[Federal Register Volume 78, Number 163 (Thursday, August 22, 2013)]
[Rules and Regulations]
[Pages 52087-52097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20441]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 5

Office of the Secretary of the Interior

43 CFR Part 5

Fish and Wildlife Service

50 CFR Part 27

[NPS-WASO-VRP-09328; PXXVPADO515]
RIN 1024-AD30


Commercial Filming and Similar Projects and Still Photography 
Activities

AGENCY: National Park Service, Office of the Secretary of the Interior, 
and Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: This rule implements legislation that directs the Department 
of the Interior to establish permits and reasonable fees for commercial 
filming activities or similar projects and certain still photography 
activities.

DATES: The rule is effective September 23, 2013.

FOR FURTHER INFORMATION CONTACT: Lee Dickinson, Special Park Uses 
Program Manager, National Park Service, 1849 C Street NW., CODE 2460, 
Washington, DC 20240, telephone: 202-513-7092 or email: Lee_Dickinson@nps.gov.

SUPPLEMENTARY INFORMATION: We published a proposed rule on this subject 
in the Federal Register on August 20, 2007 (72 FR 46426). The proposed 
rule's comment period ended on October 19, 2007, and resulted in 57 
submissions containing 30 distinct comments. We made numerous changes 
to the rule in response to these comments. These comments and our 
responses are summarized in this preamble under Response to Comments.

Public Law 106-206

     Directs the Secretaries of the Interior and Agriculture to 
establish a permit system for commercial filming and similar 
activities.
     Directs the Secretaries to collect an amount to cover 
agency costs as well as a reasonable fee for the use of Federal

[[Page 52088]]

lands based on the size of the film crew, the number of days the 
permitted activity takes place, the amount and type of equipment 
present, and other factors.
     Authorizes commercial filming and still photography 
permits subject to statutory criteria. It is in the public's interest 
to manage these activities through a permitting process to minimize 
damage to the cultural or natural resources, prevent interference with 
other visitors, and promote safety and security. For the purposes of 
this rule, the term ``commercial filming'' includes commercial 
videography and other magnetic imaging.

This Rule

     Defines commercial filming and still photography and 
explains which activities require a permit, thereby ensuring 
consistency among agencies in the Department of the Interior (DOI).
     Establishes seven factors for denying the request for a 
permit.
     Allows each of the DOI agencies to impose reasonable 
permit terms and conditions to mitigate the impact of the activity on 
agency resources and visitor use and enjoyment and allows the issuing 
agency to revoke the permit for violation of a permit condition.
     Sets out the financial responsibilities of the permit 
holder, including payment of the location fee, reimbursement of any 
costs incurred by the agency as a result of processing the application 
and monitoring the permitted activity, and maintaining required 
liability insurance and surety bonds.

Background and Need for Action

    The background and need for action were described in detail in the 
preamble to the proposed rule published in the Federal Register on 
August 20, 2007 (72 FR 46426). As stated in the preamble to the 
proposed rule, other than renumbering 43 CFR 5.2 and making a technical 
correction to a citation in that section, this rule does not affect or 
amend the regulation governing areas administered by the Bureau of 
Indian Affairs, currently codified at 43 CFR 5.2. The proposed rule's 
comment period ended on October 19, 2007. DOI received 57 submissions. 
These comments are summarized below.

Response to Comments

    Comment 1: The regulation puts too many restrictions on still 
photographers and requires most still photographers, including 
hobbyists and visitors, to obtain a permit and pay fees to photograph 
on agency lands.
    Response: This was not the intent of the proposed regulation. The 
general rule is that still photography does not require a permit. We 
have edited the language of 43 CFR 5.3(b) to clarify the still 
photography permit requirements of Public Law 106-206 and renumbered it 
as Sec.  5.2(b). This regulation implements the three circumstances 
listed in the law where a permit for still photography is or may be 
required. We will require a permit for still photography when the 
activity uses models, sets, or props, and we may require a permit when 
the photographer wants to enter an area closed to the public or when 
on-site management is necessary to protect resources or to avoid 
visitor conflicts. However, we anticipate that most still photographers 
will not fall into these categories and will not need a permit to take 
photographs on lands managed by DOI agencies.
    Comment 2: The provisions governing sound recording are too 
restrictive. Sound recording should not be included in this regulation, 
since Public Law 106-206 addressed commercial filming and still 
photography and did not address audio recording.
    Response: The previous regulation found at 43 CFR part 5 pertaining 
to lands we manage included sound recording among the activities that 
required a permit. Moreover, Public Law 106-206 applies to ``commercial 
filming activities or similar projects,'' which we interpret to include 
audio recording. In response to the comments received to the proposed 
rule, we evaluated the potential impact of sound recording activities 
on cultural and natural resources and on other visitors. Taking into 
account the different agency missions and diverse cultural and natural 
resources, we decided to address the permit requirements for audio 
recording in agency-specific regulations.
    The National Park Service (NPS) and the Fish and Wildlife Service 
(FWS) will continue to require permits for audio recording activities 
using criteria similar to those set out in Public Law 106-206 for still 
photography. Audio recording activities in units of the National Park 
System and on National Wildlife Refuge lands will require a permit only 
if the activity takes place in a closed area, involves more than hand-
held equipment, or requires agency oversight. The Bureau of Land 
Management (BLM) has the discretion to manage audio recording under the 
permit requirements contained in other regulations.
    Title 43 CFR Subpart B applies to areas administered by the Bureau 
of Indian Affairs (BIA). This Subpart was published as part of the 
proposed rule of August 20, 2007, to make technical corrections to the 
existing regulation published in 1957. BIA will continue to require a 
permit for sound recording.
    Comment 3: The phrase ``unreasonable disruption of or conflict with 
the public's use and enjoyment of the site'' used in Sec.  5.4(b) needs 
to be clarified.
    Response: We have renumbered proposed 43 CFR 5.4(b) as Sec.  
5.5(b). The term ``unreasonable disruption of the public's use and 
enjoyment of the site'' comes directly from Public Law 106-206. 
Authorizing laws for each agency and applicable enabling laws for each 
Federal land unit determine the primary purposes of Federal management 
of those sites. A determination of ``unreasonable disruption'' will be 
made by each BLM field office manager, FWS refuge unit manager, and NPS 
unit manager based on agency statutes, regulations, policy, and 
guidance.
    Comment 4: The proposed regulation allowing an agency to deny 
permission to photograph if they feel the photography is 
``inappropriate'' or ``incompatible'' is too vague and can be subject 
to interpretation (Sec.  5.4(a)(5)).
    Response: We have renumbered proposed 43 CFR 5.4(a)(5) as Sec.  
5.5(e), which applies to the National Wildlife Refuge System. The 
statement is based on the requirements of the National Wildlife Refuge 
System Improvement Act of 1997 (Pub. L. 105-57), which requires that 
refuge managers discontinue or not approve activities that are 
inappropriate or incompatible with the refuge's mission. For example, a 
refuge manager may make a determination that the photography activity 
is inappropriate or incompatible with the refuge's mission if the 
activity would negatively impact a threatened species, not on the basis 
of the possible content of the photograph.
    Comment 5: The criteria listed in 43 CFR 5.4(d), (e) and (f) as 
bases to deny a permit are very broad and quite subjective in their 
practical application.
    Response: We have moved the criteria formerly in proposed 43 CFR 
5.4 to Sec.  5.5. The criteria referred to in this comment are all 
based upon statutory requirements. Sections 5.5(a)-(c) are taken 
directly from Public Law 106-206 and will be applied by individual land 
managers in accordance with agency-specific laws, regulations, policy, 
and guidance.
     Section 5.5(d) is required under the NPS Organic Act, (16 
U.S.C. 1 et seq.). This legal requirement is interpreted in the ``NPS 
Management Policies 2006'' section 8.1.1, which states that the NPS 
will


[[Page 52089]]


allow only those uses that are (1) appropriate to the purpose for 
which the park was established, and (2) can be sustained without 
causing unacceptable impacts . . . uses that would impair a park's 
resources, values, or purposes cannot be allowed.

     Section 5.5(e) is based on the National Wildlife Refuge 
System Improvement Act of 1997, (Pub. L. 105-57), which requires that 
each refuge be managed to fulfill the mission of the System and the 
purposes for which the refuge was established. A refuge manager must 
ensure that a particular use would not interfere with or detract from 
the mission of the refuge as well as the Refuge System.
     Section 5.5(f) is based on Section 302(b) of the Federal 
Land Policy and Management Act ((FLPMA), 43 U.S.C. 1732(b)), which 
requires BLM to prevent unnecessary or undue degradation of BLM-managed 
lands.
    Comment 6: A commenter wanted to know if different levels of 
commercial use would result in different location fee rates, if rates 
would be standardized or decided by local jurisdiction, how the 
location fees were being determined, and how the fees would be spent.
    Response: DOI and U.S. Forest Service (USFS) are jointly developing 
a location fee schedule. In developing the schedule, we are taking into 
account the current fee schedules used by BLM and USFS, public comments 
received on a draft location fee schedule previously proposed by the 
NPS, and discussions with state and local film commissioners and 
industry representatives. As directed by Congress, the location fee is 
strictly a fee to provide a ``fair return'' for the use of the Federal 
lands. No overhead costs or other types of cost recovery costs are 
included in the fee.
    We are publishing the proposed location fee schedule in today's 
Federal Register for public review and comment. Once we have analyzed 
public comments on the proposed location fee schedule, we will publish 
a notice in the Federal Register announcing the final location fee 
schedules and the procedure for periodically reviewing the location fee 
schedule and announcing changes.
    Public Law 106-206 requires us to base location fees on the number 
of days the activity takes place on Federal lands, the size of the 
crew, the amount of equipment, and other factors that we determine 
necessary. The proposed location fee schedule creates a per-day charge 
based on the number of people involved in the commercial filming or 
still photography activity. Under the proposed schedule, permit holders 
are charged a lower fee for days when there are fewer people present. 
For example, if a set-up day involves 20 people and the actual filming 
day involves 75 people, each day would result in a different fee.
    Public Law 106-206 authorizes Federal land management agencies in 
DOI and USFS to collect a ``fair return'' for the use of lands for 
commercial filming and certain still photography activities. The law 
adopts the formula and purposes established in the Recreational Fee 
Demonstrations Program (Pub. L. 104-134) for use of the funds 
collected. The funds collected remain available for use at the location 
where the funds are collected and may be spent only for specific 
purposes including:
     Backlogged repair and maintenance projects, including 
those related directly to health and safety;
     Interpretation, signage, habitat, or facility enhancement;
     Resource preservation;
     Maintenance; and
     Law enforcement related to public use and recreation.
    Comment 7: A commenter asked that a definition of ``model'' be 
added. The commenter felt that the section on the use of models, sets, 
or props would require everyone to get a permit. Visitors should not 
have to obtain a permit to take pictures of families and friends.
    Response: A definition of ``model'' has been added to 43 CFR 5.12 
providing that, for the purpose of this regulation, family members or 
friends not being filmed to promote the sale or use of a product or 
service are not considered models. Therefore this activity would not 
require a still photography permit. Filming and photography activities 
by visitors are addressed in Sec.  5.2(c).
    The definition also provides that individuals being photographed 
for events such as a wedding or a graduation are not considered models 
and therefore aren't required to have a permit for the still 
photography activity under those criteria. However, if the activity 
results in additional cost to the government due to required monitoring 
of the activity by agency employees, a permit may be required for which 
location fees and cost recovery charges may be collected. Other laws 
and regulations may also govern this type of still photography.
    Comment 8: A commenter requested that a definition of ``prop'' and 
``set'' be added.
    Response: We have added a definition of ``props and sets'' in 43 
CFR 5.12. Under Public Law 106-206, we must require a permit and 
establish a reasonable fee for still photography activities that use 
models or props. In this rule, we have used the terms ``set'' and 
``prop'' to cover the use of large backdrops, temporary structures, and 
other construction that could be added to agency land to alter or 
enhance the setting. By definition, a camera tripod is not considered a 
prop. However, the use of a camera tripod could contribute to an 
agency's decision to require a permit for a still photography activity 
under Sec.  5.2(b). One example might be still photography activities 
using a camera and a tripod in an area with limited space where the 
tripod could create a tripping hazard for other visitors. This activity 
might need monitoring by agency personnel to ensure visitor safety.
    Comment 9: The proposed rule does not appear to require a permit 
for non-commercial filming that takes place where or when members of 
the general public are not allowed.
    Response: The comment is correct; the rule does not address non-
commercial filming because Public Law 106-206 does not address non-
commercial filming. Activities such as student films and public service 
announcements may use models, sets, or props, require access to areas 
not open to the general public, or require monitoring to avoid resource 
damage. An amateur videographer might request access to an area not 
open to the general public. In these cases, the activities are subject 
to other statutes, regulations, policies, and guidance under which a 
permit may be required. For example, the NPS would require a person 
wishing to engage in non-commercial filming in a closed area to obtain 
a permit under 36 CFR 1.5(d). This regulation addresses photography by 
visitors in 43 CFR 5.2(c)
    Comment 10: Title 43 CFR 5.3(b)(3) and Sec.  5.3(b)(4) appear to be 
essentially the same thing.
    Response: We agree with this comment and have consolidated proposed 
43 CFR 5.3(b)(3) and Sec.  5.3(b)(4) into Sec.  5.2(b)(2)(ii).
    Comment 11: Commercial filming should only require a permit if it 
satisfies the same requirements as still photography, i.e., the 
commercial filming uses models, sets, or props, enters an area closed 
to the general public, etc.
    Response: Public Law 106-206 established different permit 
requirements for commercial filming and still photography. If a filming 
project is commercial, then the statute requires that a permit be 
issued and a fee charged to provide a fair return to the United States 
for the use of the Federal lands. To determine whether a filming 
activity is commercial or not,

[[Page 52090]]

the agency considers if it is intended for a market audience for the 
purpose of generating income. However the content of the material does 
not play a role in determining whether a permit is necessary.
    Comment 12: Do not require a permit for commercial filming crews of 
3 people or less. Individuals with small amounts of equipment should be 
explicitly excluded from the provisions of this act.
    Response: Public Law 106-206 states that agencies ``shall require a 
permit . . . for commercial filming activities.'' There is no basis for 
an exclusion based on crew size or amount of equipment under this 
statute. While it could be assumed that crews of three people or fewer 
have less potential for causing resource damage or interfering with the 
public's use or enjoyment of the site, the agencies governed by this 
regulation manage and protect some of the nation's most treasured and 
valuable natural and cultural resources. In many circumstances it is 
important for land managers to know the specific time and location of 
certain activities so permit terms and conditions may be used to 
mitigate the possibility of resource damage or impact to visitors. For 
example, park units may have limited space, fragile resources, or 
experience high visitation during a specific time period. Refuges may 
need to protect nesting areas of threatened or endangered species 
during certain times of the year. Permit applications for smaller crews 
with little equipment are likely to require less time to process, 
thereby incurring less cost for the permit holder. In addition, the 
size of an activity is reflected in the proposed location fee schedule 
that is being published separately in the Federal Register for public 
comment.
    Comment 13: The purpose and final use of the images, recordings, or 
video should be irrelevant in determining the need for a permit.
    Response: Public Law 106-206 established different permit 
requirements for still photography and commercial filming activities. 
Still photography requires a permit only if it meets several distinct 
criteria created by Congress, which are addressed in 43 CFR 5.2(b). 
These criteria are based on the potential for the activity to damage 
natural or cultural resource or interfere with visitors. The intended 
use of the image is not relevant to the decision to approve a still 
photography permit application.
    The basis for requiring a permit for commercial filming is the 
commercial nature of the project. To determine whether a filming 
activity is commercial or not, the agency considers the intended use of 
the film or video. However, the content of the material does not play a 
role in the decision to approve or deny a permit request.
    Comment 14: The regulation gives local officials the power through 
the imposition of an inappropriate fee to prevent documentation of a 
scene or activity that could be construed as critical of the agency.
    Response: The decision to approve a request for a commercial 
filming or still photography permit will be based on the potential 
impact on cultural and natural resources and values and not on the 
content of the film or photograph. Title 43 CFR 5.5 provides a list of 
reasons that would result in the denial of a permit request. We will 
charge a location fee based on a location fee schedule. Local land 
managers will be required to use the location fee schedule to determine 
the correct location fee to charge. As directed by Public Law 106-206, 
the proposed location fee schedule contains higher fees for larger 
filming projects.
    Comment 15: Still photography is a form of free speech and should 
not be subject to a permit.
    Response: As intended by Congress, most still photographers will 
not be required to obtain a permit. However, Public Law 106-206 
outlines several instances where a permit is either required or may be 
required by the agency, in recognition of the responsibility of the 
agencies to protect the resources entrusted to them. The permit ensures 
that the activity conforms to applicable laws and regulations through 
permit terms and conditions crafted to minimize damage to natural and 
cultural resources and disruption of other visitors, while remaining 
content neutral. This permit program is consistent with statutory as 
well as constitutional requirements.
    Comment 16: Documentaries are a form of news, not commercial 
filming, and are the product of research, interviews, and analysis. The 
only difference is the time it takes to produce a finished product.
    Response: Documentaries convey information to the viewing public 
with content that is unique to that production. Requests for filming 
activities are evaluated for potential impacts on agency resources, 
operations, and visitor activities. Agencies do not manage or control 
content through the permitting process. After carefully considering 
these comments we believe documentaries are commercial in nature and 
generate income for those involved in the production, and as such are 
subject to permit requirements, location fees, and cost recovery 
charges.
    Comment 17: Title 43 CFR 5.8 is too vague and gives the 
administrator unspecified time to respond.
    Response: Proposed Sec.  5.8 has been renumbered as Sec.  5.9. The 
agencies are pledging to process permit applications as quickly as 
possible. However, because of the varying scope and complexity of the 
requests and the sensitivity of the agencies' resources, it is 
impossible to include in the regulation specific time frames for 
processing applications. Requests may range from a few people as part 
of the crew to several hundred, from very little equipment to enough 
equipment to fill several tractor trailers. Permit requests are also 
subject to the requirements of the National Environmental Policy Act of 
1969, the National Historic Preservation Act, and other applicable 
laws, which may add to the processing time. The proposed activity must 
be evaluated against the potential impact to the resources of the park, 
refuge, or district.
    Comment 18: Permit costs should be based on the type of land impact 
and estimated project profits.
    Response: Public Law 106-206 instructs agencies to charge a ``fair 
return to the United States'' based on a number of factors, including 
the number of days a filming activity takes place on Federal land, the 
size of the crew, and the amount and type of equipment. The agencies 
are publishing a proposed location fee schedule for public comment that 
has lower fees for activities with smaller crews, and higher fees for 
activities with larger crews. Public Law 106-206 also allows the 
Secretary to include other appropriate factors in the decision to set 
location fees. After carefully considering whether to tie location fees 
to the estimated profit of each project, the agencies concluded this 
approach was not feasible.
    Cost recovery charges will be based on the actual amount of the 
costs incurred by the Federal agency in receiving and processing the 
permit request, monitoring by agency personnel, and other costs related 
to the permitted activity.
    Comment 19: A commenter would like to see a permit developed that 
would allow access to any Federal land under one permit.
    Response: An interagency permit would allow permit holders to move 
easily from one agency's jurisdiction to another. However, each agency 
has unique resources that must be protected, varying kinds and numbers 
of visitors, and specific legal mandates that need to

[[Page 52091]]

be followed. In addition, agencies only have the legal authority to 
permit special uses on the lands they manage; they cannot issue a 
permit for activities on lands managed by another agency.
    Comment 20: In 43 CFR 5.7(a), who is responsible for determining 
what a ``fair return'' to the United States is?
    Response: The proposed Sec.  5.7(a) is renumbered as Sec.  5.8(a). 
The agencies have developed a proposed location fee schedule, which we 
are publishing separately in today's Federal Register for public 
comment. The proposed location fee schedule is based upon consideration 
of fees charged by the public and private sectors, comments received on 
an earlier proposed location fee schedule published by NPS on December 
14, 2000, (65 FR 78186), and on the criteria outlined in Public Law 
106-206.
    Comment 21: A commenter is concerned about the requirement for 
liability insurance, which is not required by Public Law 106-206. The 
commenter asked if there will be affordable insurance available on 
site, similar to when one rents a car.
    Response: The agencies have a responsibility to protect the United 
States from financial loss due to the actions of a permit holder. Under 
the regulation, a permit holder may be required to obtain insurance in 
an amount sufficient to protect the United States. Agency officials 
will determine the necessary level of insurance based on the planned 
activity and the potential risk to natural and cultural resources as 
well as other factors. An agency official may determine that the 
appropriate amount of insurance for low risk activities is zero. 
Insurance, if required, will not be available through the Federal 
agency and must be obtained from the private sector.
    Comment 22: Fees would impact most heavily those with smaller 
working budgets, and would make it harder for them to realize a profit.
    Response: Consistent with Public Law 106-206, we are proposing a 
location fee schedule to be published separately in the Federal 
Register that would charge the required fair return for the use of 
Federal lands. The proposed location fee schedule is based on the 
number of days the Federal lands are used, the number of people 
involved, and the amount of equipment. The location fee schedule 
proposes lower location fees for smaller commercial filming and 
permitted still photography operations.
    Comment 23: Permits and fees should not be required for filming, 
video, sound recording, or still cameras on Federal lands.
    Response: Still photography activities require a permit only in the 
limited circumstances listed in 43 CFR 5.2(b). Commercial filming and 
similar projects require a permit in accordance with Public Law 106-
206. The term ``similar projects'' in the law has been interpreted by 
the agencies to include audio recording; however any permit 
requirements for audio recording will be addressed by each agency 
individually. The NPS and FWS regulations implementing permit 
requirements for audio recording are included in this Federal Register 
publication.
    Comment 24: News gathering is not a commercial activity; as such, 
it is not governed by Public Law 106-206 and should not be subject to 
the regulation.
    Response: We agree that news gathering should not be treated in the 
same manner as other commercial filming activities, and the agencies 
intend to allow news media access to Federal lands to gather news. 
However, we may require news-gathering activities to obtain a permit 
for filming and still photography when time allows and the agency 
determines that a permit is required to protect agency resources, to 
avoid visitor use conflicts, to ensure public safety, or authorize 
entrance into a closed area. Permits issued for news-gathering 
activities are not subject to cost recovery charges or location fees. 
We have added a new section, 43 CFR 5.4, to address the permit 
requirements for news-gathering activities. News-gathering activities 
may be subject to narrowly tailored permit requirements that protect 
Federal resources while allowing news-gathering activity.
    Coverage of breaking news will not require a permit, since the 
requirement could interfere with the ability of the news-gathering 
organization to obtain the story. However, in these cases, our 
employees may monitor or direct the activities to ensure the safety of 
the public and the media, to maintain order, and to protect natural and 
cultural resources.
    Comment 25: Several commenters stated that news is more than just 
breaking news. Moreover, affiliation with a news organization should 
not be used to exclusively define a news-gathering activity; many 
freelance film producers are shooting footage for news organizations 
and their activity should be considered news gathering. It is improper 
to require the media to pay fees and charges to the government when 
gathering information in their capacity as media.
    Response: We have added a definition for ``news'' and ``news-
gathering activities'' in 43 CFR 5.12 in response to this comment. We 
agree that ``news'' is more than just breaking news. The term 
``breaking news'' is a product of the electronic news era when 
broadcasters would interrupt programming to relay information about 
unfolding events. Reporters generally cover events as they occur and 
disseminate the information to the public as soon as possible. We agree 
that freelance reporters and videographers could be covering ``news'' 
and would be within the scope of this regulation. When time allows, 
individuals working in a news-gathering capacity may be required to 
obtain a permit under this section, but are not subject to location 
fees and cost recovery charges. The agencies will not include a permit 
condition that asserts any right or privilege to review, comment upon, 
or edit any film recorded by a news organization under a permit issued 
to them under these rules.
    Comment 26: The provision in 43 CFR 5.3(c) that news coverage is 
subject to time, place, and manner restrictions if warranted to 
maintain order and ensure the safety of the public and the media, and 
to protect natural and cultural resources, is vague and vests 
unfettered discretion in the hands of the interpreting official.
    Response: We have expanded Sec.  5.3(c) in the proposed regulation 
and renumbered it as Sec.  5.4. Management of news-gathering activities 
would be implemented only to ensure the safety of the public and the 
media, to maintain order, and to protect natural and cultural 
resources. There is a long legal tradition of allowing time, place, and 
manner restrictions to satisfy an overriding government interest. 
Restrictions will be the least restrictive necessary to protect 
government interests.
    Comment 27: A commenter suggested that a registration program be 
instituted instead of a permitting process. Registration would provide 
the necessary information so that agencies would be aware of the 
activity while it was happening and also provide a way to locate any 
violators later should that be necessary.
    Response: Public Law 106-206 requires permits in some 
circumstances. In addition, the primary purpose of a permit is to 
establish terms and conditions necessary to protect natural and 
cultural resources and minimize the potential conflict with other 
visitors. Applicants sign the permit acknowledging the permit 
conditions and agreeing to abide by them. The goal of the Federal 
agencies is first and foremost to protect natural and cultural 
resources. Locating a violator after the fact does not satisfy that 
goal.

[[Page 52092]]

    Comment 28: The proposed regulation is too broad and gives the DOI 
agencies too much power to restrict access to certain areas by 
documentary filmmakers, sound recordists, and photographers. These 
proposed rules could be used to censor information, or to hide the 
effects of activities in certain areas, such as logging or drilling.
    Response: The regulation in 43 CFR 5.5 lists seven specific grounds 
for denial of a permit request. The decision to approve or deny a 
request for a commercial filming or still photography permit will not 
be based on content. Paragraphs (a)-(c) are mandated by Public Law 106-
206, paragraph (d) is required by the National Park Service Organic Act 
and ``National Park Service Management Policies 2006'', paragraph (e) 
is required by the National Wildlife Refuge System Administration Act, 
and paragraph (f) is based on Section 302(b) of FLPMA, 43 U.S.C. 
1732(b)). Paragraph (g) states that no permit may be issued that 
violates any law, including the Wilderness Act, (16 U.S.C. 1131-1136).
    Federal land managers may not arbitrarily exclude filmmakers or 
still photographers from specific areas. The reason for the denial of a 
permit request should be communicated to the applicant in writing and 
be properly documented in the administrative record.
    Comment 29: Commenters were concerned about the potential for 
censorship, stating that granting permits based on the content of the 
material and the intended use of the product are open to abuse and 
create uncertainty and confusion.
    Response: The decision to approve or deny a request for a 
commercial filming permit or still photography permit is not based on 
the content of the material. Applications for commercial filming 
activities and still photography are evaluated on the potential impact 
the activity may have on cultural and natural resources, on other 
visitors, on agency operations, and on the health and safety of 
visitors, permittee staff and agency employees. The agencies may not 
issue permits that authorize an illegal activity or activities likely 
to cause resource damage
    Comment 30: One commenter requested that the rule adopt the 
definition of a representative of the news media found in 43 CFR 2.3, 
the regulation governing the DOI Freedom of Information Act procedures.
    Response: We agree with the comment and have added the definition. 
The agencies have also added a definition of news-gathering activities 
based on the definition found in the Freedom of Information Act (FOIA) 
(5 U.S.C. 552 (a)(4)(A)(ii)), and the implementing regulations at 43 
CFR 2.3 that defines ``news'' as ``. . . information that is about 
current events or that is (or would be) of current interest to the 
public . . . .'' FOIA defines news for the purpose of identifying those 
individuals or organizations that qualify for a waiver of or a 
reduction in fees.
    We acknowledge that gathering and dissemination of news should be 
afforded the widest possible range of access. However, we have a 
Congressional mandate to carry out the missions assigned to us, which 
includes mitigating damage to the cultural and natural resources that 
we manage. In carrying out this mandate, we may require permits for 
news-gathering activities when the agency manager feels that a permit 
is needed to ensure the protection of the agency resources and there is 
sufficient time is issue the permit without impeding the new-gathering 
activities.
    The agency manager will not require a permit if doing so would 
impede the news-gathering activity. When a permit is not issued, the 
news-gathering activity is subject to oral instructions from agency 
personnel in order to protect cultural and natural resources and to 
maintain order and ensure the safety of the public, agency personnel, 
and media representatives.
    The terms and conditions of a permit for news-gathering activities 
will be only those necessary to protect agency cultural and natural 
resources; to maintain order; and to ensure the safety of the public, 
agency personnel, and the media. Restrictions will be the least 
restrictive necessary to protect these government interests. Further, 
permits will be issued without any cost.
    Requests for permits will be processed expeditiously. Permit 
applications will be evaluated for, and permit conditions imposed based 
on, potential impacts on cultural and natural resources, as well as 
potential risks to members of the public, media representatives and 
agency personnel. The project content will not be a factor in approving 
the permit, though activities that violate Federal or other applicable 
law are prohibited.

Changes From the Proposed Rules

Title 43--Public Lands: Interior

    The title of the 43 CFR Part 5 was edited to include language from 
Public Law 106-206.
Section 5.1 What does this subpart cover?
    This section was not changed.
Former Sec.  5.2 How are the terms defined in this subpart?
    The definitions are now located in Sec.  5.12 at the end of the 
subpart. The definition of commercial filming was expanded, and 
definitions of ``news-gathering activities'', ``model'', and ``sets and 
props'' were added.
Section 5.3 How do I apply for a filming permit?
    This new section makes it easier for readers to locate information 
on how to apply for a permit.
Former Sec.  5.3 When do I need a permit for commercial filming or 
still photography?
    This section has been renumbered as Sec.  5.2. The section was 
edited to clarify the DOI's position that still photography does not 
require a permit unless certain criteria are met, which are included in 
Sec.  5.2(b). We believe that most still photography occurring on 
departmental lands covered by this regulation will not require a 
permit. We moved Sec.  5.3(c) in the proposed rule containing permit 
requirements for news-gathering activities to a new section at Sec.  
5.4.
Section 5.4 When is a permit required for news-gathering activities?
    This is a new section. We acknowledge that news-gathering 
activities should have the widest possible access. While allowing 
access, we must carry out our Congressional mandates, which include 
minimizing damage to cultural and natural resources that we manage. In 
carrying out this mandate, we may require permits for news-gathering 
activities, but permit terms and conditions will be only those 
necessary to protect agency cultural and natural resources, to maintain 
order, and to ensure the safety of the public, agency personnel, and 
the media. The more numerous the crew and the more equipment involved 
in the news-gathering activity; the more likely the land manager will 
be to require a permit. Permits will be issued without any cost to the 
permit holder.
    If the news story is such that the requirement for a permit would 
interfere with the ability of the entity to gather the required footage 
or photographs, then the permit requirement will be waived, but the 
activity is still subject to the oral instructions of the agency 
representative in order to protect cultural and natural resources and 
to maintain order and ensure the safety of the public, agency 
personnel, and the media.

[[Page 52093]]

Section 5.5 When will an agency deny a permit for commercial filming or 
still photography?
    The section was renumbered from Sec.  5.4 in the proposed 
regulation. In paragraph (d) the words ``unacceptable impacts'' were 
added to conform to current National Park Service policy. Paragraph (g) 
was amended to add a reference to the Wilderness Act (16 U.S.C. 1131-
1136).
Section 5.6 What type of permit conditions may the agency impose?
    This section was renumbered from Sec.  5.5 in the proposed 
regulation.
Section 5.7 What are my liability and bonding requirements as a permit 
holder?
    This section was renumbered from Sec.  5.6 in the proposed 
regulation. The section was edited to show that the agency may accept 
either a bond or a security.
Section 5.8 What expenses will I incur?
    This section was renumbered from Sec.  5.7 in the proposed 
regulation.
Section 5.9 How long will it take to process my request?
    This section was renumbered from section Sec.  5.8 in the proposed 
regulation. The section was edited to encourage early consultation 
between the agency and the applicant.
Section 5.10 Can I appeal a decision not to issue a permit?
    This is a new section. In most cases decisions to appeal a denial 
of a permit request may be appealed to the next higher level of 
management authority, with the specific process and contact information 
available from the site manager.
Section 5.11 Information Collection
    This section was added to address requirements of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.).
Section 5.12 How are terms defined in this subpart?
    This section was Sec.  5.2 in the draft regulation. In response to 
comments received, the definition of commercial filming was expanded, 
and definitions of news gathering activities, model and sets and props 
were added.
Sections 5.15 Through 5.18
    These sections were not changed. No comments were received on these 
sections.

Title 50--Wildlife and Fisheries

Section 27.71 Commercial Filming and Still Photography and Audio 
Recording
    The title of this section was changed to better reflect the content 
of the regulation and to use language from Public Law 106-206. The 
language from the draft regulation was edited and designated paragraph 
(a). Paragraph (b) specifically addresses comments received on audio 
recording, paragraph (c) allows for the enforcement of the regulation, 
paragraph (d) applies the location fee schedule for still photography 
to audio recording permits, and paragraph (e) authorizes the use of the 
cost recovery provisions of Public Law 106-206 and 31 U.S.C. 9701 by 
the U.S. Fish and Wildlife Service. Paragraph (f) addresses 
requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs will review all significant rules. The Office of 
Information and Regulatory Affairs has determined that this rule is 
significant because it will raise novel legal or policy issues, but it 
is not economically significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Regulatory Flexibility Act (RFA)

    DOI conducted an economic analysis under the RFA (5 U.S.C. 601 et 
seq.) of the economic effect on small entities of charging location 
fees for commercial filming and still photography activities conducted 
on Federal lands managed by several DOI agencies. The economic analysis 
was conducted using a draft location fee schedule that is being 
published separately in the Federal Register for public comment. We 
expect no increase in costs or prices for consumers or the Federal 
government or geographic regions, and only minor increases for 
individual industries and State and local governments and agencies.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. 
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 (UMRA)

    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. A statement 
containing the information required by the UMRA (2 U.S.C. 1531 et 
seq.), is not required.

Takings (Executive Order 12630)

    Under the criteria in section 2 of Executive Order 12630, this rule 
does not have significant takings implications. A takings implication 
assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism summary impact statement. A Federalism 
summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written

[[Page 52094]]

in clear language and contain clear legal standards.

Consultation With Indian Tribes (Executive Order 13175 and Department 
Policy)

    The DOI strives to strengthen its government-to-government 
relationship with Indian Tribes through a commitment to consultation 
with Indian Tribes and recognition of their right to self-governance 
and tribal sovereignty. We have evaluated this rule under the 
Department's consultation policy and under the criteria in Executive 
Order 13175 and have determined that it has no substantial direct 
effects on federally recognized Indian tribes and that consultation 
under the Department's tribal consultation policy is not required.

Paperwork Reduction Act (PRA)

    This regulation requires individuals, entities, and companies 
wishing to do commercial filming and certain still photography 
activities 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 regulation, but are addressed in existing agency regulations and 
internal guidance. These existing information collections have the 
required OMB approval under the PRA.
    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. BLM uses OMB-approved BLM Form 2920-1 (Land Use 
Application and Permit), which is assigned OMB Control Number 1004-
0009. The FWS currently uses two application forms for commercial 
filming and still photography: FWS Form 1383-C (Permit Application 
Form: National Wildlife Refuge System Commercial Activities Special 
Use) and FWS Form 1383-G (Permit Application Form: National Wildlife 
Refuge System General Special Use). OMB has reviewed and approved both 
of these forms and assigned OMB Control No. 1018-0102, which expires 
June 30, 2014. These regulations do not contain additional information 
collection requirements that OMB must approve under the Paperwork 
Reduction Act of 1995, (44 U.S.C. 3501 et seq.). We may not conduct or 
sponsor and you are not required to respond to a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the NEPA Act of 1969 is not required because the rule is covered 
by a categorical exclusion. This rule is excluded from the requirement 
to prepare a detailed statement because its environmental effects are 
too broad to lend themselves to meaningful analysis and will later be 
subject to the NEPA process. (For further information see 43 CFR 
46.210(i)). We have also determined that the rule does not involve any 
of the extraordinary circumstances listed in 43 CFR 46.215 that would 
require further analysis under NEPA.
    The location fee authorized by Public Law 106-206 and governed by 
this regulation is a fee collected for the use of Federal land through 
a permit issued by the responsible agency for a commercial filming or 
still photography activity. Any analysis required by 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.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

List of Subjects

36 CFR Part 5

    Alcohol and alcoholic beverages, Business and industry, Civil 
rights, Equal employment opportunity, Motion pictures, National Parks, 
Recordings, Still photography, Transportation.

43 CFR Part 5

    Motion pictures, Still photography, Television.

50 CFR Part 27

    Wildlife refuges.

    For the reasons set forth in the preamble, we amend 36 CFR Part 5, 
43 CFR Part 5, and 50 CFR Part 27 as follows:

Title 36--Parks, Forests, and Public Property

CHAPTER I--NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR

PART 5--COMMERCIAL AND PRIVATE OPERATIONS

0
1. The authority citation for part 5 continues to read as follows:

    Authority: 16 U.S.C. 1, 3, 9a, 17j-2, 462.


0
2. Section 5.5 is revised to read as follows:


Sec.  5.5  Commercial filming, still photography, and audio recording.

    (a) Commercial filming and still photography activities are subject 
to the provisions of 43 CFR part 5, subpart A. Failure to comply with 
any provision of 43 CFR part 5 is a violation of this section.
    (b) Audio recording does not require a permit unless:
    (1) It takes place at location(s) where or when members of the 
public are generally not allowed;
    (2) It uses equipment that requires mechanical transport;
    (3) It uses equipment that requires an external power source other 
than a battery pack; or
    (4) The agency would incur additional administrative costs to 
provide management and oversight of the permitted activity to:
    (i) Avoid unacceptable impacts and impairment to resources or 
values; or
    (ii) Minimize health or safety risks to the visiting public.
    (c) Cost recovery charges associated with processing the permit 
request and monitoring the permitted activity will be collected.
    (d) The location fee schedule for still photography conducted under 
a permit issued under 43 CFR part 5 applies to audio recording permits 
issued under this part.
    (e) Information collection. The Office of Management and Budget 
(OMB) has approved the information collection requirements associated 
with National Park Service commercial filming permits and assigned OMB 
Control Number 1024-0026. Your response is required to obtain or retain 
a benefit. We may not collect or sponsor and you are not required to 
respond to an information collection unless it displays a currently 
valid OMB control number. You may send comments on this information 
collection requirement to the Information Collection Clearance Officer, 
National Park Service, 1849 C Street, Washington, DC 20240.

[[Page 52095]]

Title 43--Public Lands: Interior

Subtitle A--Office of the Secretary of the Interior

0
3. Part 5 is revised to read as follows:

PART 5--COMMERCIAL FILMING AND SIMILAR PROJECTS AND STILL 
PHOTOGRAPHY ON CERTAIN AREAS UNDER DEPARTMENT JURISDICTION

Subpart A--Areas Administered by the National Park Service, the Bureau 
of Land Management, and the U.S. Fish and Wildlife Service
Sec.
5.1 What does this subpart cover?
5.2 When do I need a permit for commercial filming or still 
photography?
5.3 How do I apply for a permit?
5.4 When is a permit required for news-gathering activities?
5.5 When will an agency deny a permit for commercial filming or 
still photography?
5.6 What type of permit conditions may the agency impose?
5.7 What are my liability and bonding requirements as a permit 
holder?
5.8 What expenses will I incur?
5.9 How long will it take to process my request?
5.10 Can I appeal a decision not to issue a permit?
5.11 Information collection.
5.12 How are terms defined in this subpart?
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; 31 U.S.C. 9701; 43 U.S.C. 1701, 1732-1734, 
1740.


Sec.  5.1  What does this subpart cover?

    This subpart covers commercial filming and still photography 
activities on lands and waters administered by the National Park 
Service, the Bureau of Land Management, and the U.S. Fish and Wildlife 
Service.


Sec.  5.2  When do I need a permit for commercial filming or still 
photography?

    (a) All commercial filming requires a permit.
    (b) Still photography does not require a permit unless:
    (1) It uses a model, set, or prop as defined in Sec.  5.12; or
    (2) The agency determines a permit is necessary because:
    (i) It takes place at a location where or when members of the 
public are not allowed; or
    (ii) The agency would incur costs for providing on-site management 
and oversight to protect agency resources or minimize visitor use 
conflicts.
    (c) Visitors do not require a permit for filming or still 
photography activities unless the filming is commercial filming as 
defined in Sec.  5.12 or the still photography activity involves one of 
the criteria listed in Sec.  5.2 (b).


Sec.  5.3  How do I apply for a permit?

    For information on application procedures and to obtain a permit 
application, contact the site manager at the location at which you seek 
to conduct commercial filming or still photography activities.


Sec.  5.4  When is a permit required for news-gathering activities?

    (a) Permit requirements. News-gathering activities involving 
filming, videography, or still photography do not require a permit 
unless:
    (1) We determine a permit is necessary to protect natural and 
cultural resources, to avoid visitor use conflicts, to ensure public 
safety or authorize entrance into a closed area; and
    (2) Obtaining a permit will not interfere with the ability to 
gather the news.
    (b) Terms and conditions. All permits issued under this section 
will include only terms and conditions necessary to maintain order, 
ensure the safety of the public and the media, and protect natural and 
cultural resources.
    (c) Exemptions. A permit issued for news-gathering activities is 
not subject to location fees or cost recovery charges.


Sec.  5.5  When will an agency deny a permit for commercial filming or 
still photography?

    We will deny a permit authorizing commercial filming or still 
photography if we determine that it is likely that the activity would:
    (a) Cause resource damage;
    (b) Unreasonably disrupt or conflict with the public's use and 
enjoyment of the site;
    (c) Pose health or safety risks to the public;
    (d) Result in unacceptable impacts or impairment to National Park 
Service resources or values;
    (e) Be inappropriate or incompatible with the purpose of the Fish 
and Wildlife Service refuge;
    (f) Cause unnecessary or undue degradation of Bureau of Land 
Management lands; or
    (g) Violate the Wilderness Act (16 U.S.C. 1131-1136) or any other 
applicable Federal, State, or local law or regulation.


Sec.  5.6  What type of permit conditions may 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; and
    (2) Prevent unreasonable disruption of the public's use and 
enjoyment.
    (b) We may revoke your permit if you violate a permit condition.


Sec.  5.7  What are my liability and bonding requirements as a permit 
holder?

    (a) Liability. In accepting a permit, you agree to be fully liable 
for any damage or injury incurred in connection with the permitted 
activity, and to indemnify and hold harmless the United States of 
America as a result of your actions. We may require you to obtain 
property damage, personal injury, commercial liability or public 
liability insurance in an amount sufficient to protect the United 
States from liability or other claims arising from activities under the 
permit. The insurance policy must name the United States of America as 
an additional insured.
    (b) Bond. You are responsible for all response, repair and 
restoration if your activity causes damage to an area. We may also 
require you to provide a bond or other security sufficient to secure 
any obligations you may have under the permit and applicable laws and 
regulations, including the cost of repair, reclamation, or restoration 
of the area. The amount of the bond or security must be in an amount 
sufficient to provide full payment for the costs of response and 
restoration, reclamation, or rehabilitation of the lands in the event 
that you fail to adequately repair, reclaim, or restore the area as 
directed by the agency. If the amount of the bond or other security is 
inadequate to cover cost of the repair, reclamation, or restoration of 
the damaged lands or resources you will also be responsible for the 
additional amount.


Sec.  5.8  What expenses will I incur?

    You must pay us a location fee and reimburse us for expenses that 
we incur, as required in this section.
    (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.
    (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 and 
represents a fee for the use of Federal

[[Page 52096]]

lands and facilities and does not include any cost recovery.
    (3) We will assess location fees in accordance with a fee schedule, 
which we will publish in the Federal Register and also make available 
on the internet and at agency field offices. The location fee does not 
include any cost recovery.
    (b) Cost recovery. You must reimburse us for actual costs incurred 
in processing your request and administering your permit. We will base 
cost recovery charges upon our direct and indirect expenses including, 
but not limited to, administrative costs for application processing, 
preproduction meetings and other activities, on-site monitoring of 
permitted activities, and any site restoration.


Sec.  5.9  How long will it take to process my request?

    We will process applications for commercial filming and still 
photography permits in a timely manner. Processing times will vary 
depending on the complexity of the proposed activity. A pre-application 
meeting with agency personnel is encouraged and may assist us in 
processing your request for a permit more quickly. For information on 
application procedures contact the appropriate agency field office.


Sec.  5.10  Can I appeal a decision not to issue a permit?

    Yes. If your request for a permit is denied, the site manager 
issuing the denial will inform you of how and where to appeal.


Sec.  5.11  Information collection.

    The information collection requirements contained in this subpart 
have been approved by the Office of Management and Budget (OMB) under 
44 U.S.C. 3501 et seq., and assigned the following OMB clearance 
numbers: 1024-0026 for the National Park Service, 1004-0009 for the 
Bureau of Land Management and 1018-0102 for the Fish and Wildlife 
Service. This information is being collected to provide land managers 
data necessary to issue permits for commercial filming or still 
photography permits on Federal lands. This information will be used to 
grant administrative benefits. The obligation to respond is required in 
order to obtain a benefit. You may send comments on this information 
collection requirement to the Departmental Information Collection 
Clearance Officer, U.S. Department of the Interior, 1849 C Street NW., 
MS3530, Washington, DC 20240.


Sec.  5.12  How are terms defined in this subpart?

    The following definitions apply to this subpart:
    Agency, we, our, or us means the National Park Service, the Bureau 
of Land Management, and the U.S. Fish and Wildlife Service, as 
appropriate.
    Commercial filming means the film, electronic, magnetic, digital, 
or other recording of a moving image by a person, business, or other 
entity for a market audience with the intent of generating income. 
Examples include, but are not limited to, feature film, videography, 
television broadcast, or documentary, or other similar projects. 
Commercial filming activities may include the advertisement of a 
product or service, or the use of actors, models, sets, or props.
    Cost recovery means the money that an agency collects as 
reimbursement for actual costs it incurred to permit a particular 
activity, including but not limited to, accepting and processing a 
permit application and 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:
    (1) Commercial filming activities or similar projects; and
    (2) Still photography activities where a permit is required.
    Model means a person or object that serves as the subject for 
commercial filming or still photography for the purpose of promoting 
the sale or use of a product or service. Models include, but are not 
limited to, individuals, animals, or inanimate objects, such as 
vehicles, boats, articles of clothing, and food and beverage products, 
placed on agency lands so that they may be filmed or photographed to 
promote the sale or use of a product or service. For the purposes of 
this part, portrait subjects such as wedding parties and high school 
graduates are not considered models, if the image will not be used to 
promote or sell a product or service.
    News means information that is about current events or that would 
be of current interest to the public, gathered by news-media entities 
for dissemination to the public. Examples of news-media entities 
include, but are not limited to, television or radio stations 
broadcasting to the general public and publishers of periodicals (but 
only if such entities qualify as disseminators of ``news'') who make 
their products available for purchase by or subscription by or free 
distribution to the general public.
    (1) As methods of news delivery evolve (for example, the adoption 
of the electronic dissemination of newspapers through 
telecommunications services), these alternative media will be 
considered to be news-media entities.
    (2) A freelance journalist is regarded as working for a news-media 
entity if the journalist can demonstrate a solid basis for expecting 
publication through that entity, even if the journalist is not actually 
employed by the entity. A contract would present a solid basis for such 
an expectation; we may also consider the past publication record of the 
requester in making such a determination.
    News-gathering activities means filming, videography, and still 
photography activities carried out by a representative of the news 
media.
    Permit means a written authorization to engage in uses or 
activities that are otherwise prohibited or restricted.
    Representative of the news media means any 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.
    Resource damage means harm to the land or its natural or cultural 
resources that cannot reasonably be mitigated or reclaimed.
    Sets and props means items constructed or placed on agency lands to 
facilitate commercial filming or still photography including, but not 
limited to, backdrops, generators, microphones, stages, lighting banks, 
camera tracks, vehicles specifically designed to accommodate camera or 
recording equipment, rope and pulley systems, and rigging for climbers 
and structures. Sets and props also include trained animals and 
inanimate objects, such as camping equipment, campfires, wagons, and so 
forth, when used to stage a specific scene. The use of a camera on a 
tripod, without the use of any other equipment, is not considered a 
prop.
    Still photography means the capturing of a still image on film or 
in a digital format.
    Videography means the process of capturing moving images on 
electronic media, e.g., video tape, hard disk or solid state storage.

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

[[Page 52097]]

is expected to observe the ordinary courtesy of first obtaining 
permission from the Indian 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.

Title 50--Wildlife and Fisheries

SUBCHAPTER C--THE NATIONAL WILDLIFE REFUGE SYSTEM

PART 27--PROHIBITED ACTS

0
4. The authority citation for part 27 is revised to read as follows:

    Authority: 5 U.S.C. 685, 752, 690d; 16 U.S.C. 460k, 460l-6d, 
664, 668dd, 685, 690d, 715i, 715s, 725; 43 U.S.C. 315a.

0
5. The heading for subpart G is revised to read as follows:

Subpart G--Disturbing Violations: Filming, Photography, and Light 
and Sound Equipment

0
6. Section 27.71 is revised to read as follows:


Sec.  27.71  Commercial filming and still photography and audio 
recording.

    (a) We authorize commercial filming and still photography on 
national wildlife refuges under the provisions of 43 CFR part 5.
    (b) Audio recording does not require a permit unless:
    (1) It takes place at location(s) where or when members of the 
public are not allowed;
    (2) It uses equipment that cannot be carried or held by one person;
    (3) It uses equipment that requires an external power source; or
    (4) We would incur additional administrative costs to provide 
management and oversight of the permitted activity to:
    (i) Avoid unacceptable impacts and impairment to wildlife or 
resource values;
    (ii) Minimize health or safety risks to the visiting public
    (c) Failure to comply with any provision of 43 CFR part 5 is a 
violation of this section.
    (d) The location fee schedule for still photography conducted 
according to a permit issued under 43 CFR part 5 will apply to audio 
recording permits issued under this part.
    (e) We will collect and retain cost recovery charges associated 
with processing permit requests and monitoring the permitted 
activities.
    (f) Information collection. A Federal agency may not conduct or 
sponsor and you are not required to respond to a collection of 
information, unless it displays a currently valid Office of Management 
and Budget (OMB) control number. The information collection 
requirements contained in this section have been approved by the OMB 
under 44 U.S.C. 3501 et seq. and assigned control number 1018-0102. The 
information is being collected to provide agency managers data 
necessary to issue permits and grant administrative benefits. The 
obligation to respond is required to obtain or retain a benefit. You 
may send comments on this information collection requirement to the 
Information Collection Clearance Officer, U.S. Fish and Wildlife 
Service, 1849 C Street NW., Mailstop 2042-PDM, Washington, DC 20240.

David J. Hayes,
Deputy Secretary of the Interior.
[FR Doc. 2013-20441 Filed 8-21-13; 8:45 am]
BILLING CODE 4312-EJ-P