Proposed Fees at U.S. National Arboretum

A new schedule of fees has been proposed for still photography in the U.S.
National Arboretum in Washington, DC. The proposed rule was described in
the Federal Register of 20 December 2004, under 7 CFR 500, National
Arboretum. The fee schedule is summarized as follows:

Quote:

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Still Photography, Individual

For personal use only; includes hand-held cameras, recorders and small
non-commercial tripods.

No Charge

Still Photography, Commercial

All professional photography; photographs for which a fee will be received
or which are for other than personal use.

Fee: $30

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The proposed rule is open to public comment until February 18, 2005.
Several folks on this forum have complained about getting hassled at the
Arboretum; if people have opinions on the proposed rule, now is the time to
make them known. Incidentally, the last time a rule affecting 7 CFR 500
was proposed (April 2002), the final rule was issued as proposed because
no comments were received. In this case, absence of evidence
is evidence of absence.

I see at least two problems with the proposed rule:
<ol>
<li>
The phrase “small non-commercial tripods” is meaningless,
inviting capricious enforcement and acrimonious confrontations between
photographers and security personnel. I suspect that this would be found
void for vagueness and therefore unconstitutional; realistically, however,
a court challenge isn’t an option. The time to resolve this is prior
to issue of the final rule. Incidentally, the use of this phrase in this
section is not new to the proposed rule; apparently, few people have
noticed it in the past.
</li>
<li>
More important, the fee for all commercial photography (and presumably any
with “large commercial tripods”) would seem in conflict with
Public Law 106-206:

(c) STILL PHOTOGRAPHY.—(1) Except as provided in paragraph (2), the
Secretary shall not require a permit nor assess a fee for still
photography on lands administered by the Secretary if such photography
takes place where members of the public are generally allowed. The
Secretary may require a permit, fee, or both, if such photography takes
place at other locations where members of the public are generally not
allowed, or where additional administrative costs are likely.

(2) The Secretary shall require and shall establish a reasonable
fee for still photography that uses models or props which are not a
part of the site’s natural or cultural resources or administrative
facilities.</li>
</ol>

I’ll concede that $30 for “commercial” photography
isn’t likely to break anyone, and it’s a considerable
improvement over the $250 half-day/$500 full-day fee called for in the
current rule that was issued in 2002, but the hassle of getting a permit
would remain. In any event, requiring the fee would appear to be in
conflict with Pub. L. 106-206, and could set a bad precedent for other
agencies in the Department of Agriculture or Department of the Interior to
establish similar fees despite the prohibition from doing so in Pub. L.
106-206. A federal court probably would uphold the supremacy of statutory
law, but only at a cost that no photographer could afford.

The proposal is available from the GPO Access web site at
http://www.gpoaccess.gov/fr/index.html; a search for “National Arboretum”
should yield the entry “fr20de04P National Arboretum”.

Again, comments must be received by February 18, 2005.

The contact information is as follows:

ADDRESSES: Address all correspondence to Thomas S. Elias, Director,
U.S. National Arboretum, Beltsville Area, Agricultural Research
Service, 3501 New York Avenue, NE., Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Dana Laster, Administrative and
Marketing Manager, U.S. National Arboretum, Beltsville Area, ARS, 3501
New York Avenue, NE., Washington, DC 20002; (202) 245–4539.

How do we make public comments?

Is there a web form somewhere? Do we have to send snail-mail to this Thomas Elias fellow? And isn't there a directly link to this proposal? I couldn't find it even after I removed the ";" from your link and got it to work.

The easier you make it for people to help you, the more responses you'll get. We are lazy slugs, even when our freedom is threatened - you did notice how much public outcry was made over the so-called patriot act, yes?

Jeff, Thanks for the alert. Last time I was at the Arboretum with my view camera, I has stopped several times during the day by the security guards because of their equating professional equipment with commercial work. In the end they all let me continue with my work without paying a fee, however I did not like the interruption and their borderline rudeness. I have sent off a comment to the Director requesting removal of the wording referring to "professional" or "commercial" equipment and even asking for a specific exemption for fine-art photographers.

Hogarth, Do a Google search on "7 CFR 500, National Arboretum" and you will get an on-line form to edit and print. Unfortunately, one has to mail the printed form in.

Hogarth,

I looks as if I forgot to code the hyperlink myself, and the code that
automatically inserts the link seems to have mangled things a bit. I
shoulda checked it before confirming the post ...

The link works fine for me if I remove the ‘;’, but I do need
to search 2004 rather than 2005.

In any event, this direct link should work:
<href="http://www.access.gpo.gov/su_docs/fedreg/a041220c.html">
http://www.access.gpo.gov/su_docs/fedreg/a041220c.html</a> (I did test
it this time ...). The entry you want is

Quote:

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Agricultural Research Service

PROPOSED RULES

National Arboretum; conduct rules and fee schedule,

75880–75885 [04–27394]

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Both HTML and PDF versions are available.

To my knowledge, there is no web site for submitting comments. However, I
show the following e-mail address for Dr. Elias:

Quote:

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Thomas dot Elias at usda dot gov

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I spoke with someone at the USNA office who seemed to think that e-mail is
a perfectly acceptable format for submitting comments. To me, it would
seem preferable simply because it would avoid any potential mail delays in
the DC area.

I plan to submit my comments as a PDF attachment so that they will look
nice if Dr. Elias prefers to print them out to file with the others. Of
course, if the submissions to the last proposed rule are a guide, keeping
track of the comments should not require voluminous storage.

Do keep in mind that any comment submitted is a matter of public record.
Because of this, I’ve left a call asking what personally identifying
information is needed for the comment to be considered valid. Just to be
safe, I’ve also asked for a confirmation that e-mail is OK.

This morning I spoke with Ms. Laster, who clarified several points:
<ol>
<li>
E-mail is perfectly acceptable as a means of submitting comments. Ms. Laster
suggested the following address for Dr. Elias:

Quote:

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eliast at usna dot ars dot usda dot gov

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</li>
<li>
Nothing other than a name is required, although contact information such as
a telephone number would help if they have any questions about the
comments.

I plan to put only my name on the PDF attachment, but include address and
phone number in the e-mail message itself. </li>
</ol>
I briefly discussed the points in my post to this forum, and Ms. Laster
seemed receptive—I really don’t think that most of these folks
are out to get us. However, when proposed rules are published and we
submit no comments, the folks who propose the rules not unreasonably assume
that we have no concerns or objections.

To date, only the USDA Forest Service have issued regulations to implement
Public Law 106-206. Eventually, comparable regulations probably will be
issued by the National Park Service, the Bureau of Land Management, and the
U.S. Fish and Wildlife Service. Normally, proposed regulations are
published in the <cite>Federal Register</cite> with a 60-day period for
public comment. The best way to be apprised of proposed rules is
periodically to check the FR web site at
http://www.gpoaccess.gov/fr/index.html, and search for terms such as
‘filming’, ‘photography’, and
‘“106-206”’

ALL such rules are meaningless. The rule currently in effect allows unrestricted non-commercial photography. Onerous fees ($500.00/day) are ostensibly required only for commercial photography. This is how it's supposed to work.

However, if you go to the Arboretum and set up a large format view camera you will be asked to take it down by a Rent-A-Cop with a gun. If you challenge the guard you'll be told to go to the front desk to obtain a permit. The FIRST THING the permit application says is that no fee is required for any non-commercial photography which does not restrict egress. It doesn't say anything about tripods, camera size or appearance. If you then challenge the clone at the information desk (as did I) who just handed you this document, you will be told "I see from your equipment there that you are a commercial photographer and will need to have a permit". And around and around we go.

The bottom line is that there is no channel of communication to someone who can make a decision on this matter at the Arboretum. I'm sure that some manager working at the Department of Agriculture would interpret it correctly and could help you, but that doesn't do you any good on a Saturday afternoon.

The best manual on how to deal with this situation is 1984 by George Orwell and not any official publication. I've therefore given up photography at the Arboretum.

How much is it going to hurt you to take a few minutes and send the people your comments?

I did. Didn't hurt a bit. It's got to help more than just walking away.