Thomas S. Elias

Director

US National Arboretum

Beltsville Area Agricultural Research Service

3501 New York Avenue, NE

Washington, DC 20002

Fax to: (202) 244-2289

Also sent via email to:

eliast@usna.ars.usda.gov

hiersn@usna.ars.usda.gov

18 February 2005

Dear Mr. Elias:

This letter responds to the proposed new schedule of fees as described in the Federal Register Vol.69, No.243 of December 20, 2004, under 7 CFR Part 500, National Arboretum.

The Society of Environmental Journalists (SEJ) is the world's largest and oldest organization of individual working journalists covering environmental issues. Founded in 1990 and based in Jenkintown, Penn., SEJ consists of more than 1,400 journalists, educators and students dedicated to improving the quality, accuracy and visibility of environmental reporting.

Joining us in these comments is the National Press Photographers Association (NPPA), an organization of 10,000 photojournalists dedicated to the advancement of photojournalism, its creating, editing and distribution, in all news media.

We are concerned that your proposed rule goes beyond the scope of the Department of Agriculture's authority to require permits and fees under Public Law 106-206, passed May 26, 2000, which states in Section 1(c) and Section 2 of the act:

"...[T]he Secretary shall not require a permit nor assessed fee for still photography on lands administered by the Secretary if such photography takes place where members of the public are generally allowed."

Furthermore, Public Law 106-206 also clearly states that fees can be charged only under the following conditions:

"...[I]f such photography takes place at other locations where members of the public are generally not allowed, or where additional administrative costs are likely" or if that photography "uses models or props which are not part of the site's natural or cultural resources or administrative facilities."

        However, in your proposed rule, you would require permits and fees of ALL still photography that is not "for personal use only." The statute clearly allows you to charge fees and require permits only under certain conditions — regardless of whether the still photography is for personal or commercial use.

Your initial authority to require permits and charge fees, granted by Congress in the 1996 Farm Bill, P.L. 104-127, gave you permission to "charge such fees as... reasonable for the use of the National Arboretum for commercial photography or cinematography." Your current rule at 7 C.F.R. 500.23 requires fees for "all photography which uses a professional photographer and/or involves receiving a fee for the use or production of the photography."

We believe that the more recent Congressional action, in the 2000 law, is the appropriate language, and that your current rule also goes beyond the scope of your fee-charging authority. We urge you to rewrite the rule to not require permits for photography that takes place at locations where members of the public are generally allowed.

The way the proposed rule is currently written, it could often impose a prohibitive and unnecessary burden and expense on nature photographers who are informing the public about the Arboretum's work, educating the public about a range of botanical topics, and supporting news stories about botanical issues of current public concern. The rule does not take account of the economic realities of how photojournalism is for the most part practiced today — by freelancers who shoot photos on speculation in hopes of selling them at some future time to a news outlet.

A number of our concerns were spelled out in testimony before the House Subcommittee on National Parks and Public Lands on February 4, 1999, by Victor S. Perlman, on behalf of the American Society Of Media Photographers And North American Nature Photography Association, on a closely analogous measure regulating photography on public lands. We attach it for your consideration and ask that it be made part of the record of this regulatory proceeding also.

Our members have other concerns about this proposal, and we have not yet been able to fully analyze them. We are also aware of other journalism groups who have only recently become aware of this proposed rule, and who have not had sufficient time to analyze it and prepare comments. We ask that you extend the public comment period for another 60 days to allow us to further study and comment on the proposed rule.

Short of a comment extension, we urge you to rewrite the proposal so that it complies with the restrictions of the statute.

Sincerely,

Ken Ward Jr.

Chairman, First Amendment Task Force

Society of Environmental Journalists

The Charleston Gazette

1001 Virginia St., East

Charleston, W.Va. 25301

(304) 348-1702

Fax: (304) 348-1740

Also on behalf of:

Bob Gould, President

National Press Photographers Association

and

Alicia Wagner Calzada
NPPA Vice President and Advocacy Chair

Attachment: Testimony of Victor S. Perlman, Feb. 4, 1999

Cc:

Beth Parke, SEJ Executive Director

Joe Davis, SEJ WatchDog Tipsheet Editor

Bob Gould

Alicia Wagner Calzada

Greg Garneau