Commercial Filming and Photography on Federal Lands

Commercial Filming and Photography on Federal Lands

Updated December 1, 2022
Commercial Filming and Photography on Federal Lands
Commercial filmmakers, videographers, and photographers
the Bureau of Land Management (BLM), National Park
often seek to use federal lands as locations for their works.
Service (NPS), and U.S. Fish and Wildlife Service (FWS)
Historically, federal land management agencies did not
(78 Federal Register 52087, modifying regulations at 36
share a consistent approach to regulating commercial
C.F.R. Part 5, 43 C.F.R. Part 5, and 50 C.F.R. Part 27,
filming and photography on their lands. In 2000, P.L. 106-
respectively). The regulations also left intact long-standing
206 (codified at 16 U.S.C. §460l-6d and 54 U.S.C.
special filming and photography restrictions for Indian
§100905) directed the Secretaries of the Interior and
lands administered by DOI’s Bureau of Indian Affairs (43
Agriculture to require permits and develop a consistent fee
C.F.R. Part 5, Subpart B). In January 2018, the Bureau of
structure for commercial filming and some types of
Reclamation announced its intent to amend its regulations
photography on federal lands. Pursuant to the law, the
to accord with those of the other DOI agencies (83 Federal
agencies have established permitting procedures and have
Register 1664) but has not provided additional updates to
taken steps toward standardizing fees. Legislation
the status of this process.
introduced in recent years sought to alter requirements for
the agencies’ fee schedules and permits.
The 2013 DOI regulations define commercial filming and
still photography consistently for BLM, NPS, and FWS and
clarify which activities require a permit. The regulations
The Department of Interior and the Department of
state conditions under which a filming or photography
Agriculture are required by law to establish “reasonable”
permit may be denied, such as if the activity would cause
fees for commercial filmmaking and photography on
resource damage, unreasonably disrupt public use, pose
federal lands, which have served as locations for many
health or safety risks, or violate the Wilderness Act (16
well-known films such as Star Wars, Planet of the Apes,
U.S.C. §§1131-1136) or other applicable laws or
and The Hunger Games.
regulations. Permit applications are to be processed in a
“timely manner,” and permit denials may be appealed to
Statutory Requirements for Permits and Fees
higher levels of DOI management. The regulations also
Under P.L. 106-206, the Secretaries of the Interior and
discuss the more limited circumstances in which a permit is
Agriculture must require permits and establish reasonable
required for news-gathering activities (defined as filming,
fees for commercial filming on federal lands. The fees must
videography, and still photography carried out by a
take into account (1) the number of days of filming, (2) the
representative of the news media). Among other conditions,
size of the film crew, (3) the amount and type of equipment,
such a permit is required only if obtaining it would not
and (4) other factors that the Secretaries deem appropriate.
interfere with the ability to gather the news.
The fees must provide a “fair return” (undefined in the law)
to the United States for the activity. In addition to fees, the
Permit holders are responsible for two types of payments: a
Secretaries must recover any administrative, personnel, or
location fee that provides a fair return (undefined in
other costs incurred by the agencies during filming. Permits
regulations) to the United States for the use of federal land
are not to be issued if the activity would damage resources,
and repayment of costs incurred by the government in
unreasonably disrupt public use and enjoyment of a site, or
processing the request and administering the permit. The
pose health and safety risks.
permit holder also must meet liability, indemnification, and
bonding requirements.
Still photography requires a permit or fee only if it is in an
area that is not ordinarily open to the public, if additional
Forest Service. The U.S. Forest Service (FS) uses general
administrative costs are likely, or if models or props other
special-use regulations in place prior to P.L. 106-206 for
than the site’s own resources are used.
authorizing commercial filming and photography permits
(36 C.F.R. Part 251) on agency lands. These regulations
Fees and costs collected under P.L. 106-206 are available
establish application procedures, fees, and other
for use by the collecting agencies without further
requirements for a wide range of commercial and
appropriation. The majority of funds are retained at the site
noncommercial uses. In amending these regulations in
at which they were collected. The fees have been used for
2004, FS defined commercial filming but did not include
purposes such as backlogged repair and maintenance
specific permitting requirements for uses that meet this
projects, interpretation, signage, facility enhancement,
definition. In 2014, FS proposed, but in 2019 withdrew, a
resource preservation, fee collection, and law enforcement.
directive to establish additional criteria for commercial
filming and photography in congressionally designated
Agency Regulations
wilderness areas (79 Federal Register 52626; (84 Federal
Department of the Interior. In August 2013, the
Register 47443).
Department of the Interior (DOI) issued a final rule
pursuant to P.L. 106-206 focused on three of its agencies—
https://crsreports.congress.gov

link to page 2 Commercial Filming and Photography on Federal Lands
DOI and FS Proposed Fee Schedule
In scoring the 2000 legislation, the Congressional Budget
Along with the August 2013 DOI final rule, DOI and the
Office stated that the act’s effects “would depend on many
Department of Agriculture (USDA) jointly published a
behavioral factors that cannot be predicted with
proposed fee schedule to set uniform fees for commercial
confidence.” For example, to the extent that the new fees
filming and photography activities (78 Federal Register
represent increases from previous amounts, they could
52209). Table 1 shows the proposed fees.
bring in more revenue or they could discourage filmmakers
Table 1. Proposed DOI/USDA Land-Use Fee Schedule
and photographers from using federal sites. Congress may
for Commercial Filming and Photography
choose to monitor the financial effects of any finalized
regulations and any new fees over time.
Commercial Filming

Recent Litigation and Policy Developments
Number of People
Fee
In January 2021, a federal judge for the U.S. District Court
1-3, camera and tripod only
$10/day or $250/month
for the District of Columbia ruled that the statute and
regulations underlying the NPS permitting program—
1-5, more than a camera and tripod
$75/day
specifically the commercial filming provisions of the
6-10
$150/day
program—violated the free speech clause of the First
Amendment. The court issued an injunction preventing the
11-30
$350/day
enforcement of 54 U.S.C. §100905 and the 2013
31-50
$650/day
regulations promulgated pursuant to that statute (Price v.
Barr et al., 514 F. Supp. 3d 171, 187-93 (D.D.C. 2021)). In
51-70
$1,000/day
response, NPS issued interim guidance in February 2021
that exempted “low-impact” filming from permitting
More than 70
$1,500/day
requirements and required permits only for filming
Still Photography

activities that may affect public health and safety, impair
resources, or interfere with visitor experiences. NPS
Number of People
Fee
defined low-impact filming as groups of five people or
1-3, camera and tripod only
$10/day or $250/month
fewer carrying their own equipment and using small tripods
to hold their cameras. BLM and FWS, which administer
1-5, more than a camera and tripod
$50/day
commercial filming permits pursuant to the same 2013
6-10
$100/day
regulations used by the NPS (as noted), also issued interim
or temporary guidance.
11-20
$200/day
21-30
$300/day
In August 2022, an appellate court reversed the 2021
decision (Price v. Garland, 45 F.4th 1059 (D.C. Cir. 2022)),
More than 30
$450/day
and in October 2022, NPS rescinded the interim guidance
Source: 78 Federal Register 52209.
that was in place during the litigation. The agency
subsequently issued revised guidance that requires permits
Note: Fees for still photography would apply only in cases where the
for all commercial filming, regardless of the size of the
photography requires a permit (see above).
crew or type of equipment used. BLM and FWS have not
The proposed amounts were based on previous fees charged
issued revised guidance following the appellate court
by BLM and FS for commercial filming and photography,
ruling.
public comments received on a draft fee schedule
previously proposed by NPS, and discussions with state and
Recent Legislation
local film commissioners and industry representatives. The
Congress has considered legislation in recent years that
agencies received public comments but have not published
would affect permitting and fees for commercial filming
a final schedule or made subsequent announcements
and photography on federal lands, as shown in the
regarding its status.
following examples. In the 117th Congress, the Federal
Interior Land Media Act (FILM Act; H.R. 8258) would
Financial Effects of New Fees
exempt certain commercial filming and content creation on
In some cases, the fees proposed for uniform use across the
federal lands from requiring a permit. Exempted activities
four agencies would represent a change from fees currently
would need to involve fewer than six people, take place at a
charged by individual agencies. Certain fees would
location in which the public is allowed, not negatively
increase, and others would decrease, depending on the
impact resources, and meet other specified requirements.
agency involved and other factors. For example, a
Other bills introduced in the 116th Congress would have
commercial filming crew of 60 people working at an NPS
similarly adjusted or specified how and when fees and
site such as Grand Canyon National Park currently pays a
permits could be required on federal lands (see H.R. 2106
fee of $750 per day. Under the proposed schedule, the fee
and H.R. 1326). In addition, H.R. 5521 in the 116th
would increase to $1,000 per day. By contrast, a crew of
Congress would have allowed commercial filming and
five people filming at a BLM site in California or Utah
photography, at the discretion of the Capitol Police, in
currently pays a fee of $250 per day, but under the proposed
portions of the U.S. Capitol grounds where these activities
schedule the fee would decrease to $75 per day.
currently are prohibited.
Mark K. DeSantis, Analyst in Natural Resources Policy
https://crsreports.congress.gov

Commercial Filming and Photography on Federal Lands

IF10340

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https://crsreports.congress.gov | IF10340 · VERSION 10 · UPDATED