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[Federal Register Volume 79, Number 180 (Wednesday, September 17, 2014)]
[Proposed Rules]
[Pages 55679-55687]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22030]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 238

[Docket ID: DOD-2012-OS-0075]
RIN 0790-AI90

DoD Assistance to Non-Government, Entertainment-Oriented Media 
Productions

AGENCY: Office of the Assistant to the Secretary of Defense for Public 
Affairs, DoD.

ACTION:  Proposed rule.

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SUMMARY: This rule establishes policy, assigns responsibilities, and 
prescribes procedures for DoD assistance to non-Government 
entertainment media productions such as feature motion pictures, 
episodic television programs, documentaries, and computer-based games. 
This rule provides for oversight of production assistance decisions at 
centralized and senior levels of DoD to ensure consistency of approach 
among DoD and Service components with respect to support for 
entertainment media productions, including documentaries.

DATES: Comments must be received by November 17, 2014.

ADDRESSES: You may submit comments, identified by docket number and or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 4800 Mark 
Center Drive, 2nd floor, East Tower, Suite 02G09, Alexandria VA 22350-
3100.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
Internet at http://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Philip M. Strub, (703) 695-2936.

SUPPLEMENTARY INFORMATION:

Executive Summary

I. Purpose

    This rule is being published to seek comment on DOD's updated 
policy for support to entertainment-oriented media productions, 
including documentaries. The increased and higher-level oversight is 
required to eliminate inconsistencies and ambiguities in guidance for 
and supervision of DoD activities to ensure common standards are met in 
providing support, and that production support is appropriate. The rule 
also includes two DoD Production Assistance Memoranda (PAM) as samples. 
These memoranda explain the terms under which DoD provides assistance 
to production companies for projects that have been approved for DoD 
support.

II. Summary of the Major Provisions of This Regulatory Action

    (a) This rule includes documentaries within the category of non-
government, entertainment-oriented media productions and requires 
approval of production assistance for such entertainment-oriented media 
productions at the DoD level vice the Service level.
    (b) This rule includes two sample DoD Production Assistance 
Memoranda (PAMs), one for documentary productions and one for all other 
entertainment media productions. This rule also assigns the authority 
for signing both types of agreements to the Assistant to the Secretary 
of Defense for Public Affairs (ATSD(PA)), or the ATSD(PA)'s designee.
    (c) This rule addresses how military personnel may appear in 
entertainment media. This rule requires the written permission of the 
Assistant to the Secretary of Defense for Public Affairs (or his/her 
designee) in order for active duty military personnel to serve as 
actors in significant roles and in roles beyond the scope of their 
normal duties.

III. Costs and Benefits of This Regulatory Action

    First, the support and assistance to non-government entertainment 
media productions will be at no additional cost to the government and 
taxpayers. Once DoD has agreed with a production company to provide 
production assistance and the parties have signed a Production 
Assistance Memorandum, operations, and maintenance, supply and 
equipment costs incurred by DoD (collectively) as a direct consequence 
of

[[Page 55680]]

providing support will be reimbursed by the non-government 
entertainment production company. Additionally, the sample production 
assistance memoranda provide for the production company to indemnify 
and hold harmless the DoD for claims arising from the production 
company's possession or use of DoD property or other assistance in 
connection with the production. Support to non-government entertainment 
media may be provided based on a number of factors: whether the 
production presents a reasonably realistic depiction of the Military 
Services and the DoD, whether the production is informational and 
considered likely to contribute to public understanding of the Military 
Services and the DoD, or whether the production may benefit Military 
Service recruiting and retention programs.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    We have consulted with the Office of Management and Budget (OMB) 
and determined this NPRM meets the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563, and was subject to OMB review.

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4) requires agencies to assess anticipated costs and 
benefits before issuing any rule whose mandates require spending in any 
1 year of $100 million in 1995 dollars, updated annually for inflation. 
In 2014, that threshold is approximately $141 million. This document 
will not mandate any requirements for State, local, or tribal 
governments, nor will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    We certify this proposed rule will not have a significant economic 
impact on a substantial number of small entities because the entities 
who receive production assistance are those who affirmatively request 
it, and therefore, interact with DoD solely on a voluntary basis. 
Therefore, the Regulatory Flexibility Act, as amended, does not require 
us to prepare a regulatory flexibility analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    This proposed rule does not create any new or affect any existing 
collections, and therefore, does not require OMB approval under the 
Paperwork Reduction Act.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This document will not have a substantial effect on State 
and local governments.

List of Subjects in 32 CFR Part 238

    Entertainment; Media productions; Documentaries.

0
For the reasons set forth in the preamble, DoD proposes to add 32 CFR 
part 238 to read as follows:

PART 238--DoD ASSISTANCE TO NON-GOVERNMENT, ENTERTAINMENT-ORIENTED 
MEDIA PRODUCTIONS

Sec.
238.1 Purpose.
238.2 Applicability.
238.3 Policy.
238.4 Responsibilities.
238.5 Procedures.
Appendix A to Part 238--Sample Production Assistance Memorandum
Appendix B to Part 238--Sample Documentary Production Assistance 
Memorandum

    Authority: 31 U.S.C. 9701.

Sec.  238.1  Purpose.

    This part establishes policy, assigns responsibilities, and 
prescribes procedures for DoD assistance to non-Government 
entertainment media productions such as feature motion pictures, 
episodic television programs, documentaries, and electronic games.

Sec.  238.2  Applicability.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Office of the Chairman of the Joint Chiefs of Staff 
and the Joint Staff, the combatant commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the DoD Field Activities, and all other organizational entities within 
the Department of Defense (referred to collectively in this part as the 
``DoD Components'').
    (b) Does not apply to productions that are intended to inform the 
public of fast-breaking or developing news stories.

Sec.  238.3  Definitions.

    Unless otherwise noted, this term and its definition are for the 
purposes of this part.
    Assistance (as in ``DoD Assistance to Non-Government, 
Entertainment-Oriented Media Productions''). The variety of support 
that the DoD can provide. The assistance ranges from supplying 
technical advice during script development, to allowing access to 
military installations for production.

Sec.  238.4  Policy.

    It is DoD policy that:
    (a) DoD assistance may be provided to an entertainment media 
production, to include fictional portrayals, when cooperation of the 
producers with the Department of Defense benefits the Department of 
Defense, or when such cooperation would be in the best interest of the 
Nation based on whether the production:
    (1) Presents a reasonably realistic depiction of the Military 
Services and the Department of Defense, including Service members, 
civilian personnel, events, missions, assets, and policies;
    (2) Is informational and considered likely to contribute to public 
understanding of the Military Services and the Department of Defense; 
or
    (3) May benefit Military Service recruiting and retention programs.
    (b) DoD assistance to an entertainment-oriented media production 
will not deviate from established DoD safety and environmental 
standards, nor will it impair the operational readiness of the Military 
Services. Diversion of equipment, personnel, and material resources 
will be kept to a minimum.
    (c) The production company will reimburse the Government for any 
expenses incurred as a result of DoD assistance rendered in accordance 
with the procedures in this part.
    (d) Official activities of Service personnel in assisting the 
production; use of official DoD property, facilities, and material; and 
employment of Service members in an off-duty, non-official status will 
be in accordance with the procedures in this part.
    (e) Footage shot with DoD assistance and official DoD footage 
released for a specific production will not be reused for or sold to 
other productions without Department of Defense approval.

Sec.  238.5  Responsibilities.

    (a) The Assistant to the Secretary of Defense for Public Affairs 
(ATSD (PA))

[[Page 55681]]

will serve as the sole authority for approving DoD assistance, 
including DoD involvement in marketing and publicity, to non-Government 
entertainment-oriented media. The ATSD (PA) will make DoD commitments, 
in consultation with the Heads of the Military Components, only after:
    (1) The script, treatment, or narrative description is found to 
qualify in accordance with the general principles in Sec.  238.4(a) of 
this part.
    (2) The support requested is determined to be feasible.
    (3) For episodic television, motion pictures, and other 
nondocumentary entertainment media productions, the producer has an 
acceptable public exhibition agreement with a recognized exhibition 
entity (i.e., studio or network), and the capability to complete the 
production (i.e., completion bond or other industry-recognized 
guarantor of completion, such as the commitment of a major studio or 
other source of financial commitment). For documentaries, the producer 
has indicated a clear capability to complete the production.
    (b) The Heads of the Military Components will develop procedures 
for implementing this part and will ensure that the requirements of 
this part are met.

Sec.  238.6  Procedures.

    (a) General. (1) The producer will be required to sign a written 
Production Assistance Memorandum (see Appendices A and B for sample 
memoranda), explaining the terms under which DoD's production 
assistance is provided, with the designee of the Assistant to the 
Secretary of Defense for Public Affairs, and may be required to post 
advance payment or a letter of credit issued by a recognized financial 
institution to cover the estimated costs before receiving DoD 
assistance.
    (2) Official activities of Service members in assisting the 
production must be within the scope of normal military activities. On-
duty service members and DoD civilians are prohibited from serving as 
actors, such as by speaking filmmaker-invented, or scripted dialogue, 
unless approved in writing by the (ATSD(PA)) or his or her designee. 
With the exception of assigned project officer(s) and technical 
advisor(s), Service members and DoD civilians will not be assigned to 
perform functions outside the scope of their normal duties.
    (3) Official personnel services and DoD material will not be 
employed in such a manner as to compete directly with commercial and 
private enterprises. DoD assets may be provided when similar civilian 
assets are not reasonably available.
    (4) The production company may hire Service members in an off-duty, 
non-official status to perform as extras or actors in minor roles, 
etc., provided there is no conflict with any existing Service 
regulation. In such cases, contractual arrangements are solely between 
those individuals and the production company; however, payment should 
be consistent with current industry standards. The producer is 
responsible for resolving any disputes with unions governing the hiring 
of non-union actors and extras. Service members accepting such 
employment will comply with the standards of conduct in DoD Directive 
5500.07, ``Standards of Conduct'' (available at http://www.dtic.mil/whs/directives/corres/pdf/550007p.pdf). The Heads of the Components may 
assist the production company in publicizing the opportunity for 
employment and in identifying appropriate personnel.
    (5) The production company will restore all Government property and 
facilities used in the production to the same or better condition as 
when they were made available for the company's use. This includes 
cleaning the site and removing trash.
    (6) The DoD project officer, described in paragraph (b)(3) of this 
section, may make DoD motion and still media archival materials 
available when a production qualifies for assistance in accordance with 
the general principles in Sec.  238.4(a) of this part.
    (b) Specific procedures--(1) Script development and review. (i) 
Before a producer officially submits a project to the Office of the 
Assistant to the Secretary of Defense for Public Affairs (OATSD(PA)), 
the Military Components are authorized to assist entertainment-oriented 
media producers, scriptwriters, etc., in their efforts to develop a 
script that might ultimately qualify for DoD assistance. Such 
activities could include guidance, suggestions, answers to research 
queries for technical research, and interviews with technical experts. 
However, the Military Departments providing such assistance are 
required to coordinate with and update OATSD (PA) of the status of such 
projects. Military Components will refrain from making commitments and 
rendering official DoD opinions until first coordinating through 
appropriate channels to obtain OATSD (PA) concurrence in such actions.
    (ii) Production company officials requesting DoD assistance will 
submit a completed script (or a treatment or narrative description for 
documentaries), along with a list of desired support. If a definitive 
list is not available when the script is initially submitted, 
requirements should be stated in general terms at the outset. However, 
no DoD commitment will be made until the detailed list of support 
requested has been reviewed and deemed to be feasible.
    (iii) OATSD (PA) will coordinate the review of scripts, treatment, 
or narrative description submitted for production assistance 
consideration. The coordinated review will include each Military 
Service depicted in the script. Although no commitment for assisting in 
the production is implied, OATSD (PA) may provide, or authorize the 
Military Services to provide, further guidance and suggestions for 
changes that might resolve problems that would prevent DoD assistance.
    (2) Production assistance notification. Upon reviewing the 
recommendations of the Military Components concerned, the ATSD (PA) 
will determine whether a given production meets the DoD criteria for 
support and if the support requested is feasible. If both requirements 
are satisfied, the ATSD (PA) will notify in writing the production 
company concerned, advising it that the Department of Defense has 
approved DoD production assistance and identifying the DoD project 
officer tasked with representing the Department of Defense throughout 
the production process. On a case-by-case basis, the ATSD (PA) may 
choose to delegate the responsibility of signing the Production 
Assistance Memorandum on behalf of DoD to the designated DoD project 
officer or other DoD official responsible for coordinating production 
assistance. If so, this decision would be included in the notification 
letter. If production assistance is approved for only a portion of the 
proposed project, the written notification shall clearly describe the 
portion(s) approved. If assistance is not approved, ATSD (PA) or the 
ATSD (PA)'s designee will send a letter to the production company 
stating reasons for disapproval.
    (3) Role of the DoD project officer. (i) When production assistance 
has been approved, the Military Components will assign a project 
officer (commissioned, non-commissioned, or civilian) who will be 
designated by OATSD (PA) as the principal DoD liaison to the production 
company. The DoD project officer will at a minimum:
    (A) Act as liaison between the production company and the 
Secretaries of the Military Departments and maintain contact with OATSD 
(PA)

[[Page 55682]]

through appropriate channels. In this regard, the project officer will 
serve as the central coordinator for billing the producer and 
monitoring payments to the Government. (See paragraph (d) of this 
section for billing procedures.)
    (B) Advise the production company on technical aspects and arrange 
for information necessary to ensure reasonably accurate and authentic 
portrayals of the Department of Defense.
    (C) Maintain liaison with units and commands providing assistance 
to ensure timely arrangements consistent with the approved support.
    (D) Coordinate with installations or commands that intend to 
provide support to the production to ensure that no material assistance 
is provided before a Production Assistance Memorandum is signed by both 
DoD and the production company.
    (E) When DoD assistance to the production requires the production 
company to reimburse the Government for additional expenses, develop an 
estimate of expenses based on the assistance requested, and ensure that 
these are reflected in the Production Assistance Memorandum.
    (F) Coordinate with each installation or command providing assets 
to the production to ensure the production company receives accurate 
and prompt statements of charges assessed by the Government and that 
the Government receives sufficient payment for any additional expenses 
incurred to support the production.
    (G) For project officers assigned to a documentary or a non-
documentary television series, maintain close liaison with the 
producer(s) and writers in developing story outlines. All story ideas 
considered for further development by the production company should be 
submitted to OATSD (PA) to provide the earliest opportunity for 
appraisal.
    (ii) When considered to be in the best interest of the Department 
of Defense, the assigned project officer may provide ``on-scene'' 
assistance to the production company. Military or civilian technical 
advisor(s) may also be required. In such cases:
    (A) Assignment will be at no additional cost to the Government. The 
production company will assume payment of such items as travel (air, 
rental car, reimbursement for fuel, etc.) and per diem (lodging, food 
and incidentals).
    (B) Assignment should be for the length of time required to meet 
preproduction requirements through completion of photography. When 
feasible, assignment may be extended to cover post-production stages 
and site clean-up.
    (iii) Additional project officer responsibilities, when considered 
to be in the best interest of the Department of Defense, will include:
    (A) Supervising the use of DoD equipment, facilities, and 
personnel.
    (B) Attending pertinent preproduction and production conferences, 
being available during rehearsals to provide technical advice, and 
being present during filming of all scenes pertinent to the Department 
of Defense.
    (C) Ensuring proper selection of locations, appropriate uniforms, 
awards and decorations, height and weight standards, grooming 
standards, insignia, and set dressing applicable to the military 
aspects of the production. This applies to active duty members as well 
as paid civilian actors.
    (D) Arranging for appropriate technical advisers to be present when 
highly specialized military technical expertise is required.
    (E) Ensuring that the production adheres to the agreed-upon script 
and list of support to be provided.
    (F) Authorizing minor deviations from the approved script or list 
of support to be provided, so long as such deviations are feasible, 
consistent with the safety standards, and in keeping with the approved 
story line. All other deviations shall be referred for approval to 
OATSD (PA) through appropriate channels.
    (G) In accordance with the Production Assistance Memorandum, 
providing notice of non-compliance, and when necessary, suspending 
assistance when action by the production company is contrary to 
stipulations governing the project and suspension is in the best 
interest of the Department of Defense until the matter is resolved 
locally or by referral to OATSD (PA).
    (H) Attending the approval screening of the production, unless the 
Military Department concerned, OATSD (PA), and the production company 
mutually agree otherwise.
    (I) Determining whether the production company will need to obtain 
the written consent of DoD personnel who may be recorded, photographed, 
or filmed by the production company, including when the production 
company uses the personally identifying information (PII) of DoD 
personnel. The likeness of DoD personnel in any imagery is included in 
the meaning of PII. If the recording or imagery captures medical 
treatment being performed on DoD personnel, the project officer shall 
require the production company to gain written consent from such DoD 
personnel. In the case of DoD personnel who are deceased or 
incapacitated, the project officer shall require the production company 
to gain written consent from the next of kin of the deceased or 
incapacitated DoD personnel.
    (c) Production company procedures--(1) Review of productions. When 
DoD assistance has been provided to a non-documentary production, the 
production company must arrange for an official DoD screening in 
Washington, DC, or at another location agreeable to OATSD (PA), before 
the production is publicly exhibited. This review should be early, but 
at a stage in editing when changes can be accommodated, to allow the 
Department of Defense to confirm military sequences conform to the 
agreed upon script. For documentary productions, the production company 
will provide to the DoD project officer and the DoD designee(s) 
responsible for coordinating production assistance a digital video 
(DVD) of military-themed photography and the roughly edited version of 
the production at a stage in editing when changes can be accommodated. 
In addition to confirming that the military sequences conform to the 
agreed upon script, treatment, or narrative, this review will also 
serve to preclude release or disclosure of sensitive, security-related, 
or classified information; and to ensure that the privacy of DoD 
personnel is not violated. Should DoD determine that material in the 
production compromises any of the preceding concerns, DoD will alert 
the production company of the material, and the production company will 
remove the material from the production.
    (2) Credit titles. The production company will place a credit in 
the end titles immediately above the ``Special Thanks'' section (if 
any) that states ``Special Thanks to the United States Department of 
Defense,'' with no less than one clear line above and one clear line 
below such credit acknowledging the DoD assistance provided. Such 
acknowledgment(s) will be in keeping with industry customs and 
practices, and will be of the same size and font used for other similar 
credits in the end titles.
    (3) Requests for promotional assistance. Pursuant to DoD Directive 
5122.05, ``Assistant Secretary of Defense for Public Affairs'' 
(available at http://www.dtic.mil/whs/directives/corres/pdf/512205p.pdf), the ATSD(PA) is the final authority for military 
participation in public events, including participation in promotional 
events for entertainment media productions. The production company will 
forward requests for promotional assistance to OATSD(PA)

[[Page 55683]]

in sufficient detail to permit a complete evaluation.
    (4) Publicity photos and promotional material. The production 
company will provide DoD with copies of all promotional and marketing 
materials (e.g., electronic press kits, one-sheets, and television 
advertisements) for internal information and historical purposes in 
documenting DoD assistance to the production.
    (5) Copies of completed production. The production company will 
provide, in a format to be specified in the Production Assistance 
Memorandum, copies of the completed production to DoD for briefings and 
for historical purposes.
    (d) Billing procedures. Pursuant to 31 U.S.C. 9701, production 
companies will reimburse the Government for additional expenses 
incurred as a result of DoD assistance.
    (1) Each installation or Military Component will provide the 
production company with individual statements of charges assessed for 
providing assets to assist in the production. Unless agreed otherwise, 
statements should be presented to the production company within 45 days 
from the last day of the month in which filming and/or photography is 
completed to ensure prompt and complete accounting of charges for DoD 
assistance.
    (2) The production company will be billed for only those expenses 
that are considered to be additional expenses to the Government. In 
accordance with paragraph (b)(3)(i)(A) of this section, the assigned 
project officer will serve as the central coordinator for submitting 
statements to the producer and monitoring receipt of payment to the 
Government. Items for which the costs may be reimbursed to the 
Government include:
    (i) Petroleum, oil, and lubricants for equipment used.
    (ii) Depot maintenance for equipment used.
    (iii) Cost incurred in diverting or moving equipment.
    (iv) Lost or damaged equipment.
    (v) Expendable supplies.
    (vi) Travel and per diem (unless paid directly to the Service 
member when authorized under 31 U.S.C. 1353).
    (vii) Civilian overtime.
    (viii) Commercial power or other utilities for facilities kept open 
beyond normal duty hours or when the production company's consumption 
of utilities is significant, based on average usage rates.
    (ix) Should the production company not comply with requested clean-
up required by production, project officer will require production 
company to hire a cleaning company. Should the production company not 
provide for the necessary clean-up, it shall reimburse the Government 
for any additional expenses incurred by the Government in performing 
such clean-up.
    (3) The production company will be required to reimburse the 
Government for all flying hours related to production assistance, 
including takeoffs, landings, and ferrying aircraft from military 
locations to filming sites, except when such missions coincide with and 
can be considered legitimate operational and training missions. The 
production company will be required to reimburse the Government for all 
steaming days related to production assistance, including all costs 
(tugs, harbor pilots and port costs) required to move ships from 
military locations to filming sites, except when such missions coincide 
with and can be considered legitimate operational and training 
missions. These reimbursements will be calculated at the current DoD 
User Rates.
    (4) In cases where provision of support provides a significant 
benefit to DoD, the production company will not be required to 
reimburse the Government for military or civilian manpower (except for 
civilian overtime) when such personnel are officially assigned to 
assist in the production. However, this limitation does not apply to 
Reserve Component personnel assigned in an official capacity, because 
such members are called to active duty at additional cost to the 
Government to perform the assigned mission. Reimbursement for Reserve 
Component personnel in an official capacity will be at composite 
standard pay and reimbursement rates for military personnel published 
annually by the Under Secretary of Defense (Comptroller)/DoD Chief 
Financial Officer.
    (5) Normal training and operational missions that would occur 
regardless of DoD assistance to a particular production are not 
considered to be chargeable to the production company.
    (6) Beyond actual operational expenses, imputed rental charges 
ordinarily will not be levied for use of structures or equipment.
    (7) The production company will provide proof of adequate industry 
standard liability insurance, naming DoD as an additional insured 
entity prior to the commencement of production involving DoD. The 
production company will maintain, at its sole expense, insurance in 
such amounts and under such terms and conditions as may be required by 
DoD to protect its interests in the property involved.

Appendix A to Part 238--Sample Production Assistance Memorandum

U.S. DEPARTMENT OF DEFENSE

PRODUCTION ASSISTANCE MEMORANDUM

DoD-[enter number]-[enter year]

    The United States Department of Defense (DoD), acting on behalf 
of the United States of America, hereby expresses its intent, 
subject to the provisions herein, to provide to [enter name of 
production entity], hereinafter referred to as the ``production 
company,'' the assistance itemized in this Production Assistance 
Memorandum (Memorandum) in conjunction with the production of a 
[enter type of production; e.g., feature motion picture, television 
series] known at this time as [enter title of production or 
episode]. This Memorandum expresses the terms under which DoD 
intends to provide assistance. This Memorandum does not authorize 
the obligation of any United States funding, nor should it be 
construed as a contract, grant, cooperative agreement, other 
transaction, or any other form of procurement agreement.
    LIST OF MILITARY RESOURCES REQUESTED TO BE PROVIDED IN SUPPORT 
OF PRODUCTION [or ``see Attachment 1''] The DoD will make reasonable 
efforts to provide the assistance requested in the request for 
production assistance, to the extent approved by DoD, and subject to 
the limitations contained herein.
    This Memorandum is subject to revocation due to non-compliance 
with the terms herein, with the possible consequence of a temporary 
suspension or permanent withdrawal of the use of some or all of the 
military resources identified to assist this project. In the event 
of dispute, the production company will be given a written notice of 
non-compliance by the DoD project officer. The production company 
will have a 72-hour cure period after receipt of written notice of 
non-compliance. DoD may temporarily suspend support until the non-
compliance has been cured or the 72-hour cure period has expired. 
After the cure period has expired, DoD may permanently withdraw its 
support for the production. If such Memorandum is either suspended 
or terminated, the sole right of the Production Company to appeal 
such decision is to the DoD designee responsible for coordinating 
production assistance for entertainment media operations (``DoD 
Director of Entertainment Media''). The requirements in Department 
of Defense Instruction 5410.16 shall apply to this Memorandum.
    It is understood between DoD and the production company that:
    1. The DoD project officer, [enter name of project officer], is 
the official DoD representative responsible for ensuring that the 
terms of this Memorandum are met. The DoD project officer or his or 
her designee will be present each day the U.S. military is being 
portrayed, photographed, or otherwise involved in any aspect of 
[enter title of

[[Page 55684]]

production]. The DoD project officer is the military technical 
advisor, and all military coordination must go through him or her. 
The production company will consult with the DoD project officer in 
all phases of pre-production, production, and post-production that 
involves or depicts the U.S. military.
    2. The production company will cast actors, extras, doubles, and 
stunt personnel portraying Service members who conform to individual 
Military Service regulations governing age, height and weight, 
uniform, grooming, appearance, and conduct standards. DoD reserves 
the right to suspend support in the event that disagreement 
regarding the military aspects of these portrayals cannot be 
resolved in negotiation between the production company and DoD 
within the 72-hour cure period. The DoD project officer will provide 
written guidance specific to each Military Service being portrayed.
    3. DoD has approved production assistance as in the best 
interest of DoD, based on the [enter date] version of the script to 
the extent agreed upon by DoD [, and as further described by 
]. The production company must 
obtain, in advance, DoD concurrence for any subsequent changes 
proposed to the military depictions made to either the picture or 
the sound portions of the production before these changes are 
undertaken.
    4. The operational capability and readiness of the Military 
Components will not be impaired. Unforeseen contingencies affecting 
national security or other emergency circumstances such as disaster 
relief may temporarily or permanently preclude the use of military 
resources. In these circumstances, DoD will not be liable, 
financially or otherwise, for any resulting negative impact or 
prejudice to the production caused by the premature withdrawal or 
change in support to the production company.
    5. There will be no deviation from established DoD safety and 
conduct standards. The DoD project officer or his or her designee 
will coordinate such standards and compliance therewith. DoD will 
provide the production company advance notice of such safety or 
conduct standards upon request.
    6. All DoD property or facilities damaged, used, or altered by 
the production company in connection with the production will be 
restored by the production company to the same or better condition, 
cleaned and free of trash, normal wear and tear excepted, as when 
they were made available for the production company's use.
    7. The production company will reimburse the U.S. Government for 
any additional expenses incurred as a result of the assistance 
rendered for the production of [enter title of production]. The 
estimated amount will be detailed and included (e.g., ``see 
Attachment 2,'' etc.). Unless otherwise agreed upon, the production 
company agrees to post advance payment or a letter of credit in the 
amount estimated to comprise the total additional DoD expenses or 
deposit such funds that may be reasonably necessary. The payment or 
letter of credit will be submitted to the military component(s) 
designated to provide the assistance, or to another DoD agency, as 
deemed appropriate by DoD.
    a. DoD agrees to provide statements of charges assessed by each 
installation or DoD component providing assets to assist in the 
production within 45 days from the last day of the month in which 
filming is completed.
    b. The production company will be charged for only those 
expenses that are considered to be additional costs to DoD in excess 
of those that would otherwise have been incurred, including, but not 
limited to fuel, resultant depot maintenance, expendable supplies, 
travel and per diem, civilian overtime, and lost or damaged 
equipment.
    c. If the final aggregate of such costs and charges is less than 
previously anticipated, DoD agrees to remit the exact amount of the 
difference of any funds posted within 45 days from the last day of 
the month in which filming is completed.
    8. The production company will be charged for the travel, 
lodging, per diem, and incidental expenses for the DoD project 
officer, the DoD Director of Entertainment Media or his or her 
designee, and any other assigned military technical and safety 
advisor(s) whose presence may be required by DoD. For each of these 
individuals, the production company will provide:
    a. Round-trip air transportation and ground transfers to the 
production location(s) at which there is a military portrayal or 
involvement, at times deemed appropriate by the DoD project officer 
and DoD Director of Entertainment Media.
    b. A full-size vehicle (with fuel and with loss, damage, and 
collision automobile insurance paid for by the production company) 
for his or her personal use during the filming, including for his or 
her stay at the production location(s). If parking at the 
location(s) is not available, transportation to and from the lodging 
location to the production site will be provided.
    c. Hotel accommodations equivalent to those provided to the 
production company's crew.
    d. A dedicated, on-location trailer room or other comparable 
work space with full Internet access, desk, seating, and en-suite 
toilet.
    9. By approving DoD production assistance for [enter title of 
production], DoD hereby provides a general release to the production 
company for the use of any and all photography and sound recordings 
of any and all Service members, equipment, and real estate, subject 
to the limitations in this Memorandum (e.g. Paragraphs 12-13).
    10. As a condition of DoD assistance, the production company 
will:
    a. Indemnify and hold harmless DoD, its agencies, officers, and 
employees against any claims (including claims for personal injury 
and death, damage to property, and attorneys' fees) arising from the 
production company's possession or use of DoD property or other 
assistance in connection with this production of [enter title of 
production], to include pre-production, post-production, and DoD-
provided orientation or training. This provision will not in any 
event require production company to indemnify or hold harmless DoD, 
its agencies, officers and or employees from or against any claims 
arising from defects in DoD property or negligence on the part of 
DoD, its agencies, officers, or employees.
    b. Provide proof of adequate industry standard liability 
insurance, naming DoD as an additional insured entity prior to the 
commencement of production involving DoD. The production company 
will maintain, at its sole expense, insurance in such amounts and 
under such terms and conditions as may be required by DoD to protect 
its interests in the property involved.
    c. Not carry onto DoD property any non-prescription narcotic, 
hallucinogenic, or other controlled substance; or alcoholic beverage 
without prior coordination with the DoD project officer or his or 
her designee.
    d. Not carry onto DoD property any real or prop firearms, 
weapons, explosives, or any special effects devices or equipment 
that cause or simulate explosions, flashes, flares, fire, loud 
noises, etc., without the prior approval of the DoD project officer 
and the supporting installation.
    e. Allow DoD public affairs personnel access to the production 
site(s) to conduct still and motion photography of DoD personnel and 
assets that are directly supporting the filming, and to allow DoD 
the use of production company-generated publicity and marketing 
materials, such as production stills and electronic press kits. 
These materials may be used to show DoD viewers how DoD is assisting 
in the production; such materials may be viewed by the general 
public if posted on an open DoD Web site or released on ``The 
Pentagon Channel'' or other publicly-accessible media source. 
Therefore, no DoD personnel will photograph actual filming, talent, 
or sets without the prior approval of the production company.
    11. The production company will provide the DoD project officer 
with whatever internal communications equipment it is supplying to 
production company crew members to communicate on the set during 
production of military-themed sequences. The production company will 
also supply the DoD project officer with earphones to monitor 
military-themed dialogue and other sound recording during these 
periods.
    12. The production company will screen for the DoD project 
officer and the DoD Director of Entertainment Media, or their 
designees, the roughly edited version of the production at a stage 
in editing when changes can be accommodated to allow DoD to confirm 
the military sequences conforms to the agreed script treatment, or 
narrative description; to preclude release or disclosure of 
sensitive, security-related, or classified information; and to 
ensure that the privacy of DoD personnel is not violated. Should DoD 
determine that material in the production compromises any of the 
preceding concerns, DoD will alert the production company of the 
material, and the production company will remove the material from 
the production. The production company will bear the travel, 
lodging, per diem, and incidental expenses incurred in transporting 
the DoD project officer and the DoD Director of Entertainment Media, 
or their designees, to the location where the screening is held.
    13. No photography or sound recordings made with DoD assistance 
and no DoD

[[Page 55685]]

photography and sound recordings released for this production will 
be reused or sold for use in other productions without DoD approval. 
The foregoing will not prohibit the production company from 
exploiting the production in any and all ancillary markets, now 
known or hereafter devised (including, without limitation, 
television, web content, home video and theme parks) or from using 
clips in promotional material relative thereto.
    14. The production company will also provide an official DoD 
screening of the completed production in Washington, D.C., prior to 
public exhibition. An alternative screening location may be 
authorized by DoD, in negotiation with the production company. In 
this case, the production company will pay the travel and lodging 
expenses incidental to the attendance at the screening of the DoD 
project officer and the Director of Entertainment Media or their 
designees.
    15. The production company will place a credit in the end titles 
immediately above the ``Special Thanks'' section (if any), 
substantially in the form of ``Special Thanks to the United States 
Department of Defense,'' with no less than one clear line above and 
one clear line below such credit acknowledging the DoD assistance 
provided. Such acknowledgment(s) will be in keeping with industry 
customs and practices, and will be of the same size and font used 
for other similar credits in the end titles.
    16. The production company will provide DoD with five copies of 
all promotional and marketing materials (e.g., electronic press 
kits, one-sheets, and television advertisements) for internal 
information and historical purposes in documenting DoD assistance to 
the production.
    17. The production company will provide a minimum of ten digital 
video (DVD) copies of the completed production to DoD for internal 
briefings and for historical purposes, by overnight shipment to 
arrive the day following the first domestic airing or commercial 
distribution of the production. DoD will not exhibit these DVDs 
publicly or copy them; however, DoD is allowed to use short clips 
from them in official presentations by Service members and DoD 
civilian personnel who were directly involved in providing DoD 
assistance, for the sole purpose of illustrating DoD support to the 
production. However, DoD is prohibited from making these clips 
available to any other party for any other purpose.
    18. Official activities of DoD personnel in assisting the 
production must be within the scope of normal military activities, 
with the exception of the DoD project officer and assigned official 
technical advisor(s), whose activities must be consistent with their 
authorized additional duties. DoD personnel in an off-duty, non-
official status may be hired by the production company to perform as 
actors, extras, etc., provided there is no conflict with existing 
Service or Department regulations. In such cases, these conditions 
apply:
    a. Contractual agreements are solely between those individuals 
and the production company; however, they should be consistent with 
industry standards.
    b. The DoD project officer will ensure that DoD personnel will 
comply with standards of conduct regulations in accepting 
employment.
    c. The production company is responsible for any disputes with 
unions governing the hiring of non-union actors or extras.
    19. The production company may make donations or gifts in-kind 
to morale, welfare, and recreation programs of the military unit(s) 
involved; however, donations of this kind are not at all required, 
and are not in any manner a consideration in the determination of 
whether or not a production should receive DoD assistance. These 
donations must be coordinated through the DoD project officer and 
must comply with law and DoD policies.
    20. The undersigned parties warrant that they have the authority 
to enter into this Memorandum and that the consent of no other party 
is necessary to effectuate the full and complete satisfaction of the 
provisions contained herein.
    21. This Memorandum consists of [enter number] pages including 
[enter number of attachment(s)]. Each page will be initialed by the 
undersigned DoD and production company representatives.

FOR THE DEPARTMENT OF DEFENSE
-----------------------------------------------------------------------
Signature and Date

Name of DoD Representative:
-----------------------------------------------------------------------
Title and Address

FOR [ENTER PRODUCTION COMPANY]
-----------------------------------------------------------------------
Signature and Date

Name of Production Company Representative:
-----------------------------------------------------------------------
Title and Address

Appendix B to Part 238--Sample Production Assistance Memorandum

U.S. DEPARTMENT OF DEFENSE

DOCUMENTARY PRODUCTION ASSISTANCE MEMORANDUM

DoD-[enter number]-[enter year]

    The United States Department of Defense (DoD), acting on behalf 
of the United States of America, hereby expresses its intent, 
subject to the provisions herein, to provide to [enter name of 
production entity], hereinafter referred to as the ``production 
company,'' the assistance itemized in this Production Assistance 
Memorandum (Memorandum) in conjunction with the production of a 
documentary known at this time as [enter title of the production]. 
This Memorandum expresses the terms under which DoD intends to 
provide assistance. This Memorandum does not authorize the 
obligation of any United States funding, nor should it be construed 
as a contract, grant, cooperative agreement, other transaction, or 
any other form of procurement agreement.
    LIST OF MILITARY RESOURCES REQUESTED TO BE PROVIDED IN SUPPORT 
OF PRODUCTION [or ``see Attachment 1''] The DoD will make reasonable 
efforts to provide the assistance requested in the request for DoD 
documentary assistance, to the extent approved by DoD, and subject 
to the limitations contained herein.
    This Memorandum is subject to revocation due to non-compliance 
with the terms herein, with the possible consequence of a temporary 
suspension or permanent withdrawal of the use of some or all of the 
military resources identified to assist this project. In the event 
of dispute, the production company will be given a written notice of 
non-compliance by the DoD project officer. The production company 
will have a 72-hour cure period after receipt of written notice of 
non-compliance. DoD may temporarily suspend support until the non-
compliance has been cured or the 72-hour cure period has expired. 
After the cure period has expired, DoD may permanently withdraw its 
support for the production. If such Memorandum is either suspended 
or terminated, the sole right of the Production Company to appeal 
such decision is to the DoD designee responsible for coordinating 
assistance for documentary productions. The requirements in 
Department of Defense Instruction 5410.16 shall apply to this 
Memorandum.
    It is understood between DoD and the production company that:
    1. The DoD project officer, [enter name of project officer and 
contact information], is the official DoD representative responsible 
for ensuring that the terms of this Memorandum are met. The DoD 
project officer is the military technical advisor, and all military 
coordination must go through him or her. The production company will 
consult with the DoD project officer in all phases of pre-
production, production, and post-production that involves or depicts 
the U.S. military. The local unit/installation public affairs 
officer, or a designated official, may serve as the official onsite 
DoD representative for this project and will act as the interface 
between the film crew and military units providing both filming and 
logistical support.
    2. DoD has approved production assistance as in the best 
interest of DoD, based on the [enter date] version of the script, 
treatment, or narrative description to the extent agreed upon by DoD 
[and as further described by ]. 
The production company must obtain, in advance, DoD concurrence for 
any subsequent changes proposed to the military depictions made to 
either the picture or the sound portions of the production before 
these changes are undertaken.
    3. The operational capability and readiness of the Military 
Components will not be impaired. Unforeseen contingencies affecting 
national security or other emergency circumstances such as disaster 
relief may temporarily or permanently preclude the use of military 
resources. In these circumstances, DoD will not be liable, 
financially or otherwise, for any resulting negative impact or 
prejudice to the production caused by the premature withdrawal or 
change in support to the production company.
    4. There will be no deviation from established DoD safety and 
conduct standards. The DoD project officer, or his or her designee, 
will coordinate such standards and compliance therewith. DoD will 
provide the production company advance notice of

[[Page 55686]]

such safety or conduct standards upon request.
    5. All DoD property or facilities damaged, used or altered by 
the production company in connection with the production will be 
restored by the production company to the same or better condition, 
cleaned and free of trash, normal wear and tear excepted, as when 
they were made available for the production company's use.
    6. The production company will reimburse the U.S. Government for 
any additional expenses incurred as a result of the assistance 
rendered for the production of [enter title of production]. The 
estimated amount will be detailed and included in this Memorandum or 
as an attachment to it.
    7. The production company will be charged for only those 
expenses that are considered to be additional costs to DoD in excess 
of those that would otherwise have been incurred, including, but not 
limited to fuel, resultant depot maintenance, expendable supplies, 
travel and per diem, civilian overtime, and lost or damaged 
equipment.
    8. The production company will be charged for the travel, 
lodging, per diem, and incidental expenses for the DoD project 
officer, the DoD documentary officer, or his or her designee, and 
any other assigned military technical and safety advisor(s) whose 
presence may be required by DoD. For each of these individuals, the 
production company will provide:
    a. Round-trip air transportation and ground transfers to the 
production location(s) at which there is a military portrayal or 
involvement, at times deemed appropriate by the DoD project officer 
and the DoD documentary officer.
    b. Hotel accommodations equivalent to those provided to the 
production company's crew.
    9. By approving DoD production assistance for [enter title of 
production], DoD hereby provides a general release to the production 
company for the use of any and all photography and sound recordings 
of any and all Service members, equipment, and real estate, subject 
to the limitations in this Memorandum (e.g., including, but not 
limited to, Paragraphs 11-14).
    10. As a condition of DoD assistance, the production company 
will:
    a. Indemnify and hold harmless the DoD, its agencies, officers, 
and employees against any claims (including claims for personal 
injury and death, damage to property, and attorneys' fees) arising 
from the production company's possession or use of DoD property or 
other assistance in connection with this production of [enter title 
of production]. This provision will not in any event require 
production company to indemnify or hold harmless the DoD, its 
agencies, officers, or employees from or against any claims arising 
from defects in DoD property or negligence on the part of DoD, its 
agencies, officers, or employees.
    b. Provide proof of adequate industry standard liability 
insurance, naming DoD as an additional insured entity prior to the 
commencement of production involving DoD. The production company 
will maintain, at its sole expense, insurance in such amounts and 
under such terms and conditions as may be required by DoD to protect 
its interests in the property involved.
    c. Not carry onto DoD property any non-prescription narcotic, 
hallucinogenic, or other controlled substance or alcoholic beverage 
without prior coordination with the DoD project officer or his or 
her designee.
    d. Not carry onto DoD property any real or prop firearms, 
weapons, explosives, or any special effects devices or equipment 
that cause or simulate explosions, flashes, flares, fire, loud 
noises, etc., without the prior approval of the DoD project officer 
and the supporting installation.
    e. Allow DoD public affairs personnel access to the production 
site(s) to conduct still and motion photography of DoD personnel and 
assets that are directly supporting the filming, and to allow DoD 
the use of production company-generated publicity and marketing 
materials. These materials are may be used to show DoD viewers how 
DoD is assisting in the production; such materials may be viewed by 
the general public if posted on an open DoD Web site or on ``The 
Pentagon Channel'' or other publicly-accessible media source. 
Therefore, no DoD personnel will photograph actual filming without 
the prior approval of the production company.
    11. The production company will screen for the DoD project 
officer, and the DoD documentary officer, or their designees, the 
roughly edited version of the production at a stage in editing when 
changes can be accommodated to allow DoD to confirm the military 
sequences conforms to the agreed-upon script, treatment, or 
narrative description; to preclude release or disclosure of 
sensitive, security-related, or classified information; and to 
ensure that the privacy of DoD personnel is not violated. Should DoD 
determine that material in the production compromises any of the 
preceding concerns, DoD will alert the production company of the 
material, and the production company will remove the material from 
the production.
    12. If the recording or imagery to be used in the production 
captures medical treatment being performed on DoD personnel, the 
project officer shall require the production company to gain written 
consent from such DoD personnel. In the case of DoD personnel who 
are deceased or incapacitated, the project officer shall require the 
production company to gain written consent from the next of kin of 
the deceased or incapacitated DoD personnel.
    13. All Department of Defense uniformed and civilian personnel 
who are photographed or sound recorded by the documentary production 
company are considered to be on duty and are precluded from 
receiving any compensation from the production company or any other 
party as a result of their appearance in the production or 
subsequent authorized productions, or as a result of the use of 
their name, likeness, life story or other rights for any purpose. 
Military personnel in an off-duty, non-official status may be hired 
by the production company to perform as actors, extras, etc., 
provided there is no conflict with existing Service regulations. In 
such cases, these conditions apply:
    a. Contractual agreements are solely between those individuals 
and the production company; however, they should be consistent with 
industry standards.
    b. The DoD project officer will ensure that DoD personnel will 
comply with standards of conduct regulations in accepting 
employment.
    c. The production company is responsible for any disputes with 
unions governing the hiring of non-union actors or extras.
    14. No photography or sound recordings made with DoD assistance 
and no DoD photography and sound recordings released for this 
production will be reused or sold for use in other productions 
without DoD approval. The foregoing will not prohibit the production 
company from exploiting the production in any and all ancillary 
markets, now known or hereafter devised (including, without 
limitation, television, web content, home video and theme parks) or 
from using clips in promotional material relative thereto.
    15. The production company will identify any and all re-
enactments in the production by placing the word ``RE-ENACTMENT ``on 
the screen, in a legible format and of a legible size, for either 
the duration of the re-enactment or at the beginning of the re-
enactment for a period of not less than 3 seconds and reappearing 
every subsequent 10 seconds for a period of 3 seconds until 
complete. This activity will occur for every instance of a re-
enactment in the production.
    16. The production company will place a credit in the end titles 
immediately above the ``Special Thanks'' section (if any) 
substantially in the form of ``Special Thanks to the United States 
Department of Defense,'' with no less than one clear line above and 
one clear line below such credit acknowledging the DoD assistance 
provided. Such acknowledgment(s) will be in keeping with industry 
customs and practices, and will be of the same size and font used 
for other similar credits in the end titles.
    17. The production company will provide a minimum of five 
digital video (DVD) copies of the completed production within seven 
working days of initial broadcast to DoD, for internal briefings and 
for historical purposes. DoD will not exhibit these DVDs publicly or 
copy them; however, DoD is allowed to use short clips from them in 
official presentations by Service members and DoD civilian personnel 
who were directly involved in providing DoD assistance, for the sole 
purpose of illustrating DoD support to the production. However, DoD 
is prohibited from making these clips available to any other party 
for any other purpose.
    18. The undersigned parties warrant that they have the authority 
to agree to the terms of this Memorandum and that the consent of no 
other party is necessary to effectuate the full and complete 
satisfaction of the provisions contained herein.
    19. This Memorandum consists of [enter number] pages including 
[enter number of attachment(s)]. Each page will be initialed by the 
undersigned DoD and production company representatives.

FOR THE DEPARTMENT OF DEFENSE
-----------------------------------------------------------------------
Signature and Date

Name of DoD Representative:
-----------------------------------------------------------------------
Title and Address

[[Page 55687]]

FOR [ENTER PRODUCTION COMPANY]
-----------------------------------------------------------------------
Signature and Date

Name of Production Company Representative:
-----------------------------------------------------------------------
Title and Address

    Dated: September 11, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-22030 Filed 9-16-14; 8:45 am]
BILLING CODE 5001-06-P
```