Federal Register / Vol. 78, No. 163 / Thursday, August 22, 2013 / Rules and Regulations 52087 

implications of this regulatory action 

have been examined, and it has been 

determined not to be a significant 

regulatory action under Executive Order 

12866. VA’s impact analysis can be 

found as a supporting document at 

http://www.regulations.gov, usually 

within 48 hours after the rulemaking 

document is published. Additionally, a 

copy of the rulemaking and its impact 

analysis are available on VA’s Web site 

at http://www1.va.gov/orpm/, by 

following the link for ‘‘VA Regulations 

Published.’’ 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. This final rule will have no 

such effect on State, local, and tribal 

governments, or on the private sector. 

Paperwork Reduction Act 

This final rule contains no new 

provisions constituting a collection of 

information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3521). 

Catalog of Federal Domestic Assistance 

This final rule affects the verification 

guidelines of veteran-owned small 

businesses, for which there is no Catalog 

of Federal Domestic Assistance program 

number. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. Jose 

D. Riojas, Chief of Staff, Department of 

Veterans Affairs approved this 

document on July 7, 2013, for 

publication. 

List of Subjects in 38 CFR Part 74 

Administrative practice and 

procedures, Privacy, Reporting and 

recordkeeping requirements, Small 

business, Veteran, Veteran-owned small 

business, Verification. 

Dated: August 19, 2013. 

Robert C. McFetridge, 

Director, Regulation Policy and Management, 

Office of the General Counsel, Department 

of Veterans Affairs. 

Accordingly, the interim final rule 

amending 38 CFR part 74, which was 

published on June 27, 2012, at 77 FR 

38181, is adopted without change. 

[FR Doc. 2013–20488 Filed 8–21–13; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2011–0502; FRL–9900–30– 

Region 5] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Wisconsin; Disapproval of PM2.5

Permitting Requirements; Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; correction. 

SUMMARY: EPA published a final rule in 

the Federal Register on July 25, 2013, 

disapproving a Wisconsin State 

Implementation Plan revision pertaining 

to permitting requirements relating to 

particulate matter of less than 2.5 

micrometers (PM2.5). An error in the 

amendatory instruction is identified and 

corrected in this action. 

DATES: Effective Date: This final rule is 

effective on August 26, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Christos Panos, Environmental 

Engineer, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 353–8328, panos.christos@

epa.gov. 

SUPPLEMENTARY INFORMATION: EPA 

published a final rule document on July 

25, 2013, (78 FR 44881) disapproving 

revisions to Wisconsin rules NR 400, 

404, 405, 406, 407, 408 and 484, 

submitted by the State on May 12, 2011, 

because the rule revisions submitted are 

not consistent with Federal regulations 

governing state permitting programs. In 

this disapproval EPA erroneously stated 

that the revision was being made to 40 

CFR 52 Subpart P—Indiana, but the 

language should have said the revision 

was being made to Subpart YY— 

Wisconsin. Therefore, the amendatory 

instruction is being corrected to reflect 

the corrected subpart reference. 

Correction 

In the final rule published in the 

Federal Register on July 25, 2013, (78 

FR 44881), on page 44884, second 

column, below amendatory instruction 

1, ‘‘Subpart P—Indiana’’ is corrected to 

read: ‘‘Subpart YY—Wisconsin’’. 

Dated: August 12, 2013. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2013–20416 Filed 8–21–13; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 


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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 § 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 handheld 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 § 5.4(b) needs to be 

clarified. 

Response: We have renumbered 

proposed 43 CFR 5.4(b) as § 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 (§ 5.4(a)(5)). 

Response: We have renumbered 

proposed 43 CFR 5.4(a)(5) as § 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 

§ 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 agencyspecific 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 


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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 § 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 

§ 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 noncommercial 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 noncommercial filming because Public Law 

106–206 does not address noncommercial 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 § 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 

§ 5.3(b)(4) into § 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, 


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52090 Federal Register / Vol. 78, No. 163 / Thursday, August 22, 2013 / Rules and Regulations 

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 § 5.8 has been 

renumbered as § 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 


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Federal Register / Vol. 78, No. 163 / Thursday, August 22, 2013 / Rules and Regulations 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 § 5.7(a) is 

renumbered as § 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 newsgathering 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. Newsgathering 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 newsgathering 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 § 5.3(c) 

in the proposed regulation and 

renumbered it as § 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. 


tkelley on DSK3SPTVN1PROD with RULES
52092 Federal Register / Vol. 78, No. 163 / Thursday, August 22, 2013 / Rules and Regulations 

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 newgathering 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 § 5.2 How are the terms 

defined in this subpart? 

The definitions are now located in 

§ 5.12 at the end of the subpart. The 

definition of commercial filming was 

expanded, and definitions of ‘‘newsgathering 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 § 5.3 When do I need a permit 

for commercial filming or still 

photography? 

This section has been renumbered as 

§ 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 

§ 5.2(b). We believe that most still 

photography occurring on departmental 

lands covered by this regulation will not 

require a permit. We moved § 5.3(c) in 

the proposed rule containing permit 

requirements for news-gathering 

activities to a new section at § 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. 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 78, No. 163 / Thursday, August 22, 2013 / Rules and Regulations 52093 

Section 5.5 When will an agency deny 

a permit for commercial filming or still 

photography? 

The section was renumbered from 

§ 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 

§ 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 

§ 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 

§ 5.7 in the proposed regulation. 

Section 5.9 How long will it take to 

process my request? 

This section was renumbered from 

section § 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 § 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 


tkelley on DSK3SPTVN1PROD with RULES
52094 Federal Register / Vol. 78, No. 163 / Thursday, August 22, 2013 / Rules and Regulations 

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 

■ 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, 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. 


tkelley on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 78, No. 163 / Thursday, August 22, 2013 / Rules and Regulations 52095 

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—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 newsgathering 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. 

§ 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. 

§ 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 § 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 § 5.12 or the still 

photography activity involves one of the 

criteria listed in § 5.2 (b). 

§ 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. 

§ 5.4 When is a permit required for newsgathering activities? 

(a) Permit requirements. Newsgathering 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 


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52096 Federal Register / Vol. 78, No. 163 / Thursday, August 22, 2013 / Rules and Regulations 

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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

§ 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 


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Federal Register / Vol. 78, No. 163 / Thursday, August 22, 2013 / Rules and Regulations 52097 

is expected to observe the ordinary 

courtesy of first obtaining permission 

from the Indian 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. 

Title 50—Wildlife and Fisheries 

SUBCHAPTER C—THE NATIONAL 

WILDLIFE REFUGE SYSTEM 

PART 27—PROHIBITED ACTS 

■ 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. 

■ 5. The heading for subpart G is revised 

to read as follows: 

Subpart G—Disturbing Violations: 

Filming, Photography, and Light and 

Sound Equipment 

■ 6. Section 27.71 is revised to read as 

follows: 

§ 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 

DEPARTMENT OF COMMERCE 

National Telecommunications and 

Information Administration 

47 CFR Part 300 

[Docket Number: 130809702–3702–01] 

RIN 0660–AA27 

Revision to the Manual of Regulations 

and Procedures for Federal Radio 

Frequency Management 

AGENCY: National Telecommunications 

and Information Administration, U.S. 

Department of Commerce. 

ACTION: Final rule. 

SUMMARY: The National 

Telecommunications and Information 

Administration (NTIA) is making 

certain changes to its regulations, which 

relate to the public availability of the 

Manual of Regulations and Procedures 

for Federal Radio Frequency 

Management (NTIA Manual). 

Specifically, NTIA is releasing a new 

edition of the NTIA Manual, which 

Federal agencies must comply with 

when requesting use of radio frequency 

spectrum. 

DATES: This regulation is effective on 

August 22, 2013. The incorporation by 

reference of certain publications listed 

in the rule is approved by the Director 

of the Federal Register as of August 22, 

2013. 

ADDRESSES: A reference copy of the 

NTIA Manual, including all revisions in 

effect, is available in the Office of 

Spectrum Management, 1401 

Constitution Avenue NW., Room 1087, 

Washington, DC 20230. 

FOR FURTHER INFORMATION CONTACT: 

William Mitchell, Office of Spectrum 

Management at (202) 482–8124 or 

wmitchell@ntia.doc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

NTIA authorizes the U.S. 

Government’s use of radio frequency 

spectrum. 47 U.S.C. 902(b)(2)(A). As 

part of this authority, NTIA developed 

the NTIA Manual to provide further 

guidance to applicable federal agencies. 

The NTIA Manual is the compilation of 

policies and procedures that govern the 

use of the radio frequency spectrum by 

the U.S. Government. Federal 

government agencies are required to 

follow these policies and procedures in 

their use of spectrum. 

Part 300 of title 47 of the Code of 

Federal Regulations provides 

information about the process by which 

NTIA regularly revises the NTIA 

Manual and makes public this 

document and all revisions. Federal 

agencies are required to comply with 

the specifications in the NTIA Manual 

when requesting frequency assignments. 

See 47 U.S.C. 901 et seq., Executive 

Order 12046 (March 27, 1978), 43 FR 

13349, 3 CFR 1978 Comp. at 158. 

This rule updates section 300.1(b) of 

title 47 of the Code of Federal 

Regulations to specify the edition of the 

NTIA Manual that federal agencies must 

comply with when requesting frequency 

assignments. In particular, this rule 

amends § 300.1(b) by replacing ‘‘2008 

edition of the NTIA Manual, as revised 

through May 2012’’ with ‘‘2013 Edition 


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