Making Motion Pictures, Television Productions, Soundtracks or Taking Still Photographs on Certain Areas Under the Jurisdiction of the Department of the Interior, 46426-46432 [E7-15845]
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Example. (i) Facts. Employer sponsors a
profit-sharing plan qualified under section
401(a). The plan provides solely for nonelective employer profit-sharing
contributions. The plan’s trustee enters into
a contract with a third-party insurance carrier
to provide health insurance for certain plan
participants. The insurance policy provides
for the payment of medical expenses
incurred by those participants. The plan
limits the amounts used to provide medical
benefits with respect to a participant to 25
percent of the funds held in the participant’s
account. The trustee makes monthly
payments of $1,000 to pay the premiums due
for Participant A’s health insurance. The
trustee also reduces Participant A’s account
balance by $1,000 at the time of each
premium payment. In June of a year,
Participant A is admitted to the hospital for
covered medical care, and in July of the same
year, the health insurer pays the hospital
$5,000 for the medical care provided to
Participant A in June.
(ii) Conclusion. Under paragraph (e)(1) of
this section, each of the trustee’s payments of
the $1,000 constitutes a distribution under
section 402(a) to Participant A on the date of
each payment. To the extent provided under
section 213, the amount of these distributions
constitutes payments for medical care. The
$5,000 payment to the hospital is excludable
from Participant A’s gross income under
section 104(a)(3) and is not treated as a
distribution from the plan.
in gross income. See §§ 1.72–15 and
1.72–16. * * *
*
*
*
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Linda E. Stiff,
Acting Deputy Commissioner for Services and
Enforcement.
[FR Doc. E7–16084 Filed 8–17–07; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 5
Office of the Secretary
43 CFR Part 5
Fish and Wildlife Service
50 CFR Part 27
RIN 1024–AD30
Making Motion Pictures, Television
Productions, Soundtracks or Taking
Still Photographs on Certain Areas
Under the Jurisdiction of the
Department of the Interior
National Park Service, Office of
the Secretary, Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
Par. 8. Section 1.402(c)–2 is amended
by redesignating paragraph A–4(h) as
paragraph A–4(i) and adding a new
paragraph A–4(h) to read as follows:
AGENCY:
§ 1.402(c)–2 Eligible rollover
contributions; questions and answers.
SUMMARY: The Department of the
Interior (DOI) proposes to revise its
filming regulations to implement
legislation that directs establishment of
reasonable fees for commercial filming
activities or similar projects, such as
still photography, and to respond to
applicants for commercial filming or
still photography permits in a timely
manner.
DATES: Written comments will be
accepted through October 19, 2007.
ADDRESSES: You may submit comments,
identified by the number 1024–AD30,
by any of the following methods:
—Federal rulemaking portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
—Mail: Lee Dickinson, Special Park
Uses Program Manager, National Park
Service, 1849 C Street, NW., ORG CODE
2460, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Lee
Dickinson, Special Park Uses Program
Manager, National Park Service, 1849 C
Street, NW., ORG CODE 2460,
Washington, DC 20240, telephone: 202–
513–7092, or e-mail:
Lee_Dickinson@nps.gov.
SUPPLEMENTARY INFORMATION: Public
Law 106–206 (codified at 16 U.S.C.
*
*
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*
A–4: * * *
(h) Distributions of premiums for
accident or health insurance under
§ 1.402(a)–1(e).
*
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*
Par. 9. Section 1.403(a)–1 is amended
by revising paragraph (g) to read as
follows:
§ 1.403(a)–1 Taxability of beneficiary under
a qualified annuity plan.
*
*
*
*
(g) The rules of § 1.402(a)–1(e) apply
for purposes of determining the
treatment of amounts paid to provide
accident and health insurance benefits.
Par. 10. Section 1.403(b)–6 is
amended by adding a sentence
following the first sentence of paragraph
(g) to read as follows:
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*
§ 1.403(b)–6
benefits.
Timing of distributions and
*
*
*
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*
(g) Death benefits and other
incidental benefits. * * * The rules of
§ 1.402(a)–1(e) apply for purposes of
determining when incidental benefits
are treated as distributed and included
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460l–6d) directs the Secretaries of the
Interior and Agriculture to establish a
reasonable fee system (location fees) for
commercial filming and still
photography activities on lands under
the Secretaries’ jurisdiction. The law
necessitates that the Department of the
Interior (DOI) revise the existing
regulations at 43 CFR part 5 prohibiting
the National Park Service and the Fish
and Wildlife Service from collecting
fees for commercial film productions.
When finalized, this proposed
regulation will be the primary
regulation governing commercial
filming and still photography activities
for the following DOI agencies: The
Bureau of Land Management (BLM), the
U.S. Fish and Wildlife Service (FWS),
and the National Park Service (NPS).
While 16 U.S.C. 460l–6d authorizes
agencies of the DOI to collect location
fees, to date only the BLM, FWS, and
NPS have decided to proceed with
regulations allowing the agencies to
collect and retain location fees. If in the
future additional DOI agencies decide to
collect location fees, then this regulation
may be adopted by those agencies
without significant modification.
Background
Lands of the United States were set
aside by Congress and Executive order
or otherwise acquired to conserve and
protect areas of untold beauty and
grandeur, historical importance, and
uniqueness for future generations. Often
it is the uniqueness of the land that
attracts filmmakers. This tradition
started with explorers who traveled
with paint and canvas or primitive
photo apparatus before the areas were
designated as a national park, refuge, or
forest. Generally, land management
agencies allow commercial filming and
still photography when it is consistent
with their mission and will not harm
the resource or interfere with the visitor
experience.
While many commercial filming and
still photography permits issued by the
land management agencies are for small
productions involving educational
material or commercial advertising, a
significant number of commercial
filming permits have been issued to
makers of major motion pictures.
Public Law 106–206 augments
previous statutes authorizing
commercial filming and still
photography permits and establishes
limitations for filming activities. While
commercial filming and still
photography are activities generally
allowed on Federal lands, in many
circumstances it is in the Government’s
interest to manage the activity through
a permitting process to minimize the
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possibility of damage to the cultural or
natural resources or interference with
other visitors to the area.
This regulation standardizes the
collection of location fees by DOI
agencies. Currently, while NPS and
FWS do not collect location fees for
commercial filming or still photography,
BLM collects and retains location fees
for the use of their lands (43 CFR
2920.8). This proposed regulation
allows DOI agencies to collect a location
fee and to retain and use the money
collected in accordance with the
formula and purposes established for
the Department’s Recreational Fee
Demonstration Program (Pub. L. 104–
134). The formula currently provides
that at least 80 percent of the fee
collected remains in the unit where it
was collected.
This regulation lays out the criteria
for establishing location fees, including
the number of people on site, duration
(number of days) of the permitted
activity, and amount and type of
equipment present, as specified in
statute. Actual fee amounts will be
determined separately under a location
fee schedule to be developed later by
the DOI agencies covered by this
regulation and the U.S. Forest Service
(USFS). This schedule will be based on
the current schedules used by BLM and
USFS, public comments a draft location
fee schedule previously proposed by
NPS, and conversations with State and
local film commissioners and industry
representatives. Revised location fee
schedules will be published in the
Federal Register for public comment.
Once we have analyzed comments on
the revised location fee schedules, we
will publish a notice of final location fee
schedules in the Federal Register. These
schedules will then be available for use
by other DOI bureaus and Federal
agencies, should they choose to do so.
The schedules will be reevaluated
periodically on a timetable to be set by
the agencies using the schedule.
The expanded guidance provided in
Public Law 106–206 is now proposed as
subpart A of 43 CFR part 5, with the
section governing areas administered by
the Bureau of Indian Affairs, currently
designated as § 5.2, now proposed as
subpart B. The unnumbered paragraphs
of § 5.2 have been numbered in the
proposed subpart to allow for easier
reference. In addition, a technical
correction was made changing 25 CFR
part 131 to 25 CFR part 162. We have
also revised the NPS regulations in 36
CFR 5.5, and amended the current
reference in the FWS regulations in
Title 50 to conform to the proposed
regulations in 43 CFR part 5.
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Key Issues
Due to differences in regulations and
policy, the three DOI land management
agencies each have different approaches
to managing commercial filming and
still photography activities on their
land. The types of commercial filming
and still photography activities
currently needing a permit vary from
agency to agency, and only one DOI
agency collects a location fee. The BLM
currently charges a location fee for some
commercial filming, but the NPS and
FWS are currently prohibited by 43 CFR
5.1(b) from charging a location fee. The
NPS and BLM recover the costs
associated with issuing the permit from
the permit holder. In addition, BLM
state offices determine the location fee
schedules for that State. This lack of
consistency between the agencies
creates confusion on the part of the
filming and photography industry.
This proposed regulation defines
commercial filming and still
photography (Section 5.2) and explains
which activities require a permit
(Section 5.3), thereby ensuring
consistency among DOI agencies. The
proposed regulation identifies
circumstances when an agency may not
issue a permit, with six factors that
agencies must take into account when
evaluating an application for a permit
(Section 5.4). This proposed regulation
also allows each of the DOI agencies to
impose reasonable permit conditions to
mitigate the impact of the activity on the
resource and visitor use and enjoyment
(Section 5.5). A violation of a permit
condition would allow the issuing
agency to revoke the permit. This
proposed regulation also explains the
financial responsibilities of the permit
holder, including payment of the
location fee, reimbursement of any costs
incurred by the agency due to the
processing of the application and
monitoring of the permitted activity,
and the necessary liability insurance
and surety bonds (Section 5.6).
Section-by-Section Analysis of
Proposed 43 CFR Part 5
The following organizational
summary has been prepared to assist in
the location and analysis of the
proposed revisions.
NUMBERING OF PROPOSED 43 CFR
PART 5
Existing 43
CFR Part 5
5.1(a)
5.1(b)
5.1(c)
5.1(d)
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Proposed 43 CFR Part 5
5.3 Permit.
5.6 Liability/Bonding.
5.5 Permit Conditions.
Deleted.
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NUMBERING OF PROPOSED 43 CFR
PART 5—Continued
Existing 43
CFR Part 5
Proposed 43 CFR Part 5
New Sections:
5.1 Scope.
5.2 Terms.
5.4 No Permit.
5.7 Costs.
5.8 Process Time.
Section 5.1 What does this subpart
cover?
This subpart contains the regulations
for issuing permits for commercial
filming and still photography in units of
the NPS, FWS, and BLM in the DOI. It
is possible that additional agencies of
the DOI will adopt this regulation
should the agency decide to collect
location fees and cost recovery as
authorized by Public Law 106–206. The
only modification needed for additional
agencies to adopt this regulation would
be to modify the definition of ‘‘agency.’’
Section 5.2 How are the terms defined
in this subpart?
This section provides the definitions
needed to understand the regulation,
including definitions for agency,
commercial filming, cost recovery,
location fee, and still photography.
Section 5.3 When do I need a permit
for commercial filming or still
photography?
Public Law 106–206 augments
previous statutes for authorizing
commercial filming and still
photography activities and provides
protections for the affected Federal
lands. The law clarifies the
requirements for commercial filming
and still photography permits and
establishes limitations for filming
activities. While commercial filming
and still photography are activities
generally allowed on Federal lands, in
many circumstances it is in the
Government’s interest to manage the
activity through a permitting process to
minimize the possibility of damage to
the cultural or natural resources or
interference with other visitors to the
area. A person seeking a permit should
contact the manager of the site for
which the permit is sought to learn how
and where to apply.
All commercial filming on lands
under DOI jurisdiction requires a
permit. This section details those
instances and lists specific criteria that
trigger the need for a still photography
permit, such as the use of models, sets,
or props or requesting access to an area
to photograph which is, at that time, not
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open to the general public. While
filming and still photography activities
by visitors (as opposed to commercial
filmmakers or commercial
photographers) generally do not require
a permit, this section details those
instances and lists specific criteria that
trigger the need for a filming or still
photography permit. These criteria
include the use of models, sets, or props
or requesting access to an area to film
or photograph which is, at that time, not
open to the general public. News
coverage also does not need a permit,
but is subject to time, place, and manner
restriction, if warranted, to maintain
order and ensure the safety of the public
and the media, and protect natural and
cultural resources.
Section 5.4 Under what circumstances
will an agency not issue a permit for
commercial filming or still
photography?
The DOI agencies covered under this
regulation will issue a permit, except
when there is the likelihood that the
activity will (1) Damage the resource, (2)
cause unreasonable disruption or
conflict with the public’s use and
enjoyment of the site, (3) pose public
health or safety risks, (4) impair park
resources or values, (5) be inappropriate
or incompatible with the purpose of the
refuge, or (6) violate other applicable
laws or regulations. In some cases, a
permit could be issued after terms and
conditions are added to the permit to
mitigate negative impacts.
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Section 5.5 What type of permit
conditions will the agency impose?
One important aspect of a commercial
filming or still photography permit is
the inclusion of terms and conditions
that will protect the natural and cultural
resources, ensure that visitor use and
enjoyment is not affected, and protect
public health and safety. Permit terms
and conditions will be included to
mitigate any possible damage to the
resources and to guarantee the
restoration of Federal lands should that
be necessary. The permit is a legal
agreement between the Federal agency
and the permit holder, who is legally
bound to adhere to the terms and
conditions of the permit. The permit
may be revoked if the permit terms or
conditions are violated.
Section 5.6 What are my liability and
bonding requirements?
The permit holder is required to
acquire appropriate insurance,
including property and personal and
public liability insurance. Permit
holders must fully indemnify and hold
harmless the United States for any
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damage or injury incurred in connection
with the permitted activity. Permit
holders are also responsible for restoring
and repairing the area used for the
permitted activity and providing
security in the form of a bond or other
instrument that would guarantee
restoration and repair.
Section 5.7
incur?
What expenses will I
Fees are divided into two categories:
a fee for commercial filming activities,
similar projects or still photography
(location fee) and cost recovery. The
location fee is basically rent; i.e., a
payment for the use of the land. Cost
recovery reimburses the agency for all
costs incurred in the receiving of the
application, processing the request, and
monitoring the permitted activity.
The cost of location fees will depend
upon the number of people on site,
duration (number of days) of the
permitted activity, and amount and type
of equipment present, as specified in
statute. Actual fee amounts will be
determined separately under a location
fee schedule to be developed later by
the DOI agencies (and possibly USDA’s
Forest Service) covered by this
regulation. This schedule will be based
on schedules currently being used by
BLM and the U.S. Forest Service and
public comments previously received by
NPS on a draft location fee schedule, On
December 14, 2000 (65 FR 78186), the
NPS published a ‘‘Notice of Availability
of Draft Fee Schedules and Guidance for
Commercial Filming in Compliance
with Public Law 106–206 To Apply in
All Units of the National Park Service.’’
We received 34 comments from the
public as well as 9 comments from NPS
personnel. Subsequently, additional
conversations were held with managers
of non-federally managed sites, both
cultural and natural, as well as
conversations with State and local film
commissioners and industry
representatives. Public Law 106–206
directed the agencies to recover any
costs incurred by the agency as a result
of the permitting of commercial filming
or still photography activities,
including, but not limited to,
administrative and personnel costs.
Recovery of costs is in addition to any
location fees that might be charged. We
will recover costs any time an
application is submitted, and the
amount should cover all costs of
processing the request and monitoring
the permitted activities. Cost recovery
will be charged for processing a request
even if the request is denied, since the
agency incurred costs in processing the
application and reaching a decision.
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Section 5.8 How long will it take to
process my request?
Under Public Law 106–206, Federal
agencies are required to establish a
process to ensure that permit
applications are processed in a timely
manner. Each DOI agency will develop
a written checklist of the application
and review process which will include
a timeline to be followed by that agency.
While processing times may vary
significantly based on the complexity of
the commercial filming or still
photography request, a checklist will
ensure that similar application and
processing procedures are used
throughout each agency on similar
requests and that the application is
efficiently processed to minimize the
time it takes to consider a request. Early
consultation with the appropriate
agency on the part of a potential
applicant will also aid in processing the
application in a timely manner once it
is submitted. The process used and the
appropriate application forms will be
available on request at all field offices
and on the Internet.
Sections 5.15 Through 5.18
These sections apply only to the
Bureau of Indian Affairs (BIA) and are
currently paragraphs (a) through (d) of
§ 5.2. While we propose no substantive
changes to any of these sections, we
have:
(1) Made each paragraph into a
section;
(2) Given each section a heading in
the form of a question;
(3) Updated a reference to 25 CFR part
131 to refer the reader to 25 CFR part
162; and
(4) Made a few additional minor
formatting and wording changes.
Compliance with Laws, Executive
Orders, and Department Policy
Regulatory Planning and Review
(Executive Order 12866)
This document is a significant rule
and has been reviewed by the Office of
Management and Budget (OMB) under
Executive Order 12866.
(1) This rule will not have an effect of
$100 million or more on the economy.
It will not adversely affect in a material
way the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
or tribal governments or communities.
(2) This rule will not create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency.
(3) This rule does not alter the
budgetary effects of entitlements, grants,
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user fees, or loan programs or the rights
or obligations of their recipients.
(4) This rule is following the direction
of Congress by implementing the
provisions of Public Law 106–206. OMB
has determined that this rule raises
novel legal or policy issues. The rule
proposes to institute a new schedule of
fees for private industry for commercial
filming and still photography activities
that receive permits for the use of
Federal lands managed by several DOI
agencies. The potential number of areas
and businesses affected by this
proposed regulation could generate a
number of comments.
Federalism (Executive Order 13132)
Regulatory Flexibility Act
This proposed regulation requires
individuals and companies wishing to
do commercial filming and still
photography on public lands to obtain
a permit from the agency managing the
public land. The permit holder is also
responsible for reimbursing the agency
for costs incurred and to pay a land use
fee. The mechanics of applying for the
permit and the forms involved are not
addressed in this proposed regulation,
but are addressed in existing agency
regulations and internal guidance. The
NPS uses application forms NPS 10–931
(Film—Short Form) and NPS 10–932
(Film—Long Form). Both forms are
assigned OMB Control Number 1024–
0026 and expire March 31, 2010. The
BLM uses OMB-approved BLM Form
2920–1 (Land Use Application and
Permit), which is assigned OMB Control
Number 1004–0009 and expires
December 31, 2007. The FWS National
Wildlife Refuge System currently uses
two forms for special use permits on
refuges: FWS Form 3–1383 (Special Use
Permit Application on National Wildlife
Refuges Outside Alaska), for which the
OMB Control Number is 1018–0102 and
the OMB approval expires January 31,
2008, and FWS Form 3–2001 (Special
Use Permit Application on National
Wildlife Refuges in Alaska), for which
the OMB Control Number is 1018–0014
and the OMB approval expires
September 30, 2006. Therefore, these
regulations do not contain information
collection requirements that the OMB
must approve under the Paperwork
Reduction Act of 1995, 44 U.S.C. 3501
et seq.
The Department of the Interior
certifies that this document will not
have a significant economic effect on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). This certification is
based on information contained in the
report titled, ‘‘Benefit-Cost/Unfunded
Mandates Act Analysis Small Business
and Regulatory Flexibility Act
Analysis’’ (U.S. Department of the
Interior, Office of Policy Analysis,
Office of the Secretary). This report is
available from the NPS by writing to Lee
Dickinson at the addresses listed in the
section above under ADDRESSES.
Small Business Regulatory Enforcement
Fairness Act (SBREFA)
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
This rule:
a. Does not have an annual effect on
the economy of $100 million or more.
b. Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State, or
local government agencies, or
geographic regions.
c. Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
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Unfunded Mandates Reform Act
This rule does not impose an
unfunded mandate on State, local, or
tribal governments or the private sector
of more than $100 million per year. The
rule does not have a significant or
unique effect on State, local, or tribal
governments or the private sector.
Takings (Executive Order 12630)
In accordance with Executive Order
12630, the rule does not have significant
takings implications.
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In accordance with Executive Order
13132, the rule does not have sufficient
federalism implications to warrant the
preparation of a federalism assessment.
Civil Justice Reform (Executive Order
12988)
In accordance with Executive Order
12988, the Office of the Solicitor has
determined that this rule does not
unduly burden the judicial system and
meets the requirements of sections 3(a)
and 3(b)(2) of the order.
Paperwork Reduction Act
National Environmental Policy Act
This rule does not constitute a major
Federal action significantly affecting the
quality of the human environment,
health, and safety because it is not
expected to:
(a) Increase public use to the extent of
compromising the nature and character
of the area or causing physical damage
to it;
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46429
(b) Introduce non-compatible uses
that might compromise the nature and
characteristics of the area, or cause
physical damage to it;
(c) Conflict with adjacent ownerships
or land uses; or
(d) Cause a nuisance to adjacent
owners or occupants.
Based on this determination, the
regulation is categorically excluded
from the procedural requirements of the
National Environmental Policy Act
(NEPA) by Departmental guidelines in
516 DM 6, (49 FR 21438). Therefore,
neither an environmental assessment
nor an environmental impact statement
has been prepared.
The location fee authorized by Public
Law 106–206 and governed by this
proposed regulation is a fee collected
when a permit is issued by the
responsible agency for a commercial
filming or still photography activity.
Any analysis required by the NEPA, as
well as the National Historic
Preservation Act, would be conducted
in conjunction with the permitting
process and would evaluate the impact
of the requested activity on the resource.
Government-to-Government
Relationship With Tribes
In accordance with Executive Order
13175 ‘‘Consultation and Coordination
with Indian Tribal Governments’’ (65 FR
67249), the President’s memorandum of
April 29, 1994, ‘‘Government-toGovernment Relations with Native
American Tribal Governments’’ (59 FR
22961), and 512 DM 2, we have
evaluated potential effects on federally
recognized Indian tribes and have
determined that there are no potential
effects.
Clarity of This Regulation
Executive Order 12866 requires each
agency to write regulations that are easy
to understand. We invite your
comments on how to make this rule
easier to understand, including answers
to questions such as the following: (1)
Are the requirements in the rule clearly
stated? (2) Does the rule contain
technical language or jargon that
interferes with its clarity? (3) Does the
format of the rule (grouping and order
of sections, use of headings,
paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to
understand if it were divided into more
(but shorter) sections? (A ‘‘section’’
appears in bold type and is preceded by
the symbol ‘‘§ ’’ and a numbered
heading; for example § 14.10 Purpose).
(5) Is the description of the rule in the
‘‘Supplementary Information’’ section of
the preamble helpful in understanding
the proposed rule? What else could we
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do to make the rule easier to
understand?
Send a copy of any comments that
concern how we could make this rule
easier to understand to: Office of
Regulatory Affairs, DOI, Room 7229,
1849 C Street, NW., Washington, DC
20240. You may also e-mail the
comments to this address:
Exsec@ios.doi.gov.
Drafting Information: The primary
authors of this regulation are Lee
Dickinson, Special Park Uses Program
Manager, Jerry Case, Regulations
Program Manager, National Park
Service, Washington DC; Vanessa Engle,
Program Lead Commercial Filming and
Still Photography, Bureau of Land
Management, Washington DC; and
Rebecca Halbe, National Fee Program
Coordinator, U.S. Fish and Wildlife
Service, Washington DC.
Public Participation
You may submit comments, identified
by the number RIN 1024–AD30, by any
of the following methods:
—Federal rulemaking portal: https://
www.regulations.gov. Follow the
instructions for submitting electronic
comments.
—You may mail or hand deliver
comments to National Park Service,
Attn: Lee Dickinson, Special Park
Uses Program Manager, 1849 C Street,
NW., ORG CODE 2460, Washington,
DC 20240.
Our practice is to make comments,
including names and addresses of
respondents, available for public review
during regular business hours.
Individual respondents may request that
we withhold their home address from
the rulemaking record, which we will
honor to the extent allowable by law. If
you wish us to withhold your name
and/or address, you must state this
prominently at the beginning of your
comment. However, we will not
consider anonymous comments. We
will make all submissions from
organizations or businesses, and from
individuals identifying themselves as
representatives or officials or
organizations or businesses, available
for public inspection in their entirety.
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List of Subjects
36 CFR Part 5
Alcohol and alcoholic beverages,
Business and industry, Civil rights,
Equal employment opportunity,
National parks, Transportation, Motion
pictures.
43 CFR Part 5
Motion pictures, Recordings,
Television.
VerDate Aug<31>2005
15:03 Aug 17, 2007
Jkt 211001
50 CFR Part 27
Wildlife refuges.
For the reasons set forth in the
preamble, we propose to amend part 5
of title 36, part 5 of title 43, and part 27
of title 50 of the Code of Federal
Regulations as follows:
Authority: 5 U.S.C. 301; 16 U.S.C. 1–3, 3a,
668dd–ee, 715i, 460l–6d; 25 U.S.C. 2; 43
U.S.C. 1701, 1732–1734, 1740.
Title 36—Parks, Forests, and Public
Property
§ 5.1
CHAPTER I—NATIONAL PARK SERVICE,
DOI
PART 5—COMMERCIAL AND PRIVATE
OPERATIONS
1. The authority citation for part 5
continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 17j–2, 462.
2. Section 5.5 is revised to read as
follows:
§ 5.5 Commercial filming and still
photography.
Commercial filming and still
photography are subject to the
provisions of the special regulations
contained in part 5, subpart A, title 43
of the Code of Federal Regulations.
Title 43—Public Lands: Interior
Subtitle A—Office of the Secretary of
the Interior
3. Part 5 is revised to read as follows:
PART 5—MAKING MOTION PICTURES,
TELEVISION PRODUCTIONS, OR
SOUNDTRACKS OR TAKING STILL
PHOTOGRAPHS ON CERTAIN AREAS
UNDER THE JURISDICTION OF THE
DEPARTMENT OF THE INTERIOR
Subpart A—Areas Administered by the
National Park Service, the U.S. Fish and
Wildlife Service, and the Bureau of Land
Management
Sec.
5.1 What does this subpart cover?
5.2 How are terms defined in this subpart?
5.3 When do I need a permit for commercial
filming or still photography?
5.4 Under what circumstances will an
agency not issue a permit for commercial
filming or still photography?
5.5 What type of permit conditions will the
agency impose?
5.6 What are my liability and bonding
requirements?
5.7 What expenses will I incur?
5.8 How long will it take to process my
request?
Subpart B—Areas Administered by the
Bureau of Indian Affairs
5.15 When must I ask permission from
individual Indians to conduct filming
and photography?
5.16 When must I ask permission from
Indian groups and communities?
5.17 When must I get a lease or permit?
5.18 What wages must I pay to Indian
employees?
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Subpart A—Areas Administered by the
National Park Service, the U.S. Fish
and Wildlife Service, and the Bureau of
Land Management
What does this subpart cover?
This subpart covers commercial
filming and still photography activities
on the Federal lands and waters
administered by the Bureau of Land
Management, the National Park Service,
and the U.S. Fish and Wildlife Service.
§ 5.2
How are terms defined in this part?
The following definitions apply to
this part:
Agency, we, our, or us means the
Bureau of Land Management, the
National Park Service, and the U.S. Fish
and Wildlife Service office responsible
for the administration of lands and
waters that are under its respective
jurisdiction. (This definition may be
expanded as additional agencies in the
DOI choose to collect location fees for
commercial filming and still
photography on the lands under their
jurisdiction.)
Commercial filming means 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 for a documentary, television or
feature film, advertisement, or similar
project. It does not include news
coverage or visitor use.
Cost recovery is the money that the
agency collects as reimbursement for the
costs incurred by the agency in
accepting and processing an application
and in monitoring the permitted
commercial filming or still photography
activity.
Location fee means a land or facility
use fee similar to rent that provides a
fair return to the United States for the
use of Federal lands or facilities when
used for commercial filming activities or
similar projects and still photography
activities where a permit is required.
Permit means a written authorization
by us to engage in uses or activities that
are otherwise prohibited or restricted.
Resource damage, as applied to BLM
lands, means harm to the land or its
resources that cannot reasonably be
mitigated or reclaimed.
Still photography means the capturing
of a still image on film or in a digital
format.
§ 5.3 When do I need a permit for
commercial filming or still photography?
(a) All commercial filming requires a
permit.
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(b) Still photography requires a permit
if:
(1) It takes place at location(s) where
or when members of the public are
generally not allowed; or
(2) It uses model(s), sets(s), or prop(s)
that are not a part of the location’s
natural or cultural resources or
administrative facilities; or
(3) The agency would incur additional
administrative costs to monitor the
activity; or
(4) The agency would need to provide
management and oversight to:
(i) Avoid impairment or incompatible
use of the resources and values of the
site; or
(ii) Limit resource damage; or
(iii) Minimize health or safety risks to
the visiting public.
(c) News coverage does not require a
permit, but is subject to time, place, and
manner restrictions, if warranted, to
maintain order and ensure the safety of
the public and the media, and protect
natural and cultural resources.
(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.
(e) For information on how to obtain
a permit application and where and
how to submit it, contact the site
manager for the location at which you
seek a permit to film.
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§ 5.4 Under what circumstances will an
agency not issue a permit for commercial
filming or still photography?
(a) We will issue a permit authorizing
commercial filming or still photography,
EXCEPT if we determine that:
(1) There is the likelihood that
resource damage would occur that
cannot be mitigated or restored under
the terms and conditions of a permit; or
(2) There is the likelihood of
unreasonable disruption of or conflict
with the public’s use and enjoyment of
the site; or
(3) There is the likelihood that the
activity poses health or safety risks to
the public; or
(4) There is the likelihood that the
activity would result in the impairment
of park resources or values;
(5) The activity is inappropriate or
incompatible with the purpose of the
refuge; or
(6) The requested activity will violate
any other applicable Federal, State, or
local law or regulation.
(b) [Reserved]
§ 5.5 What type of permit conditions will
the agency impose?
(a) We may impose permit conditions
including, but not limited to, conditions
intended to:
VerDate Aug<31>2005
15:03 Aug 17, 2007
Jkt 211001
(1) Protect the site’s values, purposes,
and resources, and public health and
safety; or
(2) Prevent unreasonable disruption of
the public’s use and enjoyment.
(b) We may revoke your permit if you
violate a permit condition.
§ 5.6 What are my liability and bonding
requirements?
(a) You are fully liable for any damage
or injury incurred in connection with
the activity, and you must fully
indemnify and hold harmless the
United States. You must obtain an
appropriate property damage, personal
injury, and public liability insurance
policy sufficient to protect the United
States Government from liability or
other claims arising from activities
under the permit. The insurance policy
must name the United States as an
additional insured.
(b) You are responsible for repair and
restoration costs if your activity causes
resource damage to an area. We may
also require you to provide a bond or
other security satisfactory to secure any
other obligations you may have under
the permit and applicable laws and
regulations. The bond must be in an
amount sufficient to provide full
payment for the costs of restoration,
reclamation, or rehabilitation of the
lands in the event that your activity
causes resource damage to an area. If the
cost of the repairs exceeds the amount
of your bond, you will also be
responsible for the additional amount.
§ 5.7
What expenses will I incur?
(a) Location fee. (1) For commercial
filming and still photography permits,
we will require a reasonable location fee
that provides a fair return to the United
States. The location fee will be based
upon the following criteria:
(i) The number of days your activity
takes place;
(ii) The size of the film crew;
(iii) The amount and type of
equipment present; and
(iv) Comparable location fees charged
by other Federal, State, and local
government agencies and the private
sector.
(2) The location fee charged is in lieu
of any entrance or other special use fees.
However, the location fee is in addition
to any cost recovery amount assessed in
paragraph (b) of this section.
(3) We will assess location fees in
accordance with a fee schedule, to be
published in the Federal Register and
made available on the Internet and at
our field offices.
(b) Cost recovery. You must reimburse
the agency for actual costs incurred in
processing your request and
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Sfmt 4702
46431
administering your permit. Cost
recovery will be based upon our direct
and indirect expenses including, but not
limited to, administrative and personnel
costs for application processing,
preproduction meetings and other
activities, and on-site monitoring of
permitted activities.
§ 5.8 How long will it take to process my
request?
The DOI is committed to ensuring that
the agencies process permit applications
for commercial filming and still
photography permits in a timely
manner. Each agency is responsible for
developing its own system for
administering the permit application
process. For specific information on
application procedures, contact the
appropriate agency field office.
Subpart B—Areas Administered by the
Bureau of Indian Affairs
§ 5.15 When must I ask permission from
individual Indians to conduct filming and
photography?
Anyone who desires to go on to the
land of an Indian to make pictures,
television productions, or soundtracks
is expected to observe the ordinary
courtesy of first obtaining permission
from the person(s) and of observing any
conditions attached to this permission.
§ 5.16 When must I ask permission from
Indian groups and communities?
Anyone who desires to take pictures,
including motion pictures, or to make a
television production or a soundtrack of
Indian communities, churches, kivas,
plazas, or ceremonies performed in
these places, must:
(a) Obtain prior permission from the
proper officials of the place or
community; and
(b) Scrupulously observe any
limitations imposed by the officials who
grant the permission.
§ 5.17
When must I get a lease or permit?
If filming pictures or making a
television production or a soundtrack
requires the actual use of Indian lands,
you must obtain a lease or permit under
25 CFR part 162.
§ 5.18 What wages must I pay to Indian
employees?
Any motion picture or television
producer who obtains a lease or permit
for the use of Indian land under 25 CFR
part 162 must pay a fair and reasonable
wage to any Indian employed in
connection with the production.
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46432
Federal Register / Vol. 72, No. 160 / Monday, August 20, 2007 / Proposed Rules
Title 50—Wildlife and Fisheries
SUBCHAPTER C—THE NATIONAL
WILDLIFE REFUGE SYSTEM
PART 27—PROHIBITED ACTS
Subpart G—Disturbing Violations:
Light and Sound Equipment
4. The authority citation for part 27
continues to read as follows:
Authority: Sec. 2, 33 Stat. 614, as amended
(16 U.S.C. 685); Sec. 5, 43 Stat. 651 (16 U.S.C.
725); Sec. 5, Stat. 449 (16 U.S.C. 690d); Sec.
10, 45 Stat. 1224 (16 U.S.C. 715i); Sec. 4, 48
Stat. 402, as amended (16 U.S.C. 664); Sec.
2, 48 Stat. 1270 (43 U.S.C. 315a); 49 Stat. 383
as amended; Sec. 4, 76 Stat. (16 U.S.C. 460k);
Sec. 4, 80 Stat. 927 (16 U.S.C. 668dd) (5
U.S.C. 685, 752, 690d); 16 U.S.C. 715s).
5. Section 27.71 is revised to read as
follows:
§ 27.71 Motion pictures, sound recordings,
and still photography.
The filming of any motion picture or
taking of sound recordings or still
photography on a national wildlife
refuge for subsequent commercial use is
prohibited except as may be authorized
under the provisions of 43 CFR part 5.
Dated: March 22, 2007.
P. Lynn Scarlett,
Deputy Secretary of the Interior.
Editorial Note: The Office of the Federal
Register received this document on August 8,
2007.
[FR Doc. E7–15845 Filed 8–17–07; 8:45 am]
BILLING CODE 4312–70–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–R04–OAR–2007–0229–200713(b);
FRL–8453–7]
Approval of Implementation Plans of
Tennessee: Clean Air Interstate Rule
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
rfrederick on PROD1PC67 with PROPOSALS
AGENCY:
SUMMARY: EPA is approving revisions to
the Tennessee State Implementation
Plan (SIP) submitted on September 8,
2006. This revision incorporates
provisions related to the
implementation of EPA’s Clean Air
Interstate Rule (CAIR), promulgated on
May 12, 2005, and subsequently revised
on April 28, 2006, and December 13,
2006, and the CAIR Federal
Implementation Plan (FIP) concerning
Sulfur Dioxide (SO2), Nitrogen Oxides
(NOX) annual, and NOX ozone season
emissions for the State of Tennessee,
15:03 Aug 17, 2007
Jkt 211001
Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2007–0229, by one of the
following methods:
1. https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
2. E-mail: hou.james@epa.gov.
3. Fax: (404) 562–9019.
4. Mail: EPA–R04–OAR–2007–0229,
Regulatory Development Section, Air
Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960.
5. Hand Delivery or Courier: James
Hou, Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960. Such
deliveries are only accepted during the
Regional Office’s normal hours of
operation. The Regional Office’s official
ADDRESSES:
40 CFR Parts 52 and 97
VerDate Aug<31>2005
promulgated on April 28, 2006, and
subsequently revised December 13,
2006. On February 8, 2007, Tennessee
requested that EPA only act on a portion
of the September 8, 2006 submittal as an
abbreviated SIP. Consequently, EPA is
approving an abbreviated SIP revision
that addresses the methodology to be
used to allocate annual and ozone
season NOX allowances under the CAIR
FIPs and opt-in provisions for the SO2,
NOX annual, and NOX ozone season
trading programs. EPA is not making
any changes to the CAIR FIP, but is
amending, to the extent EPA approves
Tennessee’s SIP revision, the
appropriate appendices in the CAIR FIP
trading rules simply to note that
approval.
In the Final Rules Section of this
Federal Register, the EPA is approving
the State’s SIP revision as a direct final
rule without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this rule, no
further activity is contemplated. If EPA
receives adverse comments, the direct
final rule will be withdrawn and all
public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period
on this document. Any parties
interested in commenting on this
document should do so at this time.
DATES: Written comments must be
received on or before September 19,
2007.
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hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding
federal holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R04–OAR–2007–
0229. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit through https://
www.regulations.gov or e-mail,
information that you consider to be CBI
or otherwise protected. The https://
www.regulations.gov Web site is an
‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information, unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters and any form of
encryption and should be free of any
defects or viruses. For additional
information about EPA’s public docket
visit the EPA Docket Center homepage
at https://www.epa.gov/epahome/
dockets.htm.
Docket: All documents in the
electronic docket are listed in the
https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
i.e., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically in https://
www.regulations.gov or in hard copy at
the Regulatory Development Section,
Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
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]]>Agencies
[Federal Register Volume 72, Number 160 (Monday, August 20, 2007)]
[Proposed Rules]
[Pages 46426-46432]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-15845]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 5
Office of the Secretary
43 CFR Part 5
Fish and Wildlife Service
50 CFR Part 27
RIN 1024-AD30
Making Motion Pictures, Television Productions, Soundtracks or
Taking Still Photographs on Certain Areas Under the Jurisdiction of the
Department of the Interior
AGENCY: National Park Service, Office of the Secretary, Fish and
Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior (DOI) proposes to revise its
filming regulations to implement legislation that directs establishment
of reasonable fees for commercial filming activities or similar
projects, such as still photography, and to respond to applicants for
commercial filming or still photography permits in a timely manner.
DATES: Written comments will be accepted through October 19, 2007.
ADDRESSES: You may submit comments, identified by the number 1024-AD30,
by any of the following methods:
--Federal rulemaking portal: https://www.regulations.gov. Follow the
instructions for submitting comments.
--Mail: Lee Dickinson, Special Park Uses Program Manager, National
Park Service, 1849 C Street, NW., ORG CODE 2460, Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Lee Dickinson, Special Park Uses
Program Manager, National Park Service, 1849 C Street, NW., ORG CODE
2460, Washington, DC 20240, telephone: 202-513-7092, or e-mail: Lee--
Dickinson@nps.gov.
SUPPLEMENTARY INFORMATION: Public Law 106-206 (codified at 16 U.S.C.
460l-6d) directs the Secretaries of the Interior and Agriculture to
establish a reasonable fee system (location fees) for commercial
filming and still photography activities on lands under the
Secretaries' jurisdiction. The law necessitates that the Department of
the Interior (DOI) revise the existing regulations at 43 CFR part 5
prohibiting the National Park Service and the Fish and Wildlife Service
from collecting fees for commercial film productions. When finalized,
this proposed regulation will be the primary regulation governing
commercial filming and still photography activities for the following
DOI agencies: The Bureau of Land Management (BLM), the U.S. Fish and
Wildlife Service (FWS), and the National Park Service (NPS). While 16
U.S.C. 460l-6d authorizes agencies of the DOI to collect location fees,
to date only the BLM, FWS, and NPS have decided to proceed with
regulations allowing the agencies to collect and retain location fees.
If in the future additional DOI agencies decide to collect location
fees, then this regulation may be adopted by those agencies without
significant modification.
Background
Lands of the United States were set aside by Congress and Executive
order or otherwise acquired to conserve and protect areas of untold
beauty and grandeur, historical importance, and uniqueness for future
generations. Often it is the uniqueness of the land that attracts
filmmakers. This tradition started with explorers who traveled with
paint and canvas or primitive photo apparatus before the areas were
designated as a national park, refuge, or forest. Generally, land
management agencies allow commercial filming and still photography when
it is consistent with their mission and will not harm the resource or
interfere with the visitor experience.
While many commercial filming and still photography permits issued
by the land management agencies are for small productions involving
educational material or commercial advertising, a significant number of
commercial filming permits have been issued to makers of major motion
pictures.
Public Law 106-206 augments previous statutes authorizing
commercial filming and still photography permits and establishes
limitations for filming activities. While commercial filming and still
photography are activities generally allowed on Federal lands, in many
circumstances it is in the Government's interest to manage the activity
through a permitting process to minimize the
[[Page 46427]]
possibility of damage to the cultural or natural resources or
interference with other visitors to the area.
This regulation standardizes the collection of location fees by DOI
agencies. Currently, while NPS and FWS do not collect location fees for
commercial filming or still photography, BLM collects and retains
location fees for the use of their lands (43 CFR 2920.8). This proposed
regulation allows DOI agencies to collect a location fee and to retain
and use the money collected in accordance with the formula and purposes
established for the Department's Recreational Fee Demonstration Program
(Pub. L. 104-134). The formula currently provides that at least 80
percent of the fee collected remains in the unit where it was
collected.
This regulation lays out the criteria for establishing location
fees, including the number of people on site, duration (number of days)
of the permitted activity, and amount and type of equipment present, as
specified in statute. Actual fee amounts will be determined separately
under a location fee schedule to be developed later by the DOI agencies
covered by this regulation and the U.S. Forest Service (USFS). This
schedule will be based on the current schedules used by BLM and USFS,
public comments a draft location fee schedule previously proposed by
NPS, and conversations with State and local film commissioners and
industry representatives. Revised location fee schedules will be
published in the Federal Register for public comment. Once we have
analyzed comments on the revised location fee schedules, we will
publish a notice of final location fee schedules in the Federal
Register. These schedules will then be available for use by other DOI
bureaus and Federal agencies, should they choose to do so. The
schedules will be reevaluated periodically on a timetable to be set by
the agencies using the schedule.
The expanded guidance provided in Public Law 106-206 is now
proposed as subpart A of 43 CFR part 5, with the section governing
areas administered by the Bureau of Indian Affairs, currently
designated as Sec. 5.2, now proposed as subpart B. The unnumbered
paragraphs of Sec. 5.2 have been numbered in the proposed subpart to
allow for easier reference. In addition, a technical correction was
made changing 25 CFR part 131 to 25 CFR part 162. We have also revised
the NPS regulations in 36 CFR 5.5, and amended the current reference in
the FWS regulations in Title 50 to conform to the proposed regulations
in 43 CFR part 5.
Key Issues
Due to differences in regulations and policy, the three DOI land
management agencies each have different approaches to managing
commercial filming and still photography activities on their land. The
types of commercial filming and still photography activities currently
needing a permit vary from agency to agency, and only one DOI agency
collects a location fee. The BLM currently charges a location fee for
some commercial filming, but the NPS and FWS are currently prohibited
by 43 CFR 5.1(b) from charging a location fee. The NPS and BLM recover
the costs associated with issuing the permit from the permit holder. In
addition, BLM state offices determine the location fee schedules for
that State. This lack of consistency between the agencies creates
confusion on the part of the filming and photography industry.
This proposed regulation defines commercial filming and still
photography (Section 5.2) and explains which activities require a
permit (Section 5.3), thereby ensuring consistency among DOI agencies.
The proposed regulation identifies circumstances when an agency may not
issue a permit, with six factors that agencies must take into account
when evaluating an application for a permit (Section 5.4). This
proposed regulation also allows each of the DOI agencies to impose
reasonable permit conditions to mitigate the impact of the activity on
the resource and visitor use and enjoyment (Section 5.5). A violation
of a permit condition would allow the issuing agency to revoke the
permit. This proposed regulation also explains the financial
responsibilities of the permit holder, including payment of the
location fee, reimbursement of any costs incurred by the agency due to
the processing of the application and monitoring of the permitted
activity, and the necessary liability insurance and surety bonds
(Section 5.6).
Section-by-Section Analysis of Proposed 43 CFR Part 5
The following organizational summary has been prepared to assist in
the location and analysis of the proposed revisions.
Numbering of Proposed 43 CFR Part 5
------------------------------------------------------------------------
Existing 43 CFR Part 5 Proposed 43 CFR Part 5
------------------------------------------------------------------------
5.1(a).............................. 5.3 Permit.
5.1(b).............................. 5.6 Liability/Bonding.
5.1(c).............................. 5.5 Permit Conditions.
5.1(d).............................. Deleted.
New Sections:
5.1 Scope.
5.2 Terms.
5.4 No Permit.
5.7 Costs.
5.8 Process Time.
------------------------------------------------------------------------
Section 5.1 What does this subpart cover?
This subpart contains the regulations for issuing permits for
commercial filming and still photography in units of the NPS, FWS, and
BLM in the DOI. It is possible that additional agencies of the DOI will
adopt this regulation should the agency decide to collect location fees
and cost recovery as authorized by Public Law 106-206. The only
modification needed for additional agencies to adopt this regulation
would be to modify the definition of ``agency.''
Section 5.2 How are the terms defined in this subpart?
This section provides the definitions needed to understand the
regulation, including definitions for agency, commercial filming, cost
recovery, location fee, and still photography.
Section 5.3 When do I need a permit for commercial filming or still
photography?
Public Law 106-206 augments previous statutes for authorizing
commercial filming and still photography activities and provides
protections for the affected Federal lands. The law clarifies the
requirements for commercial filming and still photography permits and
establishes limitations for filming activities. While commercial
filming and still photography are activities generally allowed on
Federal lands, in many circumstances it is in the Government's interest
to manage the activity through a permitting process to minimize the
possibility of damage to the cultural or natural resources or
interference with other visitors to the area. A person seeking a permit
should contact the manager of the site for which the permit is sought
to learn how and where to apply.
All commercial filming on lands under DOI jurisdiction requires a
permit. This section details those instances and lists specific
criteria that trigger the need for a still photography permit, such as
the use of models, sets, or props or requesting access to an area to
photograph which is, at that time, not
[[Page 46428]]
open to the general public. While filming and still photography
activities by visitors (as opposed to commercial filmmakers or
commercial photographers) generally do not require a permit, this
section details those instances and lists specific criteria that
trigger the need for a filming or still photography permit. These
criteria include the use of models, sets, or props or requesting access
to an area to film or photograph which is, at that time, not open to
the general public. News coverage also does not need a permit, but is
subject to time, place, and manner restriction, if warranted, to
maintain order and ensure the safety of the public and the media, and
protect natural and cultural resources.
Section 5.4 Under what circumstances will an agency not issue a permit
for commercial filming or still photography?
The DOI agencies covered under this regulation will issue a permit,
except when there is the likelihood that the activity will (1) Damage
the resource, (2) cause unreasonable disruption or conflict with the
public's use and enjoyment of the site, (3) pose public health or
safety risks, (4) impair park resources or values, (5) be inappropriate
or incompatible with the purpose of the refuge, or (6) violate other
applicable laws or regulations. In some cases, a permit could be issued
after terms and conditions are added to the permit to mitigate negative
impacts.
Section 5.5 What type of permit conditions will the agency impose?
One important aspect of a commercial filming or still photography
permit is the inclusion of terms and conditions that will protect the
natural and cultural resources, ensure that visitor use and enjoyment
is not affected, and protect public health and safety. Permit terms and
conditions will be included to mitigate any possible damage to the
resources and to guarantee the restoration of Federal lands should that
be necessary. The permit is a legal agreement between the Federal
agency and the permit holder, who is legally bound to adhere to the
terms and conditions of the permit. The permit may be revoked if the
permit terms or conditions are violated.
Section 5.6 What are my liability and bonding requirements?
The permit holder is required to acquire appropriate insurance,
including property and personal and public liability insurance. Permit
holders must fully indemnify and hold harmless the United States for
any damage or injury incurred in connection with the permitted
activity. Permit holders are also responsible for restoring and
repairing the area used for the permitted activity and providing
security in the form of a bond or other instrument that would guarantee
restoration and repair.
Section 5.7 What expenses will I incur?
Fees are divided into two categories: a fee for commercial filming
activities, similar projects or still photography (location fee) and
cost recovery. The location fee is basically rent; i.e., a payment for
the use of the land. Cost recovery reimburses the agency for all costs
incurred in the receiving of the application, processing the request,
and monitoring the permitted activity.
The cost of location fees will depend upon the number of people on
site, duration (number of days) of the permitted activity, and amount
and type of equipment present, as specified in statute. Actual fee
amounts will be determined separately under a location fee schedule to
be developed later by the DOI agencies (and possibly USDA's Forest
Service) covered by this regulation. This schedule will be based on
schedules currently being used by BLM and the U.S. Forest Service and
public comments previously received by NPS on a draft location fee
schedule, On December 14, 2000 (65 FR 78186), the NPS published a
``Notice of Availability of Draft Fee Schedules and Guidance for
Commercial Filming in Compliance with Public Law 106-206 To Apply in
All Units of the National Park Service.'' We received 34 comments from
the public as well as 9 comments from NPS personnel. Subsequently,
additional conversations were held with managers of non-federally
managed sites, both cultural and natural, as well as conversations with
State and local film commissioners and industry representatives. Public
Law 106-206 directed the agencies to recover any costs incurred by the
agency as a result of the permitting of commercial filming or still
photography activities, including, but not limited to, administrative
and personnel costs. Recovery of costs is in addition to any location
fees that might be charged. We will recover costs any time an
application is submitted, and the amount should cover all costs of
processing the request and monitoring the permitted activities. Cost
recovery will be charged for processing a request even if the request
is denied, since the agency incurred costs in processing the
application and reaching a decision.
Section 5.8 How long will it take to process my request?
Under Public Law 106-206, Federal agencies are required to
establish a process to ensure that permit applications are processed in
a timely manner. Each DOI agency will develop a written checklist of
the application and review process which will include a timeline to be
followed by that agency. While processing times may vary significantly
based on the complexity of the commercial filming or still photography
request, a checklist will ensure that similar application and
processing procedures are used throughout each agency on similar
requests and that the application is efficiently processed to minimize
the time it takes to consider a request. Early consultation with the
appropriate agency on the part of a potential applicant will also aid
in processing the application in a timely manner once it is submitted.
The process used and the appropriate application forms will be
available on request at all field offices and on the Internet.
Sections 5.15 Through 5.18
These sections apply only to the Bureau of Indian Affairs (BIA) and
are currently paragraphs (a) through (d) of Sec. 5.2. While we propose
no substantive changes to any of these sections, we have:
(1) Made each paragraph into a section;
(2) Given each section a heading in the form of a question;
(3) Updated a reference to 25 CFR part 131 to refer the reader to
25 CFR part 162; and
(4) Made a few additional minor formatting and wording changes.
Compliance with Laws, Executive Orders, and Department Policy
Regulatory Planning and Review (Executive Order 12866)
This document is a significant rule and has been reviewed by the
Office of Management and Budget (OMB) under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects of entitlements,
grants,
[[Page 46429]]
user fees, or loan programs or the rights or obligations of their
recipients.
(4) This rule is following the direction of Congress by
implementing the provisions of Public Law 106-206. OMB has determined
that this rule raises novel legal or policy issues. The rule proposes
to institute a new schedule of fees for private industry for commercial
filming and still photography activities that receive permits for the
use of Federal lands managed by several DOI agencies. The potential
number of areas and businesses affected by this proposed regulation
could generate a number of comments.
Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This certification is based on information contained in the report
titled, ``Benefit-Cost/Unfunded Mandates Act Analysis Small Business
and Regulatory Flexibility Act Analysis'' (U.S. Department of the
Interior, Office of Policy Analysis, Office of the Secretary). This
report is available from the NPS by writing to Lee Dickinson at the
addresses listed in the section above under ADDRESSES.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or tribal governments or the private sector.
Takings (Executive Order 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications.
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
federalism assessment.
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the order.
Paperwork Reduction Act
This proposed regulation requires individuals and companies wishing
to do commercial filming and still photography on public lands to
obtain a permit from the agency managing the public land. The permit
holder is also responsible for reimbursing the agency for costs
incurred and to pay a land use fee. The mechanics of applying for the
permit and the forms involved are not addressed in this proposed
regulation, but are addressed in existing agency regulations and
internal guidance. The NPS uses application forms NPS 10-931 (Film--
Short Form) and NPS 10-932 (Film--Long Form). Both forms are assigned
OMB Control Number 1024-0026 and expire March 31, 2010. The BLM uses
OMB-approved BLM Form 2920-1 (Land Use Application and Permit), which
is assigned OMB Control Number 1004-0009 and expires December 31, 2007.
The FWS National Wildlife Refuge System currently uses two forms for
special use permits on refuges: FWS Form 3-1383 (Special Use Permit
Application on National Wildlife Refuges Outside Alaska), for which the
OMB Control Number is 1018-0102 and the OMB approval expires January
31, 2008, and FWS Form 3-2001 (Special Use Permit Application on
National Wildlife Refuges in Alaska), for which the OMB Control Number
is 1018-0014 and the OMB approval expires September 30, 2006.
Therefore, these regulations do not contain information collection
requirements that the OMB must approve under the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501 et seq.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment, health, and safety
because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce non-compatible uses that might compromise the nature
and characteristics of the area, or cause physical damage to it;
(c) Conflict with adjacent ownerships or land uses; or
(d) Cause a nuisance to adjacent owners or occupants.
Based on this determination, the regulation is categorically
excluded from the procedural requirements of the National Environmental
Policy Act (NEPA) by Departmental guidelines in 516 DM 6, (49 FR
21438). Therefore, neither an environmental assessment nor an
environmental impact statement has been prepared.
The location fee authorized by Public Law 106-206 and governed by
this proposed regulation is a fee collected when a permit is issued by
the responsible agency for a commercial filming or still photography
activity. Any analysis required by the NEPA, as well as the National
Historic Preservation Act, would be conducted in conjunction with the
permitting process and would evaluate the impact of the requested
activity on the resource.
Government-to-Government Relationship With Tribes
In accordance with Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249), the
President's memorandum of April 29, 1994, ``Government-to-Government
Relations with Native American Tribal Governments'' (59 FR 22961), and
512 DM 2, we have evaluated potential effects on federally recognized
Indian tribes and have determined that there are no potential effects.
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand, including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) sections? (A ``section'' appears in bold type
and is preceded by the symbol ``Sec. '' and a numbered heading; for
example Sec. 14.10 Purpose). (5) Is the description of the rule in the
``Supplementary Information'' section of the preamble helpful in
understanding the proposed rule? What else could we
[[Page 46430]]
do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, DOI, Room
7229, 1849 C Street, NW., Washington, DC 20240. You may also e-mail the
comments to this address: Exsec@ios.doi.gov.
Drafting Information: The primary authors of this regulation are
Lee Dickinson, Special Park Uses Program Manager, Jerry Case,
Regulations Program Manager, National Park Service, Washington DC;
Vanessa Engle, Program Lead Commercial Filming and Still Photography,
Bureau of Land Management, Washington DC; and Rebecca Halbe, National
Fee Program Coordinator, U.S. Fish and Wildlife Service, Washington DC.
Public Participation
You may submit comments, identified by the number RIN 1024-AD30, by
any of the following methods:
--Federal rulemaking portal: https://www.regulations.gov. Follow the
instructions for submitting electronic comments.
--You may mail or hand deliver comments to National Park Service, Attn:
Lee Dickinson, Special Park Uses Program Manager, 1849 C Street, NW.,
ORG CODE 2460, Washington, DC 20240.
Our practice is to make comments, including names and addresses of
respondents, available for public review during regular business hours.
Individual respondents may request that we withhold their home address
from the rulemaking record, which we will honor to the extent allowable
by law. If you wish us to withhold your name and/or address, you must
state this prominently at the beginning of your comment. However, we
will not consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials or organizations or
businesses, available for public inspection in their entirety.
List of Subjects
36 CFR Part 5
Alcohol and alcoholic beverages, Business and industry, Civil
rights, Equal employment opportunity, National parks, Transportation,
Motion pictures.
43 CFR Part 5
Motion pictures, Recordings, Television.
50 CFR Part 27
Wildlife refuges.
For the reasons set forth in the preamble, we propose to amend part
5 of title 36, part 5 of title 43, and part 27 of title 50 of the Code
of Federal Regulations as follows:
Title 36--Parks, Forests, and Public Property
CHAPTER I--NATIONAL PARK SERVICE, DOI
PART 5--COMMERCIAL AND PRIVATE OPERATIONS
1. The authority citation for part 5 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 17j-2, 462.
2. Section 5.5 is revised to read as follows:
Sec. 5.5 Commercial filming and still photography.
Commercial filming and still photography are subject to the
provisions of the special regulations contained in part 5, subpart A,
title 43 of the Code of Federal Regulations.
Title 43--Public Lands: Interior
Subtitle A--Office of the Secretary of the Interior
3. Part 5 is revised to read as follows:
PART 5--MAKING MOTION PICTURES, TELEVISION PRODUCTIONS, OR
SOUNDTRACKS OR TAKING STILL PHOTOGRAPHS ON CERTAIN AREAS UNDER THE
JURISDICTION OF THE DEPARTMENT OF THE INTERIOR
Subpart A--Areas Administered by the National Park Service, the U.S.
Fish and Wildlife Service, and the Bureau of Land Management
Sec.
5.1 What does this subpart cover?
5.2 How are terms defined in this subpart?
5.3 When do I need a permit for commercial filming or still
photography?
5.4 Under what circumstances will an agency not issue a permit for
commercial filming or still photography?
5.5 What type of permit conditions will the agency impose?
5.6 What are my liability and bonding requirements?
5.7 What expenses will I incur?
5.8 How long will it take to process my request?
Subpart B--Areas Administered by the Bureau of Indian Affairs
5.15 When must I ask permission from individual Indians to conduct
filming and photography?
5.16 When must I ask permission from Indian groups and communities?
5.17 When must I get a lease or permit?
5.18 What wages must I pay to Indian employees?
Authority: 5 U.S.C. 301; 16 U.S.C. 1-3, 3a, 668dd-ee, 715i,
460l-6d; 25 U.S.C. 2; 43 U.S.C. 1701, 1732-1734, 1740.
Subpart A--Areas Administered by the National Park Service, the
U.S. Fish and Wildlife Service, and the Bureau of Land Management
Sec. 5.1 What does this subpart cover?
This subpart covers commercial filming and still photography
activities on the Federal lands and waters administered by the Bureau
of Land Management, the National Park Service, and the U.S. Fish and
Wildlife Service.
Sec. 5.2 How are terms defined in this part?
The following definitions apply to this part:
Agency, we, our, or us means the Bureau of Land Management, the
National Park Service, and the U.S. Fish and Wildlife Service office
responsible for the administration of lands and waters that are under
its respective jurisdiction. (This definition may be expanded as
additional agencies in the DOI choose to collect location fees for
commercial filming and still photography on the lands under their
jurisdiction.)
Commercial filming means 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 for a documentary, television or feature film,
advertisement, or similar project. It does not include news coverage or
visitor use.
Cost recovery is the money that the agency collects as
reimbursement for the costs incurred by the agency in accepting and
processing an application and in monitoring the permitted commercial
filming or still photography activity.
Location fee means a land or facility use fee similar to rent that
provides a fair return to the United States for the use of Federal
lands or facilities when used for commercial filming activities or
similar projects and still photography activities where a permit is
required.
Permit means a written authorization by us to engage in uses or
activities that are otherwise prohibited or restricted.
Resource damage, as applied to BLM lands, means harm to the land or
its resources that cannot reasonably be mitigated or reclaimed.
Still photography means the capturing of a still image on film or
in a digital format.
Sec. 5.3 When do I need a permit for commercial filming or still
photography?
(a) All commercial filming requires a permit.
[[Page 46431]]
(b) Still photography requires a permit if:
(1) It takes place at location(s) where or when members of the
public are generally not allowed; or
(2) It uses model(s), sets(s), or prop(s) that are not a part of
the location's natural or cultural resources or administrative
facilities; or
(3) The agency would incur additional administrative costs to
monitor the activity; or
(4) The agency would need to provide management and oversight to:
(i) Avoid impairment or incompatible use of the resources and
values of the site; or
(ii) Limit resource damage; or
(iii) Minimize health or safety risks to the visiting public.
(c) News coverage does not require a permit, but is subject to
time, place, and manner restrictions, if warranted, to maintain order
and ensure the safety of the public and the media, and protect natural
and cultural resources.
(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.
(e) For information on how to obtain a permit application and where
and how to submit it, contact the site manager for the location at
which you seek a permit to film.
Sec. 5.4 Under what circumstances will an agency not issue a permit
for commercial filming or still photography?
(a) We will issue a permit authorizing commercial filming or still
photography, EXCEPT if we determine that:
(1) There is the likelihood that resource damage would occur that
cannot be mitigated or restored under the terms and conditions of a
permit; or
(2) There is the likelihood of unreasonable disruption of or
conflict with the public's use and enjoyment of the site; or
(3) There is the likelihood that the activity poses health or
safety risks to the public; or
(4) There is the likelihood that the activity would result in the
impairment of park resources or values;
(5) The activity is inappropriate or incompatible with the purpose
of the refuge; or
(6) The requested activity will violate any other applicable
Federal, State, or local law or regulation.
(b) [Reserved]
Sec. 5.5 What type of permit conditions will the agency impose?
(a) We may impose permit conditions including, but not limited to,
conditions intended to:
(1) Protect the site's values, purposes, and resources, and public
health and safety; or
(2) Prevent unreasonable disruption of the public's use and
enjoyment.
(b) We may revoke your permit if you violate a permit condition.
Sec. 5.6 What are my liability and bonding requirements?
(a) You are fully liable for any damage or injury incurred in
connection with the activity, and you must fully indemnify and hold
harmless the United States. You must obtain an appropriate property
damage, personal injury, and public liability insurance policy
sufficient to protect the United States Government from liability or
other claims arising from activities under the permit. The insurance
policy must name the United States as an additional insured.
(b) You are responsible for repair and restoration costs if your
activity causes resource damage to an area. We may also require you to
provide a bond or other security satisfactory to secure any other
obligations you may have under the permit and applicable laws and
regulations. The bond must be in an amount sufficient to provide full
payment for the costs of restoration, reclamation, or rehabilitation of
the lands in the event that your activity causes resource damage to an
area. If the cost of the repairs exceeds the amount of your bond, you
will also be responsible for the additional amount.
Sec. 5.7 What expenses will I incur?
(a) Location fee. (1) For commercial filming and still photography
permits, we will require a reasonable location fee that provides a fair
return to the United States. The location fee will be based upon the
following criteria:
(i) The number of days your activity takes place;
(ii) The size of the film crew;
(iii) The amount and type of equipment present; and
(iv) Comparable location fees charged by other Federal, State, and
local government agencies and the private sector.
(2) The location fee charged is in lieu of any entrance or other
special use fees. However, the location fee is in addition to any cost
recovery amount assessed in paragraph (b) of this section.
(3) We will assess location fees in accordance with a fee schedule,
to be published in the Federal Register and made available on the
Internet and at our field offices.
(b) Cost recovery. You must reimburse the agency for actual costs
incurred in processing your request and administering your permit. Cost
recovery will be based upon our direct and indirect expenses including,
but not limited to, administrative and personnel costs for application
processing, preproduction meetings and other activities, and on-site
monitoring of permitted activities.
Sec. 5.8 How long will it take to process my request?
The DOI is committed to ensuring that the agencies process permit
applications for commercial filming and still photography permits in a
timely manner. Each agency is responsible for developing its own system
for administering the permit application process. For specific
information on application procedures, contact the appropriate agency
field office.
Subpart B--Areas Administered by the Bureau of Indian Affairs
Sec. 5.15 When must I ask permission from individual Indians to
conduct filming and photography?
Anyone who desires to go on to the land of an Indian to make
pictures, television productions, or soundtracks is expected to observe
the ordinary courtesy of first obtaining permission from the person(s)
and of observing any conditions attached to this permission.
Sec. 5.16 When must I ask permission from Indian groups and
communities?
Anyone who desires to take pictures, including motion pictures, or
to make a television production or a soundtrack of Indian communities,
churches, kivas, plazas, or ceremonies performed in these places, must:
(a) Obtain prior permission from the proper officials of the place
or community; and
(b) Scrupulously observe any limitations imposed by the officials
who grant the permission.
Sec. 5.17 When must I get a lease or permit?
If filming pictures or making a television production or a
soundtrack requires the actual use of Indian lands, you must obtain a
lease or permit under 25 CFR part 162.
Sec. 5.18 What wages must I pay to Indian employees?
Any motion picture or television producer who obtains a lease or
permit for the use of Indian land under 25 CFR part 162 must pay a fair
and reasonable wage to any Indian employed in connection with the
production.
[[Page 46432]]
Title 50--Wildlife and Fisheries
SUBCHAPTER C--THE NATIONAL WILDLIFE REFUGE SYSTEM
PART 27--PROHIBITED ACTS
Subpart G--Disturbing Violations: Light and Sound Equipment
4. The authority citation for part 27 continues to read as follows:
Authority: Sec. 2, 33 Stat. 614, as amended (16 U.S.C. 685);
Sec. 5, 43 Stat. 651 (16 U.S.C. 725); Sec. 5, Stat. 449 (16 U.S.C.
690d); Sec. 10, 45 Stat. 1224 (16 U.S.C. 715i); Sec. 4, 48 Stat.
402, as amended (16 U.S.C. 664); Sec. 2, 48 Stat. 1270 (43 U.S.C.
315a); 49 Stat. 383 as amended; Sec. 4, 76 Stat. (16 U.S.C. 460k);
Sec. 4, 80 Stat. 927 (16 U.S.C. 668dd) (5 U.S.C. 685, 752, 690d); 16
U.S.C. 715s).
5. Section 27.71 is revised to read as follows:
Sec. 27.71 Motion pictures, sound recordings, and still photography.
The filming of any motion picture or taking of sound recordings or
still photography on a national wildlife refuge for subsequent
commercial use is prohibited except as may be authorized under the
provisions of 43 CFR part 5.
Dated: March 22, 2007.
P. Lynn Scarlett,
Deputy Secretary of the Interior.
Editorial Note: The Office of the Federal Register received this
document on August 8, 2007.
[FR Doc. E7-15845 Filed 8-17-07; 8:45 am]
BILLING CODE 4312-70-P
