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Rule

National Arboretum

Action

Final Rule.

Summary

The Department of Agriculture (USDA) is modifying the rules of conduct at the United States National Arboretum (USNA) and the schedule of fees to be charged for certain uses of the facilities, grounds, and services at the USNA.

 

Table of Contents Back to Top

DATES: Back to Top

This rule is effective October 24, 2005.

ADDRESSES: Back to Top

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

FOR FURTHER INFORMATION CONTACT: Back to Top

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

SUPPLEMENTARY INFORMATION: Back to Top

Background Back to Top

Section 890(b) of the Federal Agriculture Improvement and Reform Act of 1996, Pub. L. 104-127 (1996 Act) expanded the authorities of the Secretary of Agriculture to charge reasonable fees for the use of USNA facilities and grounds. These authorities included the ability to charge fees for temporary use by individuals or groups of USNA facilities and grounds consistent with the mission of the USNA. In addition, authority was granted to charge fees for the use of the USNA for photography and cinematography. Pursuant to the Act, the Agricultural Research Service (ARS) promulgated a fee schedule for the USNA at 7 CFR part 500, subpart B. All rules and regulations noted in 7 CFR part 500, subpart A, Conduct on the U.S. National Arboretum Property, also apply to individuals or groups granted approval to use the facilities and grounds.

A proposed rule revising the USNA fee and conduct rules at 7 CFR part 500 was published for comment on December 20, 2004 (69 FR 75880). One hundred one comments were received from individuals and six organizations. The vast majority of public comments (approximately 96 percent) were received with regards to commercial photography. The majority of commentators asserted that Public Law 106-206, 16 U.S.C. 460l-6d(a), which governs the “lands” administered by the Secretary, supersedes the earlier authority granted the Secretary codified at 20 U.S.C. 196(a) with respect to commercial photography at the USNA. USDA asserts that the controlling authority for charging fees for photography and cinematography at the USNA is found at 20 U.S.C. 196(a)(5) which permits USDA to “charge such fees as the Secretary of Agriculture considers reasonable for the use of the National Arboretum for commercial photography or cinematography.”

Nevertheless, § 500.23 was revised to only charge a fee for the use of the facility and grounds of the USNA for commercial photography or cinematography that use models, sets, or props that are not part of the site's natural or cultural resources or administrative facilities; take place where members of the public are generally not allowed; or take place at a location where additional administrative costs are likely. This action provides a balance both to allow photography and cinematography, yet also allow the USNA the ability to charge fees under prescribed conditions that are consistent with Public Law 106-206 to assure the integrity of the USNA as a public facility.

Further comments by stakeholders that are addressed by revisions in this final rule are as follows: (1) To assure the coverage of potential damage to property and collections, the addition of a refundable deposit for use of the facility or grounds, excluding the classroom, is included. (2) As recommended, the user fee for the Friendship Garden is increased to $1,500 to be comparable to other USNA locations. (3) The prohibition without the prior approval of the USNA Director to distribute materials was reworded. Prior approval by the USNA Director is only required to distribute materials to USNA general public visitors. (4) A clarification on the use of candles at events was made. The use of small candles has been included in the final rule. (5) As requested, the wording regarding receipts has been changed. (6) Concern that the 30-day advance notice for special events is too excessive. A 2-day advanced notice does not provide the USNA with adequate time to prepare sites and assign staff and supervision as needed which includes upfront time to change employee work schedules. However, the advance notice minimum was modified to 15 calendar days. (7) Concern over the exclusion of events on peak weekends and during normal visitation periods. Reference to the exclusion was deleted. (8) Concern that 10 working days for response by USNA is excessive. The response time was modified to a maximum of five working days. (9) Concern that the two weeks advance payment for tours is too lengthy. The advance payment requirement was modified to a one week minimum.

Revisions to the final rule were not made in response to some stakeholder comments because they were deemed not to be in the best interest of the government. These include the following: (1) Desire to automatically waive use fees for stakeholders. Automatically waiving use fees for all events greatly would diminish the financial support to the USNA. (2) Concern that the prior approval to serve beer and wine is unnecessary and unwarranted. Current ARS policy requires prior approval by the USNA Director andBeltsville Area Director for the consumption of beer and wine at the USNA. Departmental regulations as well as Federal Property Management Regulations restrict use of alcohol on Federal property. (3) A request was made to allow raffles at the USNA. Raffles require a permit from the District of Columbia and may reflect a less than positive image of USDA when raffles are held on USDA property. (4) A comment that fees collected will be dedicated, in part, for the maintenance of the particular USNA site that generated the fees. Since the funds generated will be used to maintain the USNA, the more popular facilities will naturally tend to receive more of the funds, but the USNA is not committing to a rigid funding formula. (5) Concern that the fee for use of the courtyard area within the National Bonsai and Penjing Museum is too low. The fee is in line with facilities use fees in other institutions and in consideration of the geographical location of the USNA. The fee will be evaluated and reconsidered after the first and second years of facilities use. Fees may be adjusted based upon the demand for this space and the level of maintenance needed to support the facilities use.

Lastly, some stakeholder comments reflect current practices of the USNA and therefore are not addressed in the final rule. These include: (1) Concern about closing the Bonsai and Penjing Museum during normal visitation hours for special events. The current policy is that special events will generally not result in the closing of the Museum to visitors during normal visitation hours; however, special exceptions may be made at the discretion of the USNA Director; (2) Concern over staffing for security during special events. The current practice of the USNA is to provide additional supervision, including additional security staff, as necessary to protect the grounds and assets of the USNA; (3) Concern about protecting and preserving the existing facilities and landscape at the Friendship Garden. Guidelines issued by the USNA for facilities use will help ensure that the quality and condition of the garden displays, collections, and facilities are not compromised.

Classification Back to Top

This rule change has been reviewed under Executive Order 12866, and it has been determined that it is not a “significant regulatory action” rule because it will not have an annual effect on the economy of $100 million or more or adversely and materially affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities. This rule change will not create any serious inconsistencies or otherwise interfere with actions taken or planned by another agency. It will not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof, and does not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or principles set forth in Executive Order 12866.

Regulatory Flexibility Act Back to Top

The Department of Agriculture certifies that this rule change will not have a significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act, Pub. L. No. 96-354, as amended (5 U.S.C. 601, et seq.).

Paperwork Reduction Act Back to Top

In accordance with the Office of Management and Budget (OMB) regulations (5 CFR part 1320) which implement the Paperwork Reduction Act of 1995, Pub. L. 104-13, as amended (44 U.S.C. chapter 35), the information collection and recordkeeping requirements that have been imposed in the management of these programs have been approved by OMB and assigned OMB control number 0518-0024 for the use of facilities or the performance of photography/cinematography at the USNA.

List of Subjects in 7 CFR Part 500 Back to Top

begin regulatory text

For the reasons set out in the preamble, 7 CFR part 500 is revised as set forth below:

PART 500—NATIONAL ARBORETUM Back to Top

Authority:

20 U.S.C. 196(a); sub secs. 2, 4, 5; 40 U.S.C. 121(d); 40 U.S.C. 1315(c).

Subpart A—Conduct on U.S. National Arboreturm Property Back to Top

§ 500.1 General.

The rules and regulations in this part apply to the buildings and grounds of the U.S. National Arboretum (USNA), Washington, DC, and to all persons entering in or on such property. The Administrator, GeneralServices Administration, has delegated to the Secretary of Agriculture, with authority to further delegate, the authority to make all the needful rules and regulations for the protection of the buildings and grounds of the USNA (34 FR 6406). The Secretary of Agriculture has in turn delegated such authority to the Administrator, Agricultural Research Service (34 FR 7389). The rules and regulations in this part are issued pursuant to such delegations.

§ 500.2 Recording presence.

Admission to the USNA during periods when it is closed to the public will be limited to authorized individuals who may be required to sign the register or display identification documents when requested by the Security Staff, or other authorized individuals.

§ 500.3 Preservation of property.

(a) While at the USNA, it is unlawful to:

(1) Willfully destroy, damage, or remove USNA property or any part thereof;

(2) Set or maintain any open fire on the property of the USNA; however, the use of small candles may be approved at the discretion of the Director, USNA; or

(3) Apply any type of insecticide or herbicide on the grounds of the USNA, except for USNA employees in the course of their official duties or other persons authorized by the Director, USNA.

(b) Persons not employed by USNA are not permitted to bring biological agents of any kind, including but not limited to disease and pest agents of plants, onto the property without written permission of the Director, USNA.

§ 500.4 Conformity with signs and emergency directions.

Persons in and on property of the USNA shall comply with official signs of prohibitory or directive nature and with the directions of authorized individuals.

§ 500.5 Nuisances.

(a) The use of loud, abusive, or otherwise improper language; unwarranted loitering, sleeping, or assembly; the creation of any hazard to persons or things; improper disposal of rubbish; spitting; prurient prying; the commission of any obscene or indecent act, or any other unseemly or disorderly conduct; throwing articles of any kind from a building, and climbing upon any part of a building is prohibited.

(b) Playing of music or creation of other noises of a decibel level high enough to be heard outside of the USNA is prohibited.

§ 500.6 Gambling.

Participating in games for money or other personal property, or the operation of gambling devices, the conduct of a lottery or pool, or the selling or purchasing of numbers tickets, in or on USNA property, is prohibited.

§ 500.7 Intoxicating beverages and narcotics.

(a) Entering USNA property or the operation of a motor vehicle thereon, by a person under the influence of intoxicating beverages or a narcotic drug, is prohibited.

(b) Except as provided in subpart B of this part, possession of or consumption of intoxicating beverages on USNA property is prohibited.

(c) The sale of alcoholic beverages on the grounds of the USNA is prohibited.

(d) The possession of or use of narcotic drugs on the grounds of the USNA is prohibited.

§ 500.8 Soliciting, vending, debt collection, and distribution of handbills.

(a) The following activities are prohibited on USNA grounds:

(1) Soliciting of alms or contributions;

(2) Display or distribution of commercial advertising;

(3) Collecting private debts;

(4) Campaigning for election to any office;

(5) Soliciting and vending for commercial purposes (including, but not limited to, the vending of newspapers and other publications);

(6) Soliciting signatures on petitions, polls, or surveys (except as authorized by the USNA); and

(7) Impeding ingress to or egress from the USNA.

(b) Distribution to USNA general public visitors of material such as pamphlets, handbills, and flyers is prohibited without prior approval of the Director, USNA.

(c) The prohibitions in paragraphs (a) and (b) of this section do not apply to:

(1) Commercial or nonprofit activities performed under contract or concession with the USNA or pursuant to the provisions of the Randolph Sheppard Act;

(2) The solicitation of USNA personnel for contributions for the Combined Federal Campaign (CFC);

(3) National or local drives for funds for welfare, health, and other purposes sponsored or approved by the Agricultural Research Service; or

(4) Personal notices posted by employees on authorized bulletin boards.

§ 500.9 Photographs for news or advertising.

Photographs for news purposes may be taken at the USNA without prior permission. Photographs for advertising and other commercial purposes may be taken, but only with the prior approval of the Director,USNA and fees may be charged pursuant to § 500.23.

§ 500.10 Pets.

Pets brought upon USNA property must have proper vaccinations and, except assistance trained animals, must be kept on leash at all times. The release or abandonment of fish, plants, and animals of any kind on USNA grounds is prohibited.

§ 500.11 Vehicular and pedestrian traffic.

(a) Drivers of all vehicles in or on USNA property shall drive only on established roads, shall drive in a careful and safe manner at all times, and shall comply with the signals and directions of the Security Staff and all posted traffic signs.

(b) The blocking of entrances, driveways, walks, loading platforms, or fire hydrants, and parking in designated no parking areas in or on USNA property is prohibited.

(c) Except in emergencies, parking in or on USNA property in other than designated areas is not allowed without a permit. Parking without authority, parking in unauthorized locations or in locations reserved for other persons, or contrary to the direction of posted signs, is prohibited.

(d) USNA approval is required for all vehicles needed for access setup and breakdown activities relating to special events, ceremonies, or related activities. Off-road routes will be determined by the USNA.

(e) In addition to the penalties provided in § 500.15, vehicles parked in violation of this section are subject to being towed and the cost of such towing being assessed to the owner of such vehicle.

(f) This section may be supplemented from time to time, by the issuance and posting of specific traffic directives as may be required, and when so issued and posted such directives shall have the same force and effect as if incorporated in this subpart.

§ 500.12 Weapons and explosives.

(a) No person while in or on USNA property shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, except for authorized official purposes.

(b) No person while in or on the USNA shall ignite fireworks or other pyrotechnical devices.

§ 500.13 Nondiscrimination.

The USNA is subject to the policy of nondiscrimination in programs or activities conducted by the United States Department of Agriculture as set forth in 7 CFR part 15d.

§ 500.14 Exceptions.

The Administrator, Agricultural Research Service, may in individual cases make prior, written exceptions to the rules and regulations in this part if it is determined to be not adverse to the public interest.

§ 500.15 Penalties and other law.

Whoever shall be found guilty of violating the rules and regulations in this subpart is subject to fine under title 18, United States Code, or imprisonment of not more than 30 days, or both (see 40 U.S.C. 1315(c)). Nothing contained in the rules and regulations in this part shall be construed as abrogating or authorizing the abrogation of any other regulations or any Federal law or any laws and regulations of the District of Columbia that may be applicable.

Subpart B—Fee Schedule for Certain Uses of National Arboretum Facilities and Grounds Back to Top

§ 500.20 Scope.

This subpart sets forth schedules of fees for temporary use by individuals or groups of United States National Arboretum (USNA) facilities and grounds. This subpart also sets forth schedules of fees for the use of the USNA for commercial photography and cinematography. Fees generated will be used to offset costs of services or for the purposes of promoting the mission of the USNA. All rules and regulations noted in 7 CFR 500, subpart A—Conduct on the U.S. National Arboretum Property, will apply to individuals or groups granted approval to use the facilities and grounds for the purposes specified in this subpart.

§ 500.21 Fee schedule for tram and tours.

The USNA provides tours of the USNA grounds in a 48-passenger tram (accommodating 2 wheelchairs). The fee is as follows: $4.00 per adult, $3.00 per senior citizen or Friend of the National Arboretum, and $2.00 per child under the age 17. Children under 4 sharing a seat with an adult will not be charged. Pre-scheduled tram tours for groups may be arranged for a set fee of $125.00. Additionally, a tour guide may be pre-arranged to provide a non-tram tour for the fee of $50 per hour. Promotional programs offering discounted fees for these programs may be instituted at the discretion of the USNA. Payment for use of the tram is due at the time of ticket purchase. Payment for pre-scheduled tram tours must be made at least one week in advance. Payment for pre-scheduled, non-tram guided tours must be made at least one week in advance of the tour date.

§ 500.22 Fees and conditions for use of facilities and grounds.

(a) Fee requirement. (1) The USNA will charge a fee for temporary use by individuals or groups of USNA facilities and grounds. Fees for specific sites are listed in § 500.24.

(2) Non-profit scientific or educational organizations whose purposes and interests are complementary to the mission of the USNA and which substantially support the mission and purpose of the USNA (e.g., Friends of the National Arboretum, National Bonsai Foundation, National Capital Area Federation of Garden Clubs, Herb Society of America) may be exempted from the fee for use of USNA facility or grounds requirement of this subpart by the Director, but still must reimburse the USNA for its costs, including setup, clean-up, security, and other costs as applicable.

(3) A Half Day usage is defined as 4 hours or less; a Whole Day usage is defined as more than 4 hours in a day. In all cases, usage includes all time during which a venue is committed, including time used to set up before and clean up after an event. For after-hours usage of sites or facilities, an additional $40/hour will be added for supervision for each required staff member or security officer, with higher amounts required for sites or facilities that are more sensitive.

(b) Reservations. (1) Facilities and grounds are available by reservation at the discretion of the Director of the USNA and may be available to individuals or groups for uses that are consistent with the mission of the USNA. Agency initiatives may be granted first priority. Offices and hallways inside secured doors will not be available for use.

(2) Reservations to use USNA facilities and grounds may be made directly with the USNA. To ensure consideration, reservation requests should be made as far in advance as possible with a minimum of 15 calendar days prior to the date of use required for all reservations. This advanced notice will provide the USNA adequate time to prepare sites and assign staff and supervision as necessary.

(3) The USNA will make every effort to respond to requests in a quick and timely fashion. The USNA will respond to reservation requests within 5 working days with information as to whether the requested site is available for use. The USNA will also give notice to the prospective user of any planned activities (construction, maintenance, pesticide applications, and any similar activities) that might affect the planned use or event.

(4) A 50 percent non-refundable deposit will be due at the time of a booking in order to reserve a specific date and location. The remaining 50 percent is due five working days prior to the event.

(c) Terms and conditions of use. (1) The USNA provides space, water, and electrical hookup when available, and restrooms where available. Users must provide all tents, tables, chairs, trash receptacles, or other property required for the scheduled event. Users must remove all trash from the property at the conclusion of the event. Users must remove all tents, tables and chairs, and other property no later than 5:00 p.m. of the day following the event. The USNA will charge a facility use and break down fee of $500.00 per day for each day following the deadline to remove temporary facilities and equipment. The USNA will not store temporary facilities or equipment for users.

(2) Users must abide by USNA vehicle regulations in § 500.11 including the requirement to obtain USNA approval whenever off road access is required for setup.

(3) The USNA will not assume any responsibility for last minute changes due to failure of current mechanical systems, severe storms and other weather events, emergencies relating to security and safety.

(4) Some events that involve bringing animals and certain plants onto the USNA property may not be compatible with the plant research, display, and education mission of the USNA. Such events will be evaluated on a case-by-case basis and exceptions may be made by the Director of the USNA.

(5) Music and bands will be permitted but the decibel level of music should not be loud enough to be heard outside the boundaries of the USNA.

(6) (i) A refundable deposit as specified in paragraph (c)(6)(ii) of this section for use of the facility or grounds, excluding the classroom, will be collected in advance. In the event of building, property, or grounds damage or excessive cleaning requirements, the deposit will be used for repair and remediation and the balance will be refunded within 30 days of the event date. In the event that cleaning requirements or damage to the building, property or grounds exceeds the amount of the refundable deposit, the deposit will be used in full, with additional charges billed and due within 30 days of billing. Damages to plants, grounds, facilities, or equipment will be assessed on a value based on replacement costs, including labor.

(ii) Refundable Deposit Schedule.

Event fee Refundable deposit required
$15,000-10,000 $2,000
$9,999-5,000 1,000
$4,999 and less 500

(7) Upon prior request, the Director may approve the consumption of beer and wine during uses of USNA pursuant to this section. Such permission generally will not be granted during times when USNA is open to the public. Director approval shall be conditioned upon compliance by users and by any of their agents or contractors, with all applicable provisions of the District of Columbia Code governing sale and consumption of alcoholic beverages, including the rules of the District of Columbia Department of Consumer Affairs, Alcoholic Beverage Regulation Administration.

(8) All users of the USNA pursuant to this subpart, as well as all those contracting with such users of the USNA, shall comply with all Federal and local laws.

(9) The USNA is a Federal property under the jurisdiction of the United States Department of Agriculture.

All activities are subject to Federal rules and regulations governing the use of public buildings and grounds.

(10) The USNA will not be responsible for any damage or loss suffered by an individual, group, or their contractor during a permitted event at the USNA.

(11) The Director may impose additional incidental terms and conditions concerning the use of the USNA facilities consistent with this part.

(12) Marriage ceremonies and accompanying receptions may only be held in the Dogwood Collection.

§ 500.23 Fees for commercial photography and cinematography on grounds.

The USNA may charge a fee for the use of the facility or grounds for purposes of commercial photography or cinematography as specified in § 500.24. Facilities and grounds are available for use for commercial photography or cinematography at the discretion of the USNA Director. Requests for use should be made a minimum of two weeks in advance of the required date. The USNA will charge for supervision costs at the rate of $40.00 per hour per security officer, in addition to the fees listed below. The USNA Director may waive fees for photography or cinematography conducted for the purpose of disseminating information to the public regarding the USNA and its mission or for the purpose of First Amendment activity. The USNA will charge a non-refundable application fee of $30 for commercial photography or cinematography activities that use models, sets or props that are not part of the natural, cultural resources, or administrative facilities features of the site; take place where members of the public are generally not allowed; or take place at a location where additional administrative costs are likely. If the application is approved and fees will be incurred, the application fee will be applied to the total fee due. No other credits will be given for the application fee. Fee payments for use of facilities or grounds or for commercial photography and cinematography must be made in advance of services being rendered. These payments are to be made in the form of a check or money order.

§ 500.24 Fee Schedule.

Event by category Fee* Unit Notes
*Fees include only access to sites; additional security charges may be necessary depending upon the site and the number of people participating.
USNA Terrace $12,000 Per Day Up to 240 seated or 300 standing.
USNA Herb Garden 10,000 Per Day Entrance Circle, Rose and Knot Garden: Up to 48 seated or 100 standing; cannot be tented. Specialty Garden: Up to 200 standing; may not be tented.
USNA Meadow 15,000 Per Day Up to 600 seated or 1000 standing.
USNA Administration Building Lobby 2,000 Per Day Up to 150 standing.
USNA Auditorium 2,500 Per Day Up to 120 seated or 200 standing.
Friendship Garden 1,500 Per Day Up to 60 seated or 100 standing.
National Capitol Columns 10,000 Per Day Up to 190 seated or 400 standing; cannot be tented; includes night lighting of columns.
Bonsai Museum International, Pavilion and Upper Courtyard 10,000 Per Day Up to 120 seated or 200 standing.
Bonsai Museum Chinese Pavilion 10,000 Per Day Up to 50 seated or 100 standing.
Dogwood Collection Allee Circle 3,000 Per Day Up to maximum of 150 people at event; reserved for marriage ceremonies and accompanying receptions only.
M Street Picnic Area 5,000 Per Day Up to 200 seated or standing; paved or grassy areas can be tented.
Classroom 125 50 Per Day Per Half Day Standard set-up with 40 chairs; includes microphone/lectern, screen, projection stand, two flip charts (no paper), and trashcan.
Still Photography:      
Individual No Charge For personal use only; includes hand-held cameras, recorders and tripods.
Other $30 $250 plus Supervision Application Fee Per Half Day All photography that use models, sets or props that are not part of the site's natural or cultural resources or administrative facilities; or take place where members of the public are generally not allowed; or take place at a location where additional administrative costs are likely.
Cinematography:      
Set Preparation $30 $250 plus Supervision Application Fee Per Whole Day. Set up; no filming.
Filming $1,500 to $3,900 Per Whole Day Sliding scale based on number of people in cast and crew and number of pieces of equipment from 45 people and 6 pieces of equipment = $1,500 to 200 people = $3,900; 5 people with carry on equipment = same as still photography.

§ 500.25 Payment of fees.

(a) Unless provided otherwise, all payments due under this subpart must be made by cash, check, or money order (in U.S. funds). Checks and money orders for payment of any fees imposed under this part are to be made payable, in U.S. funds, to the “U.S. National Arboretum.” Upon request, the USNA shall provide receipts to requesters for their records or billing purposes. If the USNA enters into an agreement to allow USNA visitors and users to make payment in the form of a credit card, USNA visitors and users who are assessed user fees may pay those fees with a credit card subject to the terms and conditions of such agreement.

(b) Any fees that become past due shall be collected in accordance with 7 CFR part 3.

end regulatory text

Done at Washington, DC, this 19th day of September, 2005.

Edward B. Knipling,

Administrator, Agricultural Research Service.

[FR Doc. 05-18991 Filed 9-22-05; 8:45 am]

BILLING CODE 3410-03-P

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