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:

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
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.