[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
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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.]