2015-19279. DoD Assistance to Non-Government, Entertainment-Oriented Media Productions

AGENCY:

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

ACTION:

Final rule.

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:

This rule is effective September 9, 2015.

FOR FURTHER INFORMATION CONTACT:

Philip M. Strub, [phone].

SUPPLEMENTARY INFORMATION:

Executive Summary

I. Purpose

DoD is updating its 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 Agreements (PAA) as samples. These documents 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 Agreements (PAAs), 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 Agreement, operations, and maintenance, supply and equipment costs incurred by DoD (collectively) as a direct consequence of providing support will be reimbursed by the non-government entertainment production company. Additionally, the sample production assistance agreements 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.

Retrospective Review

The revisions to this rule will be reported in future status updates as part of DoD's retrospective plan under Executive Order 13563 completed in August 2011. DoD's full plan can be accessed at: http://www.regulations.gov/​#!docketDetail;​D=​DOD-2011-OS-0036.

Public Comments

The Department of Defense published a proposed rule in the Federal Register on September 17, 2014 (79 FR 55679-55687) for a 60-day public comment period. One public comment was received.

Comment: The Department of Defense's support for private entertainment productions is a great program that improves citizens' understanding of the military with little expense to the government, and benefits America's entertainment industry. However, for any public-private partnership, it is important that the government's contribution (be it in money, services or assets) benefit the public to the greatest extent possible, and not just the private partner. Accordingly, the Department of Defense should include guidance on the copyright relating to DoD-supported productions in its policy on assistance to non-government, entertainment-oriented media production. In particular, works of the United States government are not subject to copyright (17 U.S. Code 105). This includes stock footage or other creative content made by DoD that might be provided to a production company under this program. Accordingly, DoD should obtain a commitment from companies it assists that the company will not erroneously pursue copyright infringement remedies against citizens who extract and use such footage from copyrighted content. Insofar as a fragment of video or audio is entirely created by the Department of Defense, it is free from copyright, and production companies must respect this principle. This ensures that taxpayers receive the greatest return from DoD's efforts to support non-government productions.

Response: With respect to stock footage created by DoD, any entertainment filmmaker who seeks to use such material—for documentaries or otherwise—can obtain such material directly from DoD. Moreover, the nature of a copyright infringement action itself would require the claimant to demonstrate its ownership of an exclusive right in the copyrighted work that is allegedly infringed, which would not be possible for such stock footage that is a work of the U.S. Government. For these reasons, further revision of this rule in response to this comment is unnecessary.

Regulatory Procedures

Executive Order 12866, “Regulatory Planning and Review” and Executive Order 13563, “Improving Regulation and Regulatory Review”

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been determined to be a significant regulatory action, although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

Sec. 202, Pub. L. 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 final 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 final 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 rule will not have a substantial effect on the States; the relationship between the National Government and the States; or the distribution of power and responsibilities among the various levels of Government.

List of Subjects in 32 CFR Part 238

• Entertainment
• Media productions
• Documentaries

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

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

238.1

Purpose.

238.2

Applicability.

238.3

Definitions.

238.4

Policy.

238.5

Responsibilities.

238.6

Procedures.

Appendix A to Part 238—Sample Production Assistance Agreement

Appendix B to Part 238—Sample Documentary Production Assistance Agreement

Authority: 10 U.S.C. 2264; 31 U.S.C. 9701.

§ 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.

§ 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.

§ 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.

§ 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.

§ 238.5

Responsibilities.

(a) The Assistant to the Secretary of Defense for Public Affairs (ATSD(PA)) 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 § 238.4(a).

(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.

§ 238.6

Procedures.

(a) General. (1) The producer will be required to sign a written Production Assistance Agreement (see appendices A and B of this part for sample documents), 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 § 238.4(a).

(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 Agreement 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) 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 Agreement 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 Agreement.

(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 Agreement, 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 videodisc (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 use its best efforts to 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) 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 Agreement, copies of the completed production to DoD for briefings and for historical purposes.

(d) Billing procedures. Pursuant to 10 U.S.C. 2264 and 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 reimbursed 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 Agreement

Appendix B to Part 238—Sample Production Assistance Agreement

Dated: July 31, 2015.

Aaron Siegel,

Alternate OSD Federal Register Liaison Officer, Department of Defense.