[Federal Register Volume 71, Number 220 (Wednesday, November 15, 2006)]
[Rules and Regulations]
[Pages 66457-66460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-19268]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 235

[DOD-2005-OS-0149]
RIN 0790-AH86


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

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule prohibits the sale or rental of sexually explicit 
material on 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. This updated rule includes 
administrative changes and one new policy allowing materials which have 
been determined by the Board to be sexually explicit to be submitted 
for reconsideration every 5 years.

DATES: Effective Date: December 15, 2006.

FOR FURTHER INFORMATION CONTACT: Commander F. Stich, 703-602-4601.

SUPPLEMENTARY INFORMATION: On December 19, 2005 (70 FR 75091) the 
Department of Defense published the proposed rule for public comment. 
Twenty-eight comments were posted, 14 of which merited a response:

1. Comment posted 1/12/06:

    General Comment: I don't think the DoD should be selling or renting 
sexually explicit material other than artistic publications such as 
Playboy.
    DoD response: The Part, which implements 10 U.S.C. 2489a, prohibits 
the sale or rental of sexually explicit material on property under DoD 
jurisdiction, as well as the sale or rental of sexually explicit 
material by DoD military and civilian personnel acting in an official 
capacity.

2. Comment posted 2/2/06:

    General Comment: In addition to appointing senior representative to 
the Resale Activities Board of Review, there should also be a consumer 
group composed of enlisted members and officers to help analyze 
material for decency.
    DoD response: Forming the suggested consumer group is unnecessary. 
The Resale Activities Board of Review includes civilian representatives 
from the Army, Navy, and Air Force who are capable of identifying 
sexually explicit material.

3. Comment posted 2/6/06:

    General Comment: I think that the proposed rule to prohibit 
sexually explicit material being sold on the property of the Department 
of Defense and by those employed by the Department of Defense is a bit 
too restricting. I can understand prohibiting it on government 
property, however, prohibiting those employed by the Department of 
Defense has gone too far. It is not the government's job to regulate 
what people do with their private lives. It's like telling people that 
they can't smoke if they want to work for that person.
    DoD response: The Part does not prohibit DoD personnel from 
possessing sexually explicit material. It prohibits the sale or rental 
of sexually explicit material on property under DoD jurisdiction, and 
it prohibits the sale or rental of sexually explicit material by DoD 
military and civilian personnel when acting in an official capacity.

4. Comment posted 2/6/06:

    General Comment: It seems that if magazines and videos containing 
sexually explicit materials are to be restricted but books containing 
sexually explicit materials are not, then a double standard is being 
created. In essence sexually explicit materials are acceptable in one 
format but not in another. Either all sexually explicit materials 
should be allowed or it all should be banned.
    DoD response: The Part is consistent with 10 U.S.C. 2489a, which 
does not include books in the definition of ``sexually explicit 
material.''

5. Comment posted 2/6/06:

    General Comment: I think the military should be able to possess 
whatever types of media they choose, as long as it does not violate the 
law.
    DoD response: The Part does not regulate possession of sexually 
explicit material by DoD military and civilian employees. It prohibits 
the sale or rental of sexually explicit material on property under the 
DoD jurisdiction, and it prohibits the sale or rental of sexually 
explicit material by DoD military and civilian employees acting in an 
official capacity.

6. Comment posted 2/6/06:

    General Comment: I don't see how the barring of sale or rental of 
pornographic materials is going to help anything. If the issue is 
pornography on property owned by the Dept. of Defense, then possession 
of it should be banned entirely.
    DoD response: The Part does not regulate the possession of sexually 
explicit material by DoD military and civilian employees. It prohibits 
the sale or rental of sexually explicit material on property under DoD 
jurisdiction, and by DoD civilian and military employees when acting in 
an official capacity.

7. Comment posted 2/6/06:

    General Comment: I believe that this proposed rule is too 
restrictive based on the fact that all DoD property is included. While 
explicit materials should be restricted from certain areas under DoD's 
property, such as work areas, other property, such as personal living 
areas, should not be included.
    DoD response: The Part does not prohibit the possession of sexually 
explicit material by DoD military and civilian employees. It prohibits 
the sale or rental of sexually explicit material on property under DoD 
jurisdiction, and by DoD military and civilian employees when acting in 
an official capacity.

8. Comment posted 2/6/06:

    General Comment: I think this regulation needs some clarification. 
I would also like to know why the government has banned trade of 
sexually explicit material in the armed forces.
    DoD response: The Part implements 10 U.S.C. 2489a, which prohibits 
the sale or rental of sexually explicit material on property under DoD 
jurisdiction, and by DoD military and civilian employees when acting in 
an official capacity.

9. Comment posted 2/6/06:

    General Comment: The Department of Defense should not restrict the 
rights of military personnel more so than the general public. If 
military people want to look at pornographic material that is available 
in the open market, they should be allowed to do so.
    DoD response: The Part does not prohibit the possession of sexually 
explicit material by DoD civilian or military employees. It prohibits 
the sale or rental of sexually explicit material on property under DoD 
jurisdiction, and by DoD military and civilian employees when acting in 
an official capacity.

10. Comment posted 2/6/06:

    General Comment: What is rationale behind not allowing members of 
the armed forces to view these materials?

[[Page 66458]]

    DoD response: The Part does not prohibit the possession or viewing 
of sexually explicit material by DoD employees. It prohibits the sale 
or rental of sexually explicit material by the Department of Defense on 
property under its jurisdiction and by DoD military and civilian 
employees when acting in an official capacity.

11. Comment posted 2/6/06:

    General Comment: Although I think this regulation is a necessary 
one, I am curious as to why the definitional sections are just now 
being added years after the actual regulation was enacted.
    DoD response: The definitions section is not new. The previous Part 
contained definitions, as does the reissued Part.

12. Comment posted 2/6/06:

    General Comment: I don't want regulations on what I look at.
    DoD response: The Part does not prohibit the possession or viewing 
of sexually explicit material by DoD civilian and military personnel. 
It prohibits the sale or rental of sexually explicit material on 
property under its jurisdiction and by DoD military and civilian 
employees when acting in an official capacity.

13. Comment posted 2/6/06:

    General Comment: This seems to border on the side of the 
restriction of the freedom of press despite the fact that it is not 
regulating the actual production of the materials. Perhaps more along 
the lines of censorship?
    DoD response: The Part does not censor free speech, because it does 
not prohibit the possession of sexually explicit material by DoD 
military and civilian personnel. It prohibits the sale or rental of 
sexually explicit material by the Department of Defense on property 
under its jurisdiction, and by DoD civilian and military employees when 
acting in an official capacity.

14. Comment posted 2/23/06:

    I write because of my concern with proposed regulation 32 CFR 235. 
My primary concern is that the regulation violates, if not the First 
Amendment itself, at least the spirit of it.
    The first problem is that this regulation does discriminate based 
on viewpoint. It only applies to materials that contain nudity designed 
to elicit a sexual response, i.e. that represent nudity or sex as being 
pleasurable. That is a viewpoint.
    The second problem is that there is no reference to any serious 
artistic, literary, or political value that sexually explicit materials 
may have. Even if the ``dominant theme'' of such materials is the 
depiction of nudity designed to elicit a sexual response, those 
materials might still have eminent worth because of other important, 
but ``lesser'' themes. Such materials could easily also very 
intentionally represent nudity in a titillating way to explore the very 
reasons it is titillating. The reality is that if materials have 
nudity, no matter how tasteful or artistic, it will probably be found 
to be sexually explicit.
    The second problem is that ``dominant theme'' is unworkably 
ambiguous. One could easily apply this standard to a movie that has 
only ten minutes of nudity, because the ``power'' of this segment far 
outweighs the rest the film.
    The final problem is that this regulation is grossly paternalistic. 
The Department of Defense should ban the sale of sexually explicit 
material that is actually obscene. But members of the armed forces are 
adults, and should be treated as such. Even if these regulations do not 
reach serious, worthwhile but sexually explicit materials, they still 
reach some rather innocuous forms of pornography. I simply do not see 
the value in the government censoring such material from the men and 
women of the Armed Forces. If they are mature enough to serve our 
country, they are mature enough to decide whether to view these sorts 
of sexually explicit materials.
    Accordingly, I would urge that the regulations be revised and 
restricted to exclude materials with redeeming social value and to 
reach only ``hard-core'' pornography.
    DoD response: The Part does not censor free speech, because it does 
not prohibit the possession of sexually explicit material by DoD 
civilian and military employees. It prohibits the sale or rental of 
sexually explicit material on property under DoD jurisdiction, and by 
DoD military and civilian employees when acting in an official 
capacity. In PMG International Division, L.L.C. v. Rumsfeld, 303 F.3d 
1163 (9th Cir. 2002), the U.S. Court of Appeals affirmed the decision 
of the U.S. District Court for the Northern District of California, and 
held that the Military Honor and Decency Act (the Act) , 10 U.S.C. 
2489a, merely regulated government speech, and that plaintiffs had no 
right under the First Amendment to compel the government to offer 
sexually explicit materials at military exchanges. The Appellate court 
also concluded that military exchanges were nonpublic fora and that the 
Act was a viewpoint-neutral, reasonable regulation of speech. See also, 
General Media Communication, Inc., el al. v. Perry, 1997 U.S. App. 
LEXIS 40571.

Certifications

Executive Order 12866

    This regulatory action is not a significant regulatory action, as 
defined by Executive Order 12866.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

    This regulatory action will not have a significant adverse impact 
on a substantial number of small entities.

Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)

    This regulatory action does not contain a Federal mandate that will 
result in the expenditure by State, local, and tribal governments, in 
aggregate, or by the private sector of $100 million or more in any one 
year.

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

Federalism (Executive Order 13132)

    This regulatory action does not have Federalism implications, as 
set forth in Executive Order 13132. It will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    This rule is not subject to the Regulatory Flexibility Act because 
it would not, if promulgated, have a significant economic impact on a 
substantial number of small entities as defined by 5 U.S.C. 601. The 
production of sexually explicit material is not the typical product of 
small business concerns as defined under section 3 of the Small 
Business Act. Furthermore, military exchanges represent only a small 
segment of the retail sector since access is restricted to military 
personnel and other authorized patrons.

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

    This rule does not involve a Federal mandate that may result in the 
expenditure by State, local and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more and such rulemaking 
will not significantly or uniquely affect small governments.

[[Page 66459]]

List of Subjects in 32 CFR Part 235

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

0
Accordingly, title 32 of the Code of Federal Regulations is amended by 
revising part 235 to read as follows:

PART 235--SALE OR RENTAL OF SEXUALLY EXPLICIT MATERIAL ON DOD 
PROPERTY

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 implements 10 U.S.C. 2489a, consistent with DoD 
Instruction 1330.09,\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.

    For the purpose of this part, the following definitions apply:
    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 
Services 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)), under the Under Secretary of Defense for 
Personnel and Readiness, 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 Command, 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 Board.
    (4) Monitor the activities of the Board and ensure that the Board 
discharges its responsibilities as set forth in Sec.  235.6.
    (b) The Secretaries of the Military Departments shall ensure that 
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 periodically review material offered or to be 
offered for sale or rental on property under DoD jurisdiction and 
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 
guidance issued pursuant to 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 issue guidance 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 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 of the Board 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 and is not subject to the licensing

[[Page 66460]]

internal information requirements of DoD 8910.1-M.\2\
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    \2\ Copies may be obtained at http://www.dtic.mil/whs/directives/.

    Dated: November 8, 2006.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
 [FR Doc. E6-19268 Filed 11-14-06; 8:45 am]
BILLING CODE 5001-06-P