U.S. agencies have proposed two new rules affecting permits for still photography on public lands. One of the rules needs revision; the other is probably acceptable but could be improved. Both rules are open to public comment until the middle of October 2007.

Rule Proposed by the Bureau of Reclamation
The U.S. Bureau of Reclamation propose changes to 43 CFR 249 that would require a permit for "commercial filming and photography"; however they do not define commercial photography, so the proposal could be in conflict with Public Law 106-206. If enough comments are received, the rule most likely will be changed, as happened in 2005 with the rule for permits in the U.S. National Arboretum. The best solution would be for the USBR to use the same rule as the BLM, FWS, and NPS, which is described below.

Rule Proposed by the BLM, FWS, and NPS
The U.S Bureau of Land Management, the U.S. National Park Service, and the U.S. Fish and Wildlife Service propose changes to 43 CFR Part 5 that would require a permit for still photography using models, sets, or props, in much the same manner as Public Law 106-206. The proposed rule is a straightforward implementation of the law; nominally, at least, there should be little change from current policy.

The rule is probably acceptable as proposed, but the wording could be improved, so comments still may be appropriate. "Models," "sets," and "props" are not defined, and may be subject to varying interpretations by enforcement personnel. Unlike the current 36 CFR 5.5(b), which has governed photography in National Parks and which was intended to be the model for the new requirements, neither the legislation nor the proposed rule appears to require a permit for "articles of commerce [photographed] for the purpose of commercial advertising." I simply cannot imagine any DOI agency allowing such photography (e.g., an automobile advertisement) without a permit, and cannot see how an agency could apply the proposed rule to such photography without expanding the definition of model or prop. I would have no problem with requiring a permit for the same conditions that require a permit today, but I would much prefer to have all the conditions explicitly stated rather than leave interpretation to enforcement personnel.

The rule would be easier to follow if the treatment of filming and photography were more similar; it's much easier to refer to "commercial photography" than "photography that involves ..."

I would address both issues by requiring permits for both commercial filming and commercial photography, defining the latter to the effect of

Commercial photography means digital or film recording of a still image that uses models, props, sets, or articles of commerce for the purpose of commercial advertising.
Since this is almost a direct rearrangement of the current 36 CFR 5.5(b) that governs photography in National Parks, it would seem the approach most likely to ensure that current policy is maintained. The definition would also seem a good model for other jurisdictions.

Comment Period and Contact Information
The public comment period for the USBR rule extends to 16 October 2007; the comment period for the BLM/FWS/NPS rule extends to 19 October 2007.

The parts of the Federal Register in which these proposed rules appear can be obtained from the GPO Access web site at http://www.gpoaccess.gov/fr/index.html; search for "filming".

The relevant results are in the Federal Register on 18 July 2007 (fr18jy07P) for the USBR, and 20 August 2007 (fr20au07P) for the other agencies.