told by a public affairs officer there that 
she would need to get a permit and pay a $200 fee to do so. Of 
course, that was in error, but therein hangs the tail which has 
brought us here today.
    Ms. Ohman is a free-lance radio reporter/producer who lives 
in Keene Valley, New York, in the northern part of the state 
near Lake Champlain. She was working on a story about the after 
effects of the re-introduction of grey wolves to Yellowstone, 
certainly a newsworthy topic. To help tell it, she needed to 
visit the park and interview the Park Service biologist most 
familiar with the wolves' impact.
    When she called the park's public affairs officer though, 
she was surprised to be told that she would have to apply for a 
permit and pay a nonrefundable fee. She was also told that her 
application would take at least two weeks to process and that 
she might have to pay more for the time of anybody she wanted 
to interview. Last, she was informed that she would have to 
present proof that she had insurance providing a minimum of $1 
million liability coverage.
    Public affairs officials at Yellowstone told her that they 
treated everybody this way, not just commercial film makers, 
but nonprofits and students as well as mandated to us by law, 
they wrote her.
    Ohman informed her colleagues at SEJ of her experience. A 
call from SEJ to Park Service headquarters in Washington 
quickly straightened things out. Headquarters' public affairs 
staff contacted Yellowstone and reminded the staff that the 
commercial filming permits were not meant to apply to members 
of the news media.
    I am glad to tell you that Ohman's interview took place 
October 29, and she generally got great cooperation from 
Yellowstone staff. Her story is scheduled to air soon.
    While this tale had a happy ending, it exposed for us at 
SEJ and for other journalism groups as well how far the 
Department of Interior and its agencies in policy and practice 
have drifted from the letter and intent of the original law.
    Park Service regulations and perhaps the law itself to some 
degree are so imprecise and unclear that they could allow the 
disturbing interpretation Ohman received, and had Ohman wanted 
to record on lands managed by a different Interior Department 
agency, she might have gotten different treatment. That is 
because commercial filming and still photography are governed 
by varying guidelines, policies and regulations.
    An existing regulation, for instance, stipulates that no 
fees are to be charged for filming or recording sound tracks on 
lands administered by the Fish and Wildlife Service. The Bureau 
of Land Management charges a location fee for commercial 
filming on lands it manages, as does the Forest Service. 
Permitted, fee requirements and their application apparently 
vary from one national park unit to another.
    The Interior-wide regulation proposed on August 20 of this 
year seems aimed at standardizing the various fee and permit 
rules, policies and guidelines, but the new rule is vague and 
just as subject to misinterpretation as the old ones. While the 
proposed rule would specifically exempt those engaged in news 
coverage from needed to get a permit, it does not define the 
term. Would that be left to the various agencies to decide, as 
it is now?
    In the permit guidelines for Yellowstone, only crews 
filming breaking news are exempt while those shooting human 
interest staged events or other topics must get a permit. It 
leaves the determination of what is breaking news to the 
discretion of the park's public affairs officers.
    The rule also mentions documentary as an example of a 
commercial filming project needing a permit. That provision has 
snared several producers of documentary films focusing on 
wildlife or conservation issues in the parks or on other 
Federal lands. What they film is essential to public 
understanding of the decisions the Interior Department makes in 
managing natural resources. Those policies and practices are 
just as much news as a forest fire, or a press conference held 
by a government official in a park with a stunning mountain 
backdrop.
    Finally, the rule could have an especially chilling effect 
on freelance or independent journalists because it requires 
permit applicants to prove they are carrying a hefty insurance 
policy to protect the U.S. Government should anything go wrong. 
The original law signed back in 2000 was meant to apply 
primarily to big Hollywood-style movie productions and to 
commercial still photography that use models or unnatural 
props.
    We think Interior should limit its rule to what Congress 
wanted regulated and no more. The Department should adopt the 
broadest possible definition of what constitutes news coverage 
in deciding what activities are exempt from regulation. It 
should exempt all types of news coverage, not just breaking 
news, and it should not automatically classify documentaries as 
commercial filming ventures.
    Moreover, the Department also needs to take the broadest 
possible view of who can cover news. Kinna Ohman's run-in with 
the Yellowstone staff was stemmed in part from a 
misunderstanding about whether she was working for a public 
radio station. We hope that the Department would be mindful in 
drafting regulations of the need to steer well clear of 
anything that would infringe on the ability of mainstream 
journalists and freelancers alike to share with the public 
vital images, sounds and information about how our nation's 
lands and resources are being cared for and managed.
    Mr. Chairman, with your permission I would like the record 
of this hearing to include the comments which SEJ filed on 
October 19 of this year and the Interior Department rulemaking. 
Eighteen other journalism groups, some of them represented here 
today, joined SEJ in submitting these comments. They reflect 
the broad concern within the journalistic community about the 
potential impact of this rule and how we practice our craft.
    Public Law 106-206 was hammered out in this very room some 
seven years ago. If anyone would know the intention of the 
original law, it would be this Committee. You are to be 
commended for this kind of constructive oversight. I would be 
happy to answer any questions you or members of the Committee 
may have. Thank you.
    [The prepared statement of Mr. Wheeler follows:]

              Statement of Timothy B. Wheeler, President, 
                  Society of Environmental Journalists

    Chairman Rahall, Ranking Member Young, and members of the 
Committee, I am Tim Wheeler, President of the Society of Environmental 
Journalists. I am grateful for the chance to appear before you today to 
discuss our views on the Interior Department's proposed commercial 
filming rules and how they affect journalists.
    It's an issue that affects journalists--and ordinary citizens--in 
all parts of the country, not just the majestic parks of the West. 
Bound as I am too often to my reporter's desk in Baltimore, the 
National Park System units of Maryland, West Virginia and the mid-
Atlantic region beckon just as invitingly.
    SEJ is the world's largest and oldest organization of individual 
working journalists covering environmental issues. Founded in 1990, SEJ 
consists of some 1,300 journalists, educators and students dedicated to 
improving the quality, accuracy and visibility of environmental 
reporting. Working through its First Amendment Task Force and WatchDog 
Program, SEJ addresses freedom of information, right-to-know, and other 
news gathering issues of concern to journalists reporting on 
environmental topics.
    This October, an SEJ member named Kinna Ohman called Yellowstone 
National Park to set up an interview with a wolf biologist. She was 
told by a public affairs officer that she would need to get a permit 
and pay a $200 fee to do so. Of course, that was an error. But therein 
hangs a tale.
    Ms. Ohman is a freelance radio reporter-producer who lives in Keene 
Valley, New York, in the northern part of the state near Lake 
Champlain. She had been selling stories to ``The Environment Report,'' 
a nonprofit news service that feeds stories to public radio stations 
across the United States and in central Canada. As a freelancer, she 
was doing journalism more serious than that done by many paid employees 
of large broadcast networks.
    Ohman had a great story to do, about the after-effects of the 
reintroduction of gray wolves to Yellowstone. To help tell it, she 
needed to visit the park, and interview the National Park Service 
biologist most familiar with the wolves' impact.
    When she called the Park's public affairs office, though, she was 
surprised to be told that she would have to apply for a permit and pay 
a non-refundable $200 application fee. She was also told that the 
application would take at least two weeks to process, and that she 
might have to pay for the time of anybody she wanted to interview.
    Lastly, she was informed she would have to present proof that she 
had a minimum $1 million liability insurance coverage. Public affairs 
officials at Yellowstone told her that they treated everybody this 
way--not just commercial film-makers, but non-profits and students as 
well--``as mandated to us by law.''
    Ohman informed her colleagues at SEJ of her experience. A call from 
SEJ to Park Service headquarters in Washington quickly straightened 
things out. Headquarters public affairs staff explained to the 
Yellowstone staff--who may have been improvising in the absence of 
their supervisor--that the commercial filming permits were not meant to 
apply to members of the news media.
    I am glad to tell you that the interview took place October 29, 
that Ohman generally got great cooperation from Yellowstone staff, and 
that the story is scheduled to air soon.
    While this story had a happy ending, it exposed for us at SEJ--and 
for other journalism groups as well--how far the Department of Interior 
and its agencies have drifted from the letter and intent of the 
original law.
    Park Service regulations--and perhaps the law itself on which they 
are based, P.L. 106-206--are so imprecise and unclear that they could 
allow the disturbing interpretation Ohman received. A Park Service 
employee could look at the regs and read them to say that a permit and 
two-week delay was legally required for a news interview, that the Park 
Service had to be compensated for the time of officials interviewed by 
a reporter, and that the use of a tape recorder, harming no natural 
resources, constituted ``commercial filming.'' Moreover, they seemed to 
be saying that the Park Service had no discretion in applying the regs, 
but was required to apply them this way.
    Currently, commercial filming and still photography are governed by 
a crazy-quilt of guidelines, policies and regulations that vary among 
Interior's agencies. An existing regulation, for instance, stipulates 
that no fees are to be charged for filming or recording sound tracks on 
lands administered by the U.S. Fish and Wildlife Service. The Bureau of 
Land Management and U.S. Forest Service--part of the Department of 
Agriculture, but also covered by this law--have until now been the only 
agencies to charge location fees for commercial filming. On lands 
managed by the National Park Service, permit and fee requirements 
apparently may vary from unit to unit.
    The Interior-wide regulation proposed on August 20, 2007, 
standardizes the various filming-fee-and-permit rules, policies and 
guidelines that were on the books previously. But the new rule is just 
as subject to misinterpretation as the old ones. The time to clarify 
the language, the rule, and the policy is before it is made final. That 
is how the rulemaking process is supposed to work.
    In the past several years, SEJ has heard from other journalists 
about the strictures placed on them by the fee-and-permit rules, 
usually in major National Parks, but also on other federal lands. Most 
often, the complaints come from producers of documentary films focusing 
on wildlife or conservation issues in the parks. What they film is 
essential to public understanding of the decisions the Interior 
Department makes in managing natural resources. Those policies and 
practices are just as much news as a wildfire or presidential press 
conference with a mountain backdrop.
    While the proposed rule would specifically exempt those engaged in 
``news coverage'' from needing to get a permit, it does not define the 
term. Would that be left to the various agencies to decide, as it 
apparently is now? In the permit guidelines for Yellowstone National 
Park, the news exemption applies only to crews filming ``breaking 
news,'' while those shooting ``human interest, staged events or other 
topics'' must get a permit. And it leaves the determination of what is 
``breaking news'' to the discretion of the park's public affairs 
officers.
    The proposed rule would require permits for all ``commercial 
filming,'' which it defines as the ``digital or film recording of a 
visual image or sound recording by a person, business or other entity 
for a market audience.'' Lumping sound recording with digital or film 
recording of visual images seems to go beyond the letter and intent of 
the law. It mentions ``documentary'' as an example of a commercial 
filming project--seemingly without regard to its role as long-form news 
coverage.
    And to classify any recording of visual images ``for a market 
audience''--another undefined term--might be read to encompass 
commercial broadcasting, Internet webcasts or podcasts that are 
financed via advertising or subscriptions, or even multimedia 
productions by mainstream news media, such as newspapers. These days, a 
video camera and digital recorder are just electronic forms of a 
reporter's notepad--will their use be regulated?
    Another disturbing aspect of the new rule is the proposed 
requirement that permit applicants obtain insurance sufficient to 
protect the U.S. government from any liability for the applicant's 
activities. The proposed rule does not define what coverage is 
sufficient, but if the Yellowstone guidelines are any indicator, 
applicants would have to show they have coverage of $1 million or more. 
That is a substantial burden for self-employed free-lance or 
independent journalists, whose ranks are legion and growing. Without 
the salary and benefits enjoyed by employees of mainstream media, many 
independent journalists would be hard-pressed to afford fees of $200 
and up, plus insurance premiums, to report non-breaking news features 
for sale to media outlets.
    The original law signed back in 2000 was meant to apply primarily 
to big, Hollywood-style movie productions and to commercial still 
photography that used models or unnatural props. The fees required by 
the law were to be based on the size and duration of the filming 
enterprise, and the law specifically exempts fees for still photographs 
taken on Interior-managed lands generally available to the public. We 
think Interior should limit its rule to what Congress wanted regulated, 
and no more.
    In order to comply with the letter and intent of the law, the 
Department of Interior needs to adopt the broadest possible definition 
of what constitutes ``news coverage'' in deciding what filming, 
photography or recording activities are exempt from regulation via 
permits and fees. The rule should exempt all types of news coverage, 
not just breaking news, and it should not automatically classify all 
documentaries as commercial filming ventures. Ambiguity, or discretion, 
is a recipe for confusion and potential trouble, as Kinna Ohman's 
experience demonstrates.
    The rule also should explicitly state the law's presumption that 
still photography is allowed without permit or fee, except in certain 
very narrow circumstances. Finally, the department needs to clearly 
exempt audio recording from permit and fee requirements, as that was 
not even mentioned in the law.
    Above all, we hope the department would be more mindful in drafting 
regulations such as this of the need to steer well clear of anything 
that would infringe on the ability of journalists or everyday 
citizens--who can be journalists, too--to share with the public how our 
nation's lands and resources are being cared for and managed.
    Mr. Chairman, with your permission I'd like the record of this 
hearing to include the comments which SEJ filed Oct. 19, 2007, in the 
Interior Department rulemaking. Eighteen other journalism groups joined 
SEJ in submitting those comments, reflecting the broad concern within 
the journalistic community about the potential impact of this rule on 
how we practice our craft. These comments amplify our concerns.
    In closing, I want to thank the Chairman and the Committee for 
holding this hearing. P.L. 106-206 was hammered out in this very room 
some eight years ago. If anyone would know the intent of the original 
law, it would be this Committee. You are to be commended for this kind 
of constructive oversight. I would be happy to answer any questions you 
or members of the committee may have.
                                 ______
                                 
    The Chairman. Thank you, Tim, and without objection your 
comments will be made part of the record.
    The Chairman. Ms. Cochran.

           STATEMENT OF BARBARA COCHRAN, PRESIDENT, 
          RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION

    Ms. Cochran. Thank you, Mr. Chairman, Mr. Duncan and other 
members of the Committee. I am Barbara Cochran, the President 
of the Radio-Television News Directors Association. Thank you 
for inviting me to appear today on behalf of the 3,000 
electronic journalists who are members of RTNDA.
    Our members cover news for local, national, and 
international audiences. They frequently cover stories on 
public lands. Sometimes the story involves breaking news such 
as a wild fire or a missing person. On other occasions the 
story can be more timeless such as an in-depth series on land 
use policies or a feature on the return of once endangered 
wildlife to park land.
    Members of RTNDA are concerned that the rules as currently 
drafted may have the unintended consequence of limiting their 
ability to report such stories. While we appreciate your very 
well-intentioned efforts to appropriately manage private uses 
of our public resources, we urge you to revise the program and 
fee regulations to make clear that they do not apply to 
journalists or to the collection or reporting of newsworthy 
information.
    The Department of the Interior's rules traditionally have 
imposed no restrictions on news photography on public land or 
any fee or permit requirements. Consistent with this history, 
the new rules exempt news coverage from the permitting 
requirements. Fees are applicable, however, to commercial 
filming activities or similar projects, and therein lies the 
rub.
    Simply put, news gathering is not always characterized by 
bright lines and could be said to involve commercial filming. 
Getting video for the land use series, or recording ambient 
sound for a feature on birds, or conducting an interview with a 
park official are all very typical news gathering activities. 
But would a reporter or producer have to apply for a permit and 
pay a fee in order to do this work?
    Given the inherent vagueness of the proposed rules, RTNDA 
cautions that news coverage of important stories may become 
subject to differing interpretations by park administrators.
    We support the Interior Department's goal of standardizing 
its permit application and fee collection processes, but we are 
concerned that such an effort could perpetuate 
misinterpretation and arbitration decisionmaking and extend the 
restrictions beyond the statute upon which they are based.
    Let us take a look at the situation in two national parks 
that illustrate the disparities and uncertainties that now 
exist. I will start with the park just outside this building, 
the National Mall.
    The National Mall administrator seeks to regulate news 
coverage as follows: A permit is not required to cover breaking 
news. Breaking news coverage is defined as that which does not 
require any setup whereas any news coverage requiring setup 
would require the journalist to obtain a permit in advance.
    Unfortunately, this policy requires journalists to engage 
in a legal analysis as they decide what equipment to use. Does 
the television reporter tell her camera operator to leave the 
tripod at the studio so that they will avoid triggering the 
permit requirement? Would radio journalists whose equipment is 
inherently portable ever be required to obtain a permit under 
the setup standard? And what about bloggers with camcorders?
    Now let us take a look at a well-known western park, 
Yosemite. The administrators there have opted to take a more 
intrusive approach. A journalist's obligation to obtain a 
photography permit depends on the nature of the event covered. 
Breaking news is defined as something that cannot be covered at 
any other time or location. But Yosemite's policies go on to 
impose additional content-based restrictions on non-breaking 
coverage.
    Specifically, administrators may grant a photography permit 
based on their own determination that the park would benefit 
from the increased public awareness that would result from the 
journalist's final product. Under this standard how could a 
journalist ever gather footage for an investigative piece that 
exposes a scandal or criticizes the park's administration?
    Journalists do more than cover immediate situations such as 
brush fires. They are traditionally considered to constitute 
news. They undertake ongoing and detailed analyses of societal 
and environmental trends that are newsworthy and important to 
the public. But by limiting the permit exemption to news 
coverage, the Department of the Interior effectively preserves 
park administrators' discretion to restrict disfavored speech 
either through overt policy pronouncements or inaction on 
permit applications.
    RTNDA believes that the public's interests are best served 
by permitting journalists the maximum flexibility to cover any 
story at anytime so long as the simple act of making an audio 
or visual record does not itself endanger precious natural 
resources or the public safety.
    RTNDA therefore urges this Committee to recommend a 
revision of the rules in order to avoid interfering with a 
journalist's ability to gather and report the news. Simply put, 
the rules should exempt all forms of journalistic activity 
whether for breaking news or documentaries, and whether 
conducted by a network news crew or a freelancer. They should 
not impose restrictions on the types of equipment that can be 
used, and consistent with the First Amendment, they should not 
put government employees in the position of determining what is 
or is not news.
    Thank you, Mr. Chairman, for the opportunity to testify on 
behalf of RTNDA.
    [The prepared statement of Ms. Cochran follows:]

               Statement of Barbara Cochran, President, 
              Radio-Television News Directors Association

    Mr. Chairman, Ranking Member Young, and Members of the Committee, I 
am Barbara Cochran, President of the Radio-Television News Directors 
Association. Thank you for inviting me to appear today on behalf of the 
3,000 electronic journalists, educators, students and executives who 
comprise RTNDA, the world's largest professional organization devoted 
exclusively to electronic journalism.
    At the Committee's request, I will address current policies and 
proposed regulations that could impose fees and permit requirements on 
electronic journalists engaged in news gathering in our nation's parks 
and on federal lands. While RTNDA supports your well-intentioned 
efforts to appropriately manage private uses of our public resources, 
RTNDA is concerned that the rules as currently drafted may have the 
unintended consequence of limiting our members' ability to report on 
issues of interest and importance to the American public. RTNDA urges 
you, therefore, to revise the permit and fee regulations so as to 
makeclear that they do not apply to journalists or to the collection or 
reporting of newsworthy information.
    Americans are fortunate to suffer from an embarrassment of riches--
both in terms of our abundant and diverse natural resources and in the 
seemingly endless sources of information available at the click of a 
button. By their profession, journalists are uniquely situated to cut 
through the dizzying chatter of the information age to provide 
audiences with relevant information about their communities, their 
leaders, and their environment. Presumably recognizing the fundamental 
role journalists play in our society as surrogates for the public, the 
Department of the Interior's rules traditionally have imposed neither 
restrictions on news photography on public land nor fee and permit 
requirements. Consistent with this history, the new rules exempt ``news 
coverage'' from the permitting requirements. Fees are applicable, 
however, to ``commercial filming activities or similar projects.''
    Therein lies the rub. Simply put, newsgathering is not always 
characterized by bright lines, and could be said to involve 
``commercial filming.'' Certainly, the rule as written appears to 
contemplate circumstances where, for example, a crew is sent out to 
cover a wildfire on public land as ``breaking news.'' But, a camera 
crew capturing background footage for an upcoming, in-depth series on 
federal land use policies might be cowed into abandoning their efforts 
if their presence is challenged by a Bureau of Land Management official 
who insists that they cannot film without a permit. Likewise, under the 
proposed regulations, if a radio journalist and her producer have not 
received a permit, they might be unable to make audio recordings of 
ambient sound for a piece on the effects of climate change on migratory 
birds. It is entirely unclear whether a journalist wishing to conduct 
an interview with a government official on public land would have to 
apply in advance and jump through the hoops of the permitting process. 
Given the inherent vagueness of the proposed rules, RTNDA cautions that 
news coverage of important stories may become subject to differing 
interpretations by park administrators.
    The Department of the Interior has professed its desire to 
standardize the permit application and fee collection processes across 
its constituent agencies. If done thoughtfully, that may well prove a 
beneficial undertaking. In crafting new rules, the Department should 
take care not to perpetuate misinterpretation, arbitrary decision-
making and extend the restrictions beyond the letter and intent of the 
statute upon which they are based. The current photography permit 
guidelines of four national parks provide specific illustrations of the 
disparities and uncertainties that arise in the absence of regulatory 
clarity.
    I will start with a park that is just outside this building, the 
National Mall and Memorial Parks, the site of iconic and sometimes 
spontaneous events. In a compendium of public use restrictions and 
limitations, the administrator of the National Mall seeks to regulate 
news coverage as follows: a permit is not required to cover ``breaking 
news,'' so long as journalists comply with the same access and use 
restrictions as permit holders. On the National Mall, ``breaking news'' 
coverage is defined as that which ``does not require any set-up,'' 
whereas any news coverage requiring ``set-up'' would require the 
journalist to obtain a permit in advance.
    Unfortunately, this policy seems to require electronic journalists 
to engage in a legal analysis as they decide what equipment to use. 
Does a television journalist tell her camera operator to leave the 
tripod at the studio so that they will avoid triggering the permit 
requirement? Would radio journalists, whose equipment is inherently 
portable, ever be required to obtain a permit under the ``set-up'' 
standard? What about bloggers with camcorders?
    Journalists chasing stories through Florida's Everglades may fare 
somewhat better. The current Everglades policy exempts ``news 
photographers and television crews'' from the permitting process, 
provided that they do not use sets or props in their coverage. While 
this policy is not perfect, it does pair the permitting process with 
journalists' credentials rather than the content of their coverage and 
therefore raises fewer constitutional concerns.
    The administrators of two well-known western parks, Yosemite and 
Yellowstone, have opted to take a more intrusive approach in regulating 
electronic journalists' coverage of newsworthy events. Indeed, in these 
two parks, the current policies go far beyond the permitted time, 
manner, and place restrictions permitted by the statute and the 
proposed regulations.
    In Yellowstone National Park, as on the National Mall, a 
journalists' obligation to obtain a photography permit depends on the 
nature of the event covered. ``Breaking'' news coverage does not 
require a permit, but journalists covering non-breaking stories, human 
interest stories, and ``[d]ocumentaries filmed specifically for sale to 
a news station or educational channel'' must obtain a permit and pay a 
fee before they can start filming. To add insult to injury, 
Yellowstone's policy guide provides a definition of ``breaking'' news 
events (``something that cannot be covered at any other time or 
location'') but then vitiates it by stating that the park's 
administrators will make the final determination of what does--and does 
not--constitute a ``breaking'' story. Thus, under the guise of 
Congress' legislation, park officials have positioned themselves to 
exert an unconstitutional measure of editorial control over news 
coverage.
    The policies of Yosemite National Park, however, may take the prize 
as some of the most blatant intrusions on electronic journalists' 
rights under the First Amendment. Yosemite follows Yellowstone's 
``breaking news'' definition--an event that cannot be covered at a 
different time or location--but goes on to impose additional content-
based restrictions on non-``breaking'' coverage. Specifically, the 
park's policies permit its administrators--executive branch employees--
to condition the grant of a photography permit on their own 
determination ``that the park would benefit from the increased public 
awareness'' that would result from the journalist's final product. 
Under this standard, how could a journalist ever gather footage for an 
investigative piece that exposes a scandal or criticizes the park's 
administration?
    In drafting the authorizing legislation, Congress considered many 
of these issues and provided specific instructions to the Department of 
the Interior. For example, this Committee noted that it was not 
providing the executive branch a green light to make content-based 
assessments of permit applications. The Senate Committee on Energy and 
Natural Resources concurred and, in its Report, added that permits 
would not be necessary ``for media and news events.''
    By extending exemptions only to a limited set of ``breaking'' news 
events and by requiring a permit as a prerequisite for covering non-
breaking stories, some of the nation's parks have established polices 
that go far beyond what Congress appears to have envisioned. While 
RTNDA commends the Department for attempting to rectify these 
inconsistencies, the proposed regulations in reality undermine any 
attempt to address these parks' overly-restrictive policies by 
purporting to shield journalistic activities under the limited umbrella 
of ``news coverage.''
    Journalists do more than cover immediate situations, such as brush 
fires, that are traditionally considered to constitute ``news.'' They 
undertake ongoing and detailed analyses of societal and environmental 
trends that are newsworthy and important to the public. Journalists 
inform and educate their audiences about cultural events and other 
human interest stories. But, by limiting the permit exemption to ``news 
coverage,'' the Department of the Interior effectively preserves park 
administrators' discretion to restrict disfavored speech, either 
through overt policy pronouncements or inaction on permit applications.
    The current policies and proposed regulations implicate two sources 
of national pride: the natural beauty of our public lands and our free 
press. RTNDA does not believe that either Congress or the President 
must choose to violate the sanctity of one in order to protect the 
other. RTNDA agrees that the public should be able to recapture costs 
and to accrue certain benefits associated with appropriate commercial 
uses of its land. In the same vein, RTNDA believes that the public has 
a right to learn, through journalists, whether their government is 
acting as a faithful trustee of the public's land and natural 
resources. Because these goals are compatible rather than mutually 
exclusive, RTNDA believes that the public's interests are best served 
by permitting journalists the maximum flexibility to cover any story, 
at any time, so long as the simple act of making an audio or visual 
recording or taking a photograph does not itself endanger precious 
natural resources or the public's safety.
    RTNDA, therefore, urges this Committee to recommend that the rules 
be revised so as to avoid interfering with journalists' ability to 
gather and report the news. Simply put, the rules should exempt all 
forms of journalistic activity, whether for breaking news or 
documentaries, and whether conducted by a network news crew or a 
freelancer. They should not impose restrictions on the types of 
equipment that can be used. And, consistent with the First Amendment, 
they should not put government employees in the position of determining 
what is or is not ``news.''
    Thank you, Mr. Chairman, for the opportunity to testify on behalf 
of RTNDA before your committee today.
                                 ______
                                 
    The Chairman. Thank you, Barbara. Tony.

             STATEMENT OF TONY OVERMAN, PRESIDENT, 
            NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION

    Mr. Overman. Chairman Rahall, Acting Ranking Member Duncan, 
and other members of the Committee.
    The Chairman. Mr. Young is here.
    Mr. Overman. Oh, he is here now. Ranking Member Young, 
welcome, thank you for having us.
    My name is Tony Overman, and I appreciate the opportunity 
to testify regarding the National Press Photographers 
Association's concern over the Department of Interior's 
proposal to change its rules and posting new restrictions on 
photography on public lands. I am here today in my role as the 
President of the NPPA, but the majority of my time I am a 
photojournalist working at the Olympia Newspaper in Washington 
State's capital.
    Founded in 1946, NPPA's membership includes nearly 10,000 
photojournalists like me who collectively work in every 
national park in the country. In my own work, I have 
extensively covered the Mount St. Helen's National Volcanic 
Monument, which is being proposed for national park status, and 
have photographed the substantial damage and ongoing 
reconstruction from last year's destructive flooding in the 
Mount Rainier National Park.
    Photojournalists routinely cover news stories like these 
that occur on public lands, both breaking news and other non-
breaking news events of public interest. Aside from volcanic 
eruptions, my work in the national parks would rarely be 
considered breaking news and therefore fall under the 
permitting processes at some point.
    The background: For many years, the Department of Interior 
did not restrict news photography on public lands or require 
photojournalists to submit to a fee and permit process. Earlier 
this year, however, DOI proposed to amend its rules to 
establish a fee for commercial filming and similar projects 
such as still photography.
    Under the proposal, DOI would require many photographers to 
pay a fee, receive a permit, and submit to significant 
conditions before being allowed to photograph on public land. 
There is no reason to limit any kind of photography if the act 
of taking the image or film does not disturb the public use of 
the public area. The only justification for restrictions would 
be for concern related to the actual capturing of the 
photographs, such as disturbing the park extensive equipment, 
interfering with public use, or danger to the environment or 
public.
    In the absence of those disturbances, the purposes of the 
images recording or video and its final use should not lead to 
additional restrictions.
    The proposed rules provide that news coverage does not 
require permit, and it therefore appears clear that the 
Department of Interior intended to exclude journalists from 
these requirements.
    However, by including vague definitions of commercial 
photography, the DOI fails to recognize that non-breaking news, 
documentary filming, audio recording, freelance reporting and a 
work for a market audience are all forms of editorial news 
coverage. These rules end up equating the impact of a large-
scale Hollywood production to that of a single photographer 
with a single camera operating in an open public area. The 
proposal as drafted therefore would give DOI employed 
excessively broad discretion to define what is and what is not 
news.
    We urge the Department to take steps to adopt a bright line 
rule that is necessary to exclude all journalistic activities 
from these restrictions.
    In addition, we ask that any rule adopted by DOI should 
recognize that photojournalists typically do not distinguish 
between being on duty and off duty. We photograph any 
newsworthy images we observe, freelancers or photojournalists 
will later sell those photographs to news organizations.
    For example, my wife, who is also a professional 
photojournalist, and I often go to national parks on our days 
off. We always take our cameras and we always take photographs. 
If I were to license one of those photographs to a newspaper or 
if my newspaper itself used those photographs, it would then 
constitute news. But we might not be able to satisfy the 
Department or an agency employee who was questioning was our 
photography news coverage at the time. This is why we feel it 
is inappropriate to distinguish photography based on the end 
usage, which is what the Department of Interior is trying to 
do.
    To address these concerns, DOI should exclude all 
photojournalists end collection or reporting of news from any 
photography restrictions, and should incorporate into its rule 
an established definition of journalist and news. These can be 
found in the Free Flow of Information Act and the Freedom of 
Information Act. News means information about current events or 
that would be of current interest to the public. That is a 
huge, huge open area, and that should all be excluded.
    Even with such broad exclusions, we urge the Department to 
avoid burdensome obligations that could undermine the ability 
of photojournalists, in particular freelancers and those 
associated with small news organizations, to carry out their 
duties. Any new rule must avoid imposing on journalists any 
blanket time, place and manner restriction, and must instead 
require that any restrictions placed on photojournalists in a 
particular circumstance be considerably more narrowly tailored 
to the restrictions that apply to the general public.
    The presumption must be that still photography is allowed. 
Any rule adopted by DOI should maintain Congress's presumption 
as reflected in DOI's authorizing statutes that still 
photography is always permitted on public lands unless it falls 
under one of the narrow exceptions Congress included in the 
Department's authorizing statute. That statute directs DOI, 
subject to the limited exceptions, that they shall not require 
a permit nor access fee for still photography on DOI lands if 
such photography takes place where members of the public are 
generally allowed.
    The proposed rules ignore the language of your statute and 
provide that still photography requires a permit if it falls 
under the broad categories, several of which go beyond the 
authorizing statute.
    This is not simply a semantics issue. Time is of essence 
when it comes to covering news, and it is frequently 
impractical to apply in advance to cover a news story even if 
it is not breaking or spot news. Any failure to exclude 
photojournalists from a permitting process could introduce 
delays that would cause photojournalists to miss a shot and 
therefore have the same effect as outright prohibition against 
the photography. To avoid this outcome any rule should 
therefore include a presumption that journalists and news 
photography are not subject to permitting, and that in any case 
still photography is permitted without prior permission unless 
it falls within one of the narrow statutory exceptions to that 
rule.
    In conclusion, photography is essential to a longstanding 
tradition of openness on our public lands and using photographs 
to share those lands with others. The Department of Interior's 
well-intentioned efforts to protect public lands from damage 
will unwittingly undercut both of those core principles by 
preventing photojournalists and through them the public at 
large from having full and unrestricted access to the news on 
public lands.
    We respectfully urge that any restrictions on photography 
in these important areas be carefully drafted as described in 
this testimony to avoid interfering with the photojournalist's 
ability to report the news.
    I thank you very much for allowing me to be here today to 
testify, and am willing to take any questions. Thank you.
    [The prepared statement of Mr. Overman follows:]

              Statement of Tony Overman, Photojournalist, 
          President, National Press Photographers Association

    Chairman Rahall, Ranking Member Young, and other members of the 
Committee, my name is Tony Overman, and I appreciate the opportunity to 
testify regarding the National Press Photography Association's concerns 
about the Department of Interior's proposal to change its rules to 
impose news restrictions on photography on public lands. In addition to 
my role as President of NPPA, I am an award-winning photojournalist 
with The Olympian newspaper in Olympia, Washington.
    The National Press Photographers Association was founded in 1946 
and is dedicated to the advancement of photojournalism, including still 
photography, videography, film and multi-media. Part of our mission is 
to ``promote a better understanding of the photojournalists' problems'' 
and ``support legislation favorable to, and oppose legislation 
unfavorable or prejudicial to photojournalists.'' It is in that spirit 
that we wholeheartedly support the testimony presented today by our 
fellow photographers and their respective organizations.
    NPPA's membership includes nearly 10,000 journalists, who 
collectively work in every national park in the country. In my own 
work, I have extensively covered the Mount St. Helens National Volcanic 
Monument, which is being proposed for National Park status, and have 
photographed the substantial damage and ongoing reconstruction from 
last year's destructive flooding in Mount Rainier National Park. 
Photojournalists routinely cover news stories like these that occur on 
public lands, including both breaking news events and other news items 
of important public interest.
Background
    For many years, the Department of Interior did not restrict news 
photography on public land or require photojournalists to submit to a 
fee-and-permit process. Earlier this year, however, DOI proposed to 
amend its rules to establish fees for ``commercial filming activities 
or similar projects, such as still photography.'' Under the proposal, 
DOI would require many photographers to pay a fee, receive a permit, 
and submit to significant conditions before being allowed to photograph 
on public land. The proposed rules provide that ``[n]ews coverage does 
not require a permit,'' and it therefore appears clear that the 
Department intended to exclude journalists from these requirements.
    While we acknowledge the importance of the Department's efforts to 
protect our nation's natural resources and appreciate its efforts to 
maintain this important distinction, we are concerned that the draft 
rules do not draw the bright line that is necessary to exclude all 
journalistic activities from the photography restrictions. In comments 
filed in response to the proposal, we urged the Department to clearly 
and broadly define news coverage--avoiding artificial distinctions 
included in the draft over whether, for example, a photograph is ``for 
a market audience'' or will be used in a documentary, terms that can 
apply equally to journalistic and non-journalistic activities--and find 
a way to make clear that all news coverage and journalists will be 
exempt from restrictions on photography.
    Even with such a broad exclusion, we urge the Department to also to 
avoid burdensome obligations that could undermine the ability of 
photojournalists--in particular, freelancers and those associated with 
small news organizations--to carry out their duties. Finally, any rule 
adopted by DOI should maintain Congress' presumption that still 
photography is always permitted on public land unless it falls into one 
of the narrow exceptions that Congress included in the Department's 
authorizing statute.
Restrictions Must Clearly Exclude All News Photography
    Consistent with the Department's apparent goal to avoid 
restrictions on photojournalists, the proposed rules explain that 
``news coverage'' does not require a permit. That term, however, is not 
defined in the draft, and the proposed regulation leaves open the 
distinct possibility that it will be misconstrued or that it will 
otherwise be interpreted to restrict working journalists. For example, 
the draft's definition of ``commercial filming'' includes photographs 
created ``for a market audience'' or for use in a documentary, and thus 
could be thought to suggest that photographs so used do not constitute 
``news coverage.'' Nearly all photography can be said to be ``for a 
market audience.'' Moreover, the line between documentary photography 
and journalism is effectively nonexistent; documentaries are widely 
understood to be a particular form of journalism.
    The proposal, as drafted, thus would give DOI employees excessively 
broad discretion to define what is and is not news. That result, of 
course, would be entirely inconsistent with the government's 
constitutional obligation to avoid defining or regulating the 
collection and reporting of news and with our government's tradition of 
openness and fairness to the press.
    Many of NPPA's members work as freelance journalists. Although 
their work may will ultimately be published or appear on the Internet, 
at the time they are taking pictures they may not be able to satisfy an 
official who questions them as to whether they are engaged in ``news 
coverage'' within the meaning of the rule or prove that they are 
employed by a news organization. Usually only staff photographers have 
those press credentials while freelancers, contract photographers and 
stringers may not, yet they are photojournalists just the same 
1
---------------------------------------------------------------------------
    \1\ Similarly, many stories involving public lands are important, 
but not ``breaking,'' news, a distinction drawn in the Department's 
existing rules. 36 C.F.R. Sec. 251.51. The Department's proposed rules 
do not and should not distinguish between these types of coverage.
---------------------------------------------------------------------------
    The draft's use of the term ``news coverage'' to delineate 
photography that is not subject to permitting requirements suggests a 
distinction that does not exist for freelancers and for many other 
photojournalists. A freelance photojournalist typically does not 
distinguish between being ``on duty'' and ``off duty'' and takes 
photographs of any newsworthy events he or she observes, later selling 
those photographs to a news organization. For example, my wife (also a 
professional photographer) and I sometimes go to national parks on our 
days off. We always take photos during our trips. If we licensed one of 
these photographs to a newspaper, the photograph would constitute news, 
but we might not have been able to satisfy a Department or Agency 
employee that the photography was ``news coverage'' until after it was 
licensed to the newspaper.
    Given the millions of photographers who visit public lands each 
year, it would simply be unworkable to charge DOI personnel with the 
responsibility of drawing complicated and ultimately arbitrary lines 
between whether photography is or is not commercial. To avoid creating 
this situation, any permit-and-fee regulation should explicitly exclude 
application in any circumstance to photojournalists or to the 
collection or reporting of news. The regulation should include an 
established definition of a ``journalist'' and of ``news'' 2 
and should make clear that both the activities of freelance 
photojournalists and coverage of all news stories, not simply 
``breaking'' news, are permitted without restriction.
---------------------------------------------------------------------------
    \2\ See, e.g., National Sec. Archive v. U.S. Dep't of Defense, 880 
F.2d 1381, 1387 (D.C. Cir. 1989) (defining a representative of the news 
media as ``a person or entity that gathers information of potential 
interest to a segment of the public, uses its editorial skills to turn 
the raw materials into a distinct work, and distributes that work to an 
audience'').
    See also Free Flow of Information Act of 2007, H.R. 2102, 110th 
Cong. Sec. 4(2) (1st Sess. 1998) (with certain exceptions, defining a 
covered journalist as ``a person who regularly gathers, prepares, 
collects, photographs, records, writes, edits, reports, or publishes 
news or information that concerns local, national, or international 
events or other matters of public interest for dissemination to the 
public for a substantial portion of the person's livelihood or for 
substantial financial gain[, including] a supervisor, employer, parent, 
subsidiary, or affiliate of such covered person''); Office of 
Management & Budget, Uniform FOIA Fee Schedule and Guidelines Sec. 6(j) 
(52 Fed. Reg. 10017 (Mar. 27, 1987) (``The term `news' means 
information that is about current events or that would be of current 
interest to the public.'').
---------------------------------------------------------------------------
No Burdensome Conditions Should Be Imposed on Photojournalists
    There are two additional aspects in which the regulation should 
clarify the degree to which photojournalists will be protected and 
permitted to do their jobs. First, even as it claims to exclude news 
coverage from its permitting restrictions, the proposed rule subjects 
those engaged in what would clearly be defined under any standard as 
photojournalism to a staff judgment about whether ``time, place, and 
manner restrictions'' should be imposed on their work in a particular 
situation. Restrictions could be imposed on the number of photographers 
permitted, the type of equipment a photographer may use, or what areas 
are open to the public but off-limits to news photographers. These 
broad provisions are entirely inconsistent with our nation's tradition 
of journalistic freedom, and they vest DOI staff with virtually 
unchecked discretion to limit or restrict journalistic activities.
    Any new photography rule should recognize the important role that 
journalists play in our society and acknowledge journalists' special 
needs as they perform their jobs. The Department must avoid imposing on 
journalists any blanket time, place, and manner restriction, and its 
rule must require that any restriction placed on photojournalists in a 
particular circumstance be considerably more narrowly tailored than 
restrictions that apply to the general public.
    Second, even though a photojournalist is not required to apply for 
a permit, DOI's proposal does not make clear that photojournalists 
would not be subject to burdensome and unreasonable conditions, 
including requiring the photographer to acquire an insurance policy, 
indemnify the United States, repair the area used for photography, or 
post a bond to guarantee any necessary repair. These requirements, like 
other obligations that might be characterized as relating to ``time, 
place, and manner,'' could improperly prevent many photojournalists 
from reporting the news on public land.
    Those requirements would place a disproportionate burden on 
freelance journalists, who often work on a last-minute basis, paying 
their own costs with the intention to subsequently sell photos to a 
news outlet, and on photojournalists affiliated with smaller news 
organizations without the means to comply with any restrictions the 
staff might impose.
    In sum, despite the Department's apparent intent, NPPA is concerned 
that the proposed conditions could create unacceptable restrictions on 
photojournalists' ability to collect and report the news, and that they 
would have a particularly harmful effect on smaller news organizations 
and freelance photojournalists. The Department must clarify that these 
requirements should apply to large commercial operations, such as those 
of Hollywood-style entertainment productions, and not to 
photojournalists.
Still Photography Must Presumptively Be Permitted
    In Congress's authorizing statute, it directed DOI that, subject to 
limited exceptions, the Department ``shall not require a permit nor 
assess a fee for still photography on [DOI] lands...if such photography 
takes place where members of the public are generally allowed.'' 
3 The proposed rules ignore the language of the statute and 
provide that ``[s]till photography requires a permit if'' it falls into 
a number of broad categories, several of which go beyond those 
authorized by statute.
---------------------------------------------------------------------------
    \3\ 16 U.S.C. Sec. 460l-6d(c)(1).
---------------------------------------------------------------------------
    While the proposal is clear that news coverage is not subject to 
permitting--and, as I have explained, news coverage must be read 
broadly--the Department's shift in language marks a significant change 
in approach. The statute presumes that photography will be permitted 
unless the government can show that one of the limited exceptions 
applies. In contrast, the proposed rules suggest that a photographer 
would be responsible for showing that he or she is engaged in ``news 
coverage,'' and, failing that, showing that his or her activities do 
not fall into any of the broadly-worded situations under which the rule 
would require a permit.
    This is not simply a semantic issue. Time is of the essence when it 
comes to covering news, and it is frequently impracticable to apply in 
advance to cover a news story, even if it is not ``breaking'' or 
``spot'' news. Any failure to unambiguously exclude photojournalists 
from a permitting process could introduce delays as officials consider 
whether a newsgathering activity is permissible. An untimely decision 
would have the same effect as an outright prohibition against 
photography. To avoid this outcome, any rule should therefore include a 
presumption that journalists and news photography are not subject to 
permitting and that, in any case, still photography is permitted 
without prior permission. A permit or fee should be required only if 
the government can meet the burden of showing that a photographer falls 
into one of the limited categories set forth in the statute.
Conclusion
    The photography of Ansel Adams and his contemporaries in the early 
part of the twentieth century allowed citizens and lawmakers, many of 
whom could not travel to visit our nation's expansive open lands, to 
understand the importance of protecting and preserving areas that later 
became national parks. Today, freelance photojournalists like Jim 
Brandenburg carry on that documentary tradition in the parks as well as 
on other natural treasures that might one day become publicly-owned or 
national parks. Photography, in other words, is central to our 
longstanding traditions of openness on public lands and of using 
photographs to share those lands with others.
    The Department of Interior's well-intentioned efforts to protect 
public lands from damage will unwittingly undercut both of these core 
principles by preventing photojournalists, and, through them, the 
public at large from having full and unrestricted access to gather news 
on public lands. While the government may believe that the press has no 
more right of access than that of the public we have no less right 
either. We therefore respectfully urge that any restrictions on 
photography in these important areas be carefully drafted, as described 
in this testimony, to avoid interfering with photojournalists' ability 
to report the news.
    Mr. Chairman, I appreciate the opportunity to appear before you 
today, and I would be pleased to answer any questions that you or other 
members of the Committee might have.
                                 ______
                                 
    The Chairman. Thank you, Tony. Steve.

STATEMENT OF STEVEN SCOTT, CHAIRMAN OF THE BOARD, PROFESSIONAL 
                   OUTDOOR MEDIA ASSOCIATION

    Mr. Scott. Chairman Rahall, Ranking Member Young, members 
of the Committee, I am Steve Scott, an independent television 
producer from Norman, Oklahoma. I am Chairman of the Board of 
the Professional Outdoor Media Association, and a designated 
representative to this Committee for the Foundation for North 
American Wild Sheep. I appreciate the opportunity to be here 
today.
    The Professional Outdoor Media Association, or POMA, is a 
group of outdoor media members dedicated to preserving and 
promoting traditional outdoor activities such as hunting, 
fishing, and shooting, and other outdoor pursuits. We represent 
a broad spectrum of the outdoor recreational industry from 
groups like the American Sportfishing Association, the National 
Wild Turkey Federation, and Safari Club International, editors 
and writers of ``Field & Stream'' and outdoor life magazines, 
and sponsors of outdoor television programs on ESPN2 and the 
Versus Network.
    POMO represents the icons of the outdoor industry, but our 
core constituents are less well known. We represents scores of 
freelance writers, photographers, videographers and producers, 
many of whom are negatively impacted by the current system.
    The Department of Interior's mission states in part that 
they are to protect and provide access to our nation's natural 
and cultural heritage. The outdoor media is one of the 
Department's most valuable allies in disseminating the 
conservation message and creating public awareness of current 
issues covering our public lands. However, the current 
regressive land use fee system has had a chilling effect on 
reporting and promotion of public land issues, to the detriment 
of the Department and the American people.
    The outdoor media, the professionals to champion public 
land issues by providing vicarious access to our nation's 
natural beauty were not the intended targets of the original 
legislation. The bill was enacted to address the large-scale 
feature film productions that generate millions in profits 
while filming on public land.
    The late Senator Craig Thomas, a sponsor of the original 
bill, told the Rocky Mountain News, ``The provision was meant 
for a larger scale Hollywood movie production, not small-scale 
nature films.'' But what was originally created as a net to 
capture fees from the big fish from Hollywood has become a 
sane, extracting a toll from every lone nature photographer and 
documentary producer to such an extent they no longer see the 
forest for the fees.
    As the rules exist today, Ansel Adams, the photographer of 
magnificent black and white landscapes and creator of the book 
``Ansel Adams: The National Park Services Photographs'' would 
have been charged $250 for each and every day he spent in 
Yosemite Park with camera in tow. If public land use fees had 
been in effect in the time of Adams, I wonder if today we would 
have been able to enjoy his remarkable body of work.
    The most significant inequity of the current system is the 
application of fees as they pertain to the number of 
individuals on public land. Attachment 1 of my testimony is a 
page from BLM's website addressing filming on public lands. It 
reveals public land use in California and other states are 
equal for a crew of one as 30 people. A single wildlife 
photographer pays the same as a feature film entire location 
crews. Perhaps more telling, if a remake of the Ten 
Commandments was shot today on BLM land, the daily land use fee 
for the exodus scene where Moses led a cast of thousands out of 
Egypt would be slightly larger than the $250 paid by the lone 
photographer. BLM's daily use charge for the entire cast and 
crew of the exodus would be $600.
    This is indicative of the current system, charging a crew 
of one the same as the crew of 30 is inequitable and inherently 
unfair, and while land use fees are an inconsequential part of 
a feature film or network commercial's budget, the regressive 
and cumulative daily fees that accrue against an independent 
producer or freelance photographer are not only significant 
expenses, they are proportionately such a large percentage of 
the project's budget they are often the catalyst for moving a 
project from public land to another location.
    Clearly the current system of land use fees puts a 
disproportionately large financial burden on the individuals 
and small businesses of the outdoor media. There is, however, a 
simple solution. Create a de minimis exception or minimum use 
classification for individuals and media crews of five persons 
or less would remedy the inequity of the current system without 
compromising the process of unifying and standardizing the 
rules throughout all government agencies. By creating a five or 
less de minimis or minimum use classification, the media and 
other low-impact groups who have suffered an unforeseen and 
unintended consequences of the regulations would be remedied. 
Appropriate payment would continue to be made by those for who 
the fees were originally intended and the independent outdoor 
media would once again be free to report on and feature 
conservation issues for public land without overly burdensome 
financial consequences.
    I appreciate the opportunity to be here today and happy to 
answer any questions you may have.
    [The prepared statement of Mr. Scott follows:]

           Statement of Steven Scott, Chairman of the Board, 
                 Professional Outdoor Media Association

    Chairman Rahall, Ranking Member Young, Members of the Committee, I 
am Steve Scott, an independent television producer from Norman, 
Oklahoma. I am Chairman of the Board of the Professional Outdoor Media 
Association, and a designated representative to this Committee for the 
Foundation for North American Wild Sheep. I appreciate the opportunity 
to testify before this committee on ``New Fees for Filming and 
Photography on Public Land.''
    The Professional Outdoor Media Association, or POMA, is a group of 
outdoor writers, editors, photographers, producers, broadcasters, and 
corporate partners dedicated to preserving and promoting traditional 
outdoor activities such as fishing, hunting, shooting, and other 
outdoor pursuits. Our membership represents a broad spectrum of the 
outdoor recreational industry; from editors and writers of Field & 
Stream and Outdoor Life magazines, to industry groups like the American 
Sportfishing Association, the National Wild Turkey Federation, and 
Safari Club International, and producers and sponsor's of traditional 
Saturday and Sunday morning outdoor television programs on ESPN II and 
the Versus Network, POMA represents the icons of the outdoor recreation 
industry. However, the vast majority of our members, and the core of 
our constituency, are less well-known. We represent scores of freelance 
writers, photographers, videographers and producers, most of whom are 
negatively impacted by the current land-use fee system. I am myself, an 
independent television producer, and my business would be considered, 
under almost any definition, a small business. We produce more than 
thirty half-hour television programs each year, and I can tell you from 
personal experience, the current land-use fee structure has had a 
decidedly negative impact on my business, and that of hundreds of other 
outdoor media members.
    A stated purpose of this hearing is to standardize the criteria and 
fee structure of the agencies of the Department of Interior and 
Department of Agriculture for filming and photography on public land. I 
applaud this Committee's sentiment, and hope to be of some small 
assistance in the development of a fair and equitable system.
    The Department of Interior's mission states, in part, they are to 
``protect and provide access to our Nation's natural and cultural 
heritage.'' The professional outdoor media of this country is one of 
the Department's most valuable allies in disseminating the conservation 
message and creating public awareness and critical thinking on current 
issues concerning our public lands. However, the present system of 
regressive land-use fees assessed on outdoor media activities has had a 
chilling effect on the reporting and promotion of public land issues, 
and is, in fact, prompting outdoor producers, photographers, and 
videographers to seek alternative venues to public land, including 
private property, and foreign soil.
    The public land of this nation is just that: public land. It should 
be available to be used and enjoyed by its citizens and visitors with 
little or no cost, and for the most part, that is the reality today. 
However, when a large, Hollywood studio chooses Yellowstone Park or Mt. 
Rushmore as the location for its latest multi-million dollar feature 
film, assessing land-use fees for monitoring, administration, and use 
are clearly appropriate.
    And while the questions of free public access for the people, and 
reasonable land-use charges for feature-film projects are black and 
white, there are numerous circumstances where the answer is not as 
obvious.
    Members of the outdoor media periodically ply their craft on public 
lands, with the intent of earning a living. Thus, by the current 
standard, the activity is deemed commercial, and land-use fees are 
assessed. Often, however, the activity is anything but profitable, as 
numerous outdoor media projects are undertaken on a speculative basis. 
The freelance writer's article and photo package detailing the 
dependency of Alaskan bears on the annual salmon run; the wildlife 
photographer building an inventory of photos for potential inclusion in 
a stock photo agency's catalog; the independent television producer, 
filming a documentary on wolf depredation on ungulates in the 
Yellowstone ecosystem; all commercial activities under the present 
standard, but in the reality of the marketplace, unlikely to generate 
commercial gain.
    An exception to the permit requirement does exist. Media crews 
covering what is considered ``breaking news'' do not have to apply, 
wait for approval, and pay for land-use permits. This applies to public 
lands in both Washington state and Washington D.C.. But a follow-up 
story on the aftermath of the Yellowstone fire, or the reintroduction 
of wolves into the ecosystem, would require a media land-use permit, 
while interviewing Government officials on the same topics on the 
public land of the National Mall would not.
    Be it print, radio, or television, traditional news media is 
clearly a ``for profit'' venture. However, an exception from obtaining 
land-use permits for news media is intuitive and appropriate, as the 
news media was not the target of the enabling legislation.
    An exception for outdoor media should also exist. Drawing attention 
to a field that receives few headlines, the outdoor media provides the 
public valuable information that they otherwise would not receive. The 
outdoor media that facilitates the mission of our public lands by 
providing vicarious access to our Nation's natural beauty, were not the 
intended targets of the original regulations either. The legislation 
was promulgated to address large-scale commercial productions that 
generate significant profits filming on public land.
    The intent of the original legislation is clear. A sponsor of the 
bill, the late Sen. Craig Thomas of Wyoming, told the Rocky Mountain 
News ``the provision was meant for larger-scale Hollywood movie 
productions, not small-scale nature films.'' But what was originally 
created as a net to capture fees from Hollywood production crews, has 
become more like a seine, netting and extracting a toll from the 
solitary nature photographer and documentary producer to such an extent 
they no longer see the forest for the fees.
    Capturing nature on film or in photographs is very different from 
scripted and storyboarded commercial productions. When the director of 
a Rocky Mountain-based Coors commercial says ``action,'' a trained 
animal receives a cue, performs its trick, and the scene is done. For 
the professional outdoor photographer or videographer, the wolf, bear, 
or wild sheep which is the subject at hand is often, less cooperative. 
By its very nature, wildlife photography is extremely time consuming, 
often done in the harshest conditions; an important distinction that 
points out one of the inherent inequities in the proposed rules. While 
large film and television production crews need relatively little time 
on public lands to complete their project, our nation's professional 
outdoor media may spend weeks or months in the field in order to 
capture a few magic seconds of unstaged Nature in its pristine state. 
And when outdoor media members spend time in the field, under the 
current fee structure, we also spend money, and lots of it.
    The current fee system is implemented if an activity has potential 
for commercial gain. If the activity is deemed for commercial purposes, 
then time and numbers of participants on the public land location are 
utilized to calculate the total land-use fee. As the rules exist today, 
acclaimed nature photographer Ansel Adams, the creator of those 
magnificent and historically significant black-and-white photographs 
which inspire an appreciation for natural beauty and the conservation 
ethic, and author of the classic book Ansel Adams: The National Parks 
Service Photographs, would have been charged $250 for each and every 
day he spent in Yosemite Park with camera in tow. If public land-use 
fees had been in effect in Adams' day, I wonder if we would have had 
the opportunity to enjoy his remarkable photographs today?
    Nature photography, documentary, and television projects, 
traditionally low-budget productions to begin with, must spend a 
significantly greater amount of time in the field to capture wildlife 
drama than the Hollywood crews staging and blocking trained bears, 
canines, and other cooperative beasts. As fee payments are required as 
a multiple of the time spent on public land, outdoor media members are 
required to pay significantly greater amounts than those in the 
entertainment industry.
    However, the most significant inequity of the current system is the 
disproportionate application of fees as they pertain to the number of 
individuals actually on public land. This inherent imbalance in the 
current system transforms the land-use fee into a de facto regressive 
tax as it applies to outdoor media.
    Attachment 1 of my testimony is a page from the website of the 
Bureau of Land Management, addressing ``Filming on Public Lands'' As an 
example of the inherent bias in the system, the land-use fee in 
California and Utah is the same for a crew of one as it is for a crew 
of up to thirty people. A single wildlife documentary maker pays the 
same daily land-use fee as would a feature-film's entire location crew, 
including talent, camera operators, directors, producers, grips, 
electricians, sound technicians, and probably even a ``best boy.'' 
Perhaps more telling; if a remake of The Ten Commandments was shot 
today on BLM land in California, the daily land-use fee for the Exodus 
scene, where Moses leads a cast of thousands of out Egypt, would be 
slightly more than the $250 paid by the lone wildlife documentary 
maker. BLM's daily-use charge for sixty or more people, which includes 
the cast and crew of the remade Exodus, would be $600.
    In November of this year, I went on location in the Shoshone 
Wilderness in northwest Wyoming. My guide, Monte Horste of Ishaowooa 
Outfitters, is a licensed outfitter and guide who pays a substantial 
annual fee to bring clients into his guide territory. Mr. Horst is a 
competent videographer, and instead of brining along an additional 
camera operator, Mr. Horst assumed the duties of camera operator, so as 
not to incur the additional expense of pack mules and horses for 
another crew member. Mr. Horst and I completed the shoot in four days, 
and the only difference between my experience and that of the other six 
clients in camp, was that as working outdoor media, I packed in an 
additional twenty pounds of camera gear. Four days on location to make 
a television program, with no additional personnel or pack animals on 
National Forest land, and my use fee was, like the remake of The Ten 
Commandments, $600.
    This illustrates the inequity of the current system: charging a 
crew of one the same fee as is charged a crew of thirty, is inequitable 
and inherently unfair. In addition, while the expense of land-use fees 
are an inconsequential part of a feature film or network commercial's 
budget, the cumulative, daily fees that accrue against an independent 
producer or freelance photographer are not only significant budgetary 
expenses, they are, proportionately, such a large percentage of the 
project's budget, the fees could reasonably be viewed as a regressive 
tax, and will often, be the catalyst for moving a project from public 
land to another location.
    In addition to testifying about my personal experiences, and as a 
representative of the Professional Outdoor Media Association, I am also 
before you here today as a representative of the Foundation for North 
American Wild Sheep, or FNAWS. In addition to being a life member of 
the organization, I have also been retained to consult and produce a 
television series for the organization, covering the conservation of 
wild sheep and other big game species of the western United States. 
Sustained-use sport hunting is an integral part of modern wildlife 
species management, and as a tool of conservation, is an important part 
of the television series.
    FNAWS is an organization that raises and spends millions of dollars 
each year for the sole purpose of ``putting sheep on the mountain.'' 
Their conservation projects are numerous, and include sheep capture and 
relocation, wildlife research, habitat improvement, and acquisition of 
buffer lands to prevent transmission of disease from domestic stock to 
wild sheep. Since 1984, FNAWS has raised and spent over $30,000,000 for 
habitat and wildlife conservation projects, many of which were DOI 
initiated, and funded at their request by FNAWS.
    Many of these DOI or agency projects benefit wild sheep, as three 
of the four wild sheep species of North America are indigenous to the 
United States. Wild sheep live in wild places, and obtaining footage of 
these magnificent creatures can be a long and arduous task. The average 
television shoot for wild sheep is fifteen days, and virtually all of 
the filming would take place on Federal land. Based on the current 
regulations, our production budget to produce on U.S. public land would 
need to be increased by $20,000 to $25,000 dollars to pay the land-use 
fees, which generate no return on investment.
    As we create the FNAWS television series, many of the storylines we 
develop should have focused on one or more of the DOI or DOA 
conservation projects that has benefited from the millions of dollars 
donated by the Foundation. As you may already surmise, the paradoxical 
result for FNAWS, the benefactor of Federally-initiated conservation 
projects, would be the assessment of daily land-use fees to promote the 
very projects they have funded on behalf of the Government. The sad 
reality is, due to financial considerations in the competitive arena of 
the television industry, as many as ten otherwise US-located shoots, 
are now scheduled in Canada and Mexico, where wild sheep also live, and 
where the Governments are more receptive to the positive publicity that 
is generated by a television feature.
    It is a difficult crafting rules to apply to broad and diverse 
circumstances. Most would agree that public access to public land at 
little or no cost is desirable. A majority also understands it is 
reasonable to assess appropriate fees for feature-film production that 
takes place on public land. This was the intent of the original 
legislation. The problem occurs in finding a fair and equitable 
solution for the thousands of individuals and small businesses that 
occasionally utilize public land in their craft, but have little or no 
impact on the land, and often, provide important benefits to the 
Government and the citizens of this country.
    The Government has chosen to use three criteria to determine 
liability for fees: commercial venture, time on federal land, and 
number of people involved. Determination of when or whether a venture 
is commercial is often subjective and difficult to codify. Time spent 
``on the ground'' is a reasonable factor to evaluate when considering 
any given venture, but it is hardly indicative of the impact of that 
venture on Federal land. In my opinion, and in the consensus opinion of 
the professional outdoor media of this country, the most telling and 
appropriate variable to consider in assessing fair and equitable land-
use charges is to consider the number of individuals that are actually 
present on public land. At present, this criterion is the most unjust 
aspect of the current rules, yet a simple modification would go far to 
remedy the inequity of the present circumstance.
    Basing fees on the actual number of persons engaged in the project 
on federal land is a reasonable standard of measure. However, the 
Government's factor for consideration that one person on public land is 
the same as thirty is inaccurate and renders an unfair result. The 
outdoor media should not be categorized in the same manner as a 
Hollywood production crew, but when the prevailing math considers one 
and thirty to be equal, unforeseen and unintended results occur.
    Clearly, the current system of land-use fees put a 
disproportionately large financial burden on the individuals and small 
businesses of the outdoor media. There is, however, a simple way to 
achieve a fair result. By creating a de minimus exception, or ``minimum 
use'' classification for individuals and media crews of five persons or 
less, the inequity of the current system could be remedied without 
compromising the process of unifying and standardizing the rules 
throughout all Government agencies.
    By creating a de minimus, or ``minimum use'' classification for 
outdoor media and other low-impact groups, the unforeseen and 
unintended outcome of these regulations will be remedied. Appropriate 
payments will continue to be made by those for which the fees were 
intended, and the independent outdoor media will once again, be free to 
report on and feature conservation issues of our public lands without 
overly-burdensome financial consequences.
    I appreciate the opportunity to be here today, and your 
consideration of our concerns. I am happy to answer any questions you 
may have.
                                 ______
                                 
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                                 
    The Chairman. Thank you, Steve. Victor.

 STATEMENT OF VICTOR S. PERLMAN, GENERAL COUNSEL AND MANAGING 
    DIRECTOR, AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS (ASMP)

    Mr. Perlman. Mr. Chairman, Ranking Member Young, 
distinguished members of the Committee, my name is Victor 
Perlman, and I thank you for the opportunity of testifying 
today.
    I am the managing director and general counsel of the 
American Society of Media Photographers, or ASMP. ASMP was 
founded in 1944 and is the largest organization in the world 
representing professional photographers who make photographs 
created primarily for publication in the various media, 
sometimes known as commercial photographers. We estimate that 
there are over 100,000 full and part-time freelance 
photographers with interests similar to those of ours in the 
United States. In addition, even though our memberships and 
interests are different, we specifically support the testimony 
and positions represented today by the other organizations on 
this panel.
    I am submitting this testimony and my prepared statement in 
the hope that this Committee will cause the proposed regulation 
to be brought back in compliance with the letter and spirit of 
its parent legislation from which it has apparently deviated, 
Mr. Butler and Ms. Weldon's comments to the contrary 
notwithstanding.
    I was fortunate enough to testify before a subcommittee in 
1999 in connection with the bill that eventually became P.L. 
106-206. At that time it was clear that a crucial part of the 
concept behind the bill was that professional still 
photographers who do no more than what tourists typically do 
should not be subject to any more restrictions or costs than 
tourists. It is equally clear that the basic approach has been 
abandoned in the proposed regulation. To put it simply, the 
statute states a presumption that most still photography does 
not require a permit or a fee while the proposed regulation 
lays the groundwork for requiring permits and fees for 
professional still photography as the general rule.
    It is easy to see that the basic concept behind the 
proposed regulation has gone off track regarding still 
photography by comparing the language of the statute with the 
language of the announcement of the proposed regulation. 
Looking first at the statute, P.L. 106-206[a] directs the 
imposition of permits and fees for commercial filming, but 
Section B states as the starting point for still photography 
that the Secretary shall not require a permit nor assess a fee 
for still photography subject to certain exceptions.
    This stands in sharp contrast to the language provided in 
the DOI summary of the proposed regulation and in the rule 
itself where it characterizes P.L. 106-206 incorrectly as 
directing establishment of reasonable fees for commercial 
filming activities or similar projects such as still 
photography.
    The statute says that filming and still photography are to 
be treated differently, but the proposed rule is erroneously 
based on the concepts that they are to be treated the same and 
that permits and fees are required for both.
    Because my time is so limited, the most important pieces of 
information that I want the Committee to understand about the 
impact of fees and permits on still photography are these:
    The finances of the business are such that most 
professional photographs never produce any revenues but all 
cost money to produce. Those that do eventually produce money 
typically yield surprisingly low licensing fees. If you add the 
cost of a de facto blanket requirement of park permits and 
location fees to the fixed costs of still photography, making 
photographs on national lands will become financially unviable.
    The impact of permits is not just economic. Great 
photographs are made with great light. Photographers cannot 
make professionally quality outdoor photographs on a schedule. 
The photographer has to be ready to make the photograph at the 
moment when the right conditions are there and those conditions 
change in an instant. The delays of having to apply for and 
wait for permits would simply mean that many spectacular nature 
photographs will simply never be made.
    Unlike motion pictures, most outdoor still photographs are 
made by a single individual photographer working without any 
substantial crew assistant or unusual equipment. What they do 
is essentially what tourists do.
    Finally, trying to distinguish between ``visitors'' and 
commercial photographers creates an impossible enforcement 
burden on both park staff and the public alike. How can one 
tell who is a professional photographer just by looking at him? 
How is an amateur who sometimes licenses the uses of his images 
to know whether he is considered a professional? How is park 
staff to be able to tell who is who? By requiring photographers 
to carry a copy of the Form 1040s? The distinction between 
visitors and commercial photographers is simply unworkable from 
every perspective and at every level.
    In conclusion, Mr. Chairman, P.L. 106-206 was drafted to 
provide reasonable protections for the national lands, the 
agency is charged with administering them, working 
photographers and the public. Sadly, the proposed regulation 
would undo many of those protections and would yield a great 
loss to our national photographic heritage.
    Ansel Adams was a proud ASMP member. Consider whether 
photographs like ``Moonrise Hernandez, New Mexico'' could ever 
have been made if Ansel had had to wait until he had applied 
for, paid for and eventually received a permit. On behalf of 
all working photographers, I urge you to direct the Secretary 
to bring the proposed regulation back in conformity with the 
mandated approach in P.L. 106-206[b]. Subject to certain 
exceptions, still photography is presumed not to require 
permits and fees.
    I thank you and the members of this Committee for your time 
and consideration.
    [The prepared statement of Mr. Perlman follows:]

           Statement of Victor S. Perlman, on behalf of the 
                American Society of Media Photographers

I. Introduction.
    Mr. Chairman, Ranking Member Young, and the other distinguished 
members of the Committee, my name is Victor Perlman, and I thank you 
for the opportunity of addressing the Committee today. I am the 
Managing Director and General Counsel of the American Society of Media 
Photographers. The American Society of Media Photographers, or ASMP, 
was founded in 1944 as the Society of Magazine Photographers. ASMP is 
the largest organization in this country, and in the world, 
representing professional photographers who make photographs primarily 
intended for publication in the various media. These photographs can 
appear in fine art books and prints, in magazines, in advertisements, 
in corporate brochures and annual reports--in short, in any form of 
publication, whether in print or in digital media.
    ASMP has approximately 6,000 members, most of whom are full-tie, 
freelance photographers, who have been producing some of this country's 
best photography for publishers, advertising agencies and corporate 
clients for the more than sixty years of ASMP's history. We estimate 
that there are over 100,000 part- and full-time freelance photographers 
with interests similar to those of our members in this country. I am 
submitting this statement on behalf of ASMP in the hope that the 
Committee will direct the Secretary to bring the proposed regulation 
back in compliance with the letter and spirit of its parent 
legislation, P.L. 106-206, from which it has unfortunately deviated.
    ASMP's members are publication, or ``commercial,'' photographers. 
Even though the interests of our members and uses of our members images 
are somewhat different from those of the photographers represented by 
the other members of this panel speaking on behalf of the photography 
world, we specifically support their testimony and the positions they 
are presenting.
    I was fortunate enough to testify before the House Subcommittee on 
National Parks and Public Lands in 1999 in connection with House Bill 
H.R. 154 that eventually became P.L. 106-206. At that time, it was 
clear that the underlying assumption of the Bill, and therefore that of 
Congress, was that activities and people who place unusual or 
substantial burdens or demands on our natural resources, on our 
government employees, or on the public should pay for them in 
proportion to the burdens and demands that they impose. Further, 
however, a crucial part of the concept behind the Bill was that people 
who do no more than what tourists typically do should not be subject to 
any more restrictions or costs than tourists. It appears that this 
latter concept has been abandoned in the proposed regulation.
    In order to understand our concerns about the regulation currently 
before this Committee, you must first understand a few facts about the 
nature and business of freelance photography in the publication field. 
Freelance photographers are self-employed. As such, they are not 
accorded any employer-provided benefits. They are not paid a regular 
salary, do not receive a paid vacation, and must purchase their own 
cameras, equipment and supplies. They are responsible for all of the 
overhead expenses associated with running a business, must pay for 
their own health, liability and disability insurance, and are not 
eligible for unemployment compensation. These hidden cost factors make 
the freelance photographer's financial investment in every photograph 
that he or she makes far higher than would appear at first glance. In 
addition, the numbers that we have seen tell us that the average annual 
income of commercial photographers is quite modest, especially when 
compared to people with comparable educational backgrounds working in 
other fields.
    There are two primary ways in which a photograph intended for 
publication comes to be made by a freelance photographer: either as 
part of an assignment from a client or as part of what is known in the 
trade as ``stock photography.'' Stock photographs become part of a 
library or inventory of images that the photographer makes available 
for licensing to buyers who want to use those images for limited times 
and purposes. At the time a stock photograph is made, there is neither 
any client to pay the costs nor any certainty of there ever being one 
from whom a licensing fee may be received. The majority of professional 
photographs that are available for publication are held in such stock 
libraries.
    In fact, those stock libraries are no longer the exclusive domain 
of professional photographers. Since technology has been making it 
easier to create high quality images, there are many talented amateur 
photographers in this country whose works are now being published, 
especially in digital media. Some of them have started placing their 
images with stock photography libraries to be marketed alongside the 
images created by professional photographers.
    Because of this last factor, it would be arbitrary and grossly 
unfair to draw a distinction in the requirement of permits and/or fees 
based on whether a photographer relies primarily on his images for his 
income or relies on them only to supplement his income. It is, 
therefore, crucial that the regulation base the need for permits and/or 
fees on the activity, not on the identity, of the photographer. That is 
the approach taken in P.L. 106-206, but it appears to have been 
abandoned in the proposed regulation that is supposed to implement that 
legislation.
    Unlike motion pictures and audio-visual video productions, most 
outdoor still photographs are made by single, individual photographers 
working without substantial crews, assistants, special effects or 
unusual equipment. What they do is essentially what tourists do, what 
you and I do, Mr. Chairman, when we are on vacation recording this 
country's natural wonders on film (or more likely these days, on 
digital media) for future enjoyment. P.L. 106-206 wisely recognized 
that professional still photographers should be treated the same as 
tourists, as long as they are placing only the same demands on our 
natural resources and civil servants as tourists. The regulations that 
implement P.L. 106-206 must do the same, but as currently worded, do 
not.
    Fees and permits are not appropriate, or needed, to tax and impede 
the average citizen in visiting our natural wonders and bringing home a 
photographic record of that visit. P.L. 106-206 did not and does not 
require fees or permits of average citizens--even when those average 
citizens happen to make their livings as freelance photographers. The 
proposed regulation appears to change that fundamental approach.
II. Where the Proposed Regulation Deviates from P.L. 106-206.
    The preceding information was crucial to ASMP's support of P.L. 
106-206 and was reflected in the final language of that legislation. 
Unfortunately, many of the changes reflected in the proposed regulation 
would undo the policy behind P.L. 106-206.
    It is easy to see that the basic concept behind the proposed 
regulation has gone off track regarding still photography by comparing 
its language with the language of the statute. The language of P.L. 
106-206(a) directs the imposition of permits and fees for commercial 
filming, while section (b) states the starting point for still 
photography: ``the Secretary shall not require a permit nor assess a 
fee for still photography on lands administered by the Secretary..,'' 
subject to certain exceptions and conditions. This stands in sharp 
contrast to the language provided in the DOI's summary of the proposed 
regulation, and elsewhere in the announcement of the regulation and in 
the rule, itself, where it characterizes P.L. 106-206 incorrectly as 
``direct(ing) establishment of reasonable fees for commercial filming 
activities or similar projects, such as still photography...'' The 
statute says that commercial filming and still photography are to be 
treated differently, but the proposed rule says that they are similar 
and to be treated the same.
    The language of the statute makes it clear that the general rule is 
that permits and fees are presumed not to be required for still 
photography, subject to specific exceptions for atypical situations:
        (c) STILL PHOTOGRAPHY.--(1) Except as provided in paragraph 
        (2), the Secretary shall not require a permit nor assess a fee 
        for still photography on lands administered by the Secretary if 
        such photography takes place where members of the public are 
        generally allowed. The Secretary may require a permit, fee, or 
        both, if such photography takes place at other locations where 
        members of the public are generally not allowed, or where 
        additional administrative costs are likely (emphasis added).
    The regulation, on the other hand, turns this presumption on its 
head by stating in Sec. 5.3(b) that ``Still photography requires a 
permit if...'' The language of the proposed regulation abandons the 
presumption that permits for still photography are generally not 
required, subject to some specific exceptions. It substitutes an 
approach and a mindset that requiring permits is an affirmative 
command.
    Second, as indicated in bold above, the legislation makes it clear 
that permits and fees are separate and distinct, and that the 
requirement of a permit does not automatically suggest that there 
should be a requirement of a fee. That distinction, also, is lost in 
the proposed regulation. Even worse, those fees would be mandated--and 
expanded to include both application cost recovery and a usage fee--
under the language of Sec. 5.7 of the proposed regulation.
    Third, the proposed regulation appears intended at simply raising 
revenues at the expense of those people who can least afford it: 
freelance professional photographers. Currently, only the BLM charges 
location fees, while the NPS and FWS do not. It is clear that 
universalizing the approach of the one department that is in the 
minority on this issue, rather than the approach of the majority, has 
the goal of raising revenues, purely and simply. Unfortunately, when 
applied to freelance professional still photographers, this requirement 
would drastically impact their ability to make any kind of living out 
of nature photography and would drastically reduce the number and 
quality of photographic images made on DOI lands that would be 
available for the public. This would damage our national photographic 
heritage irreparably.
    Fourth, and probably most importantly, the proposed regulation 
directly abandons the underlying concept behind P.L. 106-206 that 
professional still photographers should not be required to obtain 
permits or pay fees if they are doing only what tourists do. This can 
be seen in Sec. 5.3(b), which sets forth the list of conditions 
triggering permits for still photography and which also includes the 
statement that ``(d) Use of film, video or still photography equipment 
by visitors does not require a permit as long as the activity occurs in 
areas designated for public use during public hours.'' That is, the 
proposed regulation would distinguish between professional 
photographers and ``visitors.'' This language makes it clear that 
permits would be required under the proposed regulation based on the 
identity of the photographer, not on the activity, an approach that was 
directly rejected in the statute that the proposed regulation is 
supposed to implement. The language in Sec. 5.3.(b) should apply to all 
still photographers, irrespective of how they may happen to earn their 
livings.
    In addition, using the distinction between visitors and commercial 
photographers creates an impossible enforcement burden on park staff 
and the public, alike. How can one tell who is a professional 
photographer just by looking at him? How is an amateur who occasionally 
licenses the use of an image to know whether--and when--he is a 
considered a professional for permit and fee purposes? How is park 
staff to be able to tell the difference--by requiring a copy of the 
photographer's Form 1040? The distinction between visitors and 
commercial photographers is simply unworkable from every perspective 
and at every level.
    Next, the requirement of ``appropriate--insurance in connection 
with obtaining a permit would, for many working photographers, create 
both a financial hardship and delays in the permit process that would 
prevent many great photographs from ever being made, let alone being 
made available to the public. This requirement, combined with the 
absence of standards for determining what is ``appropriate,'' could be 
used as a de facto method for barring almost all still photography at a 
facility.
    Further, the Department of the Interior's blanket assertion that 
``this document will not have a significant economic effect on a 
substantial number of small entities under the Regulatory Flexibility 
Act'' is absolutely and completely incorrect. The proposed regulation 
would have a severe impact on at least tens of thousands of still 
photographers, almost all of whom are small businesses operating as 
sole proprietorships or other small business entities. The further 
statement that the proposed regulation ``Will not cause a major 
increase in costs or prices for consumers (or) individual 
industries...'' is totally inaccurate. The increased costs would either 
be passed along to consumers or, in most cases, be absorbed by the 
small business comprising the industry of publication photography. The 
simple fact that ASMP has gone to the trouble and expense of sending me 
here today tells you that these assertions are not true.
    In addition, the vague and subjective standards provided by the 
regulation under which permits could be denied are problematic for all 
concerned: park officials, photographers and the viewing public. Sec. 
5.4 contains no standards for making the various permissible 
determinations. Worse, Sec. 5.4(5) allows the denial of a permit where 
there is an (undefined) determination that ``the activity is 
inappropriate or incompatible with the purpose of the refuge.'' I 
certainly do not know what that language really means or how to apply 
those ``standards,'' and I question whether there is anyone on this 
panel who does.
III. Financial Impact of Fees on Still Photography.
    When I testified in connection with P.L. 106-206 in 1999, I voiced 
some reservations about the future that, unfortunately, now appear to 
be well founded, when I said, ``Our concern is not with what this Bill 
currently provides, but with possible future changes that could take 
place as the Bill goes through the legislative process.'' In connection 
with that concern, I provided some supplementary information about the 
business of freelance, publication (or commercial) photographers. It 
now seems appropriate to reiterate some of facts for your consideration 
in evaluating the proposed regulation and its potential impact.
    I mentioned earlier that freelance photographers must buy their own 
equipment. For a professional photographer, it is routine to have to 
spend thousands of dollars for a single lens. Even for a location 
photographer, who does not have the overhead of equipping, stocking and 
running a studio, the cost of equipment was typically in the range of 
$70,000. and often more, when I testified in 1999. The impact of 
computers and related equipment and software, along with almost a 
decade of inflation, has both driven that number upwards significantly. 
The constantly changing nature of technological innovations has caused 
those expenses to recur frequently as equipment now becomes obsolete 
within a year or two of purchase. That is the situation for location 
photographers. A photographer who does both location and studio work 
has an investment in property, plant and equipment of many multiples of 
that figure.
    We can safely assume that a professional photographer will make 
many hundreds of photographs during a good day's shoot. Of those 
photographs, however, only a small number will ever survive. Industry 
reports tell us that an average of 2% of the photographs made by 
professional photographers get through the editing process and make 
their way into stock libraries.
    Of those images that are put in stock libraries, industry reports 
also tell us that only 2% will ever produce any revenues during the 
life of the photograph.
    For that 2% of 2% that actually sell, our information is that the 
average price of a stock sale was approximately $220. back in 1999. 
Sadly, that number seems to have declined over the past decade or so 
for a variety of reasons. For example, Getty Images recently announced 
a licensing model that would grant unlimited web use of high quality 
photographs for $49. per year. Of the amount paid, the agencies 
licensing the stock images take commissions that now exceed 50% on 
average and a number of the best known stock agencies are now charging 
commissions of 70%, plus expenses.
    Thus, for each of the few images that sell, photographers receive 
an average of well under $100., from which they have to pay all of 
their direct and indirect costs of production. Most freelance 
photographers would probably make more money doing almost anything 
else, but they continue to make photographs, despite the economics, 
because they love what they do. However, if you consider the finances 
described above, you will see that imposing fees on photographers for 
access to national lands will turn what is already a marginal economic 
proposition into a losing one. While professional photographers may be 
willing to work for relatively little money, nobody can stay in a 
business in which he or she loses money.
    Losing professional quality photographers does not hurt only those 
photographers and the industry. It also means losing the images that 
they produce, and that hurts everyone, including the public and, in 
particular, future generations, who will be deprived of a richer 
photographic heritage.
IV. Aside from financial considerations, the requirement of a permit 
        would prevent the vast majority of outdoor photographs from 
        being made.
    Even if no fees were imposed on still photographers, the simple 
need for permits for routine photography would eliminate most of those 
beautiful photographs of our natural vistas, and the animals that 
inhabit them, that we all want and have come to expect to see. Have you 
ever wondered why most amateur photographs rarely come close to 
rivaling professional photographs of the same scene? In addition to the 
skill and knowledge of the photographer, there is a crucial element in 
all photographs: light. Photography means, literally, ``writing with 
light.'' To have a great outdoor photograph, you must have great light. 
Great light for photography is not the same as great light for anything 
else. The best light for photography is found at the ends of the day: a 
couple of hours before and after sunrise, and a couple of hours before 
and after sunset; and if you want a photograph of the incredible 
animals that live in our national parks, you have to photograph them 
when they are awake, outside their living quarters, and active. That is 
almost never during the mid-day. Great nature photographs are rarely if 
ever made during normal business hours.
    Now, if a photographer has to get a permit in order to photograph 
on national lands, that means that he has to be at an office, perhaps 
50 miles away from where he wants to photograph, no earlier than 8:30 
in the morning when the office opens. By the time he get his permit 
(assuming he can get it immediately, while it could actually take a 
couple of weeks), drives to his location, and is ready to start 
photographing, the light is gone, and he might as well pack up for the 
day. The next day's light may be unsuitable for making professional 
quality photographs. In fact, light changes constantly, animals move 
quickly, and everything in nature is in constant flux. A photograph 
that is delayed is a photograph that is lost. The mere requirement of 
permits for still photographers would mean that many of the photographs 
that beautify the offices of many members of this Committee could never 
have been made if the photographer had been required to obtain a 
permit.
V. Conclusion.
    Mr. Chairman, P.L. 106-206 was drafted to provide reasonable 
protections for the national lands, the agencies charged with 
administering them, working photographers and the public. Sadly, the 
proposed regulation would undo many of those protections and would 
yield a great loss to our national photographic heritage. Ansel Adams 
was a proud ASMP member. Consider whether photographs like ``Moonrise, 
Hernandez N.M.'' could ever have been made if he had had to wait until 
he had applied for, paid for, and eventually received, a permit. On 
behalf of all working commercial photographers, I urge you direct the 
Secretary to bring the proposed regulation back in conformity with the 
approach taken in P.L. 106-206: the general rule that still photography 
does not require permits or fees, absent unusual circumstances. I thank 
you and the members of this Committee for your time and consideration.

Respectfully submitted,

Victor S. Perlman
General Counsel and Managing Director
American Society of Media Photographers, Inc.
150 North Second Street
Philadelphia, PA 19107
Tel: 215-451-ASMP Ext. 1207
Fax: 215-451-0880
E-mail: [email protected]
Url: http://www.asmp.org
                                 ______
                                 
    The Chairman. The Chair wishes to thank the panel for their 
testimony this morning. It has been very interesting. My first 
couple of questions are going to concern the photographers and 
the media, and journalists rather, I am sorry, photographers 
and journalists.
    You heard me discuss in my opening round of questions to 
the administration witnesses the definition of news coverage, 
and it appears to me that any final rule must include a 
definition of what is news coverage because that is what 
determines who is exempt from the fees and who is not.
    So my question would be to the panel, how difficult is it 
to define that term? I mean--well, I guess that is what I mean. 
Are you aware of any current definitions that we might use as 
an example?
    Mr. Overman. May I? Tony Overman with the National Press 
Photographers Association.
    The Chairman. Yes, Tony.
    Mr. Overman. We looked at Congress's current definitions 
that they have. The National Secretary Archives of the U.S. 
Department of Defense defines a journalist as a person or 
entity that gathers information of potential interest to a 
segment of the public, uses its editorial skill to turn the raw 
material into a distinct work, and distributes that work to an 
audience.
    Also, the Free Flow Information Act also have a definition 
of what a journalist is--a person who regularly gathers, 
prepares, collects photographs, records, writes, edits, reports 
or publish news of information that concerns local, national, 
international events.
    In addition, the FOIA, Freedom of Information Act fee 
schedule and guidelines also include a definition of news which 
is, news means the information that is about current events or 
that would be of current interest to the public.
    So we feel that Congress already has definitions of both 
journalists and news.
    The Chairman. Thank you. Any others with to comment?
    All right, let me ask you for a moment to set aside my 
opening comments, just for a moment though, and then you can go 
back to them. But how would you characterize the Bush 
Administration's approach to media and to providing public 
information? I ask this within the context of your concerns 
regarding this proposed rule as they relate to this 
administration's overall record on providing information to the 
media and the public, if there is any such information that has 
been provided.
    Mr. Young. I dare you.
    [Laughter.]
    Mr. Overman. Sir, this is Tony Overman again.
    Certainly it is my concern about the rules, about why 
Department of Interior would even be placing these kind of 
restrictions on what we consider valid news coverage, and that 
became our question. What was the purpose? What was the 
intention of this? And it seems very clear that the Department 
of Interior intends to exclude journalists, or news coverage 
and journalists from this process. However, their definitions 
extend far into what we consider valid journalism, and that 
then makes me question what the actual rationale is for these 
restrictions.
    When we heard our staff from the Department of Interior 
speaking, they made it clear that they weren't going to try to 
define what news or journalism was but simply define what 
commercial photography was, and that is where we have gotten 
into the problem. Their definitions of commercial photography 
blend over and blur the lines between what is journalism and 
what isn't.
    So it seems that the intention of the Department of 
Interior is simply to protect the environment, yet it does make 
me question what purpose they have for extending these 
restrictions on to journalists.
    Mr. Perlman. Yes, sir, I would say that motives aside the 
effects are entirely too restrictive and the guidelines, such 
as they are, are entirely too vague so as to allow far too much 
individual interpretation from park employee to park employee.
    The Chairman. Let me ask a final question. Can you expand 
on your suggestion that the final rule include an outdoor media 
exception? How would this exception be defined?
    Mr. Scott. Well, I think it becomes a mathematical 
exception. It is an exception of a certain number of people and 
my recommendation is five, because it is impossible to draw a 
line between what is news and what is not news, and if I may as 
an example. Fish and Wildlife bust a bear poaching ring. They 
are taking gallbladders and sending them to the Asian market. 
That is breaking news, clearly. If there is a follow up done, a 
profile on the poacher and his motives, then there is a 60 
Minutes type of investigation into the entire Asian 
gallbladder, bear gallbladder market.
    Then there is a documentary done on poaching and its effect 
on the ecosystem, and finally there is an outdoor TV show, a 
hunting program that talks about bear poaching and its effect 
on the population and the hunting opportunities.
    Where do you draw that line between breaking news and not? 
The thing that solves the media's problem, the thing that 
solves the outdoor media's problem is, if we are going to have 
an activity that has a minimal impact on the land, there is an 
exception of three, four, five people, and below that number, 
if you are not taking props and an exceptional amount of 
equipment, you don't have to have a permit. That, I believe, 
was the original intent that the groups that we represent were 
not to be charged a land use fee, but let me expand on that 
just for a moment more.
    What Mr. Butler and Ms. Weldon advocated is this be left to 
the individual agencies on the ground to make their 
determination of what the appropriate fee is. Sir, I have 
experienced this. Personally in my business I go to the 
Shoshone National Wilderness in Wyoming, I was issued a permit 
one year. The next year a different ranger comes in and he 
decides arbitrarily that I am not entitled to a permit, and 
giving someone in the field that much discretion has an 
enormous effect. They are determining my ability to earn a 
living, my ability to bring information to the people through 
the vehicle of television in my particular case.
    So in answer to your question, if we just put a number, 
there is an exception, that solves the problem for everyone.
    The Chairman. Thank you. Mr. Young.
    Mr. Young. Thank you, Mr. Chairman, and I have to say that 
bringing in this administration is no different than any other 
administration. Most people that do these things are not 
really--they are professional employees of that agency, so it 
could be Bush or Clinton. It can be Carter or it can be Nixon. 
It doesn't make a hell of a lot of difference.
    Having said that, do any of you on the panel disagree that 
you shouldn't pay for the use of the Federal lands?
    Mr. Wheeler. Congressman Young, none of us disagrees that 
we should pay the same as any other citizen.
    Mr. Young. Well, let us say I am a hunter and I pay a 
license fee to hunt on a wildlife refuge. Don't you think that 
you ought to have also a license to do that?
    Mr. Wheeler. I think the question is one of impact, and 
that is where we have a difference over this regulation.
    Mr. Young. No, no, I am not----
    Mr. Wheeler. Because we are not taking anything from the 
land.
    Mr. Young. You don't think you should pay anything?
    Mr. Wheeler. I am not saying we shouldn't pay anything.
    Mr. Young. OK. But you are all certified journalists, 
correct? You are all recognized professionally. What would you 
object to have like a license fee for a hunter or a fisherman 
to utilize the Federal lands? Say a fixed fee, every 
individual, every individual.
    Mr. Wheeler. How would you determine who is the average 
visitor to the park taking pictures and who is taking----
    Mr. Young. No, I am talking about professionals, and you 
are all professionals.
    Mr. Wheeler. But that is one of the dilemmas we have with 
this, Congressman, because who is a newsperson today is 
changing radically, and what we use to gather news is changing 
radically.
    Mr. Young. OK, I still want to stress----
    Mr. Wheeler. And we don't think you need a----
    Mr. Young.--we are not talking about news. We are talking 
about using the Federal lands----
    Mr. Wheeler. Right.
    Mr. Young.--for economic gain. What would be wrong with you 
paying a fee? That is all I am asking. I mean, let us make it a 
hundred bucks, or whatever the going price for a resident 
hunter or a fisherman. I mean, what is wrong with that?
    Mr. Perlman. Ranking Member Young.
    Mr. Young. Yes.
    Mr. Perlman. I think I addressed some of the problems with 
that. First, as long as the activity is the same as a tourist, 
it seems to me that the distinction becomes arbitrary as to 
what the purpose of the use is. As far as the need to pay a 
fee, presumably you are also talking about a fee for a permit. 
You then----
    Mr. Young. Not a permit. I don't like permits. I just want 
you to be licensed to do what you are doing.
    Mr. Perlman. How do you know who is a tourist and who is a 
professional?
    Mr. Young. I am not talking about--you are a professional, 
are you not?
    Mr. Perlman. I am not. I am an attorney.
    Mr. Young. Well, that is worse yet.
    [Laughter.]
    Mr. Perlman. My point precisely.
    Mr. Young. What I am trying to get across, I am a little 
concerned because we talk about retaining our national lands, 
and no one wants to pay for it. The only people really putting 
money into this right now are the sportsmen.
    Now I happen to agree with you, Mr. Scott. I think--one 
thing about institutional memory, we passed this because there 
were movie industries making monies off the Federal lands and 
making an impact upon those lands, and that was a free ride, 
and I am not talking about photographers. I am talking about 
big movie companies. And that is wrong. I mean, they ought to 
pay their share. They disturb the wildlife. They disturb the 
habitat of the area, and they ought to be made to pay for it, 
and you are right about one photographer versus--what did you 
say? Moses--well, that is right. I mean, they should have been 
made and required to pay more and I hope the Department 
recognizes that.
    But somewhere along the line we all have to be part of this 
system to retain what you are photographing. Yes, sir.
    Mr. Overman. Mr. Young, even in your statement you say that 
the initial reason for the permitting process was for Hollywood 
productions that were making a profit off the public lands and 
then were having an impact. You then said the reason for the 
fees are because of the impacts that they have on the 
environment and the needs.
    Are you proposing that the reason for these fees are the 
government wants to make money off of anyone who is making 
money off of public lands?
    Mr. Young. No, I didn't say that. I am saying they are all 
interpretive.
    Mr. Overman. Right.
    Mr. Young. My idea though if you are going to impose an 
infraction on the wildlife and the public land itself, a large 
organization should be made to pay.
    Mr. Overman. Absolutely. What we are saying is that we are 
no different than the public. When I go to a national park, I 
pay the $15 to get into----
    Mr. Young. And that is fine.
    Mr. Overman.--Mount Rainier National Park. There is the 
presumption then that when I come in I am allowed to take 
photographs, any still photographs that I want. How I am using 
them, whether there is a profit being made from them is 
irrelevant.
    Mr. Young. Then you go back--now, you see the beauty of my 
say $200 license? Then you don't have any worry about permits. 
You don't have to respond to any different ranger. You have 
your license. That is the difference. I happen to agree. One 
ranger one day, one ranger the next day make different rules, 
different personalities, and so you wouldn't have to have all 
the permit process.
    I am just looking for solutions to a problem here.
    Mr. Overman. Chairman Young, with all due respect, am I a 
member----
    Mr. Young. You can call me Chairman again, too. Thank you, 
sir. You are on my bright side.
    Mr. Overman. I am sorry. Ranking Member Young. I am sorry 
about that.
    As a journalist, am I not a member of the public?
    Mr. Young. Let us not go there.
    Mr. Overman. Why as a member of the public who pays to go 
into a national park should the government be allowed to single 
me out simply because I am a journalist for more restrictions?
    Mr. Young. Well, I will tell you why because you arguing 
with something that is really in the law, and that something 
that you have to understand. It says--while the legislative 
language is open, the Senate report is clear that land managers 
have the discretion to determine whether or not the activity is 
commercial. Now that is in the law----
    Mr. Overman. Yes.
    Mr. Young.--right now.
    Mr. Overman. Absolutely.
    Mr. Young. And that is what you have to worry about.
    Mr. Overman. And your authorizing statutes say that still 
photography will not be placed under any restrictions.
    Mr. Young. Which we didn't expect, I will be honest with 
you on that.
    Mr. Overman. Absolutely.
    Mr. Young. But having said that, if that is the law and 
they interpret it that way, wouldn't you be better off having a 
license and give you free carte blanc?
    Mr. Overman. I don't believe so, sir. I don't believe there 
is any reason why I as a member of the public would have to pay 
a fee in order to be allowed to photograph anything above what 
the public does given that my impact is equal to that of any 
other member of the public.
    Mr. Young. OK. Now you are going to stick by that. I am 
saying you--I am looking for an argument which should not be 
taking place. In fact, you should look for a solution. You may 
in principle say, I am the same as the public. You are not.
    Mr. Overman. We believe that the solution is in defining 
what a journalist is and what news is.
    Mr. Young. And if they define it in the regulation, then 
you are in trouble.
    Mr. Overman. By widely defining what is a journalist and 
what is news and narrowly defining the time, place and manner 
restrictions we think would solve the problem just as well 
without us having to pay more money than the public is required 
to pay.
    Mr. Young. My God, you pay $16,000 for a camera or cameras, 
and then you are worried about a $200 license fee that gives 
you carte blanc. They must be part Scotch.
    Mr. Overman. No, what I am looking at is the precedent, 
sir. What is the rational for singling out journalists from the 
public for restrictions that the public does not receive?
    Mr. Young. OK, we will see what happens down the line.
    Mr. Scott. Mr. Young, I am kind of going to go off the 
reservation here a bit. If I could pay 100 or 200 dollars and 
have access to Federal land and not have to go through 
applications with each individual place that I intend to film, 
I would be--I would be ecstatic over that, and there may be 
some people in my organization that disagree with that, but I 
am a commercial videographer. That is what I do and my intent 
is to make money. It doesn't always happen, but that is the 
intent.
    I think there is a difference between our position and that 
of what would be considered traditional media.
    Mr. Perlman. Ranking Member Young, if I may. There is an 
inherent flaw in your question which assumes that the 
photographer is making money out of the photographs, and while 
that may be true for some of the constituencies represented by 
the other members of the panel, for freelance commercial 
photographers unless they are on assignment, they have no clue 
as to whether they will ever make a penny out of any photograph 
that they make.
    Mr. Young. Well, why is it flawed if they do make money?
    Mr. Perlman. Because they won't know that until perhaps 
years later.
    Mr. Young. But if they do make money, don't you think they 
ought to pay that fee as minimal?
    Mr. Perlman. If we had a way of retroactively sending in 
the fee, then perhaps----
    Mr. Young. Well, then why not pay the fee ahead and if you 
make money, it is all yours?
    Mr. Perlman. OK, and you are going to reimburse us for when 
we don't?
    Mr. Young. No, absolutely not. You are a freelance man. I 
mean, you are talking about pennies now. You are looking for a 
solution, as I have said Mr. Scott has said if you listen to 
what I am saying, you don't want to. You are trying to avoid a 
problem. You might get somebody downtown write these 
regulations again and again and again, and then where are you? 
There is no certainty to where you are going to go.
    So you guys want to sit there and say, by God, we have the 
right of freedom of press, et cetera, et cetera. You don't know 
what is going to happen down the line. You solve the problem by 
putting it in concrete, and that is what I am suggesting. We 
are not going to do this right now. I don't know what the 
Department is going to do. I think the regulations proposed are 
too broad. I will be right up front with you, but the way you 
do it is make a--maybe give a little bit instead of 
stonewalling this whole thing and say we have a right to do it. 
This is the law right now and they may interpret it every year 
differently. How can you do what you are going to do?
    I am out of time.
    The Chairman. I would say so.
    Mr. Young. Yes.
    The Chairman. The gentleman from Oklahoma.
    Mr. Boren. Thank you, Mr. Chairman. I am going to be very 
brief because Chairman Hogan has been waiting on me for a 
little while. I just have a couple questions for Mr. Scott, 
Steve Scott, who, by the way, is from my home state of 
Oklahoma, and a great outdoorsman. You can catch his show on 
television when you have a chance.
    You state you also are here today representing Foundation 
for North American Wild Sheep. What impact have the current 
land use fees had on this organization?
    Mr. Scott. FNAWS is the Foundation for North American Wild 
Sheep focuses on conservation, and over the last 30 or so years 
of their existence they have raised and spent over $30 million 
on conservation projects. Currently, we are producing a program 
for FNAWS that features wild sheep that will be hosted by 
former Boston Red Sox Wade Boggs.
    And wild sheep are a very different kind of species in that 
they are in very difficult places to get to. It takes a lot of 
time in order to capture the right video, and three of the four 
wild sheep species in North America reside in the United 
States, but they also reside in Canada and Mexico, and in order 
to produce the programs that we need to produce, we would spend 
on average 15 days on public land at $150 a day, and if we do 
the math, I will spend 20 to 25 thousand dollars for land use 
fees, and if I go to Canada, if I go to Mexico, I pay zero. My 
budget will not allow me to film very often on public land.
    So instead of using the vehicle of our television program 
to celebrate our public lands, we are doing it for Canada and 
Mexico. So it has a chilling effect on the very purpose of the 
national public land and the Department of Interior's stated 
goal of providing access to our lands because we do that 
vicariously.
    Mr. Boren. It sounds like you are open to either doing the 
five or less on the impact, or maybe doing something that the 
Ranking Member was talking about, a fee where you could go 
everywhere, a small fee where you are not dealing with 
individual rangers in each area.
    Mr. Scott. If we had a program like that across the board, 
it would be very satisfactory to our organization.
    Mr. Boren. Well, I thank you, and I thank the Chairman and 
the Ranking Member, and I will yield back.
    Mr. Young. Mr. Chairman.
    The Chairman. Yes.
    Mr. Young. I just want to get back to this because the 
present law, it doesn't affect photography, and paragraph C, 
still photography. Except as provided in paragraph 2, which is 
the number of days, et cetera, et cetera, the Secretary shall 
not require a permit--shall not--nor an excessive fee for still 
photography on lands administered by the Secretary, and if some 
photography takes place where members of the public are 
generally allowed, Mr. Owens.
    The Secretary may require a permit, fee or both if such 
photography takes place at other locations where members of the 
public are generally not allowed or where the additional 
administration costs take place. The Secretary shall require 
and shall establish a reasonable fee for still photography that 
uses models or props which are not part of the site's natural 
or cultural resources or administrative facilities and 
protection of the resources, et cetera.
    So you are already exempt.
    Mr. Overman. Sir, we are not.
    Mr. Young. Well, it says this is the law.
    Mr. Overman. Right, and go to the definitions of commercial 
filming. Commercial filming, DOI lists non-breaking news, 
documentary, audio recording, freelancing and work for a market 
audience fall under the definition of commercial filming.
    Mr. Young. It is in the regulation, sir, it is not in the 
law.
    Mr. Overman. In the regulation, right.
    Mr. Young. It is not in the law. This is the law and the--
--
    Mr. Overman. Oh, oh, the current, the current. Oh, 
absolutely, and that is our point. We are here to talk about 
the proposed regulations that may go into effect.
    Mr. Young. Proposed regulations that may.
    Mr. Overman. Right.
    Mr. Young. And our job here is to find a solution to those 
regulations. That is what I was trying to do.
    Mr. Overman. Yes.
    Mr. Young. Under the law you are protected right now, and 
if the regulations go against the law, then they won't be 
accepted.
    Mr. Overman. Absolutely. Wasn't that my point?
    Mr. Young. No, I didn't----
    Mr. Overman. Isn't that what I have said all along?
    Mr. Young. I should have gotten the lawyer to say it.
    Mr. Overman. I think I made it very clear that your own 
authorizing statutes say that no still photography can be 
restricted, and yet these rules do exactly that.
    Mr. Young. But you also go back--it also says in the Senate 
report that a manager can change and do different than the law 
through the regulations they can implement if they are so.
    I am just looking for a solution here, and I am hoping you 
also will find that in time.
    Mr. Overman. I find that paying for a license in order to 
go and cover the news amounts to prior restraint on the news 
media.
    Ms. Christensen. Ranking Member Young.
    Mr. Young. Yes.
    Ms. Christensen. I feel that we need to be on the record 
here representing journalists as thinking that the idea of a 
fee to cover news is a very bad idea.
    Mr. Young. I am not as worried about the news interruption. 
I am worried about the utilization of journalism for financial 
gain if something is not news. That is what I am interested in. 
And under the present regulations you are going to be affected. 
I don't--if, you know, Mount Vesuvius blows up or St. Helen's 
blows up, that is news. You should have every right in the 
world to cover it.
    I also don't think, very honestly, that if you think about 
it for a moment that anybody is impeded. If you think of the 
pursuit of the Defense Department by the journalists without 
any permits, they don't have any permits, and they disclose it. 
So I think you are trying top make a mountain out a mole hill.
    Ms. Christensen. But there is, because of the regulations, 
proposed regulations, because of the differing understandings 
on the part of different park administrators, there is a 
burden, and different park administrators define breaking news 
and news in different ways. You know, a member of mine who is 
in Montana said that--where Yellowstone is considered a beat--
said that if they cover breaking news, they are allowed in, but 
if they want to say do a feature on the hotels, the Grand 
Hotels of Yellowstone, they want to shoot in June and air it in 
July, then they are required to pay a fee, and our position is 
that news is not defined simply as breaking news; that there is 
a much broader definition, and that the regulations and leaving 
it in the hands of the individual park administrators is 
creating an unfair burden and is really getting government into 
the position of deciding based on the content of the news story 
what is news and what is not, and that is not a position that a 
government official should be in.
    Mr. Young. Well, again, we are going to look at the 
regulations. I will certainly review it. I think you all ought 
to put your heads together and you may not like it, but better 
to have it permanently fixed than have it constantly change. 
That is all I am going to suggest to you.
    Mr. Chairman, I am through.
    The Chairman. We thank the witnesses for being with us 
today. I think one thing we have seen is this issue and the 
proposed rule definitely needs continued close monitoring, 
which this Committee will do, and continue with consultation as 
the process moves along. So again we thank each of you for your 
professional testimony this morning.
    Any further Committee comments? If not, the Committee 
stands adjourned.
    [Whereupon, at 11:45 a.m., the Committee was adjourned.]

                                 
