Nevada Filming Permit Policy

In Reply Refer To:
2920 (NV933) P

United States Department of the Interior
BUREAU OF LAND MANAGEMENT
Nevada State Office
P.O. Box 12000 (1340 Financial Blvd.)
Reno, Nevada 89520-0006
https://www.blm.gov/nevada

August 17, 2010

EMS Transmission 08/18/2010
Instruction Memorandum No. NV-2010-064
Expires: 09/30/11

To: Field Office and District Managers, Nevada

From: State Director, Nevada

Subject: Nevada Filming Permit Policy

Program Area: Lands and Realty

Purpose: This Instruction Memorandum (IM) provides guidance on the revisions made in the rights-of- way regulations, published in the Federal Register on October 3, 2008, to section 2920.6 and section 2920.8 (b) regarding cost recovery for applications for leases and permits authorized under Title III of FLPMA. This IM incorporates current Bureau of Land Management (BLM) authorities, policies, and procedures and provides general guidance to maintain consistency in managing the commercial filming program on public lands in Nevada.

Policy/Action: The Federal Land Policy and Management Act of 1976 (Public Law 94-579, as amended) (FLPMA) augmented by Public Law 106-206, authorizes the BLM to regulate commercial filming activities on Federal lands as follows:

A. Requirement for a BLM Filming Permit

Commercial filming, either still photography or motion filming, will not be permitted if it is determined that any of the following apply:

(1) there is likelihood of resource damage that cannot be mitigated;
(2) there would be an unreasonable disruption of the public’s use and enjoyment of the site; or
(3) the activity poses health or safety risks to the public.

Commercial filming, which is normally authorized by land use permits pursuant to the 43 CFR 2920 regulations, may also be authorized by Special Recreation Permit (SRP) pursuant to the 43 CFR 2930 regulations when the filming is conducted in conjunction with the SRP activity. Wildlife filming connected to a guiding operation is an example of this. Stipulations related to the filming activity should be incorporated into such SRPs, and the rent for the filming should be determined using the schedules in this IM. If the film is to be used only for marketing and promotional materials for the SRP holder or for mementos to be given to their guided customers, rent would not be required.

Still photography requires a filming permit when one or more of the following situations apply:

(1) use of models or props which are not part of a site’s natural or cultural resources or administrative facilities are involved, for this definition, family or wedding portraits taken by professional photographers would be considered use of “models”;
(2) if such photography takes place at locations where members of the public are generally not allowed; or
(3) if it occurs where additional administrative costs are likely.

Commercial still photography, i.e. photographs of scenery or wildlife, for magazine articles, advertisements, books, calendars, postcards, etc., does not require a filming permit if none of the above criteria apply. This includes photographs that may have products or models superimposed on them later. For this definition, reflectors, bounce cards, sound booms, or similar equipment are considered props.

Moving Photography (filming) requires a filming permit when documentaries, television programs, feature films; advertisements, wildlife filming, or similar projects result in a commercial product.

Wildlife Filming is commercial in nature if it results in a product (video or DVD footage) for sale or a commercial broadcast. Wildlife filming can often be related to commercial recreation activities authorized by an SRP, or it can occur independently. This type of filming typically takes place throughout the year, ranging from several days up to several years, usually involves only 2 or 3 people and does not impact the environment. A 43 CFR 2920 filming permit for wildlife filming should be restricted to no more than 5 people and 2 vehicles per crew per location, and should specify the month(s) and locations the filming would take place.

Commercial wildlife filming that is authorized in an SRP for guiding, must be restricted to the location and duration of the SRP, and the Alternative Commercial Filming Rent Schedule for the filming activity would apply if the resulting film will be sold.

Casual Use does not require a filming permit. Casual use is defined in 43 CFR 2920.0-5(k) as ”…any short-term non-commercial activity (emphasis added) which does not cause appreciable damage or disturbance to the public lands, their resources or improvements, and which is not prohibited by closure of the lands to such activities.” Casual use filming is typified by an individual or group of individuals taking pictures, either still or moving, for personal use. Examples of casual use would include the following: tourists taking pictures of scenery or wildlife during an outing on public lands; photographers taking pictures of scenery or wildlife for the purpose of adding the film to their stock libraries; hunters taking moving pictures of wildlife during a hunt; horseback riders taking pictures of scenery, guides, and traveling companions on a guided trail ride; etc. Creating wildlife or scenic footage strictly for a personal stock library would be considered a non-commercial activity and would not require a filming permit.

News Coverage does not require a filming permit. It is BLM policy (WO IM No. 2004-073) that a film permit is not required when the filming activity involves reporting, by members of the media, for the purpose of broadcast on news programs. As long as news reporting does not adversely impact public lands, it is exempt from the requirement of a film permit. Field Offices should consult with their External Affairs staffs in dealing with media related issues and activities. However, the news media should be encouraged to contact the appropriate BLM Field Office prior to filming on public lands.

Student Filming projects do not require a filming permit as long as the activity would not adversely impact the public lands. Students need to submit a proposal in writing, with verification from the educational institution that it is a required project. The BLM may write a Letter of Acknowledgement to recognize the project on public lands and identify resource protection measures designed to maintain the minimum impact nature of the project.

B. Minimum Impact Commercial Filming

The Interior Board of Land Appeals (IBLA) in case 151 IBLA 237, December 16, 1999, ruled, “An application for a minimum impact permit to conduct filming activities on Federal land pursuant to 43 U.S.C. § 1732 (1994) and 43 C.F.R . § 2920.2-2 (a) is properly granted where the proposed use is in conformance with BLM plans, policies and programs, local zoning ordinances and other requirements, and will not cause appreciable damage or disturbance to the public lands, their resources or improvements”. Consequently, you must consider the following factors when making minimum impact determinations:

(1) will the proposed action, with mitigation considered, impact sensitive habitat or species?
(2) will it impact historical, cultural, paleontological or Native American sacred sites?
(3) will it impact sensitive soils, air or water quality, wetlands or riparian areas and/or prime and unique farmlands?
(4) will it impact areas of critical environmental concern (ACECs), designated wilderness, wilderness study areas (WSAs), or wild and scenic rivers?

If there would be impacts, the applicant should be encouraged to consider ways to modify the proposal; perhaps a change of activity or an alternate location would be appropriate. Attachment 1 is a checklist that should be used to help maintain consistency among BLM Field Offices in making minimum impact determinations.

Following preparation of appropriate NEPA documentation, decisions issuing minimum impact permits under 43 C.F.R. § 2920.2-2 (b) take effect immediately upon execution and remain in effect unless stayed. The project may proceed immediately upon receipt of a 2920 permit that has been executed by the BLM authorized officer. Proposals that do not meet the minimum impact criteria are subject to publication of a Notice of Realty Action as required by 43 C.F.R. § 2920.4, the application procedure in 43 C.F.R. § 2920.5, and the 30-day appeal period required by 43 C.F.R. § 4.411.

C. Typical Commercial Filming

This category of filming is most typically associated with still and motion pictures that are made with profit as the primary goal, and could involve larger numbers of people, vehicles, sets, props, livestock, corrals, tents, trailers, etc., which occupy public lands for some period of time. The following additional considerations and requirements are normally necessary when issuing a permit for this type of commercial filming:

1. Liability Insurance

A certificate of liability insurance for not less than $1,000,000 must be provided to the BLM prior to issuance of a typical commercial filming permit. The United States Government must be named as an added insured party on the policy.

The only exception to this requirement is for commercial filming permits that meet all of the following criteria:

(1) minimum impact criteria for filming are met
(2) cast and crew do not exceed 5 people and 2 vehicles per location
(3) project does not involve stunts or similar high-risk activities
(4) project does not utilize specialized equipment besides hand-held cameras and tripods; and
(5) the proponent agrees in writing to the Liability Clause in 43 CFR §§ 2920.7 which must be signed and placed in the case file. Refer to Attachment 2.

2. Bonding

Field Office staffs are advised to require a performance bond in almost all cases when the land involved in a filming permit will need to be reclaimed or cleaned up after completion of the filming project. Filming activities should be considered when determining the amount of performance bond needed for a SRP-authorized event.

The amount of the bond must cover the full cost of reclamation and/or clean-up including indirect costs assessed at the current year indirect percentage rate. The bond must be received and accepted by the BLM prior to issuing the permit. Acceptable bond instruments include a guaranteed remittance (cash, cashier or certified check), credit card (VISA, MasterCard, American Express, Discover), a negotiable security of the United States (U.S. Treasury note, bill or bond) equal in value to the bond amount, or a surety bond obtained from the list of approved Sureties (U.S. Treasury Circular 570) payable to the Bureau of Land Management. Personal Bonds must be accompanied BLM Bond Form 2008-17 and BLM Bond Form 2800-16 for surety bonds.

3. Compliance Monitoring

An option available to permit holders is contracting the permit compliance monitoring to keep filming projects on schedule. Third party film monitors observe the filming activities as the representative of the BLM. This can be important when the realty specialist has conflicting priorities and the proponent is willing to pay for the contract. Individuals selected as BLM filming monitors may need to be trained and approved by other BLM Field Office personnel to address their specific monitoring needs.

D. Consideration of Filming in Designated Wilderness and Wilderness Study Areas

Designated Wilderness: The Wilderness Act of September 3, 1964 allows for commercial use of wilderness only to the extent necessary for activities which are proper for realizing the recreational or other wilderness purposes of the Act. Any commercial filming would have to be consistent with that provision and with all other wilderness management guidelines provided in law, regulation and policy.

Wilderness Study Areas: Management guidelines for WSAs are described in the BLM Manual Handbook H-8550-1 “Interim Management Policy (IMP) For Lands Under Wilderness Review”. A non-impairment determination is required for each project. Uses such as no-impact commercial filming, and/or facilities that meet the non-impairment standard (defined in the paragraph below), may be permitted within WSAs. However, it is the BLM’s policy as stated in Chapter I.B.16, to minimize establishment of new discretionary uses in WSAs that would be incompatible with possible wilderness designation, even when the uses would not in themselves exceed the non-impairment standard.

Management to the non-impairment standard means preventing actions that would preempt Congress’ prerogative to decide whether or not to designate areas as part of the National Wilderness Preservation System. Management to the non-impairment standard does not mean that the lands would be managed as though they had already been designated as wilderness. Some uses that cannot take place in designated wilderness may be permitted under the IMP if they are temporary uses that do not create surface disturbance or if they involve no permanent placement of structures. Surface disturbance is any disruption of the soil or vegetation requiring reclamation within a WSA. Uses and facilities necessitating reclamation (i.e., re-contouring of the topography, replacement of topsoil, and/or restoration of native plant cover) are definitely surface disturbing and must be denied.

The use of categorical exclusion reviews for permitting uses and facilities within WSAs is not allowed (IMP Ch. II.B6.). Field offices are to utilize the guidance contained in the BLM’s NEPA Handbook (H-1790-1), Departmental Manual 516, and the CEQ regulations at 40 CFR §1500 to determine the appropriate level of environmental analysis and documentation needed.

E. Access for Filming

The use of an existing public road or route “as is” merely for the purpose of gaining access to a filming location is casual use and requires no special authorization. However, filming permits are required for commercial filming activities that take place on such roads, and in some instances, an encroachment permit from state or local government may be required for filming activities within their right-of-way. Any filming activities that are planned within the limits of a right-of-way must be closely coordinated with the right-of-way holder.

Filming activities that would result in making changes to an existing access route require authorization from the BLM. Typically such an authorization would be through issuance of a short term right-of-way grant and all activities must be closely coordinated with the right-of-way holder to ensure compatibility.

F. National Environmental Policy Act of 1969 (NEPA)

NEPA affects how Federal agencies conduct their planning and decision-making process (40 CFR § 1500.2). Each Field Manager will determine the appropriate level of environmental analysis and documentation needed through the NEPA process. Field offices are to utilize the guidance contained in the BLM’s NEPA Handbook (H-1790-1), Departmental Manual 516, and the CEQ regulations at 40 CFR §1500.

Environmental analysis will be completed on the “proposed action” if the proposal is in conformance with the existing land use plan. If the proposal is not in conformance with the land use plan, the proposal must be modified to conform to the plan, the land use plan must be amended, or the proposal must be denied. When a plan amendment is deemed appropriate, the applicant will bear the cost of the EA and/or EIS preparation. Any filming that would cause surface disturbance to public lands requires appropriate NEPA analysis, and a permit, if issued, would contain associated resource protection stipulations as determined through the NEPA process.

Appropriate levels of NEPA documentation for filming include, “Documentation of Land Use Plan Conformance and Determination of NEPA Adequacy (DNA)”, Categorical Exclusion (CX), Environmental Assessment (EA), and Environmental Impact Statement (EIS). CX is a category of actions which do not individually or cumulatively have a significant effect on the human environment. This list of exclusions is found in Departmental Manual 516, DM 2 Appendix 1, and 516 DM 2 11.5. For most minimum impact filming, environmental impacts are expected to be negligible and an authorization is necessary only because of the commercial nature of the activity. Typically, categorical exclusion 516 DM 11 5.4 E(19) or H(5) may be used to address NEPA requirements in most minimum or no-impact situations, however this is not the case for wilderness study areas (WSAs) – refer to Section D. above.

All NEPA documentation must be posted on the Nevada District Office NEPA Sites for the appropriate amount of time. Whenever possible, prepare programmatic EAs for specific areas that receive repeated filming activity. Preparation of programmatic EAs is an effective method of meeting NEPA requirements for similar proposed actions by eliminating the need for redundant separate EAs. Use of programmatic EAs also increases efficiency by facilitating timely processing of permit applications in frequently used areas.

G. Cost Recovery

The BLM has the authority to collect application processing and permit monitoring costs for filming activities that require a permit in advance of processing the application and authorizing the permit. The regulations in 43 C.F.R. § 2920.6 (b) provide that collection of costs shall be in accordance with the provisions in 43 C.F.R. §§ 2804.14 and 2805.16. In addition, 43 C.F.R. § 2920.8(b) requires that each application for renewal, transfer or assignment shall be accompanied by a non-refundable processing fee and permit monitoring fee determined in accordance with the provisions of 43 C.F.R. §§ 2804.14 and 2805.16. Wildlife filming permits are an example of filming permits that may be renewed. Cost recovery categories for application processing and permit monitoring are determined independently through separate decisions.

Category 1 – 4 cost recovery fees collected for processing and monitoring must be deposited into the 5441 account under your specific Field Office Cost Center in the Collections & Billings System (CBS). These funds are maintained at the Field Office budget level and should be used for film permitting and monitoring work. Unspent balances carry over annually. A unique WBS must be set up within the 5441 account for each Category 6 application. Refer to Attachment 3 for specific deposit coding guidance.

Discussion and review of proposals prior to acceptance of an application are not cost recoverable, however, Field Office staff are encouraged to hold a pre-application meeting with the proponent. This provides the applicant an opportunity to learn whether their preferred location(s) is even feasible. If two or more pre-application meetings are needed, the realty specialist should request an application be filed and start collecting cost recovery fees. It is important to convey to applicants that changes in filming locations during the application process will mean a change in the permit processing time frame.

Frequently, an applicant will want to film in multiple offices. In these situations, one Field Office (lead office) may agree to process a minimum impact filming permit for the entire state or multiple offices, and coordinate NEPA compliance and signatory authority with the other Field Offices involved. The lead office would determine, collect and retain the cost recovery processing fees for use in processing the multiple-office permit.

H. Rent

Public Law 106-206 reinforces the authority that the BLM has under FLPMA for collection of rental fees, and provides that collected rental fees are available for expenditure without further appropriation by Congress. Public Law 106-206 also requires the BLM to spend these fees in a manner that improves customer service for commercial filming and still photography activities. Subactivity 5441 and Project Code FILM will be used to expend these rental receipts. Attachment 3 contains instructions for depositing rental fees.

Attachment 4 contains the rent schedules for commercial filming in Nevada. The rates for Commercial Still Photography and Commercial Moving Photography were developed by appraisal to address intensive commercial filming over short periods of time, i.e. advertisements, motion pictures, documentaries, etc.

The Recreational Event Commercial Filming Schedule was developed by appraisal to address filming by third parties of SRP-authorized events. Issuance of this type of filming permit requires written concurrence from the event coordinator.

The Alternative Commercial Filming Schedule was developed administratively for use with certain types of minimal to no-impact commercial filming that generally take place over extended periods of time over large geographic areas, do not encumber public lands, are not intended to produce a large profit, and would otherwise be considered casual use, such as wildlife filming or filming by an educational institution. Field Office Managers have flexibility to accommodate unique situations using this filming rent schedule. Attachment 5 is a checklist to ascertain when the use of this schedule may be appropriate. The Alternative Commercial Filming Schedule should be applied state-wide for a single permit holder regardless of the number of permits they hold. The rent would be based on the number of months for which it is issued. For example, rent collected for a 12-month permit would be $3,000 whether it is issued for one office, several offices or state-wide, and the rent would be distributed equally among the affected offices.

Rental Fees Retained at Field Offices (WO IM No. 2005-149)

a. Program Support. Each Field Office (FO) shall retain 80 percent of all rental fees collected in their jurisdiction from commercial filming and still photography. These funds shall be used to support and enhance the FO’s ability to respond to commercial filming and still photography requests, such as the following examples:

(1) A programmatic environmental analysis at popular commercial filming and still photography sites;
(2) A FO on-line library of photography and other information pertaining to commercial filming and still photography, including a listing of sites where these activities may occur and applicable use restrictions;
(3) Personnel training to promote understanding of and familiarity with the film and photography industry;
(4) On-line commercial filming and still photography permit issuing services;
(5) Specific studies made on a site that are not funded by an applicant, such as cultural clearances or plan amendments made to support the use of public lands for filming purposes; and
(6) Rehabilitation of a site where a bond is insufficient or the responsible party is unknown.

b. Program Administration. Each FO shall retain an additional 10 percent of all rental fees collected in that FO from commercial filming and still photography. These funds shall be used to cover the FO’s administrative costs directly related to collecting, tracking, and expending the fees collected. Funds retained by the FO’s are not to be used for processing individual permits.

c. Rental Fees Retained at the State Office. The Nevada SO shall receive 10 percent of all rental fees collected within the State from commercial filming and still photography activities. These receipts shall be used to develop and implement activities supporting agency policies for commercial filming and still photography. Examples of these activities include:

(1) Establishing a Statewide on-line library of photography and other information pertaining to commercial filming and still photography, including a listing of sites where activities may occur and applicable use restrictions;
(2) Developing Statewide commercial and still photography guidelines;
(3) Establishing FO or Statewide film board liaisons; and
(4) Creating Zone Commercial Filming and Still Photography Permit Specialists.

Rental fees collected for commercial filming and still photography shall be deposited under Subactivity 5441, Project Code FILM, to the appropriate Field Office code. The remaining 10 percent of rental fees collected shall be deposited under Subactivity 5441, Project Code FILM, to state office code NV 930.

Timeframe: This IM is effective immediately.

Manual/Handbook Sections Affected: This IM augments policy guidance contained in the BLM Manual 2920, Leases and Permits.

Coordination: This guidance was developed in consultation with UT921 and DOI Office of Valuation Services.

Contact: If you have any questions regarding this policy, please contact Mary Figarelle, Lands & Realty Program Lead, at 775-861-6429 or via email at mary_figarelle@blm.gov.

Signed By:
Ron Wenker
State Director

Authenticated By:
Ellyn Darrah
Administrative Assistant

Attachments –
1-Minimum Impact Filming Checklist
2-Liability Clause
3-Depositing Funds
4-Nevada Filming Rent Schedules
5-Alternative Rent Checklist