[Federal Register Volume 70, Number 242 (Monday, December 19, 2005)]
[Proposed Rules]
[Pages 75091-75093]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24160]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 235

RIN 0790-AH86


Sale of Rental of Sexually Explicit Material on DoD Property (DoD 
Instruction 4105.70)

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to revise DoD regulations to prohibit the 
sale or rental of sexually explicit material on

[[Page 75092]]

property under DoD jurisdiction. It establishes responsibilities for 
monitoring compliance, establishes a review board to determine whether 
a material offered for sale or rental is sexually explicit as 
consistent with the definition in 10 U.S.C. 2489a, and delineates 
review board procedures.

DATES: Consideration will be given to all comments received on or 
before February 17, 2006.

ADDRESSES: Forward comments to Deputy Under Secretary of Defense 
(Military Community and Family Policy), 4000 Defense Pentagon, 
Washington, DC 20301-4000.

FOR FURTHER INFORMATION CONTACT: Commander F. Stich, 703-602-4590.

SUPPLEMENTARY INFORMATION: 

List of Subjects in 32 CFR Part 235

    Business and industry, Concessions, Government contracts, Military 
personnel.

    Accordingly, title 32 of the Code of Federal Regulations is 
proposed to be amended by revising Part 235 to read as follows:

PART 235--SALE OR RENTAL OR SEXUALLY EXPLICIT MATERIAL ON DOD 
PROPERTY (DOD INSTRUCTION 4105.70)

Sec.
235.1 Purpose.
235.2 Applicability and scope.
235.3 Definitions.
235.4 Policy.
235.5 Responsibilities.
235.6 Procedures.
235.7 Information requirements.

    Authority: 10 U.S.C. 2489a.


Sec.  235.1  Purpose.

    This part:
    (a) Revises 32 CFR part 235 under the authority of the Secretary of 
Defense memorandum dated November 14, 1996 and the Under Secretary of 
Defense (USD (P&R)) memorandum dated December 6, 1996.
    (b) Implements 10 U.S.C. 2489a, consistent with DoD Directive 
1330.9 \1\, by providing guidance about restrictions on the sale or 
rental of sexually explicit materials on property under the 
jurisdiction of the Department of Defense or by members of the Armed 
Forces or DoD civilian officers or employees, acting in their official 
capacities.
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    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
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Sec.  235.2  Applicability and scope.

    This part:
    (a) Applies to the Office of the Secretary of Defense, the Military 
Departments, the Chairman of the Joint Chiefs of 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 (hereafter 
referred to as the ``DoD'' Components.'').
    (b) Shall not confer rights on any person.


Sec.  235.3  Definitions.

    Dominant Theme. A theme of any material that is superior in power, 
influence, and importance to all other themes in the material combined.
    Lascivious. Lewd and intended or designed to elicit a sexual 
response.
    Material. An audio recording, a film or video recording, or a 
periodical with visual depictions, produced in any medium.
    Property under the Jurisdiction of the Department of Defense. 
Commissaries, facilities operated by the Army and Air Force Exchange 
Service, the Navy Exchange Service Command, the Navy Resale and Serves 
Support Office, Marine Corps Exchanges, and ship stores.
    Sexually Explicit Material. Material, the dominant theme of which 
is the depiction or description of nudity, including sexual or 
excretory activities or organs, in a lascivious way.


Sec.  235.4  Policy.

    It is DoD policy that:
    (a) No sexually explicit material may be offered for sale or rental 
on property under the DoD jurisdiction, and no member of the Armed 
Forces or DoD civilian officer or employee, acting in his or her 
official capacity, shall offer for sale or rental any sexually explicit 
material.
    (b) Material shall not be deemed sexually explicit because of any 
message or point of view expressed therein.


Sec.  235.5  Responsibilities.

    (a) The Principal Deputy Under Secretary of Defense for Personnel 
and Readiness (PDUSD (P&R)), shall:
    (1) Monitor and ensure compliance with this part.
    (2) Establish a Resale Activities Board of Review (the ``Board'') 
and approve senior representatives from the Army and Air Force Exchange 
Service, the Navy Exchange Service, and the Marine Corps Exchange 
Service; and approve a senior representative from each of the Military 
Departments, if designated by the Military Department concerned, to 
serve as board members on the Resale Activities Board.
    (3) Appoint a Chair of the Resale Activities Board of Review.
    (4) Monitor the activities of the Resale Activities Board of Review 
and ensure the Board discharges its responsibilities as set forth in 
Sec.  235.6.
    (b) The Secretaries of the Military Departments shall ensure their 
respective component DoD resale activities comply with this part and 
may designate a senior representative to serve on the Board.
    (c) The Secretary of the Army and the Secretary of the Air Force 
shall each appoint one senior representative from the Army and Air 
Force Exchange Service to serve on the Board.
    (d) The Secretary of the Navy shall appoint a senior representative 
from the Navy Exchange Service Command and a senior representative from 
the Marine Corps Exchange Service to serve on the Board.


Sec.  235.6  Procedures.

    (a) The Board shall have the authority and responsibility 
periodically to review material offered or to be offered for sale or 
rental on property under DoD jurisdiction, and to determine whether any 
such material is sexually explicit in accordance with this part.
    (b) If the Board determines that any material offered for sale or 
rental on property under DoD jurisdiction is sexually explicit, such 
material shall be withdrawn from all retail outlets where it is sold or 
rented and returned to distributors or suppliers, and shall not be 
purchased absent further action by the Board.
    (c) The Board shall convene as necessary to determine whether any 
material offered or to be offered for sale or rental on property under 
DoD jurisdiction is sexually explicit. The Board members shall, to the 
extent practicable, maintain and update relevant information about 
material offered or to be offered for sale or rental on property under 
DoD jurisdiction.
    (d) If any purchasing agent or manager of a retail outlet has 
reason to believe that material offered or to be offered for sale or 
rental on property under DoD jurisdiction may be sexually explicit as 
defined herein, and such material is not addressed by the Board's 
instructions issued under paragraph (e) of this section, he or she 
shall request a determination from the Board about such material prior 
to purchase or as soon as possible.
    (e) At the conclusion of each review and, as necessary, the Board 
shall provide instructions to purchasing agents and managers of retail 
outlets about the purchase, withdrawal and return of sexually explicit 
material. The Board may also provide guidance to purchasing agents and 
managers of

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retail outlets about material that it has determined is not sexually 
explicit. Purchasing agents and managers of retail outlets shall 
continue to follow their usual purchasing and stocking practices unless 
instructed otherwise by the Board.
    (f) material which has been determined by the Board to be sexually 
explicit may be submitted for reconsideration every 5 years. If 
substantive changes in the publication standards occur earlier, the 
purchasing agent or manager of a retail outlet under DoD jurisdiction 
may request a review.


Sec.  235.7  Information requirements.

    The Chair, Resale Activities Board of Review, shall submit to the 
PDUSD (P&R) an annual report documenting the activities, decisions, and 
membership of the Board. Negative reports are required. The annual 
report shall be due on October 1st of each year. The annual report 
required by this part is exempt from licensing. Licensing requirements 
are contained in DoD 8910.1-M.\2\
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    \2\ See footnote 1 Sec. 235.1(b).

    Dated: December 13, 2005.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 05-24160 Filed 12-16-05; 8:45 am]
BILLING CODE 5001-06-M