[Federal Register Volume 90, Number 228 (Monday, December 1, 2025)]
[Rules and Regulations]
[Pages 55042-55044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-21723]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 161
[Docket ID: DoD-2025-OS-0009]
RIN 0790-AL85
Identification (ID) Cards for Members of the Uniformed Services,
Their Dependents, and Other Eligible Individuals; Amendment
AGENCY: Office of the Under Secretary of Defense for Personnel and
Readiness (OUSD(P&R)), Department of Defense (DoD).
ACTION: Interim final rule; request for comments.
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SUMMARY: As directed by the Executive Order ``Defending Women from
Gender Ideology Extremism and Restoring Biological Truth to the Federal
Government,'' issued January 30, 2025, the Department is removing the
procedures for retirees, dependents, and contractor employees to
request a change to their ``gender marker'' in the Defense Enrollment
Eligibility Reporting System (DEERS).
DATES: This interim final rule is effective December 1, 2025. Comments
must be received by January 30, 2026.
ADDRESSES: You may submit comments, identified by docket number and
title, by any of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
(2) Mail: Department of Defense, Office of the Assistant to the
Secretary of Defense for Privacy, Civil Liberties, and Transparency,
4800 Mark Center Drive, Mailbox #24, Suite 05F16, Alexandria, VA 22350-
1700.
Instructions: All submissions received must include the agency
name, docket number and title 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: Robert Eves at 571-372-1956; email:
[email protected].
SUPPLEMENTARY INFORMATION:
Background
On February 14, 2024, the DoD published a final rule,
``Identification (ID) Cards for Members of the
[[Page 55043]]
Uniformed Services, Their Dependents, and Other Eligible Individuals''
(89 FR 11172-11198), concerning the policies and procedures for issuing
DoD ID cards. That final rule included the procedures for retirees,
dependents, and contractor employees to request a change to their
``gender marker'' in the Defense Enrollment Eligibility Reporting
System (DEERS). Executive Order 14168, ``Defending Women from Gender
Ideology Extremism and Restoring Biological Truth to the Federal
Government,'' issued January 30, 2025, recognized two sexes, male and
female, and stated that ``these sexes are not changeable and are
grounded in fundamental and incontrovertible reality.'' The Executive
Order also requires Federal agencies to ensure that all applicable
policies and documents, including rules, use the term ``sex'' and not
``gender.''
Legal Authority
Authorities for this rule include 5 United States Code (U.S.C.)
5703 (per diem, travel, and transportation expenses; experts and
consultants; individuals serving without pay); and 10 U.S.C. 1044a
(authority to act as a notary); 1061-1064 (commissary and exchange
benefits); 1072-1074, 1074a-1074c, 1076, 1076a, 1077, 1095(k)(2)
(medical and dental care); 1408(h) (payment of retired or retainer pay
in compliance with court orders/benefits for dependents who are victims
of abuse by members losing right to retired pay); and Chapter 1223
(retired pay). These authorities provide members of the Uniformed
Services (active component, reserve component, or retired members) and
their spouses and dependents certain benefits and privileges. 18 U.S.C.
499 (military, naval, or official passes), 506 (seals of departments or
agencies), 509 (possessing and making plates or stones for Government
transportation requests), 701 (official badges, identification cards,
other insignia), and 1001 (statements or entries generally), address
penalties, fines and imprisonment for unauthorized reproduction of ID
cards.
Changes Made With This Rule
On February 14, 2024, the DoD published a final rule in the Federal
Register (89 FR 11172-11198) on the policies and procedures for issuing
DoD ID cards. Included in the final rule was a provision that allowed
retirees, dependents, and contractor employees to request their
``gender marker'' be changed based on their preference. E.O. 14168,\1\
requires Federal agencies to ensure that all applicable policies and
documents, including rules, use the term ``sex'' and not ``gender.''
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\1\ Available at https://www.govinfo.gov/content/pkg/FR-2025-01-30/pdf/2025-02090.pdf.
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With this rule the Department removes and replaces three instances
of ``gender'' with ``sex'' and one instance of ``gender marker'' with
``sex code.'' Additionally, the interim final rule removes the
procedure for retirees, dependents, and contractor employees to elect
to change this data in DEERS, absent an administrative error. DoD has
determined that receiving public comment prior to effectuating this CFR
amendment is impracticable and against public interest. DoD seeks to
avoid confusion and prevent unnecessary time spent on self-attestation
requests, which would not be processed upon the final rule taking
effect. For these same reasons, DoD finds good cause to make the
interim final rule enforceable immediately upon publication.
Regulatory Compliance
Pursuant to 5 U.S.C. 553(d)(3), the Department finds there is good
cause to make this final rule effective immediately upon publication.
This final rule codifies actions taken under direct Presidential
authority. Removing the regulations immediately provides transparency
and may reduce confusion. Further, a delayed effective date serves no
practical purpose here since no adjustment period is needed for any
regulated party to come into or otherwise prepare for compliance
Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
EOs 12866 and 13563 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). E.O. 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. This rule is not a
``significant regulatory action'' under E.O. 12866 and was not reviewed
by OMB. This rule is not an E.O. 14192 regulatory action because this
rule is not significant under E.O. 12866.
Congressional Review Act (5 U.S.C. 801, et seq.)
The Congressional Review Act, 5 U.S.C. 801, et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each house of the Congress and to the Comptroller
General of the United States. DoD will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States.
This interim final rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Title 2 U.S.C. Chapter 25, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies to assess anticipated costs and benefits
before issuing any rule whose mandates require spending in any one year
of $100 million in 1995 dollars, updated annually for inflation. This
rule 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. Chapter 6)
The Under Secretary of Defense for Personnel and Readiness
certifies this interim final 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.
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)
Under the Paperwork Reduction Act (PRA) of 1995, OMB approved and
assigned OMB Control Number 0704-0415, ``Application for Department of
Defense Common Access Card--DEERS Enrollment.'' The provision for the
self-attestation for changing a sex code (gender marker) in an
individual's DEERS record (89 FR 11172) required only a signed
individual statement. The ``Application for Department of Defense
Common Access Card--DEERS Enrollment'' was not required and it was
determined that the self-attestation did not change the cost or burden
associated with this information collection. Therefore, removing the
provision also has no effect on the cost or burden of the information
collection. Additional information regarding this
[[Page 55044]]
collection of information--including all current background materials--
can be found at https://www.reginfo.gov/public/do/PRAMain by using the
search function to enter either the tile of the collection or the OMB
Control Number.
Executive Order 13132, ``Federalism''
E.O. 13132 establishes certain requirements that an agency must
meet when it promulgates an interim 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 State and local governments.
Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
E.O. 13175 establishes certain requirements that an agency must
meet when it promulgates an interim final rule that imposes substantial
direct compliance costs on one or more Indian tribes, preempts tribal
law, or effects the distribution of power and responsibilities between
the Federal government and Indian tribes. This interim final rule will
not have a substantial effect on Indian tribal governments.
List of Subjects in 32 CFR Part 161
Administrative practice and procedure, Armed forces, Military
personnel, National defense, Privacy, Security measures.
Accordingly, DoD amends 32 CFR part 161 as follows:
PART 161--IDENTIFICATION (ID) CARDS FOR MEMBERS OF THE UNIFORMED
SERVICES, THEIR DEPENDENTS, AND OTHER ELIGIBLE INDIVIDUALS
0
1. The authority citation for part 161 is revised to read as follows:
Authority: 5 U.S.C. 5703, 10 U.S.C. 1061-1064, 1072-1074,
1074a-1074c, 1076, 1076a, 1077, and 1095(k)(2); 18 U.S.C. 499, 506,
509, 701, and 1001; 10 U.S.C. 1408(h), 1044a, and chapter 1223.
Sec. 161.3 [Amended]
0
2. Amend Sec. 161.3 by removing from the definition of Spouse the word
``gender'' and adding in its place the word ``sex''.
Sec. 161.23 [Amended]
0
3. Amend Sec. 161.23 by:
0
a. Removing paragraph (k) and Table 33 to Subpart D of Part 161;
0
b. Redesignating paragraphs (l) through (n) as paragraphs (k) through
(m) and redesignating Tables 34 through 38 to Subpart D of Part 161 as
Tables 33 through 37 to Subpart D of Part 161;
0
c. In newly redesignated paragraph (k), removing the text ``Table 34''
and adding in its place the text ``table 33'';
0
d. In newly redesignated paragraph (l), removing the text ``Table 35''
and adding in its place the text ``table 34''; and
0
e. In newly redesignated paragraph (m)(1)(ii), removing the text
``Tables 36 through 38'' and adding in its place the text ``tables 35
through 37'';
0
f. In newly redesignated paragraph (m)(2), removing the text ``Table
36'' and adding in its place the text ``table 35'';
0
g. In newly redesignated paragraph (m)(3), removing the text
``Gender'', ``gender marker'' and ``Table 37'' and adding in its place
the text ``Sex'', ``sex code'', and ``table 36'', respectively;
0
h. In the heading of newly redesignated Table 36 to Subpart D of Part
161, removing the words ``Gender Marker'' and adding in their place the
words ``Sex Code''; and
0
i. In newly redesignated paragraph (m)(4), removing the text ``Table
38'' and adding in its place the text ``table 37''.
Dated: November 26, 2025.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2025-21723 Filed 11-28-25; 8:45 am]
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