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39-581 PDF 2008

NEW FEES FOR FILMING 

AND PHOTOGRAPHY 

ON PUBLIC LANDS

OVERSIGHT HEARING

BEFORE THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

Wednesday, December 12, 2007

Serial No. 110-56

Printed for the use of the Committee on Natural Resources

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

or 

Committee address: http://resourcescommittee.house.gov 

(II)

COMMITTEE ON NATURAL RESOURCES 

NICK J. RAHALL II, West Virginia, Chairman 

DON YOUNG, Alaska, Ranking Republican Member

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Neil Abercrombie, Hawaii 

Solomon P. Ortiz, Texas 

Frank Pallone, Jr., New Jersey 

Donna M. Christensen, Virgin Islands 

Grace F. Napolitano, California 

Rush D. Holt, New Jersey 

Rau ́l M. Grijalva, Arizona 

Madeleine Z. Bordallo, Guam 

Jim Costa, California 

Dan Boren, Oklahoma 

John P. Sarbanes, Maryland 

George Miller, California 

Edward J. Markey, Massachusetts 

Peter A. DeFazio, Oregon 

Maurice D. Hinchey, New York 

Patrick J. Kennedy, Rhode Island 

Ron Kind, Wisconsin 

Lois Capps, California 

Jay Inslee, Washington 

Mark Udall, Colorado 

Joe Baca, California 

Hilda L. Solis, California 

Stephanie Herseth Sandlin, South Dakota 

Heath Shuler, North Carolina 

Jim Saxton, New Jersey 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Wayne T. Gilchrest, Maryland 

Chris Cannon, Utah 

Thomas G. Tancredo, Colorado 

Jeff Flake, Arizona 

Stevan Pearce, New Mexico 

Henry E. Brown, Jr., South Carolina 

Luis G. Fortun ̃ o, Puerto Rico 

Cathy McMorris Rodgers, Washington 

Bobby Jindal, Louisiana 

Louie Gohmert, Texas 

Tom Cole, Oklahoma 

Rob Bishop, Utah 

Bill Shuster, Pennsylvania 

Dean Heller, Nevada 

Bill Sali, Idaho 

Doug Lamborn, Colorado 

Mary Fallin, Oklahoma 

Vacancy

James H. Zoia, Chief of Staff 

Jeffrey P. Petrich, Chief Counsel 

Lloyd Jones, Republican Staff Director 

Lisa Pittman, Republican Chief Counsel 

(III)

CONTENTS 

Page

Hearing held on Wednesday, December 12, 2007 ................................................. 1

Statement of Members: 

Boren, Hon. Dan, a Representative in Congress from the State of 

Oklahoma ...................................................................................................... 3

Prepared statement of ............................................................................... 8 

Duncan, Hon. John J., Jr., a Representative in Congress from the State 

of Tennessee .................................................................................................. 3

Fortun ̃ o, Luis G., the Resident Commissioner in Congress from Puerto 

Rico ................................................................................................................. 9

Rahall, Hon. Nick J., II, a Representative in Congress from the State 

of West Virginia ............................................................................................ 1

Prepared statement of ............................................................................... 2

Statement of Witnesses: 

Butler, Mitchell J., Deputy Assistant Secretary for Fish and Wildlife 

and Parks, U.S. Department of the Interior ............................................... 9

Prepared statement of ............................................................................... 11

Cochran, Barbara, President, Radio-Television News Directors 

Association ..................................................................................................... 29

Prepared statement of ............................................................................... 31

Overman, Tony, President, National Press Photographers Association ...... 33

Prepared statement of ............................................................................... 35

Perlman, Victor S., General Counsel and Managing Director, American 

Society of Media Photographers (ASMP) .................................................... 45

Prepared statement of ............................................................................... 47

Scott, Steven, Chairman of the Board, Professional Outdoor Media 

Association ..................................................................................................... 39

Prepared statement of ............................................................................... 40

Weldon, Leslie A. C., External Affairs Officer, Office of the Chief, Forest 

Service, U.S. Department of Agriculture .................................................... 15

Prepared statement of ............................................................................... 16

Wheeler, Timothy B., President, Society of Environmental Journalists ...... 24

Prepared statement of ............................................................................... 27

Additional materials supplied: 

American Fly Fishing Association, Archery Trade Association, et al., 

Letter submitted for the record ................................................................... 5

Dorsey, Chris, President, Orion Multimedia, Letter submitted for the 

record ............................................................................................................. 4

Lee, Raymond, President, Foundation for North American Wild Sheep, 

Letter submitted for the record ................................................................... 7

(1)

OVERSIGHT HEARING ON ‘‘NEW FEES FOR 

FILMING AND PHOTOGRAPHY ON PUBLIC 

LANDS’’

Wednesday, December 12, 2007

U.S. House of Representatives 

Committee on Natural Resources 

Washington, D.C. 

The Committee met, pursuant to call, at 10:05 a.m. in Room 

1324, Longworth House Office Building. Hon. Nick J. Rahall, II 

[Chairman of the Committee] presiding. 

Present: Representatives Rahall, Young, Christensen, Grijalva, 

Boren, Duncan, Fortun ̃ o, and Bishop. 

STATEMENT OF THE HONORABLE NICK J. RAHALL, II, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST 

VIRGINIA 

The CHAIRMAN. The Committee on Natural Resources will come 

to order. The Committee is meeting this morning to hear testimony 

on proposed new fees for commercial filming and photography in 

our national parks, forests, refuges, and public lands. 

Let me first thank our witnesses for being here today. Several of 

them are with us in their capacity as volunteer leaders of journalism organizations, and we appreciate them taking the time 

away from their day jobs to join us today. The organizations they 

represent are only a sampling of the many which have filed formal 

comments expressing concerns regarding these proposed fees. In 

particular, these organizations argue that the definition of what 

does and what does not count as ‘‘use’’ is far too broad and could 

work to actually limit legitimate news coverage of Federal land 

management issues. 

Of course, there is reason to view the proposed regulation with 

some skepticism. The Bush Administration will go down in history 

as one of the most secretive and least transparent, I believe, in our 

American history. This President has shown nothing short of open 

hostility to the public’s right to know. As a result, we take seriously the possibility that in formulating these new regulations, governing media activity on Federal lands, the administration may 

have exceeded congressional intent when we passed the legislation 

authorizing these fees back in 2000. 

This administration’s record on resource management is dismal. 

Maintenance in our national parks, listing of endangered species, 

2

fire preparedness and responsible energy development are just a 

few examples of the serious policy failures by the Bush Administration. 

Any hint that this new permit and fee structure could limit the 

free flow of public information regarding the very real 

consequences of these failures is simply unacceptable. A reasonable 

return to the Federal Treasury for the commercial use of Federal 

lands is one thing. Trying to hide the damage done to those lands 

from the public under a mound of fees and permits is quite 

another. 

Furthermore, as with any policy governing public resources, 

these proposed regulations must be examined not only on behalf of 

the millions of Americans who visit our parks, forests, our refuge 

and public lands each year, but also on behalf of the millions of 

Americans who do not. 

For many of our Federal citizens, the incredible beauty and richness of our Federal lands are sources of enormous pride, but for a 

variety of reasons are not destinations for personal visits. For these 

folks then, news reports, documentaries and magazine articles are 

the only way that they can monitor the health and vitality of the 

places they have never seen and yet they hold so very dear. Nothing we do should prevent those who are not able to visit our Federal lands from enjoying them as fully as possible from afar. 

So I look forward to today’s testimony, and I will first recognize 

our Acting Ranking Member, Mr. Duncan, of Tennessee. 

[The prepared statement of Chairman Rahall follows:]

Statement of The Honorable Nick J. Rahall, II, Chairman,

Committee on Natural Resources 

This morning the Committee will hear testimony on proposed new fees for commercial filming and photography in our National Parks, Forests, Refuges and Public 

Lands. 

Let me first thank our witnesses for being here. Several of them are with us in 

their capacity as volunteer leaders of journalism organizations and we appreciate 

them taking time away from their day jobs to join us. 

The organizations they represent are only a sampling of the many which have 

filed formal comments expressing concerns regarding these proposed fees. 

In particular, these organizations argue that the definition of what does—and 

what does not—count as ‘‘news’’ is far too broad and could work to actually limit 

legitimate news coverage of federal land management issues. 

Of course, there is reason to view the proposed regulation with some skepticism. 

The Bush Administration will go down in history as one of the most secretive and 

least transparent in American history. 

This President has shown nothing short of open hostility to the public’s right to 

know. 

As a result, we take seriously the possibility that in formulating these new regulations governing media activity on federal lands, the Administration may have exceeded Congressional intent when we passed the legislation authorizing these fees 

back in 2000. 

This Administration’s record on resource management is dismal—maintenance in 

our National Parks, listing of endangered species, fire preparedness, and responsible 

energy development—are just a few examples of serious policy failures by the Bush 

Administration. 

Any hint that this new permit and fee structure could limit the free-flow of public 

information regarding the very real consequences of these failures is simply unacceptable. 

A reasonable return to the federal treasury for the commercial use of federal 

lands is one thing—trying to hide the damage done to those lands from the public 

under a mound of fees and permits, is quite another. 

Furthermore, as with any policy governing public resources, these proposed regulations must be examined not only on behalf of the millions of Americans who visit 

3

our parks, forests, refuges and public lands each year, but also on behalf of the millions of Americans who do not. 

For many of our fellow citizens, the incredible beauty and richness of our federal 

lands are sources of enormous pride but—for a variety of reasons—are not destinations for personal visits. 

For these folks, news reports, documentaries and magazine articles are they only 

way they can monitor the health and vitality of places they have never seen and 

yet hold very dear. 

Nothing we do should prevent those who are not able to visit our federal lands 

from enjoying them as fully as possible from afar. 

I look forward to hearing today’s testimony. 

STATEMENT OF THE HONORABLE JOHN J. DUNCAN, JR., A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

TENNESSEE 

Mr. DUNCAN. Thank you, Mr. Chairman. Thank you for calling 

the hearing. As you have noted, I am sitting here as designated at 

the request of—designated at the request of Ranking Member 

Young, and I could say that you were so complimentary of the administration that I am just at a loss for words, but I won’t say that. 

The CHAIRMAN. That is a good thing. 

Mr. DUNCAN. No. I will simply say that Ranking Member Young 

has no statement at this time, and we will look forward to hearing 

from the witnesses. Thank you very much. 

The CHAIRMAN. Thank you, Jimmy. 

The gentleman from Oklahoma, Mr. Boren. 

STATEMENT OF THE HONORABLE DAN BOREN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OKLAHOMA 

Mr. BOREN. Thank you, Mr. Chairman. 

I also want to thank the Chairman and the Ranking Member for 

holding this hearing to discuss the proposed regulations for filming 

on public lands. I appreciate the Committee’s prompt attention to 

the concerns that have surfaced on this issue. 

Much of the debate has centered around the definition of news 

coverage and the effect it will have on the news media, but I also 

wanted to discuss concerns I have on how these regulations affect 

the interests of sportsmen. As an avid sportsman, I take great interest both professionally and personally in issues affecting hunters 

and anglers, including producers of outdoor television programs 

who largely contribute to the conservation, promotion, and enjoyment of our national treasures. 

I think everyone can understand the agency’s desire to limit potential impact on activity on public lands, but much of the filming 

that occurs on public lands is done by small, independent producers 

with crews of only a few people with no harmful impacts on the 

landscape or the public’s use of the resource. 

Despite this reality, these small crews, often one cameraman and 

one operator, are subject to the same fees as a location crew for a 

major Hollywood-style production. These proposed regulations do 

not appear to take into account this inequity. Regulations and fee 

schedules need to be truly reflective of the impact of the activity 

on the resource. 

Outdoor film producers and photographers do our nation a service in promoting our public lands and through their publications 

4

have played a significant role in the very establishment of Federal 

protections for the lands in the first place. These producers play a 

critical role in furthering the message of conservation and providing access to public lands for citizens who may otherwise never 

have the chance to experience our national treasures. 

Mr. Chairman, I have here several letters from outdoor media 

producers and dozens of organizations representing millions of 

hunters, anglers, and fish and wildlife professionals that I ask to 

be inserted into the record with unanimous consent. 

The CHAIRMAN. Without objection, so ordered.

[A letter submitted for the record by Chris Dorsey, President, 

Orion Multimedia, follows:]


39581.003.eps
5

[A letter submitted for the record by the American Fly Fishing 

Association, Archery Trade Association, et al., follows:]

American Fly Fishing Trade Association * Archery Trade Association * 

Bass Pro Shops * Berkley Conservation Institute * Bowhunting Preservation Alliance * Congressional Sportsmen’s Foundation * Conservation 

Force * Dallas Safari Club * Ducks Unlimited * International Hunter 

Education Association * Mule Deer Foundation * National Rifle 

Association * National Trappers Association * Orion—The Hunters 

Institute * Pheasants Forever * Pure Fishing * Quality Deer Management Association * Quail Forever * Safari Club International * Texas 

Wildlife Association * Theodore Roosevelt Conservation Partnership * 

Tracker Marine Group * Trout Unlimited * U.S. Sportsmen’s Alliance * 

Wildlife Forever 

December 6, 2007

U.S. House of Representatives 

Committee on Natural Resources 

Hon. Nick Rahall II, Chairman 

1324 Longworth House Office Building 

Washington, DC 20515

Dear Chairman Rahall and Committee Members:

On behalf of the millions of hunters and anglers, fish and wildlife professionals, 

and fish and wildlife businesses, the undersigned groups would like to express our 

concerns about the newly proposed rules for filming and photographing on federal 

lands. While we certainly understand the need to implement controls to limit the 

potential damage of large crews from major motion picture productions, it must be 

understood that the majority of filming and still photography that takes place on 


39581.004.eps
6

public lands has no deleterious impacts on the landscape, the people who visit them, 

or the fish and wildlife that reside on them. In fact, many of our most treasured 

public lands, such as Yellowstone and Yosemite National Parks, would never have 

been set aside for the enjoyment of millions of citizens had their unique resources 

not been photographed and disseminated to the American public. 

Several of the undersigned organizations sponsor or are major contributors to televised hunting and fishing programs that air on a variety of popular and widely disseminated networks. These programs, which would be seriously affected by the 

newly proposed rules, reach millions of American taxpayers each week with messages that celebrate America’s outdoor heritage, its public lands, and our shared fish 

and wildlife resources. These programs are tailored to an audience—those who actively use public lands for pursuits like hunting and fishing—that is of supreme importance to the future conservation of these lands. Our viewers fuel state fish and 

wildlife budgets through license sales, while they boost the local economies that depend on seasonal influxes of activity from hunting and fishing. Bearing in mind that 

the leading reason that active sportsmen become former sportsmen is that they can 

no longer find places to hunt and fish, television has become an important, even primary, means for educating them about the remaining opportunities to access hunting and fishing spots. 

Our production schedules and budgets for producing these programs are both 

characteristically tight. Even under the current rules, a substantial amount of time 

and money is spent procuring necessary permits and permissions; we fear that these 

newly proposed standards will cause significant increases in both the time and 

money required to bring these programs to air. In some cases, these increases may 

cause producers to focus less time and attention on public lands. In others, the 

newly proposed standards may cause producers to avoid public lands entirely. 

Initially, we suggest that you create a threshold below which no filming permits 

are required. Since the intent is to protect the lands and their integrity for current 

and future users, we believe that this can be done easily and in a way that will 

greatly reduce the noise from the media world. If, for instance, you were to exempt 

any film/television crews consisting of four or fewer members from any permits/fees, 

you would greatly minimize the burden on agencies while at the same time focusing 

on the larger production crews who would be the. most likely to impact the public 

lands. 

Furthermore, establishing one central location for film/TV/photographic permitting would be wise, as the amount of energy required to simply locate governmental 

employees scattered across remote stretches of the country is often daunting. Once 

these employees are located, there are wide variations in the interpretation of the 

rules between agencies and even between regions of the same agencies. A central 

permit distribution location could begin to remedy this situation. 

We thank you for taking the time to understand our concerns and invite you to 

contact us for any additional information.

Sincerely,

American Fly Fishing Trade Association 

Archery Trade Association 

Bass Pro Shops 

Berkley Conservation Institute 

Bowhunting Preservation Alliance 

Congressional Sportsmen’s Foundation 

Conservation Force 

Dallas Safari Club 

Ducks Unlimited 

International Hunter Education Association 

Mule Deer Foundation 

National Rifle Association 

National Trappers Association 

Orion-The Hunters Institute 

Pheasants Forever 

Pure Fishing 

Quality Deer Management Association Quai.! Forever 

Safari Club International 

Texas Wildlife Association 

Theodore Roosevelt Conservation Partnership 

Tracker Marine Group 

Trout Unlimited 

U.S. Sportsmen’s Alliance 

Wildlife Forever

7

[A letter submitted for the record by Raymond Lee, President, 

Foundation for North American Wild Sheep, follows:]


39581.005.eps
8

Mr. BOREN. Thank you, and again I thank the Chairman for your 

leadership on this issue and look forward to continuing these discussions. 

[The prepared statement of Mr. Boren follows:]

Statement of The Honorable Dan Boren, a Representative

in Congress from the State of Oklahoma 

I would like to thank both Chairman Rahall and Ranking Member Young for 

holding this hearing to discuss the proposed regulations for filming on public lands. 

I appreciate the committee’s prompt attention to the concerns that have surfaced 

on this issue. 

Much of the debate has centered around the definition of news coverage and the 

effect it will have on the news media, but I also wanted to discuss concerns I have 

on how these regulations affect the interest of sportsmen. 

As an avid sportsman, I take great interest both professionally and personally in 

issues affecting hunters and anglers, including producers of outdoor television programs, who largely contribute to the conservation, promotion, and enjoyment of our 

national treasures. 

I think everyone can understand the agencies’ desire to limit potential impact an 

activity can have on our public lands. But much of the filming that occurs on public 

lands is done by small independent producers with crews of only a few people and 

with no harmful impacts on the landscape or the public’s use of the resource. 

Despite this reality, these small crews, often only one cameraman and one operator, are subject to the same fees as a location crew for a major Hollywood-style production. These proposed regulations do not appear to take into account this inequity. 

Regulations and fee schedules need to be truly reflective of the impact of the activity on the resource. 

Outdoor film producers and photographers do our nation a service in promoting 

our public lands and through their publications have played a significant role in the 

very establishment of federal protections for the lands in the first place. 


39581.006.eps
9

These producers play a critical role in furthering the message of conservation and 

providing access to public lands for citizens who may otherwise never have the 

chance to experience our national treasures. 

Mr. Chairman, I have here several letters from outdoor media producers and dozens of organizations representing millions of hunters, anglers, and fish and wildlife 

professionals that I ask to have inserted into the record. 

Again, I thank the Chairman for his leadership on this issue and look forward 

to continuing these discussions. 

The CHAIRMAN. Any other members wish to make opening statements? Mr. Fortun ̃ o, yes. 

STATEMENT OF THE HONORABLE LUIS G. FORTUN ̃ O, THE 

RESIDENT COMMISSIONER IN CONGRESS FROM PUERTO RICO 

Mr. FORTUN ̃ O. Thank you, Mr. Chairman, and I want to commend you and the Ranking Member for holding this hearing. I am 

especially concerned with how these new proposed fees would affect 

the filming that takes place on a regular basis in a rain forest, and 

certainly I am looking forward to what they have to say. 

Thank you. 

The CHAIRMAN. Thank you. Ms. Christensen? 

Ms. CHRISTENSEN. I really don’t have an opening statement. I 

would like to submit one for the record, but I am interested in 

hearing the testimony, and thank you for having this hearing. 

The CHAIRMAN. We again welcome our first panel to the Committee hearing this morning composed of Mr. Mitch Butler, the 

Deputy Assistant Secretary for Fish and Wildlife and Parks, U.S. 

Department of the Interior, and Ms. Leslie Weldon, External 

Affairs Officer, Office of the Chief, U.S. Forest Service. 

Mitch and Leslie, we welcome you. You may proceed in whatever 

order you wish, and as you know, we have your prepared testimony 

and it will be made part of the record as if actually read, and you 

may proceed in any manner you wish. 

STATEMENT OF MITCHELL J. BUTLER, DEPUTY ASSISTANT 

SECRETARY FOR FISH AND WILDLIFE AND PARKS, U.S. 

DEPARTMENT OF THE INTERIOR 

Mr. BUTLER. Mr. Chairman and members of the Committee, 

thank you for the opportunity to be here today to present the 

Department of the Interior’s views on permitting fees for filming 

and photography on public lands under our jurisdiction. 

I have provided a written copy of my statement which contains 

additional detail regarding our proposed regulation and how the 

bureau is currently implementing the authority in Public Law 106-

206 for the record. I would like to provide a brief summary here 

this morning. 

Public Law 106-206 directed the Secretaries of the Interior and 

Agriculture to require a permit and establish a reasonable fee for 

commercial filming activities for similar projects as well as certain 

still photography activities on Federal lands in our jurisdiction. 

The law also directed the Secretaries to recover costs incurred by 

the agencies as a result of the permitted activities. 

Fees collected under this authority are to provide a fair return 

to the United States. We may set a minimum on certain listed criteria and be retained by the agencies so that they can be available 

10

to the Secretary without further appropriation, to be used consistent with the formula and purposes established for the recreational fee demonstration program. 

Enacting Public Law 106-206, Congress repealed an existing regulatory prohibition on the charging of location fees for commercial 

filming on Fish and Wildlife and National Park Service lands. The 

law also requires that the Secretary not permit any filming, photography or other related activities, if he determines there is a likelihood of resource damage, there being unreasonable disruption of 

the public’s use and enjoyment of the site, or that the activity poses 

health or safety risks to the public. 

Since passage of this authority, the Department and its bureaus 

have been in the process of reconciling the requirements of the law 

with the complexities of its implementation which is compounded 

by the diverse mission requirements of our bureaus and the 

uniqueness, location and visitation patterns of the various lands 

and facilities under their jurisdiction. 

Despite these differences, our bureaus have worked cooperatively 

to develop a coordinated approach to implementation that will 

achieve balance between the mission and providing clarity to the 

public, creating certainty for the industry, and ensuring that the 

media continues to have the ability to inform the public about news 

related to our public lands. 

Like the land management agencies, the Bureau of Reclamation 

lands are also subject to Public Law 106-206, and Reclamation has 

recently addressed that authority and proposed amendments to its 

use regulations. 

After passage of Public Law 106-206, in 2000, the Secretary established a task force of specialists in land management agencies 

and the Solicitor’s Office to develop a proposed rule to implement 

the act and also to develop a proposed location fee schedule. That 

draft rule underwent lengthy review and associated economic analysis before it was released for public comment. 

Under our proposal, as mandated by the act, all commercial filming would require a permit and would be subject to cost recovery 

fees as well as location fees. Commercial filming is defined in the 

proposed regulation as the digital or film recording of a visual 

image or sound recording by a person, business or other entity for 

market audience such as a documentary, television or feature film. 

It does not include news coverage or visitor use. 

Under the law, two things are clear: 

First, traditionally news is clearly excepted from location fees. 

For example, coverage of a fire in Yellowstone would absolutely fall 

within this exception and location fees would not be charged. 

Second, when a major studio wants to use the national park, refuge or other DOI lands as a setting for a movie, Congress has instructed that the administrative agencies to protect the public resources require advance permits and collect fees for access and cost 

recovery only. 

However, in developing this proposed regulation, it became clear 

that the distinction between news and commercial filming can be 

difficult to determine. Developing a process that allows for this determination on ensuring content neutrality has admittedly been a 

challenge. The current proposal will allow each activity at a siteVerDate 0ct 09 2002 15:02 Mar 04, 2008 Jkt 098700 PO 00000 Frm 00014 Fmt 6633 Sfmt 6602 L:\DOCS\39581.TXT Hresour1 PsN: KATHY
11

specific level to answer the question: Does the proposal fall under 

the news exception or is a permit required because the proposal 

meets the definition of commercial film or photography? 

In short, the act requires us to ask not so much what is news, 

but whether or not an organization with a proposal must obtain a 

permit. 

The proposed regulation seeks to standardize how this decision 

is made in an area that will create consistency and certainty across 

agencies while also ensuring that our staff on the ground have the 

ability to consider the diverse characteristics of proposed projects. 

We have seen the concerns raised by journalists organizations 

with regard to all of these issues, and we take the comments received, including those expressed here today, very seriously. It is 

our intention, in order to assist the departmental task force in developing these regulations, with the specific nature of working journalists’ concerns, to convene a group of Solicitor’s Office and bureau 

Communications Office personnel to provide their expert opinion as 

we develop the final product. 

Also consistent with the act, the proposal states the agencies will 

issue permits except in those instances where there is a likelihood 

that an activity will damage a resource, cause unreasonable disruption or conflict with the public’s use and enjoyment of the site, or 

pose a health or safety risks. Again, permits will not be issued if 

there are major threats to the resources or to human safety. 

The permit requirements for still photography are also very narrowly tailored, and permit requirements will be the exception and 

not the rule. Permits for still photography will only be necessary 

when the activity is taking place in areas close to the public, when 

using models, sets or props that are not part of the location’s natural or cultural resources or administrative facilities when the 

agency needs to monitor the activity to ensure resources are protected. 

Cost recovery charges and locations fees would only apply to photography if a permit is required. We believe that the vast majority 

of still photography activities that occur on public lands administered by the Department would not require a permit. 

Mr. Chairman, we have had to make difficult decisions during 

this process, but we assure you that the Department is striving to 

ensure that these regulations are consistent with the clear language of Public Law 106-206. 

This concludes my statement and I would be happy to answer 

any questions you or any of the other members of the Committee 

might have. 

[The prepared statement of Mr. Butler follows:]

Statement of Mitchell J. Butler, Deputy Assistant Secretary for Fish and 

Wildlife and Parks, U.S. Department of the Interior 

Mr. Chairman and Members of the Committee, thank you for the opportunity to 

appear before you today to present the Department of the Interior’s (Department’s) 

views on permitting and fees for filming and photography on public lands under its 

jurisdiction. 

Public Law 106-206

Enacted on May 26, 2000 Public Law 106-206 directed the Secretaries of the Interior and Agriculture to require a permit and establish a reasonable fee for commercial filming activities or similar projects, as well as certain still photography activiVerDate 0ct 09 2002 15:02 Mar 04, 2008 Jkt 098700 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 L:\DOCS\39581.TXT Hresour1 PsN: KATHY
12

ties, on federal lands under their respective jurisdictions. The law also directed the 

Secretaries to recover costs incurred by the agencies as a result of the permitted 

activity. Fees collected under this authority are to provide a fair return to the 

United States; be based, at a minimum, on certain listed criteria; and be retained 

by the Agencies to be available to the Secretary without further appropriation to 

be used consistent with the formula and purposes established for the Recreational 

Fee Demonstration Program, Public Law 104-134. 

That law also requires that the Secretary, in the course of carrying out this program, not permit any filming, photography or other related activity if he determines 

there is a likelihood of resource damage; there would be an unreasonable disruption 

of the public’s use and enjoyment of the site; or that the activity poses health or 

safety risks to the public. 

Through enactment of Public Law 106-206, Congress repealed an existing regulatory prohibition on the charging of location fees for commercial filming for the U.S. 

Fish and Wildlife Service (FWS) and the National Park Service (NPS). Since passage of this authority, the Department and its bureaus have been in the process of 

reconciling the requirements of the law with the complexities of its implementation 

on the ground. This complexity is compounded by the diverse mission requirements 

of departmental bureaus and the uniqueness, location and visitation patterns of the 

various lands, facilities, and icons under their jurisdiction. 

Each of the Department’s land management agencies has an individualized approach to managing commercial filming and still photography activities on their 

lands that is consistent with the unique missions and authorities that apply to each. 

Despite these differences, NPS, the Bureau of Land Management (BLM), and FWS 

have worked cooperatively to develop a coordinated approach to implementation of 

P.L. 106-206 that will achieve balance between the need to achieve it’s mission 

while concurrently providing clarity to the public, creating certainty for the commercial filming and photography industries, and ensuring that the media continues to 

have the ability to inform the public about news related to the public lands that 

they administer. Like the land management agencies, Bureau of Reclamation lands 

are also subject to Public Law 106-206, and Reclamation has recently addressed 

that authority in proposed amendments to its use regulations. 

As discussed below, an additional issue, which was raised during consideration of 

Public Law 106-206 and has resulted in extended deliberation, is the potential impact of enforcement of this Act on First Amendment rights. Through the lengthy 

process of developing this proposed rule, bureau and Departmental staff have been 

sensitive to these concerns and have tried to balance the Act’s requirement to establish a fee for ‘‘commercial filming activities’’ with Congress’s statement that the legislation was not intended to affect ‘‘newsreel or television news activities.’’ Committee on Resources Report No. 106-75 at page 3. 

While the Act requires the Secretary to carry out a number of non-discretionary 

duties, we understand the importance of clarity in any implementing regulation, of 

transparency and, most important, of ensuring appropriate public review and consideration of comments received during that process. For example, we have received 

and are reviewing comments from a number of journalistic organizations relating 

their concerns with the proposed rule. We take these, and all of the comments that 

were received during the period, seriously. In order to assist the Departmental task 

force developing these regulations with the specific nature of working journalists’ 

concerns, we plan to convene a group of personnel from the Solicitor’s Office and 

the bureau Communications Offices to provide expert input as we develop the final 

product. A more detailed update on the status of implementing regulations for Public Law 106-206 is discussed more fully below. 

Current Implementation 

National Park Service 

Approximately one half of the 391 units in the National Park System do not issue 

any commercial filming or photography permits. Of those that do, the vast majority 

issue 15 permits or less each year. Some of the parks that issue the most permits 

include Grand Canyon, Yellowstone, Golden Gate, Santa Monica Mountains, Independence, Jefferson National Expansion Memorial, and parks in the National Capital Region, especially the National Mall and other downtown locations. However, 

individual parks may have an increased number of filming and photography requests based on the year (historic commemorations) or current events. 

The Government Accountability Office (GAO) conducted a review of NPS permit 

procedures from May 2004, to May 2005. The review concentrated, in part, on the 

approximately 2,000 filming and 1,000 photography permits issued during Fiscal 

Year 2003. Based on the data received, the GAO estimated that the NPS could have 

13

received $1.7 million in location fees during Fiscal Year 2003, in addition to the cost 

recovery charges that the NPS was collecting under a preexisting authority. 

The GAO recommended that the NPS expedite the implementation of the location 

fee provision of Public Law 106-206. On Apr. 13, 2006, the NPS published a final 

rule in the Federal Register that amended 43 CFR 5.1 by removing a prohibition 

on collecting fees for filming to allow the NPS to begin to collect location fees. 

The NPS is currently using a location fee schedule developed by the BLM that 

is based on the number of people associated with the permitted activity and the 

number of days the permitted activity is using park lands. Cost recovery charges 

are based on the actual costs incurred by the NPS to accept and process a permit 

request and monitor a permitted activity. 

The NPS conducted a review of commercial filming and still photography permits 

issued between May 15 and September 30, 2006, to gauge the success of the implementation of the new guidance regarding the collection of location fees. The review 

found few problems with implementation. A further review is being conducted on 

permits issued during Fiscal Year 2007 where the NPS collected $460,000 dollars 

in location fees and slightly less than $1 million in cost recovery. 

Commercial filming projects in NPS units that are either taking place, or have 

recently finished, include filming at Mount Rushmore, the Grand Canyon, sites 

within the National Capitol Region, Valley Forge, and the Roger Williams National 

Memorial in Rhode Island. 

Bureau of Land Management 

The Bureau of Land Management has long permitted the use of public lands for 

commercial filming. While Public Law 106-206 further clarified its authority, the 

BLM had preexisting authority under the Federal Land Policy and Management Act 

(FLPMA) as implemented through our regulations (43 CFR 2920) to collect cost reimbursement and rental fees. In response to Public Law 106-206, the BLM issued 

an Instruction Memorandum in December of 2003 (IM 2004-073) providing guidance 

for the implementation of that Act. A copy of IM 2004-073 is attached to this testimony. 

The BLM charges both cost recovery fees (which are kept at the local field office 

to cover the application processing costs of permitting and monitoring the filming 

activity) as well as rental (location) fees. In Fiscal Year 2007, approximately 

$212,000 in rental fees were collected for commercial filming on BLM-managed 

lands. 

The BLM issues, on average, approximately 350 filming permits a year. Permits 

are issued for a wide range of projects including television and print commercials, 

feature films, television series, and documentaries. If you go to the movies, you’ve 

probably seen BLM-managed lands featured in films such as: ‘‘Pirates of the Caribbean—At World’s End,’’ ‘‘Mr. and Mrs. Smith,’’ ‘‘Letters from Iwo Jima,’’ and ‘‘Gladiator.’’ Not surprisingly, California-BLM issues the most permits for filming on public lands while Utah and Nevada are also frequent filming locations. 

U.S. Fish and Wildlife Service 

The FWS hosts a number of commercial filming and still photography ventures 

on many of its national wildlife refuges and other lands. As part of an Office of the 

Inspector General review, the Service collected data on Special Use Permits (permits) issued between 2001 and 2005. Among these were approximately 500 permits 

issued for commercial filming and still photography on 81 refuges which totaled 

$26,750 for the five year period. 

The FWS may charge a permit fee, as well as require a bond and general liability 

insurance for commercial filming activities. It may also charge for any overtime 

costs for staff members who accompany and monitor the filming. Under current 

FWS special use permitting authority, managers may accept in some cases in-kind 

donations of DVDs, photographic books, or rights to photographs in lieu of fees. 

Bureau of Reclamation 

Under current Reclamation practice and use regulations, in order to carry out 

commercial filming on agency lands, facilities or waterbodies, a person or entity 

must file an application and pay a processing fee. Whether Reclamation would consider a user fee necessary would depend on the commercial activity being proposed. 

A calculation of the amount of fees collected for these activities was not immediately 

available to Reclamation, as it necessitates compiling information from the bureau’s 

different regions. 

Before permitting these activities, Reclamation must take infrastructure security 

and operational issues under special consideration during its review of an application. Under the agency’s proposed rule, it would continue this approach. 

14

Update on Implementing Regulations 

After passage of Public Law 106-206 in 2000, the Secretary established a task 

force of specialists from the land managing agencies, the NPS, the FWS and the 

BLM, as well as representatives from the Department’s Office of the Solicitor. The 

task force met to draft a proposed regulation on commercial filming and still photography on public lands and to develop a proposed location fee schedule. That draft 

regulation underwent lengthy review before it was released for public comment, and 

an associated economic analysis, which took approximately one year to complete, 

was carried out prior to its publication. 

As drafted, the proposed regulation would implement the provisions of Public Law 

106-206. As mandated by the law, all commercial filming would require a permit, 

and would be subject to cost recovery charges and location fees. Commercial filming 

is defined in the proposed regulation as ‘‘the digital or film recording of a visual 

image or sound recording by a person, business, or other entity for a market audience such as a documentary, television or feature film, advertisement, or similar 

project. It does not include news coverage or visitor use.’’

We understand that concerns have been raised about the fact that the proposed 

regulations do not include a definition of ‘‘news’’ and do cover documentaries. Today, 

with 24 hour news programs and television shows that bill themselves as news but 

are, in reality, entertainment, these are difficult questions. The debate that has ensued is informing us as we move forward. Unfortunately, the only guidance we have 

on these questions in the law is a requirement to permit all ‘‘commercial filming’’ 

and subject it to cost recovery charges and location fees. Likewise, the Committee 

Report advises to exempt ‘‘news reel and television news.’’ We will take all comments received on these issues, including those being expressed here today, under 

serious consideration before a final rule is promulgated. 

As mentioned earlier in my testimony, the location fee receipts for commercial 

filming will be retained without further appropriation for expenditure by the Secretary. Therefore, those who pay a small fee to profit from the unique characteristics 

of our publicly owned federal lands can rest assured that the fee they pay for this 

privilege will be used to ensure the preservation and maintenance of that resource 

into the future. There are also those who chose to film on federal public lands, not 

because of the unique characteristics, but because they are a more inexpensive place 

to film than other areas. P.L. 106-206 was not intended to make public lands prohibitively expensive. Rather, it was to ensure that the American public was receiving a fair rental rate that is consistent with what is charged by state and private 

landowners. In addition, states and private landowners should have the ability to 

receive a fair rate for renting their land without federal public lands acting as an 

artificial market force. 

The proposed rule is inclusive when it comes to determining whether or not to 

issue a permit for commercial filming. Consistent with Public Law 106-206, the proposed rule states that agencies will issue permits except in those instances when 

there is the likelihood that the activity will damage the resources; cause unreasonable disruption or conflict with the public’s use and enjoyment of the site; or pose 

public health or safety risks. In addition, permits will not be issued where park resources or values are impaired, when issuance would be inappropriate or incompatible with the purposes of a refuge, or where issuance would violate other applicable 

laws or regulations. As you can see, the criteria are tailored only to ensuring that 

uses do not threaten resources or the visiting public. There is no intention in these 

proposed regulations for censorship by the agencies based on content. In fact, we 

believe that telling the story of our resources benefits not only our public lands but 

the visiting public, as well. 

This proposal is also narrowly tailored to ensure that permit requirements for still 

photography would be the exception and not the rule. A still photography permit 

would only be necessary when the photography is taking place in areas closed to 

the public, when using models, sets, or props that are not part of the location’s natural or cultural resources or administrative facilities, when the agency needs to 

monitor the activity to insure resources are protected, or to minimize impacts to the 

visiting public. Cost recovery charges and location fees would only apply to still photography if a permit is required. We believe that the majority of still photography 

activities that occur on public lands administered by the Department would not require a permit. 

The proposed regulation was published in the Federal Register on August 20, 

2007, with a sixty day comment period. The comment period closed on October 19, 

2007, and 57 comments were received. The task force has begun the process of considering and responding to the comments. The task force has also developed, in cooperation with the U.S. Forest Service, a draft location fee schedule which has been 

submitted to the Department’s Appraisal Services Directorate for review. 

15

I would also note that the proposed amendment to Reclamation’s use authorization regulations, published on July 18, 2007, adds specific language to address, 

among other things, the authority provided in Public Law 106-206. The proposal delineates particular uses of Reclamation land, facilities, or waterbodies that require 

an authorization from the agency, including commercial filming and photography. 

It also sets an application fee, provides for the collection of administrative costs by 

the agency, and for a use fee, to be based on a valuation or competitive bidding. 

The comment period has closed, and Reclamation staff is reviewing comments received and the proposed rule to ensure that the final rule, when published, is compliant with the requirements of P.L. 106-206. 

Mr. Chairman, as noted above, while we have had to make difficult decisions during this process, the Department is striving to ensure that these regulations are 

consistent with the clear language of Public Law 106-206. This concludes my prepared remarks. I would be pleased to answer any questions you or other members 

of the Committee may have. 

STATEMENT OF LESLIE A.C. WELDON, EXTERNAL AFFAIRS 

OFFICER, OFFICE OF THE CHIEF, FOREST SERVICE, U.S. 

DEPARTMENT OF AGRICULTURE 

Ms. WELDON. Mr. Chairman and members of the Committee, 

thank you for inviting me today to discuss fees for filming and photography on National Forest System lands. My brief comments will 

focus on Forest Service practices and policies regarding commercial 

filming and still photography. 

The Forest Service issues special use permits for commercial 

filming and still photography and collects land use fees for these 

activities. The current authority for these permits is Public Law 

106-206, which was signed in May of 2000. Prior to this law, the 

Forest Service had authority to issue special use permits and collect land use fees for these activities under our Organic Act of 

1897, and its implementing regulations. 

Public Law 106-206 supplemented the Forest Service’s existing 

authority by allowing the agency to collect, retain, and spend without further appropriation land use fees for these activities. 

Since Fiscal Year 2001, the Forest Service has collected over 

$2.3 million under this authority for commercial filming and still 

photography, and in Fiscal Year 2007, the Forest Service collected 

about $388,000 for these activities. 

In 2003, the Forest Service amended its agency directives to 

make them consistent with Public Law 106-206 and to implement 

the new authority. These directives provided a definition for commercial filming that establishes the types of filming activities for 

which a permit is required. This definition excludes ‘‘breaking 

news’’ as an activity requiring a permit because the need for commercial filming and still photography to cover breaking news arises 

suddenly, evolves quickly, and may cease to be newsworthy by the 

time a permit is issued. 

Still photography does not require a permit or land use fees unless it takes place in a location where the members of the public 

are generally not allows or where additional administrative costs 

are likely, or when still photography involves the use of models, 

sets or props that are not part of the site’s natural or cultural resources or administrative facilities. 

The Forest Service collects land use fees for commercial filming 

and still photography based on regional and forest fee schedules. 

Some of these fees have been in place for well over 20 years, and 

16

most of the current Forest Service fee schedules have not been updated or indexed for inflation since 1995. We believe these fees 

need to be revised in order to ensure a continued fair return to the 

United States as required by Public Law 106-206. 

We have coordinated with the Department of Interior to develop 

a proposed fee schedule for commercial filming and still photography. 

The Forest Service recognizes the value and importance of the 

role of the media in providing essential information to the American public. Our public affairs officers, line officers, incident management teams, and permit administrators across the country work 

closely with members of the media to provide information and access so they can cover important natural resource issues in a timely manner. 

We understand coverage of breaking news may not be limited to 

a one-time event. Examples include the coverage of 2003 Columbia 

Shuttle recovery efforts in Texas or stories on resource issues such 

as road damage due to flooding such has occurred in the Northwest. Forest Service policy provides for this type of media coverage 

without requiring a permit. 

In conclusion, the Forest Service has longstanding practices in 

place for commercial filming and still photography that have 

worked well for the agency, industry, media, and the public. We 

will continue to work with members of the commercial filming and 

still photography industries to ensure our policies are implemented 

fairly and equitably. 

Thank you for the opportunity to discuss these issues with the 

Committee, and I would be happy to answer any questions you 

may have. 

[The prepared statement of Ms. Weldon follows:]

Statement of Leslie A.C. Weldon, External Affairs Officer, Office of the 

Chief, Forest Service, U.S. Department of Agriculture 

Mr. Chairman and members of the Committee, thank you for inviting me today 

to discuss fees for filming and photography on National Forest System lands. My 

name is Leslie Weldon, and I serve as the External Affairs Officer for the Forest 

Service. My national program responsibilities include the press office, legislative affairs, the office of communications, and partnerships. 

I will focus my comments on Forest Service policies and practices regarding commercial filming and still photography. 

Background 

The Forest Service issues special use permits for commercial filming and still photography and collects land use fees for these activities. The current authority for 

these permits is Public Law 106-206, which was signed into law on May 26, 2000, 

and is codified at 16 U.S.C. 460l-6d. Prior to enactment of P. L. 106-206, the Forest 

Service had authority to issue special use permits and collect land use fees for these 

activities. This authority was provided by the Organic Act of 1897; it’s implementing 

regulations at 36 C.F.R. part 251, subpart B; and directives in the Forest Service 

Handbook. 

The legislative history for P. L. 106-206 states that it is intended to supplement 

the Forest Service’s existing authorities to regulate commercial filming and still 

photography. P. L. 106-206 supplemented the Forest Service’s existing authority by 

allowing the agency to collect, retain, and spend without further appropriation the 

land use fees collected for these activities. 

Beginning in Fiscal Year 2001, the Forest Service has collected $2,333,000 under 

this authority for commercial filming and still photography. In Fiscal Year 2007, 

the Forest Service collected $388,000 for these activities. 

P. L. 106-206 was necessary to give the National Park Service and the U.S. Fish 

and Wildlife Service the authority to regulate commercial filming and still photogVerDate 0ct 09 2002 15:02 Mar 04, 2008 Jkt 098700 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 L:\DOCS\39581.TXT Hresour1 PsN: KATHY
17

raphy, standardize the authorities for all Federal land management agencies, and 

allow them to retain all fees and costs collected. Prior to enactment of P. L. 106-

206, neither of these agencies had the authority to regulate these activities. On August 20, 2007, the Department of the Interior published a proposed rule in the Federal Register to implement P. L. 106-206. 

Current Policy 

In 2003, the Forest Service amended agency directives to make them consistent 

with P. L. 106-206 and to implement the new authority to retain and spend land 

use fees for commercial filming and still photography. 

These directives provide a definition for ‘‘commercial filming’’ that establishes the 

types of filming activities for which a permit is required. This definition specifically 

excludes ‘‘breaking news’’ as an activity requiring a permit because the need for 

commercial filming and still photography to cover breaking news arises suddenly, 

may evolve quickly, and may cease to be newsworthy by the time a permit is issued. 

Still photography does not require a permit or land use fee unless the still photography takes place at a location where members of the public are generally not allowed or where additional administrative costs are likely, or when the still photography uses models, sets, or props that are not a part of the site’s natural or cultural 

resources or administrative facilities. 

Land Use Fees 

As it did before enactment of P. L. 106-206, the Forest Service collects land use 

fees for commercial filming and still photography based on regional and forest fee 

schedules. In accordance with P. L. 106-206, the Forest Service collects, retains, and 

spends these fees without further appropriation. Ninety percent of the fee revenues 

are retained and spent at the local units where they were collected to improve customer service for commercial filming and still photography. 

Land use fees are currently established in either regional or forest fee schedules 

which have been in place well over 20 years. Most of the current Forest Service fee 

schedules have not been updated or indexed for inflation since 1995. We believe 

these fees need to be revised in order to ensure a continued fair return to the United 

States, as required by P.L. 106-206. 

To that end, and to enhance consistency in the management of federal lands and 

to improve its delivery of services to the public, the Forest Service has coordinated 

with the Department of the Interior to develop a proposed fee schedule for commercial filming and still photography. 

Policy in Practice 

The Forest Service fully recognizes the value and importance of the role of the 

media in providing essential information to the American public. Our public affairs 

officers, line officers, incident management teams, and permit administrators across 

the country work closely with members of the media to provide information and access so they can cover important natural resource issues in a timely manner. 

We understand coverage of breaking news may not be limited to a one-time event. 

Examples include ongoing coverage of the Columbia Shuttle recovery effort or stories on resource issues such as road damage due to flooding. Forest Service policy 

provides for this type of media coverage without requiring a permit. 

Conclusion 

The Forest Service has longstanding policies in place for commercial filming and 

still photography that have worked well for the agency, industry, media and the 

public. We will continue to work with members of the commercial filming and still 

photography industries, the media, and other interested parties to ensure our policies are implemented fairly and equitably. 

Thank you for the opportunity to discuss these issues with the Committee. I 

would be happy to answer any questions you may have. 

The CHAIRMAN. Thank you very much. 

My first couple questions concern, I guess, definitions that are 

used in the proposed rule, or not used I should say. The draft rule, 

for example, says news coverage does not require a permit or fee. 

However, the term ‘‘news coverage’’ is not defined. So my question 

is, what is your definition of news coverage for either or both of 

you? 

18

Mr. BUTLER. Mr. Chairman, again, in developing the proposed 

regulation one of our major struggles was to define exactly the differences between when the news exception would be triggered visa-vis when commercial filming—the commercial filming definition 

was applicable. 

By way of illustration, the legislation calls for location fees for 

commercial filming, and that is defined as any recording that 

will—if we were to define that as any recording that ultimately 

turned a profit from a market audience, almost every permit application would result in a location fee charge. 

Alternatively, if the news exception set forth was interpreted to 

include anything that would inform the public about what is happening on public lands, then few, if any, permit applications would 

result in a location fee, and our belief is that that wouldn’t be consistent with the legislative intent either. 

So through this process we sought to standardize exactly how to 

define commercial filming while also keeping the decision as to 

what triggers the news exception at the local level so that the 

unique characteristics of the proposal would be built into the agency’s decision about whether it is news or whether it is commercial 

filming. And so each agency has its own process for making that 

determination on the ground. 

Ms. WELDON. I would add that our focus is on the requirements 

for that actual land use more so than how or where it would be 

delivered. For example, if the need for land use is based on advertising of product or service creating a product, be it a documentary 

or another item for sale defined as commercial, or the use of prop, 

sets or models, as a guide for determining the requirements for use 

of the land more so than where it would be delivered, and clearly 

we have the exceptions for breaking news as items that require us 

to act quickly to get that information and news to the public without going through the time frames and the process for determining 

the need for a permit or putting a permit in place. 

The CHAIRMAN. So just so I am clear on it, you are not proposing 

that the rule specifically define national coverage, but you are leaving that up to the individual parks or refuge managers to decide 

on their own? 

Ms. WELDON. Leaving it to decide based on the actual needs for 

use of land and the timeliness for our ability to assess that and 

make a determination if it is going to be an activity that requires 

a permit or fee. 

The CHAIRMAN. OK. 

Mr. BUTLER. And I believe Ms. Weldon’s statement is consistent 

with our agency’s as well. 

The CHAIRMAN. Let me ask you one other question about what 

the terms mean in the proposed rule. The draft rule says, for example, commercial filming does require a permit and fees. The rule 

defines commercial filming as recording something ‘‘for a market 

audience’’. So my question is what does the term ‘‘market audience’’ 

mean? 

Are folks watching at six o’clock news, is that a market audience, 

and what about PBS, for example? 

Ms. WELDON. For the Forest Service, our implementing regulations don’t use the language of market audience. We focus predomiVerDate 0ct 09 2002 15:02 Mar 04, 2008 Jkt 098700 PO 00000 Frm 00022 Fmt 6633 Sfmt 6602 L:\DOCS\39581.TXT Hresour1 PsN: KATHY
19

nantly again on what the requirements are for land use and what 

those impacts may be to the resource or to our administrative 

costs, or to other uses by the public. So we don’t use the language 

of market audience. 

The CHAIRMAN. Mike. 

Mr. BUTLER. Mr. Chairman, I don’t believe that our regulation 

defines market audience, but I think that it would come under the 

determination as to whether or not its commercial filming, and the 

definitions of market audience, for example, are just exactly the 

types of things that we are considering during this comment process and through the proposed rule, and difficulties with ensuring 

that these criteria are established and that the definitions are 

sound and exactly what we are trying to reconcile now. 

The CHAIRMAN. OK. I guess, as I conclude this line of questioning, that it is the same concern I had with my previous question. If the term ‘‘market audience’’ is not defined in the rule, then 

who will decide what it means and how is a park ranger supposed 

to determine if a film crew intends to sell the film to a ‘‘market 

dominance’’? 

So I guess I come down favoring the Forest Service approach as 

opposed to the DOI approach in defining this term. 

Let me ask you a third question. The law Congress passed in 

2000 focused on fees based on impacts, that is, the number of people, the number of days, the amount of equipment involved, however the rule focuses on the intended use of a recording. In other 

words, is it for a market audience or not? And why is the focus of 

the rule so different from the focus of the law? That would be for 

DOI, I guess, basically. 

Mr. BUTLER. Mr. Chairman, I apologize. I am unclear as to the 

question. 

The CHAIRMAN. Well, the rule that you are proposing focuses on 

the intended use of a recording. In other words, is it for market audience or not? Why is the focus of your rule different from what 

I interpret to be the focus of the law? 

Mr. BUTLER. Thanks for the clarification. 

My understanding is that the market audience criteria falls 

under the definition of commercial filming. So if and when the commercial filming definition is met by a proposal, then we trigger a 

permit which triggers location fees and therefore we look to determine how much of a location fee would be charged based on the criteria which you mention, which are number of crew, number of 

days, type and amount of equipment. So I believe at they are separate and distinct, but are accounted for in the proposed regulation. 

The CHAIRMAN. OK. I may have some follow-up questions on the 

second round. Let me recognize the Acting Ranking Member, Mr. 

Duncan. 

Mr. DUNCAN. Well, thank you, Mr. Chairman, and I will say for 

the record that I agree and I think almost everyone agrees with the 

statement by the gentleman from Oklahoma, Mr. Boren, that small 

independent producers, cameraman and one operator should not be 

charged the same as some big giant studio that is going to bring 

in all kinds of people, but I noticed in your last—Mr. Secretary 

Butler, in the response to the last question from the Chairman that 

you basically said all that will be taken into consideration, and we 

20

were told in our briefing paper that fees will be determined by several factors, including the number of days the filming takes place, 

the size of the film crew, the amount and type of equipment 

present and so forth. 

So do both of you feel that you have enough flexibility to make 

those decisions and that you will make that clear to the people on 

site so that the people who are going to actually implement the 

rule will know that it is not a one-size-fits-all type rule? 

Mr. BUTLER. Yes. There are competing concepts in the law, I believe, and we are working and assessing each of them and attempting to reconcile each and ensure that all of the directives are given 

effect, and trying to find a regulation language that will meet each 

and meet the intent of the legislation as well. 

Mr. DUNCAN. Ms. Weldon. 

Ms. WELDON. Thank you. Based on our current experience implementing our existing regulations, I think we have seen it demonstrated that there is a lot of flexibility when those proposals actually come to the local level, and an example of that is that our 

early information in summarizing the permit requests for 2007, we 

had a little over a thousand permits, 1,056 permits for activities, 

and only 690 of those actually required a fee based on what the 

type of use was, and the rest of them did not require a fee. So that 

adjustment flexibility based on what is happening locally and that 

determination and applying that, I think, has the flexibility that it 

needs and will continue operating in that fashion. 

Mr. DUNCAN. Do either of you see any opposition from career 

people down in the lower ranks that they just don’t want to issue 

these permits because they are getting too many or do they feel it 

is a nuisance? 

I mean, you mentioned that you just had 1,056 permits last year. 

Ms. WELDON. I will respond to that first. 

We are going to continue to get the requests come in, you know, 

and we feel it is a real important role that the national forests can 

serve. Having the authority to retain costs like we currently do to 

support our implementation and management of the programs has 

been extremely helpful. So that gives us that place where if the requests are of the nature that really do require us assessing administrative cost fees and cost recovery, we can do that to allow us to 

keep supporting those programs. 

So 106-206 was very helpful in helping in that aspect, especially 

with the amount of requests we do receive. 

Mr. DUNCAN. All right. 

Mr. BUTLER. I have heard of no opposition from career staff. In 

fact, we would venture to say that our career staff are very interested in the benefits and ensuring the preservation of the public 

lands, and therefore have an interest in implementing this legislation so that the fees can be retained so that 80 percent of what location fees are charged go back into the resource through the recreational fee demonstration formula. 

Obviously, while they are not going to proactively issue multiple 

permits to raise dollars, I think that that could be a factor in why 

I haven’t heard any opposition. 

Mr. DUNCAN. How do you handle the situation where some of the 

programs such as National Geographic and the Discovery Channel 

21

and others perhaps are informative and educational, but nevertheless documentary? How do you respond to the criticisms or opinions 

that these types of media should be exempt because they are also 

informative? 

Mr. BUTLER. Through our regulation development process, documentaries were obviously one that was difficult. I mean, there is 

a wide gradation between the two examples I mentioned which is, 

obviously, breaking news and then the major Hollywood productions. Documentaries through the development process for the proposed regulations were viewed as commercial filming activity. We 

have received a number of comments that disagree with that and 

we are taking them all into consideration as we develop the final 

rule. 

Mr. DUNCAN. Of course, you have had some recent documentaries 

that have made a lot of money, the ‘‘Inconvenient Truth’’, ‘‘Planet 

Earth’’ and several others. So it seems that that should be taken 

into consideration as well. How would you take that into consideration or would you? 

Ms. WELDON. I think just reiterating what Michael said, you 

know, clearly even though they are educational, it is a question of 

what are the requirements and needs for using public lands for 

being able to deliver those, and our ability to assess and be able 

to assist and support those activities occurring without impacting 

resources is the goal of what the fee process and assessment and 

skills are covering. 

Mr. DUNCAN. All right. One last question. Mr. Butler, the staff 

tells me that there is rumors that the Park Service is charging fees 

for couples for taking their wedding photographs on Park Service 

property around national monuments. Is that occurring, to your 

knowledge, and what is the situation in regard to that? 

Mr. BUTLER. Congressman, my understanding is that there is no 

intent for that to be the way that this works, and I can provide additional detail on this. But I understand that the time, place and 

use restrictions surrounding how many folks can be in one particular unit at one time have required that the park staff make 

sure that there is no conflicts, and that there is not multiple weddings parties in one place at one time, and we can get additional 

information about whether that intent has been misinterpreted or 

misapplied to you as soon as possible. 

Mr. DUNCAN. All right. Thank you very much. 

The CHAIRMAN. The gentleman from Oklahoma, Mr. Boren. 

Mr. BOREN. Thank you, Mr. Chairman. I just have a few questions for our panelists. 

For Mr. Butler, these groups that I mentioned earlier, these wildlife groups, and let me just read off a few of them: Ducks Unlimited, Safari Club International, Trail Unlimited, Wildlife Forever, 

U.S. Sportsmen’s Alliance, American Fly Fishing Trade Association, Bass Pro Shops, Mule Deer Foundation, National Rifle Association, and others. 

Have you all actually sat down with these organizations and 

talked to them about how they would be impacted? And let me 

state for the record most of these organizations spend millions of 

dollars protecting wildlife and protecting habitat. Have you all 

physically sat down and just kind of asked their opinion? 

22

Mr. BUTLER. Congressman, the first I understood of what the 

sportsmen’s groups were was when I received a letter that they 

had sent just the other day. I initially touched base with a couple 

of them, have plans to sit down with each of them and explain exactly how this would apply to their programs. 

I think one thing just on the face of what I saw in their letter 

that may be misinterpreted or may be further explanation is that 

the fee schedule, while it is still under development, will be tailored specifically to the size of the production, i.e., the amount of 

crew, the amount of equipment, the number of days, et cetera, and 

from what I have gathered, at least anecdotally, and what you 

mentioned earlier, many of the filming productions of some of these 

groups are relatively small in size, one or two cameramen, one or 

two individuals hunting and/or fishing. So we will sit down with 

them and make sure that——

Mr. BOREN. Ms. Weldon, would you give me the same recommendation? 

Ms. WELDON. We, of course, aren’t part of this current proposed 

rule, but in general we have very strong partnerships with all 

those groups, and my understanding is that we have a strong history of good cooperation, collaboration as they come forward with 

projects that they would like to do of that nature on the national 

forest. But we haven’t had any special conversations to sit down to 

talk with them specifically about the DOI rule. 

Mr. BOREN. OK. That is great, and one follow-up question. Going 

back to the timing, we talked about the number of people that are 

physically on the land, but in hunting and outdoor situations different from let us say if you are filming a commercial that is a halfday commercial and it is an ad with a bear or something, you are 

selling a car or a product. 

A lot of these outdoor programs, they literally take a week, two 

weeks. You are spending 10 hours watching an animal, and if you 

look at the daily, again going back to, and I think Mr. Butler kind 

of answered this question already, but going back to the daily rate. 

Most of these outdoorsmen are spending actually more time in 

the field, and so the time period also, I think, is really important 

when you all go back and work on these regs. because not just for 

people who hunt, but I mean, if you are doing a documentary on 

the wolves or anything else, I mean, you are spending a lot of time 

out there. You are not just going to be there for one day like filming a commercial, you are actually going to be doing a program. 

Would you all agree with that? 

Ms. WELDON. I would agree. A lot of it is about the nature of the 

activity and wildlife aren’t predictable as far as when they choose 

to show up. I think the big concern is where that activity is occurring. Is it going to be something that is going to interfere with 

other public use as far as considerations more so than the length 

of time for the occupancy. There is a difference if someone is filming at an intersection of a major road where people are coming and 

going compared with perhaps being in the back country trying to 

track a specific species that is not having that much impact. 

Mr. BOREN. Because we were talking about the media earlier, 

you know, so much of this is really subjective and it is left up to 

a manager at a local level. I mean, do you all think that that is 

23

the best way to handle it, to have a person, because, you know, I 

have dealt with a lot of different agencies in my district, for instance, and you come across a really good park manager or a very 

good—let us say they are with the Corps, they are really good, and 

then you also come across someone who they may have a local beef 

with someone or there is a problem. 

I know there has been an instance—Larry Csonka, for instance, 

there was, I think, a little bit too much harm done to him personally with his outdoor show. But I mean, is this kind of—I mean, 

do you all feel that it is the right thing to do, to kind of be more 

subjective and put it to the local level or do you think it is best 

to just have one approach and everyone has to follow that direct 

guideline? 

Let us start with Mr. Butler. 

Mr. BUTLER. Again, the purpose of the proposed regulations are 

really to standardize implementation of P.L. 106-206, but I think 

that because of the uniqueness of each of the proposals and the 

uniqueness of each of the land units where they are proposed for 

filming or photography, a determination as to whether a particular 

project will fall under the commercial filming definition or under 

the news exception is oftentimes best made on the ground. 

At the same time we are standardizing much of this at the national level to ensure continuity and to ensure that we are consistent, and again, the legislation and the proposed regulations are 

precedent setting, and issues like you are raising are very much a 

part of our comment and consideration process in our development 

of the final regulation. So we will take all of these into serious consideration and that issue has been raised. 

Mr. BOREN. Well, I just want to say thank you both for what you 

do. In the interest of time, I will turn it back to the Chairman. 

The CHAIRMAN. Ms. Christensen. 

Ms. CHRISTENSEN. I don’t think I have any additional questions. 

I can appreciate how difficult it is to apply this law to many different kinds of parks and many different parts of the country and 

other public lands, and I just look forward to hearing the rest of 

the testimony from the journalists, and I encourage that there be 

some meetings between the Department of Interior, the Park Service, and the other agencies involved with the media and the news 

agencies to try to make sure that we come up with an implementation that can reach some kind of consensus. 

The CHAIRMAN. Mr. Grijalva. 

Mr. GRIJALVA. Thank you, Mr. Chairman. Just one quick question for Mr. Butler just for my own clarification. 

As I understand your comments, each agency within the Department implements to some extent its own definition of what commercial use is or national coverage is, and the question I am asking, assuming that that is true, understanding the unique situations of every land use that we are talking about, but shouldn’t 

there be at least a standard criteria, a uniformity of definition, 

something that is part of the guidelines rather than the interpretation by a specific land manager on a specific national park? 

Mr. BUTLER. Just to clarify, Congressman, do you mean a specific 

definition of how the news on newsreel exception that was in the 

house report language would apply? 

24

Mr. GRIJALVA. Would apply and also what the criteria is, what 

is the parameters? What are the benchmarks? People that are utilizing, people that are providing coverage, journalists and others at 

least know what departure point they are at, and whether to object 

or to go along with the particular regulation. At this point what is 

left to an interpretation and it kind of makes it difficult. No one 

knows what the rules are. 

Mr. BUTLER. We believe that the proposed regulation, in defining 

what is commercial news and also providing a fee schedule ultimately as to how much to charge when a permit is required and 

a location fee triggered does standardize and does provide a great 

deal of guidance. At the same time there is a definition. It is in the 

proposed regulation, but we have had at least one and possibly 

multiple comments requesting that we do include a definition of 

news, and that is something that is being considered in putting together the final package. 

Mr. GRIJALVA. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you all for your testimony. 

Ms. WELDON. Thank you. 

The CHAIRMAN. The Chair will now call Panel II, Mr. Timothy 

Wheeler, President of the Society of Environmental Journalists; 

Barbara S. Cochran, President, Radio-Television News Directors 

Association; Tony Overman, President, National Press Photographers Association; Steven Scot, Chairman of the Board, Professional Outdoor Media Association; and Victor S. Perlman, General 

Counsel and Managing Director, American Society of Media Photographers, Incorporated. 

While the panel is coming forward, I would note that the first 

gentleman I introduced, Mr. Timothy Wheeler, it is my understanding that you were born and raised in Charleston, West Virginia. In that regard, I do want to thank Ken Ward, who is a well 

respected and professional reporter with our Charleston Gazette, 

for bringing this issue to my attention. Welcome, and you may proceed first, Timothy. 

As with all witnesses, we do have your prepared testimony, and 

it will be made part of the record as if actually read, and you may 

proceed as you desire. 

STATEMENT OF TIMOTHY B. WHEELER, PRESIDENT,

SOCIETY OF ENVIRONMENTAL JOURNALISTS 

Mr. WHEELER. Thank you. Chairman Rahall, Acting Ranking 

Member Duncan, members of the Committee, I am Tim Wheeler, 

President of the Society of Environmental Journalists. 

I am grateful for the invitation to appear before this Committee 

to explain why journalists are concerned about the Interior Department’s efforts to regulate commercial filming and photography in 

our national parks and on Federal lands. It is an issue that affects 

all journalists and should concern all citizens in all parts of the 

country, and not just the majestic parks of the West. 

Bound as I am too often to my desk in Baltimore where I am a 

reporter for The Sun, I have had the pleasure of visiting personally 

and professionally many of our Federal lands, particularly the National Park System units in my home state of Maryland, and in 

your state, Mr. Chairman, where I was born and grew up. 

25

SEJ is the world’s largest and oldest organization of individual 

working journalists covering environmental issues. Founded in 

1990, SEJ consists of some 1,300 journalists, educators and students dedicated to improving the quality, accuracy and visibility of 

environmental reporting. 

One of the services SEJ provides to its members through its First 

Amendment Task Force and Watch Dog Project is to keep an eye 

out for real and potential infringements of their ability to do their 

job. 

Mr. Chairman, our Federal lands are a public trust. Many of 

them are reservoirs of the bio diversity that was once more abundant in our nation. As such, they are magnets for journalists seeking to understand our environment and how it is changing. How 

they are managed is of great public interest. 

A couple months ago an SEJ member named Kinna Ohman 

called Yellowstone National Park to set up an interview with a wolf 

biologist. She was told by a public affairs officer there that she 

would need to get a permit and pay a $200 fee to do so. Of course, 

that was in error, but therein hangs the tail which has brought us 

here today. 

Ms. Ohman is a free-lance radio reporter/producer who lives in 

Keene Valley, New York, in the northern part of the state near 

Lake Champlain. She was working on a story about the after effects of the re-introduction of grey wolves to Yellowstone, certainly 

a newsworthy topic. To help tell it, she needed to visit the park and 

interview the Park Service biologist most familiar with the wolves’ 

impact. 

When she called the park’s public affairs officer though, she was 

surprised to be told that she would have to apply for a permit and 

pay a nonrefundable fee. She was also told that her application 

would take at least two weeks to process and that she might have 

to pay more for the time of anybody she wanted to interview. Last, 

she was informed that she would have to present proof that she 

had insurance providing a minimum of $1 million liability 

coverage. 

Public affairs officials at Yellowstone told her that they treated 

everybody this way, not just commercial film makers, but nonprofits and students as well as mandated to us by law, they wrote 

her. 

Ohman informed her colleagues at SEJ of her experience. A call 

from SEJ to Park Service headquarters in Washington quickly 

straightened things out. Headquarters’ public affairs staff contacted Yellowstone and reminded the staff that the commercial 

filming permits were not meant to apply to members of the news 

media. 

I am glad to tell you that Ohman’s interview took place October 

29, and she generally got great cooperation from Yellowstone staff. 

Her story is scheduled to air soon. 

While this tale had a happy ending, it exposed for us at SEJ and 

for other journalism groups as well how far the Department of Interior and its agencies in policy and practice have drifted from the 

letter and intent of the original law. 

Park Service regulations and perhaps the law itself to some degree are so imprecise and unclear that they could allow the disVerDate 0ct 09 2002 15:02 Mar 04, 2008 Jkt 098700 PO 00000 Frm 00029 Fmt 6633 Sfmt 6602 L:\DOCS\39581.TXT Hresour1 PsN: KATHY
26

turbing interpretation Ohman received, and had Ohman wanted to 

record on lands managed by a different Interior Department agency, she might have gotten different treatment. That is because commercial filming and still photography are governed by varying 

guidelines, policies and regulations. 

An existing regulation, for instance, stipulates that no fees are 

to be charged for filming or recording sound tracks on lands administered by the Fish and Wildlife Service. The Bureau of Land Management charges a location fee for commercial filming on lands it 

manages, as does the Forest Service. Permitted, fee requirements 

and their application apparently vary from one national park unit 

to another. 

The Interior-wide regulation proposed on August 20 of this year 

seems aimed at standardizing the various fee and permit rules, 

policies and guidelines, but the new rule is vague and just as subject to misinterpretation as the old ones. While the proposed rule 

would specifically exempt those engaged in news coverage from 

needed to get a permit, it does not define the term. Would that be 

left to the various agencies to decide, as it is now? 

In the permit guidelines for Yellowstone, only crews filming 

breaking news are exempt while those shooting human interest 

staged events or other topics must get a permit. It leaves the determination of what is breaking news to the discretion of the park’s 

public affairs officers. 

The rule also mentions documentary as an example of a commercial filming project needing a permit. That provision has snared 

several producers of documentary films focusing on wildlife or conservation issues in the parks or on other Federal lands. What they 

film is essential to public understanding of the decisions the Interior Department makes in managing natural resources. Those policies and practices are just as much news as a forest fire, or a press 

conference held by a government official in a park with a stunning 

mountain backdrop. 

Finally, the rule could have an especially chilling effect on freelance or independent journalists because it requires permit applicants to prove they are carrying a hefty insurance policy to protect 

the U.S. Government should anything go wrong. The original law 

signed back in 2000 was meant to apply primarily to big Hollywood-style movie productions and to commercial still photography 

that use models or unnatural props. 

We think Interior should limit its rule to what Congress wanted 

regulated and no more. The Department should adopt the broadest 

possible definition of what constitutes news coverage in deciding 

what activities are exempt from regulation. It should exempt all 

types of news coverage, not just breaking news, and it should not 

automatically classify documentaries as commercial filming ventures. 

Moreover, the Department also needs to take the broadest possible view of who can cover news. Kinna Ohman’s run-in with the 

Yellowstone staff was stemmed in part from a misunderstanding 

about whether she was working for a public radio station. We hope 

that the Department would be mindful in drafting regulations of 

the need to steer well clear of anything that would infringe on the 

ability of mainstream journalists and freelancers alike to share 

27

with the public vital images, sounds and information about how 

our nation’s lands and resources are being cared for and managed. 

Mr. Chairman, with your permission I would like the record of 

this hearing to include the comments which SEJ filed on October 

19 of this year and the Interior Department rulemaking. Eighteen 

other journalism groups, some of them represented here today, 

joined SEJ in submitting these comments. They reflect the broad 

concern within the journalistic community about the potential impact of this rule and how we practice our craft. 

Public Law 106-206 was hammered out in this very room some 

seven years ago. If anyone would know the intention of the original 

law, it would be this Committee. You are to be commended for this 

kind of constructive oversight. I would be happy to answer any 

questions you or members of the Committee may have. Thank you. 

[The prepared statement of Mr. Wheeler follows:]

Statement of Timothy B. Wheeler, President,

Society of Environmental Journalists 

Chairman Rahall, Ranking Member Young, and members of the Committee, I am 

Tim Wheeler, President of the Society of Environmental Journalists. I am grateful 

for the chance to appear before you today to discuss our views on the Interior Department’s proposed commercial filming rules and how they affect journalists. 

It’s an issue that affects journalists—and ordinary citizens—in all parts of the 

country, not just the majestic parks of the West. Bound as I am too often to my 

reporter’s desk in Baltimore, the National Park System units of Maryland, West 

Virginia and the mid-Atlantic region beckon just as invitingly. 

SEJ is the world’s largest and oldest organization of individual working journalists covering environmental issues. Founded in 1990, SEJ consists of some 1,300 

journalists, educators and students dedicated to improving the quality, accuracy and 

visibility of environmental reporting. Working through its First Amendment Task 

Force and WatchDog Program, SEJ addresses freedom of information, right-to-know, 

and other news gathering issues of concern to journalists reporting on environmental topics. 

This October, an SEJ member named Kinna Ohman called Yellowstone National 

Park to set up an interview with a wolf biologist. She was told by a public affairs 

officer that she would need to get a permit and pay a $200 fee to do so. Of course, 

that was an error. But therein hangs a tale. 

Ms. Ohman is a freelance radio reporter-producer who lives in Keene Valley, New 

York, in the northern part of the state near Lake Champlain. She had been selling 

stories to ‘‘The Environment Report,’’ a nonprofit news service that feeds stories to 

public radio stations across the United States and in central Canada. As a freelancer, she was doing journalism more serious than that done by many paid employees of large broadcast networks. 

Ohman had a great story to do, about the after-effects of the reintroduction of 

gray wolves to Yellowstone. To help tell it, she needed to visit the park, and interview the National Park Service biologist most familiar with the wolves’ impact. 

When she called the Park’s public affairs office, though, she was surprised to be 

told that she would have to apply for a permit and pay a non-refundable $200 application fee. She was also told that the application would take at least two weeks to 

process, and that she might have to pay for the time of anybody she wanted to interview. 

Lastly, she was informed she would have to present proof that she had a minimum $1 million liability insurance coverage. Public affairs officials at Yellowstone 

told her that they treated everybody this way—not just commercial film-makers, but 

non-profits and students as well—‘‘as mandated to us by law.’’

Ohman informed her colleagues at SEJ of her experience. A call from SEJ to Park 

Service headquarters in Washington quickly straightened things out. Headquarters 

public affairs staff explained to the Yellowstone staff—who may have been improvising in the absence of their supervisor—that the commercial filming permits were 

not meant to apply to members of the news media. 

I am glad to tell you that the interview took place October 29, that Ohman generally got great cooperation from Yellowstone staff, and that the story is scheduled 

to air soon. 

28

While this story had a happy ending, it exposed for us at SEJ—and for other journalism groups as well—how far the Department of Interior and its agencies have 

drifted from the letter and intent of the original law. 

Park Service regulations—and perhaps the law itself on which they are based, 

P.L. 106-206—are so imprecise and unclear that they could allow the disturbing interpretation Ohman received. A Park Service employee could look at the regs and 

read them to say that a permit and two-week delay was legally required for a news 

interview, that the Park Service had to be compensated for the time of officials 

interviewed by a reporter, and that the use of a tape recorder, harming no natural 

resources, constituted ‘‘commercial filming.’’ Moreover, they seemed to be saying 

that the Park Service had no discretion in applying the regs, but was required to 

apply them this way. 

Currently, commercial filming and still photography are governed by a crazy-quilt 

of guidelines, policies and regulations that vary among Interior’s agencies. An existing regulation, for instance, stipulates that no fees are to be charged for filming or 

recording sound tracks on lands administered by the U.S. Fish and Wildlife Service. 

The Bureau of Land Management and U.S. Forest Service—part of the Department 

of Agriculture, but also covered by this law—have until now been the only agencies 

to charge location fees for commercial filming. On lands managed by the National 

Park Service, permit and fee requirements apparently may vary from unit to unit. 

The Interior-wide regulation proposed on August 20, 2007, standardizes the various filming-fee-and-permit rules, policies and guidelines that were on the books 

previously. But the new rule is just as subject to misinterpretation as the old ones. 

The time to clarify the language, the rule, and the policy is before it is made final. 

That is how the rulemaking process is supposed to work. 

In the past several years, SEJ has heard from other journalists about the strictures placed on them by the fee-and-permit rules, usually in major National Parks, 

but also on other federal lands. Most often, the complaints come from producers of 

documentary films focusing on wildlife or conservation issues in the parks. What 

they film is essential to public understanding of the decisions the Interior Department makes in managing natural resources. Those policies and practices are just 

as much news as a wildfire or presidential press conference with a mountain backdrop. 

While the proposed rule would specifically exempt those engaged in ‘‘news coverage’’ from needing to get a permit, it does not define the term. Would that be left 

to the various agencies to decide, as it apparently is now? In the permit guidelines 

for Yellowstone National Park, the news exemption applies only to crews filming 

‘‘breaking news,’’ while those shooting ‘‘human interest, staged events or other topics’’ must get a permit. And it leaves the determination of what is ‘‘breaking news’’ 

to the discretion of the park’s public affairs officers. 

The proposed rule would require permits for all ‘‘commercial filming,’’ which it defines as the ‘‘digital or film recording of a visual image or sound recording by a person, business or other entity for a market audience.’’ Lumping sound recording with 

digital or film recording of visual images seems to go beyond the letter and intent 

of the law. It mentions ‘‘documentary’’ as an example of a commercial filming 

project—seemingly without regard to its role as long-form news coverage. 

And to classify any recording of visual images ‘‘for a market audience’’—another 

undefined term—might be read to encompass commercial broadcasting, Internet 

webcasts or podcasts that are financed via advertising or subscriptions, or even 

multimedia productions by mainstream news media, such as newspapers. These 

days, a video camera and digital recorder are just electronic forms of a reporter’s 

notepad—will their use be regulated? 

Another disturbing aspect of the new rule is the proposed requirement that permit applicants obtain insurance sufficient to protect the U.S. government from any 

liability for the applicant’s activities. The proposed rule does not define what coverage is sufficient, but if the Yellowstone guidelines are any indicator, applicants 

would have to show they have coverage of $1 million or more. That is a substantial 

burden for self-employed free-lance or independent journalists, whose ranks are legion and growing. Without the salary and benefits enjoyed by employees of mainstream media, many independent journalists would be hard-pressed to afford fees 

of $200 and up, plus insurance premiums, to report non-breaking news features for 

sale to media outlets. 

The original law signed back in 2000 was meant to apply primarily to big, Hollywood-style movie productions and to commercial still photography that used models 

or unnatural props. The fees required by the law were to be based on the size and 

duration of the filming enterprise, and the law specifically exempts fees for still photographs taken on Interior-managed lands generally available to the public. We 

29

think Interior should limit its rule to what Congress wanted regulated, and no 

more. 

In order to comply with the letter and intent of the law, the Department of Interior needs to adopt the broadest possible definition of what constitutes ‘‘news coverage’’ in deciding what filming, photography or recording activities are exempt from 

regulation via permits and fees. The rule should exempt all types of news coverage, 

not just breaking news, and it should not automatically classify all documentaries 

as commercial filming ventures. Ambiguity, or discretion, is a recipe for confusion 

and potential trouble, as Kinna Ohman’s experience demonstrates. 

The rule also should explicitly state the law’s presumption that still photography 

is allowed without permit or fee, except in certain very narrow circumstances. Finally, the department needs to clearly exempt audio recording from permit and fee 

requirements, as that was not even mentioned in the law. 

Above all, we hope the department would be more mindful in drafting regulations 

such as this of the need to steer well clear of anything that would infringe on the 

ability of journalists or everyday citizens—who can be journalists, too—to share 

with the public how our nation’s lands and resources are being cared for and managed. 

Mr. Chairman, with your permission I’d like the record of this hearing to include 

the comments which SEJ filed Oct. 19, 2007, in the Interior Department rulemaking. Eighteen other journalism groups joined SEJ in submitting those comments, reflecting the broad concern within the journalistic community about the potential impact of this rule on how we practice our craft. These comments amplify 

our concerns. 

In closing, I want to thank the Chairman and the Committee for holding this 

hearing. P.L. 106-206 was hammered out in this very room some eight years ago. 

If anyone would know the intent of the original law, it would be this Committee. 

You are to be commended for this kind of constructive oversight. I would be happy 

to answer any questions you or members of the committee may have. 

The CHAIRMAN. Thank you, Tim, and without objection your comments will be made part of the record. 

The CHAIRMAN. Ms. Cochran. 

STATEMENT OF BARBARA COCHRAN, PRESIDENT,

RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION 

Ms. COCHRAN. Thank you, Mr. Chairman, Mr. Duncan and other 

members of the Committee. I am Barbara Cochran, the President 

of the Radio-Television News Directors Association. Thank you for 

inviting me to appear today on behalf of the 3,000 electronic journalists who are members of RTNDA. 

Our members cover news for local, national, and international 

audiences. They frequently cover stories on public lands. Sometimes the story involves breaking news such as a wild fire or a 

missing person. On other occasions the story can be more timeless 

such as an in-depth series on land use policies or a feature on the 

return of once endangered wildlife to park land. 

Members of RTNDA are concerned that the rules as currently 

drafted may have the unintended consequence of limiting their 

ability to report such stories. While we appreciate your very wellintentioned efforts to appropriately manage private uses of our 

public resources, we urge you to revise the program and fee regulations to make clear that they do not apply to journalists or to the 

collection or reporting of newsworthy information. 

The Department of the Interior’s rules traditionally have imposed no restrictions on news photography on public land or any 

fee or permit requirements. Consistent with this history, the new 

rules exempt news coverage from the permitting requirements. 

30

Fees are applicable, however, to commercial filming activities or 

similar projects, and therein lies the rub. 

Simply put, news gathering is not always characterized by bright 

lines and could be said to involve commercial filming. Getting video 

for the land use series, or recording ambient sound for a feature 

on birds, or conducting an interview with a park official are all 

very typical news gathering activities. But would a reporter or producer have to apply for a permit and pay a fee in order to do this 

work? 

Given the inherent vagueness of the proposed rules, RTNDA cautions that news coverage of important stories may become subject 

to differing interpretations by park administrators. 

We support the Interior Department’s goal of standardizing its 

permit application and fee collection processes, but we are concerned that such an effort could perpetuate misinterpretation and 

arbitration decisionmaking and extend the restrictions beyond the 

statute upon which they are based. 

Let us take a look at the situation in two national parks that illustrate the disparities and uncertainties that now exist. I will 

start with the park just outside this building, the National Mall. 

The National Mall administrator seeks to regulate news coverage 

as follows: A permit is not required to cover breaking news. Breaking news coverage is defined as that which does not require any 

setup whereas any news coverage requiring setup would require 

the journalist to obtain a permit in advance. 

Unfortunately, this policy requires journalists to engage in a 

legal analysis as they decide what equipment to use. Does the television reporter tell her camera operator to leave the tripod at the 

studio so that they will avoid triggering the permit requirement? 

Would radio journalists whose equipment is inherently portable 

ever be required to obtain a permit under the setup standard? And 

what about bloggers with camcorders? 

Now let us take a look at a well-known western park, Yosemite. 

The administrators there have opted to take a more intrusive approach. A journalist’s obligation to obtain a photography permit depends on the nature of the event covered. Breaking news is defined 

as something that cannot be covered at any other time or location. 

But Yosemite’s policies go on to impose additional content-based restrictions on non-breaking coverage. 

Specifically, administrators may grant a photography permit 

based on their own determination that the park would benefit from 

the increased public awareness that would result from the journalist’s final product. Under this standard how could a journalist ever 

gather footage for an investigative piece that exposes a scandal or 

criticizes the park’s administration? 

Journalists do more than cover immediate situations such as 

brush fires. They are traditionally considered to constitute news. 

They undertake ongoing and detailed analyses of societal and environmental trends that are newsworthy and important to the public. 

But by limiting the permit exemption to news coverage, the Department of the Interior effectively preserves park administrators’ 

discretion to restrict disfavored speech either through overt policy 

pronouncements or inaction on permit applications. 

31

RTNDA believes that the public’s interests are best served by 

permitting journalists the maximum flexibility to cover any story 

at anytime so long as the simple act of making an audio or visual 

record does not itself endanger precious natural resources or the 

public safety. 

RTNDA therefore urges this Committee to recommend a revision 

of the rules in order to avoid interfering with a journalist’s ability 

to gather and report the news. Simply put, the rules should exempt 

all forms of journalistic activity whether for breaking news or documentaries, and whether conducted by a network news crew or a 

freelancer. They should not impose restrictions on the types of 

equipment that can be used, and consistent with the First Amendment, they should not put government employees in the position of 

determining what is or is not news. 

Thank you, Mr. Chairman, for the opportunity to testify on behalf of RTNDA. 

[The prepared statement of Ms. Cochran follows:]

Statement of Barbara Cochran, President,

Radio-Television News Directors Association 

Mr. Chairman, Ranking Member Young, and Members of the Committee, I am 

Barbara Cochran, President of the Radio-Television News Directors Association. 

Thank you for inviting me to appear today on behalf of the 3,000 electronic journalists, educators, students and executives who comprise RTNDA, the world’s largest 

professional organization devoted exclusively to electronic journalism. 

At the Committee’s request, I will address current policies and proposed regulations that could impose fees and permit requirements on electronic journalists engaged in news gathering in our nation’s parks and on federal lands. While RTNDA 

supports your well-intentioned efforts to appropriately manage private uses of our 

public resources, RTNDA is concerned that the rules as currently drafted may have 

the unintended consequence of limiting our members’ ability to report on issues of 

interest and importance to the American public. RTNDA urges you, therefore, to revise the permit and fee regulations so as to makeclear that they do not apply to 

journalists or to the collection or reporting of newsworthy information. 

Americans are fortunate to suffer from an embarrassment of riches—both in 

terms of our abundant and diverse natural resources and in the seemingly endless 

sources of information available at the click of a button. By their profession, journalists are uniquely situated to cut through the dizzying chatter of the information age 

to provide audiences with relevant information about their communities, their leaders, and their environment. Presumably recognizing the fundamental role journalists play in our society as surrogates for the public, the Department of the Interior’s 

rules traditionally have imposed neither restrictions on news photography on public 

land nor fee and permit requirements. Consistent with this history, the new rules 

exempt ‘‘news coverage’’ from the permitting requirements. Fees are applicable, 

however, to ‘‘commercial filming activities or similar projects.’’

Therein lies the rub. Simply put, newsgathering is not always characterized by 

bright lines, and could be said to involve ‘‘commercial filming.’’ Certainly, the rule 

as written appears to contemplate circumstances where, for example, a crew is sent 

out to cover a wildfire on public land as ‘‘breaking news.’’ But, a camera crew capturing background footage for an upcoming, in-depth series on federal land use policies might be cowed into abandoning their efforts if their presence is challenged by 

a Bureau of Land Management official who insists that they cannot film without 

a permit. Likewise, under the proposed regulations, if a radio journalist and her 

producer have not received a permit, they might be unable to make audio recordings 

of ambient sound for a piece on the effects of climate change on migratory birds. 

It is entirely unclear whether a journalist wishing to conduct an interview with a 

government official on public land would have to apply in advance and jump 

through the hoops of the permitting process. Given the inherent vagueness of the 

proposed rules, RTNDA cautions that news coverage of important stories may become subject to differing interpretations by park administrators. 

The Department of the Interior has professed its desire to standardize the permit 

application and fee collection processes across its constituent agencies. If done 

thoughtfully, that may well prove a beneficial undertaking. In crafting new rules, 

32

the Department should take care not to perpetuate misinterpretation, arbitrary decision-making and extend the restrictions beyond the letter and intent of the statute 

upon which they are based. The current photography permit guidelines of four national parks provide specific illustrations of the disparities and uncertainties that 

arise in the absence of regulatory clarity. 

I will start with a park that is just outside this building, the National Mall and 

Memorial Parks, the site of iconic and sometimes spontaneous events. In a compendium of public use restrictions and limitations, the administrator of the National 

Mall seeks to regulate news coverage as follows: a permit is not required to cover 

‘‘breaking news,’’ so long as journalists comply with the same access and use restrictions as permit holders. On the National Mall, ‘‘breaking news’’ coverage is defined 

as that which ‘‘does not require any set-up,’’ whereas any news coverage requiring 

‘‘set-up’’ would require the journalist to obtain a permit in advance. 

Unfortunately, this policy seems to require electronic journalists to engage in a 

legal analysis as they decide what equipment to use. Does a television journalist tell 

her camera operator to leave the tripod at the studio so that they will avoid triggering the permit requirement? Would radio journalists, whose equipment is inherently portable, ever be required to obtain a permit under the ‘‘set-up’’ standard? 

What about bloggers with camcorders? 

Journalists chasing stories through Florida’s Everglades may fare somewhat better. The current Everglades policy exempts ‘‘news photographers and television 

crews’’ from the permitting process, provided that they do not use sets or props in 

their coverage. While this policy is not perfect, it does pair the permitting process 

with journalists’ credentials rather than the content of their coverage and therefore 

raises fewer constitutional concerns. 

The administrators of two well-known western parks, Yosemite and Yellowstone, 

have opted to take a more intrusive approach in regulating electronic journalists’ 

coverage of newsworthy events. Indeed, in these two parks, the current policies go 

far beyond the permitted time, manner, and place restrictions permitted by the statute and the proposed regulations. 

In Yellowstone National Park, as on the National Mall, a journalists’ obligation 

to obtain a photography permit depends on the nature of the event covered. ‘‘Breaking’’ news coverage does not require a permit, but journalists covering non-breaking 

stories, human interest stories, and ‘‘[d]ocumentaries filmed specifically for sale to 

a news station or educational channel’’ must obtain a permit and pay a fee before 

they can start filming. To add insult to injury, Yellowstone’s policy guide provides 

a definition of ‘‘breaking’’ news events (‘‘something that cannot be covered at any 

other time or location’’) but then vitiates it by stating that the park’s administrators 

will make the final determination of what does—and does not—constitute a ‘‘breaking’’ story. Thus, under the guise of Congress’ legislation, park officials have positioned themselves to exert an unconstitutional measure of editorial control over 

news coverage. 

The policies of Yosemite National Park, however, may take the prize as some of 

the most blatant intrusions on electronic journalists’ rights under the First Amendment. Yosemite follows Yellowstone’s ‘‘breaking news’’ definition—an event that cannot be covered at a different time or location—but goes on to impose additional content-based restrictions on non-‘‘breaking’’ coverage. Specifically, the park’s policies 

permit its administrators—executive branch employees—to condition the grant of a 

photography permit on their own determination ‘‘that the park would benefit from 

the increased public awareness’’ that would result from the journalist’s final product. Under this standard, how could a journalist ever gather footage for an investigative piece that exposes a scandal or criticizes the park’s administration? 

In drafting the authorizing legislation, Congress considered many of these issues 

and provided specific instructions to the Department of the Interior. For example, 

this Committee noted that it was not providing the executive branch a green light 

to make content-based assessments of permit applications. The Senate Committee 

on Energy and Natural Resources concurred and, in its Report, added that permits 

would not be necessary ‘‘for media and news events.’’

By extending exemptions only to a limited set of ‘‘breaking’’ news events and by 

requiring a permit as a prerequisite for covering non-breaking stories, some of the 

nation’s parks have established polices that go far beyond what Congress appears 

to have envisioned. While RTNDA commends the Department for attempting to rectify these inconsistencies, the proposed regulations in reality undermine any attempt to address these parks’ overly-restrictive policies by purporting to shield journalistic activities under the limited umbrella of ‘‘news coverage.’’

Journalists do more than cover immediate situations, such as brush fires, that are 

traditionally considered to constitute ‘‘news.’’ They undertake ongoing and detailed 

analyses of societal and environmental trends that are newsworthy and important 

33

to the public. Journalists inform and educate their audiences about cultural events 

and other human interest stories. But, by limiting the permit exemption to ‘‘news 

coverage,’’ the Department of the Interior effectively preserves park administrators’ 

discretion to restrict disfavored speech, either through overt policy pronouncements 

or inaction on permit applications. 

The current policies and proposed regulations implicate two sources of national 

pride: the natural beauty of our public lands and our free press. RTNDA does not 

believe that either Congress or the President must choose to violate the sanctity of 

one in order to protect the other. RTNDA agrees that the public should be able to 

recapture costs and to accrue certain benefits associated with appropriate commercial uses of its land. In the same vein, RTNDA believes that the public has a right 

to learn, through journalists, whether their government is acting as a faithful trustee of the public’s land and natural resources. Because these goals are compatible 

rather than mutually exclusive, RTNDA believes that the public’s interests are best 

served by permitting journalists the maximum flexibility to cover any story, at any 

time, so long as the simple act of making an audio or visual recording or taking 

a photograph does not itself endanger precious natural resources or the public’s 

safety. 

RTNDA, therefore, urges this Committee to recommend that the rules be revised 

so as to avoid interfering with journalists’ ability to gather and report the news. 

Simply put, the rules should exempt all forms of journalistic activity, whether for 

breaking news or documentaries, and whether conducted by a network news crew 

or a freelancer. They should not impose restrictions on the types of equipment that 

can be used. And, consistent with the First Amendment, they should not put government employees in the position of determining what is or is not ‘‘news.’’

Thank you, Mr. Chairman, for the opportunity to testify on behalf of RTNDA before your committee today. 

The CHAIRMAN. Thank you, Barbara. Tony. 

STATEMENT OF TONY OVERMAN, PRESIDENT,

NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION 

Mr. OVERMAN. Chairman Rahall, Acting Ranking Member Duncan, and other members of the Committee. 

The CHAIRMAN. Mr. Young is here. 

Mr. OVERMAN. Oh, he is here now. Ranking Member Young, welcome, thank you for having us. 

My name is Tony Overman, and I appreciate the opportunity to 

testify regarding the National Press Photographers Association’s 

concern over the Department of Interior’s proposal to change its 

rules and posting new restrictions on photography on public lands. 

I am here today in my role as the President of the NPPA, but the 

majority of my time I am a photojournalist working at the Olympia 

Newspaper in Washington State’s capital. 

Founded in 1946, NPPA’s membership includes nearly 10,000 

photojournalists like me who collectively work in every national 

park in the country. In my own work, I have extensively covered 

the Mount St. Helen’s National Volcanic Monument, which is being 

proposed for national park status, and have photographed the substantial damage and ongoing reconstruction from last year’s destructive flooding in the Mount Rainier National Park. 

Photojournalists routinely cover news stories like these that 

occur on public lands, both breaking news and other non-breaking 

news events of public interest. Aside from volcanic eruptions, my 

work in the national parks would rarely be considered breaking 

news and therefore fall under the permitting processes at some 

point. 

The background: For many years, the Department of Interior did 

not restrict news photography on public lands or require 

34

photojournalists to submit to a fee and permit process. Earlier this 

year, however, DOI proposed to amend its rules to establish a fee 

for commercial filming and similar projects such as still photography. 

Under the proposal, DOI would require many photographers to 

pay a fee, receive a permit, and submit to significant conditions before being allowed to photograph on public land. There is no reason 

to limit any kind of photography if the act of taking the image or 

film does not disturb the public use of the public area. The only 

justification for restrictions would be for concern related to the actual capturing of the photographs, such as disturbing the park extensive equipment, interfering with public use, or danger to the environment or public. 

In the absence of those disturbances, the purposes of the images 

recording or video and its final use should not lead to additional 

restrictions. 

The proposed rules provide that news coverage does not require 

permit, and it therefore appears clear that the Department of Interior intended to exclude journalists from these requirements. 

However, by including vague definitions of commercial photography, the DOI fails to recognize that non-breaking news, documentary filming, audio recording, freelance reporting and a work 

for a market audience are all forms of editorial news coverage. 

These rules end up equating the impact of a large-scale Hollywood 

production to that of a single photographer with a single camera 

operating in an open public area. The proposal as drafted therefore 

would give DOI employed excessively broad discretion to define 

what is and what is not news. 

We urge the Department to take steps to adopt a bright line rule 

that is necessary to exclude all journalistic activities from these restrictions. 

In addition, we ask that any rule adopted by DOI should recognize that photojournalists typically do not distinguish between 

being on duty and off duty. We photograph any newsworthy images 

we observe, freelancers or photojournalists will later sell those photographs to news organizations. 

For example, my wife, who is also a professional photojournalist, 

and I often go to national parks on our days off. We always take 

our cameras and we always take photographs. If I were to license 

one of those photographs to a newspaper or if my newspaper itself 

used those photographs, it would then constitute news. But we 

might not be able to satisfy the Department or an agency employee 

who was questioning was our photography news coverage at the 

time. This is why we feel it is inappropriate to distinguish photography based on the end usage, which is what the Department of 

Interior is trying to do. 

To address these concerns, DOI should exclude all 

photojournalists end collection or reporting of news from any photography restrictions, and should incorporate into its rule an established definition of journalist and news. These can be found in the 

Free Flow of Information Act and the Freedom of Information Act. 

News means information about current events or that would be of 

current interest to the public. That is a huge, huge open area, and 

that should all be excluded. 

35

Even with such broad exclusions, we urge the Department to 

avoid burdensome obligations that could undermine the ability of 

photojournalists, in particular freelancers and those associated 

with small news organizations, to carry out their duties. Any new 

rule must avoid imposing on journalists any blanket time, place 

and manner restriction, and must instead require that any restrictions placed on photojournalists in a particular circumstance be 

considerably more narrowly tailored to the restrictions that apply 

to the general public. 

The presumption must be that still photography is allowed. Any 

rule adopted by DOI should maintain Congress’s presumption as 

reflected in DOI’s authorizing statutes that still photography is always permitted on public lands unless it falls under one of the narrow exceptions Congress included in the Department’s authorizing 

statute. That statute directs DOI, subject to the limited exceptions, 

that they shall not require a permit nor access fee for still photography on DOI lands if such photography takes place where members of the public are generally allowed. 

The proposed rules ignore the language of your statute and provide that still photography requires a permit if it falls under the 

broad categories, several of which go beyond the authorizing statute. 

This is not simply a semantics issue. Time is of essence when it 

comes to covering news, and it is frequently impractical to apply 

in advance to cover a news story even if it is not breaking or spot 

news. Any failure to exclude photojournalists from a permitting 

process could introduce delays that would cause photojournalists to 

miss a shot and therefore have the same effect as outright prohibition against the photography. To avoid this outcome any rule 

should therefore include a presumption that journalists and news 

photography are not subject to permitting, and that in any case 

still photography is permitted without prior permission unless it 

falls within one of the narrow statutory exceptions to that rule. 

In conclusion, photography is essential to a longstanding tradition of openness on our public lands and using photographs to 

share those lands with others. The Department of Interior’s wellintentioned efforts to protect public lands from damage will unwittingly undercut both of those core principles by preventing 

photojournalists and through them the public at large from having 

full and unrestricted access to the news on public lands. 

We respectfully urge that any restrictions on photography in 

these important areas be carefully drafted as described in this testimony to avoid interfering with the photojournalist’s ability to report the news. 

I thank you very much for allowing me to be here today to testify, and am willing to take any questions. Thank you. 

[The prepared statement of Mr. Overman follows:]

Statement of Tony Overman, Photojournalist,

President, National Press Photographers Association 

Chairman Rahall, Ranking Member Young, and other members of the Committee, 

my name is Tony Overman, and I appreciate the opportunity to testify regarding 

the National Press Photography Association’s concerns about the Department of Interior’s proposal to change its rules to impose news restrictions on photography on 

36

public lands. In addition to my role as President of NPPA, I am an award-winning 

photojournalist with The Olympian newspaper in Olympia, Washington. 

The National Press Photographers Association was founded in 1946 and is dedicated to the advancement of photojournalism, including still photography, 

videography, film and multi-media. Part of our mission is to ‘‘promote a better understanding of the photojournalists’ problems’’ and ‘‘support legislation favorable to, 

and oppose legislation unfavorable or prejudicial to photojournalists.’’ It is in that 

spirit that we wholeheartedly support the testimony presented today by our fellow 

photographers and their respective organizations. 

NPPA’s membership includes nearly 10,000 journalists, who collectively work in 

every national park in the country. In my own work, I have extensively covered the 

Mount St. Helens National Volcanic Monument, which is being proposed for National Park status, and have photographed the substantial damage and ongoing reconstruction from last year’s destructive flooding in Mount Rainier National Park. 

Photojournalists routinely cover news stories like these that occur on public lands, 

including both breaking news events and other news items of important public interest. 

Background 

For many years, the Department of Interior did not restrict news photography on 

public land or require photojournalists to submit to a fee-and-permit process. Earlier 

this year, however, DOI proposed to amend its rules to establish fees for ‘‘commercial filming activities or similar projects, such as still photography.’’ Under the proposal, DOI would require many photographers to pay a fee, receive a permit, and 

submit to significant conditions before being allowed to photograph on public land. 

The proposed rules provide that ‘‘[n]ews coverage does not require a permit,’’ and 

it therefore appears clear that the Department intended to exclude journalists from 

these requirements. 

While we acknowledge the importance of the Department’s efforts to protect our 

nation’s natural resources and appreciate its efforts to maintain this important distinction, we are concerned that the draft rules do not draw the bright line that is 

necessary to exclude all journalistic activities from the photography restrictions. In 

comments filed in response to the proposal, we urged the Department to clearly and 

broadly define news coverage—avoiding artificial distinctions included in the draft 

over whether, for example, a photograph is ‘‘for a market audience’’ or will be used 

in a documentary, terms that can apply equally to journalistic and non-journalistic 

activities—and find a way to make clear that all news coverage and journalists will 

be exempt from restrictions on photography. 

Even with such a broad exclusion, we urge the Department to also to avoid burdensome obligations that could undermine the ability of photojournalists—in particular, freelancers and those associated with small news organizations—to carry 

out their duties. Finally, any rule adopted by DOI should maintain Congress’ presumption that still photography is always permitted on public land unless it falls 

into one of the narrow exceptions that Congress included in the Department’s authorizing statute. 

Restrictions Must Clearly Exclude All News Photography 

Consistent with the Department’s apparent goal to avoid restrictions on 

photojournalists, the proposed rules explain that ‘‘news coverage’’ does not require 

a permit. That term, however, is not defined in the draft, and the proposed regulation leaves open the distinct possibility that it will be misconstrued or that it will 

otherwise be interpreted to restrict working journalists. For example, the draft’s definition of ‘‘commercial filming’’ includes photographs created ‘‘for a market audience’’ 

or for use in a documentary, and thus could be thought to suggest that photographs 

so used do not constitute ‘‘news coverage.’’ Nearly all photography can be said to 

be ‘‘for a market audience.’’ Moreover, the line between documentary photography 

and journalism is effectively nonexistent; documentaries are widely understood to be 

a particular form of journalism. 

The proposal, as drafted, thus would give DOI employees excessively broad discretion to define what is and is not news. That result, of course, would be entirely inconsistent with the government’s constitutional obligation to avoid defining or regulating the collection and reporting of news and with our government’s tradition of 

openness and fairness to the press. 

Many of NPPA’s members work as freelance journalists. Although their work may 

will ultimately be published or appear on the Internet, at the time they are taking 

pictures they may not be able to satisfy an official who questions them as to whether they are engaged in ‘‘news coverage’’ within the meaning of the rule or prove that 

they are employed by a news organization. Usually only staff photographers have 

37

1Similarly, many stories involving public lands are important, but not ‘‘breaking,’’ news, a distinction drawn in the Department’s existing rules. 36 C.F.R. § 251.51. The Department’s proposed rules do not and should not distinguish between these types of coverage. 2See, e.g., National Sec. Archive v. U.S. Dep’t of Defense, 880 F.2d 1381, 1387 (D.C. Cir. 1989) 

(defining a representative of the news media as ‘‘a 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’’). 

See also Free Flow of Information Act of 2007, H.R. 2102, 110th Cong. § 4(2) (1st Sess. 1998) 

(with certain exceptions, defining a covered journalist as ‘‘a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that 

concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain[, including] a supervisor, employer, parent, subsidiary, or affiliate of such covered person’’); Office of Management & Budget, Uniform FOIA Fee Schedule and Guidelines § 6(j) (52 

Fed. Reg. 10017 (Mar. 27, 1987) (‘‘The term ‘news’ means information that is about current 

events or that would be of current interest to the public.’’). 

those press credentials while freelancers, contract photographers and stringers may 

not, yet they are photojournalists just the same 1

The draft’s use of the term ‘‘news coverage’’ to delineate photography that is not 

subject to permitting requirements suggests a distinction that does not exist for 

freelancers and for many other photojournalists. A freelance photojournalist typically does not distinguish between being ‘‘on duty’’ and ‘‘off duty’’ and takes photographs of any newsworthy events he or she observes, later selling those photographs 

to a news organization. For example, my wife (also a professional photographer) and 

I sometimes go to national parks on our days off. We always take photos during our 

trips. If we licensed one of these photographs to a newspaper, the photograph would 

constitute news, but we might not have been able to satisfy a Department or Agency 

employee that the photography was ‘‘news coverage’’ until after it was licensed to 

the newspaper. 

Given the millions of photographers who visit public lands each year, it would 

simply be unworkable to charge DOI personnel with the responsibility of drawing 

complicated and ultimately arbitrary lines between whether photography is or is not 

commercial. To avoid creating this situation, any permit-and-fee regulation should 

explicitly exclude application in any circumstance to photojournalists or to the collection or reporting of news. The regulation should include an established definition 

of a ‘‘journalist’’ and of ‘‘news’’ 2 and should make clear that both the activities of 

freelance photojournalists and coverage of all news stories, not simply ‘‘breaking’’ 

news, are permitted without restriction. 

No Burdensome Conditions Should Be Imposed on Photojournalists 

There are two additional aspects in which the regulation should clarify the degree 

to which photojournalists will be protected and permitted to do their jobs. First, 

even as it claims to exclude news coverage from its permitting restrictions, the proposed rule subjects those engaged in what would clearly be defined under any standard as photojournalism to a staff judgment about whether ‘‘time, place, and manner 

restrictions’’ should be imposed on their work in a particular situation. Restrictions 

could be imposed on the number of photographers permitted, the type of equipment 

a photographer may use, or what areas are open to the public but off-limits to news 

photographers. These broad provisions are entirely inconsistent with our nation’s 

tradition of journalistic freedom, and they vest DOI staff with virtually unchecked 

discretion to limit or restrict journalistic activities. 

Any new photography rule should recognize the important role that journalists 

play in our society and acknowledge journalists’ special needs as they perform their 

jobs. The Department must avoid imposing on journalists any blanket time, place, 

and manner restriction, and its rule must require that any restriction placed on 

photojournalists in a particular circumstance be considerably more narrowly tailored 

than restrictions that apply to the general public. 

Second, even though a photojournalist is not required to apply for a permit, DOI’s 

proposal does not make clear that photojournalists would not be subject to burdensome and unreasonable conditions, including requiring the photographer to acquire 

an insurance policy, indemnify the United States, repair the area used for photography, or post a bond to guarantee any necessary repair. These requirements, like 

other obligations that might be characterized as relating to ‘‘time, place, and manner,’’ could improperly prevent many photojournalists from reporting the news on 

public land. 

Those requirements would place a disproportionate burden on freelance journalists, who often work on a last-minute basis, paying their own costs with the intention to subsequently sell photos to a news outlet, and on photojournalists affiliated 

38

3 16 U.S.C. § 460l-6d(c)(1). 

with smaller news organizations without the means to comply with any restrictions 

the staff might impose. 

In sum, despite the Department’s apparent intent, NPPA is concerned that the 

proposed conditions could create unacceptable restrictions on photojournalists’ ability to collect and report the news, and that they would have a particularly harmful 

effect on smaller news organizations and freelance photojournalists. The Department must clarify that these requirements should apply to large commercial operations, such as those of Hollywood-style entertainment productions, and not to 

photojournalists. 

Still Photography Must Presumptively Be Permitted 

In Congress’s authorizing statute, it directed DOI that, subject to limited exceptions, the Department ‘‘shall not require a permit nor assess a fee for still photography on [DOI] lands...if such photography takes place where members of the public 

are generally allowed.’’ 3 The proposed rules ignore the language of the statute and 

provide that ‘‘[s]till photography requires a permit if’’ it falls into a number of broad 

categories, several of which go beyond those authorized by statute. 

While the proposal is clear that news coverage is not subject to permitting—and, 

as I have explained, news coverage must be read broadly—the Department’s shift 

in language marks a significant change in approach. The statute presumes that photography will be permitted unless the government can show that one of the limited 

exceptions applies. In contrast, the proposed rules suggest that a photographer 

would be responsible for showing that he or she is engaged in ‘‘news coverage,’’ and, 

failing that, showing that his or her activities do not fall into any of the broadlyworded situations under which the rule would require a permit. 

This is not simply a semantic issue. Time is of the essence when it comes to covering news, and it is frequently impracticable to apply in advance to cover a news 

story, even if it is not ‘‘breaking’’ or ‘‘spot’’ news. Any failure to unambiguously exclude photojournalists from a permitting process could introduce delays as officials 

consider whether a newsgathering activity is permissible. An untimely decision 

would have the same effect as an outright prohibition against photography. To avoid 

this outcome, any rule should therefore include a presumption that journalists and 

news photography are not subject to permitting and that, in any case, still photography is permitted without prior permission. A permit or fee should be required only 

if the government can meet the burden of showing that a photographer falls into 

one of the limited categories set forth in the statute. 

Conclusion 

The photography of Ansel Adams and his contemporaries in the early part of the 

twentieth century allowed citizens and lawmakers, many of whom could not travel 

to visit our nation’s expansive open lands, to understand the importance of protecting and preserving areas that later became national parks. Today, freelance 

photojournalists like Jim Brandenburg carry on that documentary tradition in the 

parks as well as on other natural treasures that might one day become publiclyowned or national parks. Photography, in other words, is central to our longstanding 

traditions of openness on public lands and of using photographs to share those lands 

with others. 

The Department of Interior’s well-intentioned efforts to protect public lands from 

damage will unwittingly undercut both of these core principles by preventing 

photojournalists, and, through them, the public at large from having full and unrestricted access to gather news on public lands. While the government may believe 

that the press has no more right of access than that of the public we have no less 

right either. We therefore respectfully urge that any restrictions on photography in 

these important areas be carefully drafted, as described in this testimony, to avoid 

interfering with photojournalists’ ability to report the news. 

Mr. Chairman, I appreciate the opportunity to appear before you today, and I 

would be pleased to answer any questions that you or other members of the Committee might have. 

The CHAIRMAN. Thank you, Tony. Steve. 

39

STATEMENT OF STEVEN SCOTT, CHAIRMAN OF THE BOARD, 

PROFESSIONAL OUTDOOR MEDIA ASSOCIATION 

Mr. SCOTT. Chairman Rahall, Ranking Member Young, members 

of the Committee, I am Steve Scott, an independent television producer from Norman, Oklahoma. I am Chairman of the Board of the 

Professional Outdoor Media Association, and a designated representative to this Committee for the Foundation for North American Wild Sheep. I appreciate the opportunity to be here today. 

The Professional Outdoor Media Association, or POMA, is a 

group of outdoor media members dedicated to preserving and promoting traditional outdoor activities such as hunting, fishing, and 

shooting, and other outdoor pursuits. We represent a broad spectrum of the outdoor recreational industry from groups like the 

American Sportfishing Association, the National Wild Turkey Federation, and Safari Club International, editors and writers of ‘‘Field 

& Stream’’ and outdoor life magazines, and sponsors of outdoor television programs on ESPN2 and the Versus Network. 

POMO represents the icons of the outdoor industry, but our core 

constituents are less well known. We represents scores of freelance 

writers, photographers, videographers and producers, many of 

whom are negatively impacted by the current system. 

The Department of Interior’s mission states in part that they are 

to protect and provide access to our nation’s natural and cultural 

heritage. The outdoor media is one of the Department’s most valuable allies in disseminating the conservation message and creating 

public awareness of current issues covering our public lands. However, the current regressive land use fee system has had a chilling 

effect on reporting and promotion of public land issues, to the detriment of the Department and the American people. 

The outdoor media, the professionals to champion public land 

issues by providing vicarious access to our nation’s natural beauty 

were not the intended targets of the original legislation. The bill 

was enacted to address the large-scale feature film productions 

that generate millions in profits while filming on public land. 

The late Senator Craig Thomas, a sponsor of the original bill, 

told the Rocky Mountain News, ‘‘The provision was meant for a 

larger scale Hollywood movie production, not small-scale nature 

films.’’ But what was originally created as a net to capture fees 

from the big fish from Hollywood has become a sane, extracting a 

toll from every lone nature photographer and documentary producer to such an extent they no longer see the forest for the fees. 

As the rules exist today, Ansel Adams, the photographer of magnificent black and white landscapes and creator of the book ‘‘Ansel 

Adams: The National Park Services Photographs’’ would have been 

charged $250 for each and every day he spent in Yosemite Park 

with camera in tow. If public land use fees had been in effect in 

the time of Adams, I wonder if today we would have been able to 

enjoy his remarkable body of work. 

The most significant inequity of the current system is the application of fees as they pertain to the number of individuals on public 

land. Attachment 1 of my testimony is a page from BLM’s website 

addressing filming on public lands. It reveals public land use in 

California and other states are equal for a crew of one as 30 people. 

A single wildlife photographer pays the same as a feature film enVerDate 0ct 09 2002 15:02 Mar 04, 2008 Jkt 098700 PO 00000 Frm 00043 Fmt 6633 Sfmt 6602 L:\DOCS\39581.TXT Hresour1 PsN: KATHY
40

tire location crews. Perhaps more telling, if a remake of the Ten 

Commandments was shot today on BLM land, the daily land use 

fee for the exodus scene where Moses led a cast of thousands out 

of Egypt would be slightly larger than the $250 paid by the lone 

photographer. BLM’s daily use charge for the entire cast and crew 

of the exodus would be $600. 

This is indicative of the current system, charging a crew of one 

the same as the crew of 30 is inequitable and inherently unfair, 

and while land use fees are an inconsequential part of a feature 

film or network commercial’s budget, the regressive and cumulative 

daily fees that accrue against an independent producer or freelance 

photographer are not only significant expenses, they are proportionately such a large percentage of the project’s budget they are 

often the catalyst for moving a project from public land to another 

location. 

Clearly the current system of land use fees puts a disproportionately large financial burden on the individuals and small businesses of the outdoor media. There is, however, a simple solution. 

Create a de minimis exception or minimum use classification for individuals and media crews of five persons or less would remedy the 

inequity of the current system without compromising the process of 

unifying and standardizing the rules throughout all government 

agencies. By creating a five or less de minimis or minimum use 

classification, the media and other low-impact groups who have 

suffered an unforeseen and unintended consequences of the regulations would be remedied. Appropriate payment would continue to 

be made by those for who the fees were originally intended and the 

independent outdoor media would once again be free to report on 

and feature conservation issues for public land without overly burdensome financial consequences. 

I appreciate the opportunity to be here today and happy to answer any questions you may have. 

[The prepared statement of Mr. Scott follows:]

Statement of Steven Scott, Chairman of the Board,

Professional Outdoor Media Association 

Chairman Rahall, Ranking Member Young, Members of the Committee, I am 

Steve Scott, an independent television producer from Norman, Oklahoma. I am 

Chairman of the Board of the Professional Outdoor Media Association, and a designated representative to this Committee for the Foundation for North American 

Wild Sheep. I appreciate the opportunity to testify before this committee on ‘‘New 

Fees for Filming and Photography on Public Land.’’

The Professional Outdoor Media Association, or POMA, is a group of outdoor writers, editors, photographers, producers, broadcasters, and corporate partners dedicated to preserving and promoting traditional outdoor activities such as fishing, 

hunting, shooting, and other outdoor pursuits. Our membership represents a broad 

spectrum of the outdoor recreational industry; from editors and writers of Field & 

Stream and Outdoor Life magazines, to industry groups like the American 

Sportfishing Association, the National Wild Turkey Federation, and Safari Club 

International, and producers and sponsor’s of traditional Saturday and Sunday 

morning outdoor television programs on ESPN II and the Versus Network, POMA 

represents the icons of the outdoor recreation industry. However, the vast majority 

of our members, and the core of our constituency, are less well-known. We represent 

scores of freelance writers, photographers, videographers and producers, most of 

whom are negatively impacted by the current land-use fee system. I am myself, an 

independent television producer, and my business would be considered, under almost any definition, a small business. We produce more than thirty half-hour television programs each year, and I can tell you from personal experience, the current 

41

land-use fee structure has had a decidedly negative impact on my business, and that 

of hundreds of other outdoor media members. 

A stated purpose of this hearing is to standardize the criteria and fee structure 

of the agencies of the Department of Interior and Department of Agriculture for 

filming and photography on public land. I applaud this Committee’s sentiment, and 

hope to be of some small assistance in the development of a fair and equitable system. 

The Department of Interior’s mission states, in part, they are to ‘‘protect and provide access to our Nation’s natural and cultural heritage.’’ The professional outdoor 

media of this country is one of the Department’s most valuable allies in disseminating the conservation message and creating public awareness and critical thinking on current issues concerning our public lands. However, the present system of 

regressive land-use fees assessed on outdoor media activities has had a chilling effect on the reporting and promotion of public land issues, and is, in fact, prompting 

outdoor producers, photographers, and videographers to seek alternative venues to 

public land, including private property, and foreign soil. 

The public land of this nation is just that: public land. It should be available to 

be used and enjoyed by its citizens and visitors with little or no cost, and for the 

most part, that is the reality today. However, when a large, Hollywood studio chooses Yellowstone Park or Mt. Rushmore as the location for its latest multi-million dollar feature film, assessing land-use fees for monitoring, administration, and use are 

clearly appropriate. 

And while the questions of free public access for the people, and reasonable landuse charges for feature-film projects are black and white, there are numerous circumstances where the answer is not as obvious. 

Members of the outdoor media periodically ply their craft on public lands, with 

the intent of earning a living. Thus, by the current standard, the activity is deemed 

commercial, and land-use fees are assessed. Often, however, the activity is anything 

but profitable, as numerous outdoor media projects are undertaken on a speculative 

basis. The freelance writer’s article and photo package detailing the dependency of 

Alaskan bears on the annual salmon run; the wildlife photographer building an inventory of photos for potential inclusion in a stock photo agency’s catalog; the independent television producer, filming a documentary on wolf depredation on 

ungulates in the Yellowstone ecosystem; all commercial activities under the present 

standard, but in the reality of the marketplace, unlikely to generate commercial 

gain. 

An exception to the permit requirement does exist. Media crews covering what is 

considered ‘‘breaking news’’ do not have to apply, wait for approval, and pay for 

land-use permits. This applies to public lands in both Washington state and Washington D.C.. But a follow-up story on the aftermath of the Yellowstone fire, or the 

reintroduction of wolves into the ecosystem, would require a media land-use permit, 

while interviewing Government officials on the same topics on the public land of the 

National Mall would not. 

Be it print, radio, or television, traditional news media is clearly a ‘‘for profit’’ venture. However, an exception from obtaining land-use permits for news media is intuitive and appropriate, as the news media was not the target of the enabling legislation. 

An exception for outdoor media should also exist. Drawing attention to a field that 

receives few headlines, the outdoor media provides the public valuable information 

that they otherwise would not receive. The outdoor media that facilitates the mission of our public lands by providing vicarious access to our Nation’s natural beauty, 

were not the intended targets of the original regulations either. The legislation was 

promulgated to address large-scale commercial productions that generate significant 

profits filming on public land. 

The intent of the original legislation is clear. A sponsor of the bill, the late Sen. 

Craig Thomas of Wyoming, told the Rocky Mountain News ‘‘the provision was 

meant for larger-scale Hollywood movie productions, not small-scale nature films.’’ 

But what was originally created as a net to capture fees from Hollywood production 

crews, has become more like a seine, netting and extracting a toll from the solitary 

nature photographer and documentary producer to such an extent they no longer 

see the forest for the fees. 

Capturing nature on film or in photographs is very different from scripted and 

storyboarded commercial productions. When the director of a Rocky Mountain-based 

Coors commercial says ‘‘action,’’ a trained animal receives a cue, performs its trick, 

and the scene is done. For the professional outdoor photographer or videographer, 

the wolf, bear, or wild sheep which is the subject at hand is often, less cooperative. 

By its very nature, wildlife photography is extremely time consuming, often done 

in the harshest conditions; an important distinction that points out one of the inherVerDate 0ct 09 2002 15:02 Mar 04, 2008 Jkt 098700 PO 00000 Frm 00045 Fmt 6633 Sfmt 6621 L:\DOCS\39581.TXT Hresour1 PsN: KATHY
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ent inequities in the proposed rules. While large film and television production 

crews need relatively little time on public lands to complete their project, our nation’s professional outdoor media may spend weeks or months in the field in order 

to capture a few magic seconds of unstaged Nature in its pristine state. And when 

outdoor media members spend time in the field, under the current fee structure, we 

also spend money, and lots of it. 

The current fee system is implemented if an activity has potential for commercial 

gain. If the activity is deemed for commercial purposes, then time and numbers of 

participants on the public land location are utilized to calculate the total land-use 

fee. As the rules exist today, acclaimed nature photographer Ansel Adams, the creator of those magnificent and historically significant black-and-white photographs 

which inspire an appreciation for natural beauty and the conservation ethic, and author of the classic book Ansel Adams: The National Parks Service Photographs, 

would have been charged $250 for each and every day he spent in Yosemite Park 

with camera in tow. If public land-use fees had been in effect in Adams’ day, I wonder if we would have had the opportunity to enjoy his remarkable photographs 

today? 

Nature photography, documentary, and television projects, traditionally low-budget productions to begin with, must spend a significantly greater amount of time in 

the field to capture wildlife drama than the Hollywood crews staging and blocking 

trained bears, canines, and other cooperative beasts. As fee payments are required 

as a multiple of the time spent on public land, outdoor media members are required 

to pay significantly greater amounts than those in the entertainment industry. 

However, the most significant inequity of the current system is the disproportionate application of fees as they pertain to the number of individuals actually on 

public land. This inherent imbalance in the current system transforms the land-use 

fee into a de facto regressive tax as it applies to outdoor media. 

Attachment 1 of my testimony is a page from the website of the Bureau of Land 

Management, addressing ‘‘Filming on Public Lands’’ As an example of the inherent 

bias in the system, the land-use fee in California and Utah is the same for a crew 

of one as it is for a crew of up to thirty people. A single wildlife documentary maker 

pays the same daily land-use fee as would a feature-film’s entire location crew, including talent, camera operators, directors, producers, grips, electricians, sound 

technicians, and probably even a ‘‘best boy.’’ Perhaps more telling; if a remake of 

The Ten Commandments was shot today on BLM land in California, the daily landuse fee for the Exodus scene, where Moses leads a cast of thousands of out Egypt, 

would be slightly more than the $250 paid by the lone wildlife documentary maker. 

BLM’s daily-use charge for sixty or more people, which includes the cast and crew 

of the remade Exodus, would be $600. 

In November of this year, I went on location in the Shoshone Wilderness in northwest Wyoming. My guide, Monte Horste of Ishaowooa Outfitters, is a licensed outfitter and guide who pays a substantial annual fee to bring clients into his guide 

territory. Mr. Horst is a competent videographer, and instead of brining along an 

additional camera operator, Mr. Horst assumed the duties of camera operator, so 

as not to incur the additional expense of pack mules and horses for another crew 

member. Mr. Horst and I completed the shoot in four days, and the only difference 

between my experience and that of the other six clients in camp, was that as working outdoor media, I packed in an additional twenty pounds of camera gear. Four 

days on location to make a television program, with no additional personnel or pack 

animals on National Forest land, and my use fee was, like the remake of The Ten 

Commandments, $600. 

This illustrates the inequity of the current system: charging a crew of one the 

same fee as is charged a crew of thirty, is inequitable and inherently unfair. In addition, while the expense of land-use fees are an inconsequential part of a feature 

film or network commercial’s budget, the cumulative, daily fees that accrue against 

an independent producer or freelance photographer are not only significant budgetary expenses, they are, proportionately, such a large percentage of the project’s 

budget, the fees could reasonably be viewed as a regressive tax, and will often, be 

the catalyst for moving a project from public land to another location. 

In addition to testifying about my personal experiences, and as a representative 

of the Professional Outdoor Media Association, I am also before you here today as 

a representative of the Foundation for North American Wild Sheep, or FNAWS. In 

addition to being a life member of the organization, I have also been retained to 

consult and produce a television series for the organization, covering the conservation of wild sheep and other big game species of the western United States. 

Sustained-use sport hunting is an integral part of modern wildlife species management, and as a tool of conservation, is an important part of the television series. 

43

FNAWS is an organization that raises and spends millions of dollars each year 

for the sole purpose of ‘‘putting sheep on the mountain.’’ Their conservation projects 

are numerous, and include sheep capture and relocation, wildlife research, habitat 

improvement, and acquisition of buffer lands to prevent transmission of disease 

from domestic stock to wild sheep. Since 1984, FNAWS has raised and spent over 

$30,000,000 for habitat and wildlife conservation projects, many of which were DOI 

initiated, and funded at their request by FNAWS. 

Many of these DOI or agency projects benefit wild sheep, as three of the four wild 

sheep species of North America are indigenous to the United States. Wild sheep live 

in wild places, and obtaining footage of these magnificent creatures can be a long 

and arduous task. The average television shoot for wild sheep is fifteen days, and 

virtually all of the filming would take place on Federal land. Based on the current 

regulations, our production budget to produce on U.S. public land would need to be 

increased by $20,000 to $25,000 dollars to pay the land-use fees, which generate no 

return on investment. 

As we create the FNAWS television series, many of the storylines we develop 

should have focused on one or more of the DOI or DOA conservation projects that 

has benefited from the millions of dollars donated by the Foundation. As you may 

already surmise, the paradoxical result for FNAWS, the benefactor of Federally-initiated conservation projects, would be the assessment of daily land-use fees to promote the very projects they have funded on behalf of the Government. The sad reality is, due to financial considerations in the competitive arena of the television industry, as many as ten otherwise US-located shoots, are now scheduled in Canada 

and Mexico, where wild sheep also live, and where the Governments are more receptive to the positive publicity that is generated by a television feature. 

It is a difficult crafting rules to apply to broad and diverse circumstances. Most 

would agree that public access to public land at little or no cost is desirable. A majority also understands it is reasonable to assess appropriate fees for feature-film 

production that takes place on public land. This was the intent of the original legislation. The problem occurs in finding a fair and equitable solution for the thousands 

of individuals and small businesses that occasionally utilize public land in their 

craft, but have little or no impact on the land, and often, provide important benefits 

to the Government and the citizens of this country. 

The Government has chosen to use three criteria to determine liability for fees: 

commercial venture, time on federal land, and number of people involved. Determination of when or whether a venture is commercial is often subjective and difficult to codify. Time spent ‘‘on the ground’’ is a reasonable factor to evaluate when 

considering any given venture, but it is hardly indicative of the impact of that venture on Federal land. In my opinion, and in the consensus opinion of the professional outdoor media of this country, the most telling and appropriate variable to 

consider in assessing fair and equitable land-use charges is to consider the number 

of individuals that are actually present on public land. At present, this criterion is 

the most unjust aspect of the current rules, yet a simple modification would go far 

to remedy the inequity of the present circumstance. 

Basing fees on the actual number of persons engaged in the project on federal 

land is a reasonable standard of measure. However, the Government’s factor for consideration that one person on public land is the same as thirty is inaccurate and 

renders an unfair result. The outdoor media should not be categorized in the same 

manner as a Hollywood production crew, but when the prevailing math considers 

one and thirty to be equal, unforeseen and unintended results occur. 

Clearly, the current system of land-use fees put a disproportionately large financial burden on the individuals and small businesses of the outdoor media. There is, 

however, a simple way to achieve a fair result. By creating a de minimus exception, 

or ‘‘minimum use’’ classification for individuals and media crews of five persons or 

less, the inequity of the current system could be remedied without compromising the 

process of unifying and standardizing the rules throughout all Government agencies. 

By creating a de minimus, or ‘‘minimum use’’ classification for outdoor media and 

other low-impact groups, the unforeseen and unintended outcome of these regulations will be remedied. Appropriate payments will continue to be made by those for 

which the fees were intended, and the independent outdoor media will once again, 

be free to report on and feature conservation issues of our public lands without 

overly-burdensome financial consequences. 

I appreciate the opportunity to be here today, and your consideration of our 

concerns. I am happy to answer any questions you may have. 

44


39581.001.eps
45

The CHAIRMAN. Thank you, Steve. Victor. 

STATEMENT OF VICTOR S. PERLMAN, GENERAL COUNSEL AND 

MANAGING DIRECTOR, AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS (ASMP) 

Mr. PERLMAN. Mr. Chairman, Ranking Member Young, distinguished members of the Committee, my name is Victor Perlman, 

and I thank you for the opportunity of testifying today. 

I am the managing director and general counsel of the American 

Society of Media Photographers, or ASMP. ASMP was founded in 

1944 and is the largest organization in the world representing professional photographers who make photographs created primarily 

for publication in the various media, sometimes known as commercial photographers. We estimate that there are over 100,000 full 

and part-time freelance photographers with interests similar to 

those of ours in the United States. In addition, even though our 

memberships and interests are different, we specifically support 

the testimony and positions represented today by the other organizations on this panel. 


39581.002.eps
46

I am submitting this testimony and my prepared statement in 

the hope that this Committee will cause the proposed regulation to 

be brought back in compliance with the letter and spirit of its parent legislation from which it has apparently deviated, Mr. Butler 

and Ms. Weldon’s comments to the contrary notwithstanding. 

I was fortunate enough to testify before a subcommittee in 1999 

in connection with the bill that eventually became P.L. 106-206. At 

that time it was clear that a crucial part of the concept behind the 

bill was that professional still photographers who do no more than 

what tourists typically do should not be subject to any more restrictions or costs than tourists. It is equally clear that the basic approach has been abandoned in the proposed regulation. To put it 

simply, the statute states a presumption that most still photography does not require a permit or a fee while the proposed regulation lays the groundwork for requiring permits and fees for professional still photography as the general rule. 

It is easy to see that the basic concept behind the proposed regulation has gone off track regarding still photography by comparing 

the language of the statute with the language of the announcement 

of the proposed regulation. Looking first at the statute, P.L. 106-

206[a] directs the imposition of permits and fees for commercial 

filming, but Section B states as the starting point for still photography that the Secretary shall not require a permit nor assess a 

fee for still photography subject to certain exceptions. 

This stands in sharp contrast to the language provided in the 

DOI summary of the proposed regulation and in the rule itself 

where it characterizes P.L. 106-206 incorrectly as directing establishment of reasonable fees for commercial filming activities or 

similar projects such as still photography. 

The statute says that filming and still photography are to be 

treated differently, but the proposed rule is erroneously based on 

the concepts that they are to be treated the same and that permits 

and fees are required for both. 

Because my time is so limited, the most important pieces of information that I want the Committee to understand about the impact of fees and permits on still photography are these: 

The finances of the business are such that most professional photographs never produce any revenues but all cost money to 

produce. Those that do eventually produce money typically yield 

surprisingly low licensing fees. If you add the cost of a de facto 

blanket requirement of park permits and location fees to the fixed 

costs of still photography, making photographs on national lands 

will become financially unviable. 

The impact of permits is not just economic. Great photographs 

are made with great light. Photographers cannot make professionally quality outdoor photographs on a schedule. The photographer has to be ready to make the photograph at the moment 

when the right conditions are there and those conditions change in 

an instant. The delays of having to apply for and wait for permits 

would simply mean that many spectacular nature photographs will 

simply never be made. 

Unlike motion pictures, most outdoor still photographs are made 

by a single individual photographer working without any substanVerDate 0ct 09 2002 15:02 Mar 04, 2008 Jkt 098700 PO 00000 Frm 00050 Fmt 6633 Sfmt 6602 L:\DOCS\39581.TXT Hresour1 PsN: KATHY
47

tial crew assistant or unusual equipment. What they do is essentially what tourists do. 

Finally, trying to distinguish between ‘‘visitors’’ and commercial 

photographers creates an impossible enforcement burden on both 

park staff and the public alike. How can one tell who is a professional photographer just by looking at him? How is an amateur 

who sometimes licenses the uses of his images to know whether he 

is considered a professional? How is park staff to be able to tell 

who is who? By requiring photographers to carry a copy of the 

Form 1040s? The distinction between visitors and commercial photographers is simply unworkable from every perspective and at 

every level. 

In conclusion, Mr. Chairman, P.L. 106-206 was drafted to provide reasonable protections for the national lands, the agency is 

charged with administering them, working photographers and the 

public. Sadly, the proposed regulation would undo many of those 

protections and would yield a great loss to our national photographic heritage. 

Ansel Adams was a proud ASMP member. Consider whether 

photographs like ‘‘Moonrise Hernandez, New Mexico’’ could ever 

have been made if Ansel had had to wait until he had applied for, 

paid for and eventually received a permit. On behalf of all working 

photographers, I urge you to direct the Secretary to bring the proposed regulation back in conformity with the mandated approach 

in P.L. 106-206[b]. Subject to certain exceptions, still photography 

is presumed not to require permits and fees. 

I thank you and the members of this Committee for your time 

and consideration. 

[The prepared statement of Mr. Perlman follows:]

Statement of Victor S. Perlman, on behalf of the

American Society of Media Photographers 

I. Introduction. 

Mr. Chairman, Ranking Member Young, and the other distinguished members of 

the Committee, my name is Victor Perlman, and I thank you for the opportunity 

of addressing the Committee today. I am the Managing Director and General Counsel of the American Society of Media Photographers. The American Society of Media 

Photographers, or ASMP, was founded in 1944 as the Society of Magazine Photographers. ASMP is the largest organization in this country, and in the world, representing professional photographers who make photographs primarily intended for 

publication in the various media. These photographs can appear in fine art books 

and prints, in magazines, in advertisements, in corporate brochures and annual reports—in short, in any form of publication, whether in print or in digital media. 

ASMP has approximately 6,000 members, most of whom are full-tie, freelance 

photographers, who have been producing some of this country’s best photography for 

publishers, advertising agencies and corporate clients for the more than sixty years 

of ASMP’s history. We estimate that there are over 100,000 part- and full-time freelance photographers with interests similar to those of our members in this country. 

I am submitting this statement on behalf of ASMP in the hope that the Committee 

will direct the Secretary to bring the proposed regulation back in compliance with 

the letter and spirit of its parent legislation, P.L. 106-206, from which it has unfortunately deviated. 

ASMP’s members are publication, or ‘‘commercial,’’ photographers. Even though 

the interests of our members and uses of our members images are somewhat different from those of the photographers represented by the other members of this 

panel speaking on behalf of the photography world, we specifically support their testimony and the positions they are presenting. 

I was fortunate enough to testify before the House Subcommittee on National 

Parks and Public Lands in 1999 in connection with House Bill H.R. 154 that eventually became P.L. 106-206. At that time, it was clear that the underlying assumpVerDate 0ct 09 2002 15:02 Mar 04, 2008 Jkt 098700 PO 00000 Frm 00051 Fmt 6633 Sfmt 6621 L:\DOCS\39581.TXT Hresour1 PsN: KATHY
48

tion of the Bill, and therefore that of Congress, was that activities and people who 

place unusual or substantial burdens or demands on our natural resources, on our 

government employees, or on the public should pay for them in proportion to the 

burdens and demands that they impose. Further, however, a crucial part of the concept behind the Bill was that people who do no more than what tourists typically 

do should not be subject to any more restrictions or costs than tourists. It appears 

that this latter concept has been abandoned in the proposed regulation. 

In order to understand our concerns about the regulation currently before this 

Committee, you must first understand a few facts about the nature and business 

of freelance photography in the publication field. Freelance photographers are selfemployed. As such, they are not accorded any employer-provided benefits. They are 

not paid a regular salary, do not receive a paid vacation, and must purchase their 

own cameras, equipment and supplies. They are responsible for all of the overhead 

expenses associated with running a business, must pay for their own health, liability and disability insurance, and are not eligible for unemployment compensation. 

These hidden cost factors make the freelance photographer’s financial investment in 

every photograph that he or she makes far higher than would appear at first glance. 

In addition, the numbers that we have seen tell us that the average annual income 

of commercial photographers is quite modest, especially when compared to people 

with comparable educational backgrounds working in other fields. 

There are two primary ways in which a photograph intended for publication 

comes to be made by a freelance photographer: either as part of an assignment from 

a client or as part of what is known in the trade as ‘‘stock photography.’’ Stock photographs become part of a library or inventory of images that the photographer 

makes available for licensing to buyers who want to use those images for limited 

times and purposes. At the time a stock photograph is made, there is neither any 

client to pay the costs nor any certainty of there ever being one from whom a licensing fee may be received. The majority of professional photographs that are available 

for publication are held in such stock libraries. 

In fact, those stock libraries are no longer the exclusive domain of professional 

photographers. Since technology has been making it easier to create high quality 

images, there are many talented amateur photographers in this country whose 

works are now being published, especially in digital media. Some of them have 

started placing their images with stock photography libraries to be marketed alongside the images created by professional photographers. 

Because of this last factor, it would be arbitrary and grossly unfair to draw a distinction in the requirement of permits and/or fees based on whether a photographer 

relies primarily on his images for his income or relies on them only to supplement 

his income. It is, therefore, crucial that the regulation base the need for permits 

and/or fees on the activity, not on the identity, of the photographer. That is the approach taken in P.L. 106-206, but it appears to have been abandoned in the proposed regulation that is supposed to implement that legislation. 

Unlike motion pictures and audio-visual video productions, most outdoor still photographs are made by single, individual photographers working without substantial 

crews, assistants, special effects or unusual equipment. What they do is essentially 

what tourists do, what you and I do, Mr. Chairman, when we are on vacation recording this country’s natural wonders on film (or more likely these days, on digital 

media) for future enjoyment. P.L. 106-206 wisely recognized that professional still 

photographers should be treated the same as tourists, as long as they are placing 

only the same demands on our natural resources and civil servants as tourists. The 

regulations that implement P.L. 106-206 must do the same, but as currently worded, do not. 

Fees and permits are not appropriate, or needed, to tax and impede the average 

citizen in visiting our natural wonders and bringing home a photographic record of 

that visit. P.L. 106-206 did not and does not require fees or permits of average 

citizens—even when those average citizens happen to make their livings as freelance photographers. The proposed regulation appears to change that fundamental 

approach. 

II. Where the Proposed Regulation Deviates from P.L. 106-206. 

The preceding information was crucial to ASMP’s support of P.L. 106-206 and 

was reflected in the final language of that legislation. Unfortunately, many of the 

changes reflected in the proposed regulation would undo the policy behind P.L. 106-

206. 

It is easy to see that the basic concept behind the proposed regulation has gone 

off track regarding still photography by comparing its language with the language 

of the statute. The language of P.L. 106-206(a) directs the imposition of permits and 

fees for commercial filming, while section (b) states the starting point for still phoVerDate 0ct 09 2002 15:02 Mar 04, 2008 Jkt 098700 PO 00000 Frm 00052 Fmt 6633 Sfmt 6621 L:\DOCS\39581.TXT Hresour1 PsN: KATHY
49

tography: ‘‘the Secretary shall not require a permit nor assess a fee for still photography on lands administered by the Secretary..,’’ subject to certain exceptions and 

conditions. This stands in sharp contrast to the language provided in the DOI’s summary of the proposed regulation, and elsewhere in the announcement of the regulation and in the rule, itself, where it characterizes P.L. 106-206 incorrectly as ‘‘direct(ing) establishment of reasonable fees for commercial filming activities or similar 

projects, such as still photography...’’ The statute says that commercial filming and 

still photography are to be treated differently, but the proposed rule says that they 

are similar and to be treated the same. 

The language of the statute makes it clear that the general rule is that permits 

and fees are presumed not to be required for still photography, subject to specific 

exceptions for atypical situations: 

(c) STILL PHOTOGRAPHY.—(1) Except as provided in paragraph (2), the 

Secretary shall not require a permit nor assess a fee for still photography 

on lands administered by the Secretary if such photography takes place 

where members of the public are generally allowed. The Secretary may require a permit, fee, or both, if such photography takes place at other locations where members of the public are generally not allowed, or where additional administrative costs are likely (emphasis added). 

The regulation, on the other hand, turns this presumption on its head by stating 

in Sec. 5.3(b) that ‘‘Still photography requires a permit if...’’ The language of the proposed regulation abandons the presumption that permits for still photography are 

generally not required, subject to some specific exceptions. It substitutes an approach and a mindset that requiring permits is an affirmative command. 

Second, as indicated in bold above, the legislation makes it clear that permits and 

fees are separate and distinct, and that the requirement of a permit does not automatically suggest that there should be a requirement of a fee. That distinction, also, 

is lost in the proposed regulation. Even worse, those fees would be mandated—and 

expanded to include both application cost recovery and a usage fee—under the language of Sec. 5.7 of the proposed regulation. 

Third, the proposed regulation appears intended at simply raising revenues at the 

expense of those people who can least afford it: freelance professional photographers. Currently, only the BLM charges location fees, while the NPS and FWS 

do not. It is clear that universalizing the approach of the one department that is 

in the minority on this issue, rather than the approach of the majority, has the goal 

of raising revenues, purely and simply. Unfortunately, when applied to freelance 

professional still photographers, this requirement would drastically impact their 

ability to make any kind of living out of nature photography and would drastically 

reduce the number and quality of photographic images made on DOI lands that 

would be available for the public. This would damage our national photographic heritage irreparably. 

Fourth, and probably most importantly, the proposed regulation directly abandons 

the underlying concept behind P.L. 106-206 that professional still photographers 

should not be required to obtain permits or pay fees if they are doing only what 

tourists do. This can be seen in Sec. 5.3(b), which sets forth the list of conditions 

triggering permits for still photography and which also includes the statement that 

‘‘(d) Use of film, video or still photography equipment by visitors does not require 

a permit as long as the activity occurs in areas designated for public use during 

public hours.’’ That is, the proposed regulation would distinguish between professional photographers and ‘‘visitors.’’ This language makes it clear that permits 

would be required under the proposed regulation based on the identity of the photographer, not on the activity, an approach that was directly rejected in the statute 

that the proposed regulation is supposed to implement. The language in Sec. 5.3.(b) 

should apply to all still photographers, irrespective of how they may happen to earn 

their livings. 

In addition, using the distinction between visitors and commercial photographers 

creates an impossible enforcement burden on park staff and the public, alike. How 

can one tell who is a professional photographer just by looking at him? How is an 

amateur who occasionally licenses the use of an image to know whether—and 

when—he is a considered a professional for permit and fee purposes? How is park 

staff to be able to tell the difference—by requiring a copy of the photographer’s 

Form 1040? The distinction between visitors and commercial photographers is simply unworkable from every perspective and at every level. 

Next, the requirement of ‘‘appropriate—insurance in connection with obtaining a 

permit would, for many working photographers, create both a financial hardship 

and delays in the permit process that would prevent many great photographs from 

ever being made, let alone being made available to the public. This requirement, 

50

combined with the absence of standards for determining what is ‘‘appropriate,’’ could 

be used as a de facto method for barring almost all still photography at a facility. 

Further, the Department of the Interior’s blanket assertion that ‘‘this document 

will not have a significant economic effect on a substantial number of small entities 

under the Regulatory Flexibility Act’’ is absolutely and completely incorrect. The 

proposed regulation would have a severe impact on at least tens of thousands of still 

photographers, almost all of whom are small businesses operating as sole proprietorships or other small business entities. The further statement that the proposed regulation ‘‘Will not cause a major increase in costs or prices for consumers (or) individual industries...’’ is totally inaccurate. The increased costs would either be passed 

along to consumers or, in most cases, be absorbed by the small business comprising 

the industry of publication photography. The simple fact that ASMP has gone to the 

trouble and expense of sending me here today tells you that these assertions are 

not true. 

In addition, the vague and subjective standards provided by the regulation under 

which permits could be denied are problematic for all concerned: park officials, photographers and the viewing public. Sec. 5.4 contains no standards for making the 

various permissible determinations. Worse, Sec. 5.4(5) allows the denial of a permit 

where there is an (undefined) determination that ‘‘the activity is inappropriate or 

incompatible with the purpose of the refuge.’’ I certainly do not know what that language really means or how to apply those ‘‘standards,’’ and I question whether there 

is anyone on this panel who does. 

III. Financial Impact of Fees on Still Photography. 

When I testified in connection with P.L. 106-206 in 1999, I voiced some reservations about the future that, unfortunately, now appear to be well founded, when I 

said, ‘‘Our concern is not with what this Bill currently provides, but with possible 

future changes that could take place as the Bill goes through the legislative process.’’ In connection with that concern, I provided some supplementary information 

about the business of freelance, publication (or commercial) photographers. It now 

seems appropriate to reiterate some of facts for your consideration in evaluating the 

proposed regulation and its potential impact. 

I mentioned earlier that freelance photographers must buy their own equipment. 

For a professional photographer, it is routine to have to spend thousands of dollars 

for a single lens. Even for a location photographer, who does not have the overhead 

of equipping, stocking and running a studio, the cost of equipment was typically in 

the range of $70,000. and often more, when I testified in 1999. The impact of computers and related equipment and software, along with almost a decade of inflation, 

has both driven that number upwards significantly. The constantly changing nature 

of technological innovations has caused those expenses to recur frequently as equipment now becomes obsolete within a year or two of purchase. That is the situation 

for location photographers. A photographer who does both location and studio work 

has an investment in property, plant and equipment of many multiples of that figure. 

We can safely assume that a professional photographer will make many hundreds 

of photographs during a good day’s shoot. Of those photographs, however, only a 

small number will ever survive. Industry reports tell us that an average of 2% of 

the photographs made by professional photographers get through the editing process 

and make their way into stock libraries. 

Of those images that are put in stock libraries, industry reports also tell us that 

only 2% will ever produce any revenues during the life of the photograph. 

For that 2% of 2% that actually sell, our information is that the average price 

of a stock sale was approximately $220. back in 1999. Sadly, that number seems 

to have declined over the past decade or so for a variety of reasons. For example, 

Getty Images recently announced a licensing model that would grant unlimited web 

use of high quality photographs for $49. per year. Of the amount paid, the agencies 

licensing the stock images take commissions that now exceed 50% on average and 

a number of the best known stock agencies are now charging commissions of 70%, 

plus expenses. 

Thus, for each of the few images that sell, photographers receive an average of 

well under $100., from which they have to pay all of their direct and indirect costs 

of production. Most freelance photographers would probably make more money 

doing almost anything else, but they continue to make photographs, despite the economics, because they love what they do. However, if you consider the finances described above, you will see that imposing fees on photographers for access to national lands will turn what is already a marginal economic proposition into a losing 

one. While professional photographers may be willing to work for relatively little 

money, nobody can stay in a business in which he or she loses money. 

51

Losing professional quality photographers does not hurt only those photographers 

and the industry. It also means losing the images that they produce, and that hurts 

everyone, including the public and, in particular, future generations, who will be deprived of a richer photographic heritage. 

IV. Aside from financial considerations, the requirement of a permit would 

prevent the vast majority of outdoor photographs from being made. 

Even if no fees were imposed on still photographers, the simple need for permits 

for routine photography would eliminate most of those beautiful photographs of our 

natural vistas, and the animals that inhabit them, that we all want and have come 

to expect to see. Have you ever wondered why most amateur photographs rarely 

come close to rivaling professional photographs of the same scene? In addition to 

the skill and knowledge of the photographer, there is a crucial element in all photographs: light. Photography means, literally, ‘‘writing with light.’’ To have a great 

outdoor photograph, you must have great light. Great light for photography is not 

the same as great light for anything else. The best light for photography is found 

at the ends of the day: a couple of hours before and after sunrise, and a couple of 

hours before and after sunset; and if you want a photograph of the incredible animals that live in our national parks, you have to photograph them when they are 

awake, outside their living quarters, and active. That is almost never during the 

mid-day. Great nature photographs are rarely if ever made during normal business 

hours. 

Now, if a photographer has to get a permit in order to photograph on national 

lands, that means that he has to be at an office, perhaps 50 miles away from where 

he wants to photograph, no earlier than 8:30 in the morning when the office opens. 

By the time he get his permit (assuming he can get it immediately, while it could 

actually take a couple of weeks), drives to his location, and is ready to start 

photographing, the light is gone, and he might as well pack up for the day. The next 

day’s light may be unsuitable for making professional quality photographs. In fact, 

light changes constantly, animals move quickly, and everything in nature is in constant flux. A photograph that is delayed is a photograph that is lost. The mere requirement of permits for still photographers would mean that many of the photographs that beautify the offices of many members of this Committee could never 

have been made if the photographer had been required to obtain a permit. 

V. Conclusion. 

Mr. Chairman, P.L. 106-206 was drafted to provide reasonable protections for the 

national lands, the agencies charged with administering them, working photographers and the public. Sadly, the proposed regulation would undo many of those 

protections and would yield a great loss to our national photographic heritage. Ansel 

Adams was a proud ASMP member. Consider whether photographs like ‘‘Moonrise, 

Hernandez N.M.’’ could ever have been made if he had had to wait until he had 

applied for, paid for, and eventually received, a permit. On behalf of all working 

commercial photographers, I urge you direct the Secretary to bring the proposed 

regulation back in conformity with the approach taken in P.L. 106-206: the general 

rule that still photography does not require permits or fees, absent unusual circumstances. I thank you and the members of this Committee for your time and consideration.

Respectfully submitted,

Victor S. Perlman 

General Counsel and Managing Director 

American Society of Media Photographers, Inc. 

150 North Second Street 

Philadelphia, PA 19107

Tel: 215-451-ASMP Ext. 1207

Fax: 215-451-0880

E-mail: perlman@asmp.org 

Url: http://www.asmp.org 

The CHAIRMAN. The Chair wishes to thank the panel for their 

testimony this morning. It has been very interesting. My first couple of questions are going to concern the photographers and the 

media, and journalists rather, I am sorry, photographers and journalists. 

52

You heard me discuss in my opening round of questions to the 

administration witnesses the definition of news coverage, and it appears to me that any final rule must include a definition of what 

is news coverage because that is what determines who is exempt 

from the fees and who is not. 

So my question would be to the panel, how difficult is it to define 

that term? I mean—well, I guess that is what I mean. Are you 

aware of any current definitions that we might use as an example? 

Mr. OVERMAN. May I? Tony Overman with the National Press 

Photographers Association. 

The CHAIRMAN. Yes, Tony. 

Mr. OVERMAN. We looked at Congress’s current definitions that 

they have. The National Secretary Archives of the U.S. Department 

of Defense defines a journalist as a person or entity that gathers 

information of potential interest to a segment of the public, uses its 

editorial skill to turn the raw material into a distinct work, and 

distributes that work to an audience. 

Also, the Free Flow Information Act also have a definition of 

what a journalist is—a person who regularly gathers, prepares, collects photographs, records, writes, edits, reports or publish news of 

information that concerns local, national, international events. 

In addition, the FOIA, Freedom of Information Act fee schedule 

and guidelines also include a definition of news which is, news 

means the information that is about current events or that would 

be of current interest to the public. 

So we feel that Congress already has definitions of both journalists and news. 

The CHAIRMAN. Thank you. Any others with to comment? 

All right, let me ask you for a moment to set aside my opening 

comments, just for a moment though, and then you can go back to 

them. But how would you characterize the Bush Administration’s 

approach to media and to providing public information? I ask this 

within the context of your concerns regarding this proposed rule as 

they relate to this administration’s overall record on providing information to the media and the public, if there is any such information that has been provided. 

Mr. YOUNG. I dare you. 

[Laughter.] 

Mr. OVERMAN. Sir, this is Tony Overman again. 

Certainly it is my concern about the rules, about why Department of Interior would even be placing these kind of restrictions on 

what we consider valid news coverage, and that became our question. What was the purpose? What was the intention of this? And 

it seems very clear that the Department of Interior intends to exclude journalists, or news coverage and journalists from this process. However, their definitions extend far into what we consider 

valid journalism, and that then makes me question what the actual 

rationale is for these restrictions. 

When we heard our staff from the Department of Interior speaking, they made it clear that they weren’t going to try to define what 

news or journalism was but simply define what commercial photography was, and that is where we have gotten into the problem. 

Their definitions of commercial photography blend over and blur 

the lines between what is journalism and what isn’t. 

53

So it seems that the intention of the Department of Interior is 

simply to protect the environment, yet it does make me question 

what purpose they have for extending these restrictions on to journalists. 

Mr. PERLMAN. Yes, sir, I would say that motives aside the effects 

are entirely too restrictive and the guidelines, such as they are, are 

entirely too vague so as to allow far too much individual interpretation from park employee to park employee. 

The CHAIRMAN. Let me ask a final question. Can you expand on 

your suggestion that the final rule include an outdoor media exception? How would this exception be defined? 

Mr. SCOTT. Well, I think it becomes a mathematical exception. It 

is an exception of a certain number of people and my recommendation is five, because it is impossible to draw a line between what 

is news and what is not news, and if I may as an example. Fish 

and Wildlife bust a bear poaching ring. They are taking gallbladders and sending them to the Asian market. That is breaking 

news, clearly. If there is a follow up done, a profile on the poacher 

and his motives, then there is a 60 Minutes type of investigation 

into the entire Asian gallbladder, bear gallbladder market. 

Then there is a documentary done on poaching and its effect on 

the ecosystem, and finally there is an outdoor TV show, a hunting 

program that talks about bear poaching and its effect on the population and the hunting opportunities. 

Where do you draw that line between breaking news and not? 

The thing that solves the media’s problem, the thing that solves 

the outdoor media’s problem is, if we are going to have an activity 

that has a minimal impact on the land, there is an exception of 

three, four, five people, and below that number, if you are not taking props and an exceptional amount of equipment, you don’t have 

to have a permit. That, I believe, was the original intent that the 

groups that we represent were not to be charged a land use fee, 

but let me expand on that just for a moment more. 

What Mr. Butler and Ms. Weldon advocated is this be left to the 

individual agencies on the ground to make their determination of 

what the appropriate fee is. Sir, I have experienced this. Personally 

in my business I go to the Shoshone National Wilderness in Wyoming, I was issued a permit one year. The next year a different 

ranger comes in and he decides arbitrarily that I am not entitled 

to a permit, and giving someone in the field that much discretion 

has an enormous effect. They are determining my ability to earn 

a living, my ability to bring information to the people through the 

vehicle of television in my particular case. 

So in answer to your question, if we just put a number, there is 

an exception, that solves the problem for everyone. 

The CHAIRMAN. Thank you. Mr. Young. 

Mr. YOUNG. Thank you, Mr. Chairman, and I have to say that 

bringing in this administration is no different than any other administration. Most people that do these things are not really—they 

are professional employees of that agency, so it could be Bush or 

Clinton. It can be Carter or it can be Nixon. It doesn’t make a hell 

of a lot of difference. 

Having said that, do any of you on the panel disagree that you 

shouldn’t pay for the use of the Federal lands? 

54

Mr. WHEELER. Congressman Young, none of us disagrees that we 

should pay the same as any other citizen. 

Mr. YOUNG. Well, let us say I am a hunter and I pay a license 

fee to hunt on a wildlife refuge. Don’t you think that you ought to 

have also a license to do that? 

Mr. WHEELER. I think the question is one of impact, and that is 

where we have a difference over this regulation. 

Mr. YOUNG. No, no, I am not——

Mr. WHEELER. Because we are not taking anything from the 

land. 

Mr. YOUNG. You don’t think you should pay anything? 

Mr. WHEELER. I am not saying we shouldn’t pay anything. 

Mr. YOUNG. OK. But you are all certified journalists, correct? 

You are all recognized professionally. What would you object to 

have like a license fee for a hunter or a fisherman to utilize the 

Federal lands? Say a fixed fee, every individual, every individual. 

Mr. WHEELER. How would you determine who is the average visitor to the park taking pictures and who is taking——

Mr. YOUNG. No, I am talking about professionals, and you are all 

professionals. 

Mr. WHEELER. But that is one of the dilemmas we have with 

this, Congressman, because who is a newsperson today is changing 

radically, and what we use to gather news is changing radically. 

Mr. YOUNG. OK, I still want to stress——

Mr. WHEELER. And we don’t think you need a——

Mr. YOUNG.—we are not talking about news. We are talking 

about using the Federal lands——

Mr. WHEELER. Right. 

Mr. YOUNG.—for economic gain. What would be wrong with you 

paying a fee? That is all I am asking. I mean, let us make it a hundred bucks, or whatever the going price for a resident hunter or a 

fisherman. I mean, what is wrong with that? 

Mr. PERLMAN. Ranking Member Young. 

Mr. YOUNG. Yes. 

Mr. PERLMAN. I think I addressed some of the problems with 

that. First, as long as the activity is the same as a tourist, it seems 

to me that the distinction becomes arbitrary as to what the purpose 

of the use is. As far as the need to pay a fee, presumably you are 

also talking about a fee for a permit. You then——

Mr. YOUNG. Not a permit. I don’t like permits. I just want you 

to be licensed to do what you are doing. 

Mr. PERLMAN. How do you know who is a tourist and who is a 

professional? 

Mr. YOUNG. I am not talking about—you are a professional, are 

you not? 

Mr. PERLMAN. I am not. I am an attorney. 

Mr. YOUNG. Well, that is worse yet. 

[Laughter.] 

Mr. PERLMAN. My point precisely. 

Mr. YOUNG. What I am trying to get across, I am a little concerned because we talk about retaining our national lands, and no 

one wants to pay for it. The only people really putting money into 

this right now are the sportsmen. 

55

Now I happen to agree with you, Mr. Scott. I think—one thing 

about institutional memory, we passed this because there were 

movie industries making monies off the Federal lands and making 

an impact upon those lands, and that was a free ride, and I am 

not talking about photographers. I am talking about big movie companies. And that is wrong. I mean, they ought to pay their share. 

They disturb the wildlife. They disturb the habitat of the area, and 

they ought to be made to pay for it, and you are right about one 

photographer versus—what did you say? Moses—well, that is right. 

I mean, they should have been made and required to pay more and 

I hope the Department recognizes that. 

But somewhere along the line we all have to be part of this system to retain what you are photographing. Yes, sir. 

Mr. OVERMAN. Mr. Young, even in your statement you say that 

the initial reason for the permitting process was for Hollywood productions that were making a profit off the public lands and then 

were having an impact. You then said the reason for the fees are 

because of the impacts that they have on the environment and the 

needs. 

Are you proposing that the reason for these fees are the government wants to make money off of anyone who is making money off 

of public lands? 

Mr. YOUNG. No, I didn’t say that. I am saying they are all interpretive. 

Mr. OVERMAN. Right. 

Mr. YOUNG. My idea though if you are going to impose an infraction on the wildlife and the public land itself, a large organization 

should be made to pay. 

Mr. OVERMAN. Absolutely. What we are saying is that we are no 

different than the public. When I go to a national park, I pay the 

$15 to get into——

Mr. YOUNG. And that is fine. 

Mr. OVERMAN.—Mount Rainier National Park. There is the presumption then that when I come in I am allowed to take photographs, any still photographs that I want. How I am using them, 

whether there is a profit being made from them is irrelevant. 

Mr. YOUNG. Then you go back—now, you see the beauty of my say $200 license? Then you don’t have any worry about permits. 

You don’t have to respond to any different ranger. You have your 

license. That is the difference. I happen to agree. One ranger one 

day, one ranger the next day make different rules, different personalities, and so you wouldn’t have to have all the permit process. 

I am just looking for solutions to a problem here. 

Mr. OVERMAN. Chairman Young, with all due respect, am I a 

member——

Mr. YOUNG. You can call me Chairman again, too. Thank you, 

sir. You are on my bright side. 

Mr. OVERMAN. I am sorry. Ranking Member Young. I am sorry 

about that. 

As a journalist, am I not a member of the public? 

Mr. YOUNG. Let us not go there. 

Mr. OVERMAN. Why as a member of the public who pays to go 

into a national park should the government be allowed to single me 

out simply because I am a journalist for more restrictions? 

56

Mr. YOUNG. Well, I will tell you why because you arguing with 

something that is really in the law, and that something that you 

have to understand. It says—while the legislative language is open, 

the Senate report is clear that land managers have the discretion 

to determine whether or not the activity is commercial. Now that 

is in the law——

Mr. OVERMAN. Yes. 

Mr. YOUNG.—right now. 

Mr. OVERMAN. Absolutely. 

Mr. YOUNG. And that is what you have to worry about. 

Mr. OVERMAN. And your authorizing statutes say that still photography will not be placed under any restrictions. 

Mr. YOUNG. Which we didn’t expect, I will be honest with you on 

that. 

Mr. OVERMAN. Absolutely. 

Mr. YOUNG. But having said that, if that is the law and they interpret it that way, wouldn’t you be better off having a license and 

give you free carte blanc? 

Mr. OVERMAN. I don’t believe so, sir. I don’t believe there is any 

reason why I as a member of the public would have to pay a fee 

in order to be allowed to photograph anything above what the public does given that my impact is equal to that of any other member 

of the public. 

Mr. YOUNG. OK. Now you are going to stick by that. I am saying 

you—I am looking for an argument which should not be taking 

place. In fact, you should look for a solution. You may in principle 

say, I am the same as the public. You are not. 

Mr. OVERMAN. We believe that the solution is in defining what 

a journalist is and what news is. 

Mr. YOUNG. And if they define it in the regulation, then you are 

in trouble. 

Mr. OVERMAN. By widely defining what is a journalist and what 

is news and narrowly defining the time, place and manner restrictions we think would solve the problem just as well without us having to pay more money than the public is required to pay. 

Mr. YOUNG. My God, you pay $16,000 for a camera or cameras, and then you are worried about a $200 license fee that gives you 

carte blanc. They must be part Scotch. 

Mr. OVERMAN. No, what I am looking at is the precedent, sir. 

What is the rational for singling out journalists from the public for 

restrictions that the public does not receive? 

Mr. YOUNG. OK, we will see what happens down the line. 

Mr. SCOTT. Mr. Young, I am kind of going to go off the reservation here a bit. If I could pay 100 or 200 dollars and have access 

to Federal land and not have to go through applications with each 

individual place that I intend to film, I would be—I would be ecstatic over that, and there may be some people in my organization 

that disagree with that, but I am a commercial videographer. That 

is what I do and my intent is to make money. It doesn’t always 

happen, but that is the intent. 

I think there is a difference between our position and that of 

what would be considered traditional media. 

Mr. PERLMAN. Ranking Member Young, if I may. There is an inherent flaw in your question which assumes that the photographer 

57

is making money out of the photographs, and while that may be 

true for some of the constituencies represented by the other members of the panel, for freelance commercial photographers unless 

they are on assignment, they have no clue as to whether they will 

ever make a penny out of any photograph that they make. 

Mr. YOUNG. Well, why is it flawed if they do make money? 

Mr. PERLMAN. Because they won’t know that until perhaps years 

later. 

Mr. YOUNG. But if they do make money, don’t you think they 

ought to pay that fee as minimal? 

Mr. PERLMAN. If we had a way of retroactively sending in the fee, 

then perhaps——

Mr. YOUNG. Well, then why not pay the fee ahead and if you 

make money, it is all yours? 

Mr. PERLMAN. OK, and you are going to reimburse us for when 

we don’t? 

Mr. YOUNG. No, absolutely not. You are a freelance man. I mean, 

you are talking about pennies now. You are looking for a solution, 

as I have said Mr. Scott has said if you listen to what I am saying, 

you don’t want to. You are trying to avoid a problem. You might 

get somebody downtown write these regulations again and again 

and again, and then where are you? There is no certainty to where 

you are going to go. 

So you guys want to sit there and say, by God, we have the right 

of freedom of press, et cetera, et cetera. You don’t know what is 

going to happen down the line. You solve the problem by putting 

it in concrete, and that is what I am suggesting. We are not going 

to do this right now. I don’t know what the Department is going 

to do. I think the regulations proposed are too broad. I will be right 

up front with you, but the way you do it is make a—maybe give 

a little bit instead of stonewalling this whole thing and say we 

have a right to do it. This is the law right now and they may interpret it every year differently. How can you do what you are going 

to do? 

I am out of time. 

The CHAIRMAN. I would say so. 

Mr. YOUNG. Yes. 

The CHAIRMAN. The gentleman from Oklahoma. 

Mr. BOREN. Thank you, Mr. Chairman. I am going to be very 

brief because Chairman Hogan has been waiting on me for a little 

while. I just have a couple questions for Mr. Scott, Steve Scott, 

who, by the way, is from my home state of Oklahoma, and a great 

outdoorsman. You can catch his show on television when you have 

a chance. 

You state you also are here today representing Foundation for 

North American Wild Sheep. What impact have the current land 

use fees had on this organization? 

Mr. SCOTT. FNAWS is the Foundation for North American Wild 

Sheep focuses on conservation, and over the last 30 or so years of 

their existence they have raised and spent over $30 million on conservation projects. Currently, we are producing a program for 

FNAWS that features wild sheep that will be hosted by former Boston Red Sox Wade Boggs. 

58

And wild sheep are a very different kind of species in that they 

are in very difficult places to get to. It takes a lot of time in order 

to capture the right video, and three of the four wild sheep species 

in North America reside in the United States, but they also reside 

in Canada and Mexico, and in order to produce the programs that 

we need to produce, we would spend on average 15 days on public 

land at $150 a day, and if we do the math, I will spend 20 to 25 

thousand dollars for land use fees, and if I go to Canada, if I go 

to Mexico, I pay zero. My budget will not allow me to film very 

often on public land. 

So instead of using the vehicle of our television program to celebrate our public lands, we are doing it for Canada and Mexico. So 

it has a chilling effect on the very purpose of the national public 

land and the Department of Interior’s stated goal of providing access to our lands because we do that vicariously. 

Mr. BOREN. It sounds like you are open to either doing the five 

or less on the impact, or maybe doing something that the Ranking 

Member was talking about, a fee where you could go everywhere, 

a small fee where you are not dealing with individual rangers in 

each area. 

Mr. SCOTT. If we had a program like that across the board, it 

would be very satisfactory to our organization. 

Mr. BOREN. Well, I thank you, and I thank the Chairman and 

the Ranking Member, and I will yield back. 

Mr. YOUNG. Mr. Chairman. 

The CHAIRMAN. Yes. 

Mr. YOUNG. I just want to get back to this because the present 

law, it doesn’t affect photography, and paragraph C, still photography. Except as provided in paragraph 2, which is the number of 

days, et cetera, et cetera, the Secretary shall not require a permit—

shall not—nor an excessive fee for still photography on lands administered by the Secretary, and if some photography takes place 

where members of the public are generally allowed, Mr. Owens. 

The Secretary may require a permit, fee or both if such photography takes place at other locations where members of the public 

are generally not allowed or where the additional administration 

costs take place. The Secretary shall require and shall establish a 

reasonable fee for still photography that uses models or props 

which are not part of the site’s natural or cultural resources or administrative facilities and protection of the resources, et cetera. 

So you are already exempt. 

Mr. OVERMAN. Sir, we are not. 

Mr. YOUNG. Well, it says this is the law. 

Mr. OVERMAN. Right, and go to the definitions of commercial 

filming. Commercial filming, DOI lists non-breaking news, documentary, audio recording, freelancing and work for a market audience fall under the definition of commercial filming. 

Mr. YOUNG. It is in the regulation, sir, it is not in the law. 

Mr. OVERMAN. In the regulation, right. 

Mr. YOUNG. It is not in the law. This is the law and the——

Mr. OVERMAN. Oh, oh, the current, the current. Oh, absolutely, 

and that is our point. We are here to talk about the proposed regulations that may go into effect. 

Mr. YOUNG. Proposed regulations that may. 

59

Mr. OVERMAN. Right. 

Mr. YOUNG. And our job here is to find a solution to those regulations. That is what I was trying to do. 

Mr. OVERMAN. Yes. 

Mr. YOUNG. Under the law you are protected right now, and if 

the regulations go against the law, then they won’t be accepted. 

Mr. OVERMAN. Absolutely. Wasn’t that my point? 

Mr. YOUNG. No, I didn’t——

Mr. OVERMAN. Isn’t that what I have said all along? 

Mr. YOUNG. I should have gotten the lawyer to say it. 

Mr. OVERMAN. I think I made it very clear that your own authorizing statutes say that no still photography can be restricted, and 

yet these rules do exactly that. 

Mr. YOUNG. But you also go back—it also says in the Senate report that a manager can change and do different than the law 

through the regulations they can implement if they are so. 

I am just looking for a solution here, and I am hoping you also 

will find that in time. 

Mr. OVERMAN. I find that paying for a license in order to go and 

cover the news amounts to prior restraint on the news media. 

Ms. CHRISTENSEN. Ranking Member Young. 

Mr. YOUNG. Yes. 

Ms. CHRISTENSEN. I feel that we need to be on the record here 

representing journalists as thinking that the idea of a fee to cover 

news is a very bad idea. 

Mr. YOUNG. I am not as worried about the news interruption. I 

am worried about the utilization of journalism for financial gain if 

something is not news. That is what I am interested in. And under 

the present regulations you are going to be affected. I don’t—if, you 

know, Mount Vesuvius blows up or St. Helen’s blows up, that is 

news. You should have every right in the world to cover it. 

I also don’t think, very honestly, that if you think about it for 

a moment that anybody is impeded. If you think of the pursuit of 

the Defense Department by the journalists without any permits, 

they don’t have any permits, and they disclose it. So I think you 

are trying top make a mountain out a mole hill. 

Ms. CHRISTENSEN. But there is, because of the regulations, proposed regulations, because of the differing understandings on the 

part of different park administrators, there is a burden, and different park administrators define breaking news and news in different ways. You know, a member of mine who is in Montana said 

that—where Yellowstone is considered a beat—said that if they 

cover breaking news, they are allowed in, but if they want to say 

do a feature on the hotels, the Grand Hotels of Yellowstone, they 

want to shoot in June and air it in July, then they are required 

to pay a fee, and our position is that news is not defined simply 

as breaking news; that there is a much broader definition, and that 

the regulations and leaving it in the hands of the individual park 

administrators is creating an unfair burden and is really getting 

government into the position of deciding based on the content of 

the news story what is news and what is not, and that is not a position that a government official should be in. 

Mr. YOUNG. Well, again, we are going to look at the regulations. 

I will certainly review it. I think you all ought to put your heads 

60

together and you may not like it, but better to have it permanently 

fixed than have it constantly change. That is all I am going to suggest to you. 

Mr. Chairman, I am through. 

The CHAIRMAN. We thank the witnesses for being with us today. 

I think one thing we have seen is this issue and the proposed rule 

definitely needs continued close monitoring, which this Committee 

will do, and continue with consultation as the process moves along. 

So again we thank each of you for your professional testimony this 

morning. 

Any further Committee comments? If not, the Committee stands 

adjourned. 

[Whereupon, at 11:45 a.m., the Committee was adjourned.]

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