[Federal Register Volume 81, Number 203 (Thursday, October 20, 2016)]
[Rules and Regulations]
[Pages 72524-72525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25275]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 235

[Docket ID: DOD-2016-OS-0098]
RIN 0790-AJ15


Sale or Rental of Sexually Explicit Material on DoD Property

AGENCY: Office of the Under Secretary of Defense for Personnel and 
Readiness, DoD.

ACTION: Final rule.

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SUMMARY: This final rule removes DoD's regulation concerning sale or 
rental of sexually explicit material on Department of Defense (DoD) 
property. The codified rule does not impose any duty or obligation on 
the public that is not already imposed by statute. The rule paraphrases 
and does not substantially deviate from 10 U.S.C. 2495b, which 
establishes the prohibition on selling or renting sexually explicit 
material on DoD property. Also, the codified rule delegates internal 
authorities and establishes procedures for administering the statute, 
neither of which have public impact. Consequently, Federal Register 
rulemaking is not necessary under the Administrative Procedure Act.

DATES: This rule is effective on October 20, 2016.

FOR FURTHER INFORMATION CONTACT: Patricia Toppings at 571-372-0485.

SUPPLEMENTARY INFORMATION: The Department of Defense published a 
proposed rule in the Federal Register titled ``Prohibition of the Sale 
or Rental of Sexually Explicit Material on DoD Property'' on December 
22, 2015 (80 FR 79526-79528) for a 60-day public comment period. The 
Department of Defense received five public comments.
    After publishing the proposed rule, DoD began a review of all rules 
currently being processed to determine if publication in the Federal 
Register is required. After reconsidering publication of the proposed 
rule against Administrative Procedure Act criteria and exceptions, DoD 
decided not to publish a final rule and to remove the previously-
codified rule from the CFR. Although DoD has decided to remove the 
previously-codified rule, we are addressing the public comments 
received on the proposed rule that published in the Federal Register on 
December 22, 2015.
    Comment 1: I believe this proposed rule is not only an excellent 
example of agency waste, but a direct infringement of Constitutional 
Rights that employment by the DoD in any manner cannot supersede. It 
would appear there are some great ambiguities associated with the 
definitions that structure this rule. The definition of Lascivious, 
``lewd and intended or designed to elicit a sexual response,'' which 
also controlling in the definition of sexual elicit material is too 
ambiguous. If an employee or citizen acting as a representative of the 
DoD has a foot fetish, will all magazines depicting bare feet be 
banned? Then the word lewd within the definition, what qualifies as 
lewd? Is it more or less lewd if in a novel the author describes an 
intimate evening between a hetero couple or homosexual couple?
    Comment 2: So not only can a man or woman be sent into harm's way 
without questioning the reasons for being sent, but they can't even 
purchase from the exchange or PX material that is deemed ``. . . 
Lascivious. Lewd and intended or designed to elicit a sexual 
response.''? And who deems material to be considered prohibited for 
sale or rent on DoD property? A board of censors. Yes this is 
censorship, plain and simple. This is an end around the First Amendment 
of the Constitution. Why? Will this regulation improve our readiness or 
war fighting capability? No. Will this regulation reduce our readiness 
or war fighting capability? No. Is there solid, objective science 
showing that availability of this sort of deemed material leads to 
other behavior or effects that reduces our readiness or war fighting 
capability to a greater extent than other products or services offered 
for sale on DoD property such as alcoholic beverages, tobacco products, 
sugar-laden pop and greasy carbs-loaded prepared food? Hence making the 
reason for this regulation by reference to other directives spurious. 
Will this regulation reduce revenue generated by the retail sales 
operations of the various branches of our military services? Yes. If 
so, has this cost been included in the calculation of the cost of 
compliance with this regulation? No. Is the cost of the time of the 
members of the board and of the various submissions of material for 
review and judgement of the board been included in calculating the cost 
of this regulation? No. What objective criteria is used to determine if 
material should be submitted for review or upon which a determination 
be made to offer for sale or not? Not specified. For instance, under 
the authority of regulation, the purchase of the right to play a song 
by the DoD said to contain lyrics deemed lascivious, lewd and intended 
or designed to elicit a sexual response could be prohibited. This would 
make virtually the entire book of

[[Page 72525]]

Cole Porter and Frank Sinatra songs subject to possible prohibition 
under a reasonable understanding of the words lascivious, lewd and the 
process of eliciting a sexual response. To whom can an appeal be made 
regarding the decision or judgement of material under this regulation? 
Re-submission to the same board after 5 years? That's not an appeal, 
that's a sentence longer than what is typically given to criminals who 
cause effects of far greater cost in terms of readiness and manpower to 
our military forces. I am quite certain we can certainly find better 
things to decide when offering products and services for sale on DoD 
property? How about lower prices and better quality products?
    Comment 3: I am having trouble understanding reasoning and purpose 
for this rule. This rule would cost ``$5,500 annually for the life of 
the rule to manage the Board.'' It seems as if nearly 6 grand annually 
could be saved and spent on something else that would have greater 
effects. I do not believe that it is the government's place to say what 
a person may or may not do within the comfort and privacy of their own 
home. And by doing so becomes dangerously close to interfering with 
fundamental liberties that we, as Americans, enjoy. I believe the 
deterring effects of this rule would do little good. Because those in 
the military are specifically trained to deal with instances of sexual 
harassment, military members are already equipped with the information 
they need to deal with these unique situations. This rule, which would 
ban the sale or rental of sexually explicit material on property under 
DoD jurisdiction, in my opinion, could have the opposite intended 
affect. Just think back to when you were a kid, and your parents told 
you that you were not allowed to eat ice cream after 9 p.m. What is the 
one single thing you wanted to do after 9 p.m.? I do not know about 
you, but I would want to eat ice cream. If you do not draw attention to 
something in the first place, then it is more likely to go unnoticed. 
Therefore, I see little persuasive reasoning for the passage of this 
rule. Not only does it waste money, but also it is also a waste of time 
and valuable resources that could be better spent elsewhere.
    Comment 4: This proposed rule seems to be a waste of money, no 
matter how small the amount in controversy is. With a growing budget 
deficit, and no end in sight, all possible means should be taken to 
tighten the purse strings and prevent excess spending. Furthermore, I 
am troubled by any proposal which cannot state for certainty that the 
cost will not go up in the future. Second, there does not seem to be 
any identified criteria for determining what can and can't be sold. It 
seems to be what is considered prohibited will turn on whoever is 
making the decision at that time. This will lead to inconsistent 
enforcement and a regulation that changes over time.
    Comment 5: This rule is just plain silly. Aside from wasting money 
I don't see any value this rule would have. Just because military 
members have access to sexually explicit material does not mean they 
will turn into sexual predators. I believe the opposite is true. 
Military members have extensive training on sexual harassment, and have 
an effective method to report sexual misconduct. As stated above, this 
rule would be a waste of money.
    Response: DoD thanks each commenter for their comments. However, no 
changes will be made to DoD's policy because it has been mandated by 
Congress through 10 U.S.C. 2495b. Based upon the information in the 
SUMMARY and SUPPLEMENTARY INFORMATION sections of this rule, we are 
removing the rule from the Code of Federal Regulations. Nevertheless, 
DoD's initial guidance contained in DoD Instruction 4105.70, which may 
be updated from time to time, remains in effect and is available at 
http://www.dtic.mil/whs/directives/corres/pdf/410570p.pdf.
    DoD has determined that publication for public comment of this CFR 
part removal is impracticable, unnecessary, and contrary to public 
interest, since removal from the CFR will remove DoD internal policies 
and procedures that are publically available on the DoD issuance Web 
site.
    The removal of this rule will be reported in future status updates 
of DoD's retrospective review in accordance with Executive Order 13563, 
``Improving Regulation and Regulatory Review.'' DoD's full plan can be 
accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-
0036.

List of Subjects in 32 CFR Part 235

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

PART 235--[REMOVED]

0
Accordingly, by the authority of 5 U.S.C. 301, 32 CFR part 235 is 
removed.

    Dated: October 14, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-25275 Filed 10-19-16; 8:45 am]
BILLING CODE 5001-06-P