Sale or Rental of Sexually Explicit Material on DoD Property (DoD Instruction 4105.70), 66457-66460 [E6-19268]
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Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Rules and Regulations
Issued in Washington, DC, on this 8th day
of November 2006.
Vincent K. Snowbarger,
Interim Director, Pension Benefit Guaranty
Corporation.
[FR Doc. E6–19257 Filed 11–14–06; 8:45 am]
BILLING CODE 7709–01–P
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)
Department of Defense.
Final rule.
AGENCY:
ACTION:
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.
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
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SUPPLEMENTARY INFORMATION:
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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.
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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?
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Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Rules and Regulations
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
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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 viewpointneutral, reasonable regulation of speech.
See also, General Media
Communication, Inc., el al. v. Perry,
1997 U.S. App. LEXIS 40571.
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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.
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Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Rules and Regulations
List of Subjects in 32 CFR Part 235
Business and industry, Concessions,
Government contracts, Military
personnel.
I 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
235.2
235.3
235.4
235.5
235.6
235.7
§ 235.4
Purpose.
Applicability and scope.
Definitions.
Policy.
Responsibilities.
Procedures.
Information requirements.
Authority: 10 U.S.C. 2489a.
§ 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.
§ 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.
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§ 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
1 Copies may be obtained at https://www.dtic.mil/
whs/directives/.
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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.
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.
§ 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 § 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.
§ 235.6
Procedures.
(a) The Board shall periodically
review material offered or to be offered
for sale or rental on property under DoD
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66459
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.
§ 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
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Federal Register / Vol. 71, No. 220 / Wednesday, November 15, 2006 / Rules and Regulations
internal information requirements of
DoD 8910.1–M.2
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
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 1, 2, and 97
[WT Docket No. 04–140; FCC 06–149]
Amateur Service Rules
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
SUMMARY: In this document, the
Commission amends its Amateur Radio
Service rules to revise the frequency
segments of the 80 meter and 40 meter
amateur service High Frequency (HF)
bands on which amateur stations are
authorized to transmit voice
communications; authorize amateur
stations to transmit certain emission
types on additional amateur service
bands or frequency segments; revise the
procedures for the amateur service
vanity call sign system; eliminate
unnecessary restrictions imposed on
manufacturers of certain types of
equipment that may be used at amateur
stations; and make other conforming
amendments to the amateur service
rules.
DATES:
Effective December 15, 2006.
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FOR FURTHER INFORMATION CONTACT:
William T. Cross, Wireless
Telecommunications Bureau at (202)
418–0620, or TTY (202) 418–7233.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Report
and Order, in WT Docket No. 04–140;
FCC 06–149, adopted October 4, 2006,
and released October 10, 2006. The
complete text of this document is
available for inspection and copying
during normal business hours in the
FCC’s Reference Information Center, 445
12th Street, SW., Room CY–A257,
Washington, DC. Alternative formats
(Braille, large print, electronic files,
audio format) are available for people
with disabilities by sending an e-mail to
FCC504@fcc.gov or, calling the
Consumer and Government Affairs
Bureau at (202) 418–0530 (voice), (202)
418–0432 (TTY). The Order also may be
2 Copies may be obtained at https://www.dtic.mil/
whs/directives/.
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14:33 Nov 14, 2006
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downloaded from the Commission’s
Web site at https://www.fcc.gov/.
1. In this Report and Order the
Commission adopts changes to its part
97 rules to conform the amateur service
rules to the international Radio
Regulations. The overall effect of this
action is to further the public interest by
allowing amateur service licensees to
use the spectrum more efficiently, and
by allowing amateur service stations to
operate with fewer restrictions. The
changes adopted in this Report and
Order were proposed in the Notice of
Proposed Rulemaking at 69 FR 51028,
August 17, 2004. Over 150 comments on
the proposed rule changes were
received and changes to the proposed
rules based on these comments are
included in this Report and Order.
2. Specifically, the Commission (1)
revises the operating privileges of
amateur radio operators to allow more
spectrum in four currently-authorized
amateur service HF bands to be used for
voice communications; (2) permits
auxiliary stations to transmit on
additional amateur service bands; (3)
permits amateur stations to transmit
spread spectrum communications on
the 1.25 meter (m) band; (4) permits
amateur stations to retransmit
communications from the International
Space Station; (5) permits amateur
service licensees to designate the
amateur radio club to receive their call
sign in memoriam; (6) prohibits an
applicant from filing more than one
application for a specific vanity call
sign; (7) eliminates certain restrictions
on equipment manufacturers that are no
longer necessary; (8) permits amateur
radio stations operating in Alaska and
surrounding waters more flexibility in
providing emergency communications;
and (9) removes certain restrictions in
the amateur service license examination
system that are no longer necessary. The
effect of these revisions are to provide
licensees with greater flexibility in the
utilization of amateur service
frequencies, promote efficient use of the
Amateur Radio Service spectrum by
authorizing communications that
include both analog and digital
emission types to be transmitted on
currently-authorized amateur service
spectrum, and eliminate unnecessary
requirements that may limit the
flexibility of the amateur service license
examination system.
(PRA), Public Law 104–13. Therefore, it
does not contain any new or modified
‘‘information collection burden for
small business concerns with fewer than
25 employees,’’ pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
I. Procedural Matters
D. Ordering Clauses
6. Pursuant to sections 4(i), 303(f),
303(r), and 332 of the Communications
Act of 1934, as amended, 47 U.S.C.
154(i), 303(f), 303(r) and 332, that parts
1, 2, and 97 of the Commission’s Rules
are amended as specified below.
A. Paperwork Reduction Act Analysis
3. This document does not contain
any new or modified information
collection requirements subject to the
Paperwork Reduction Act of 1995
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B. Report to Congress
4. The Commission will send a copy
of the Report and Order, including this
Final Regulatory Flexibility
Certification, in a report to be sent to
Congress and the Congressional Budget
Office pursuant to the Congressional
Review Act. In addition, the
Commission will send a copy of the
Report and Order, including the Final
Regulatory Flexibility Certification, to
the Chief Counsel for Advocacy of the
SBA and the Final Regulatory
Flexibility Certification will also be
published in the Federal Register.
C. Final Regulatory Flexibility
Certification
5. In this Report and Order, we amend
the rules that specify how an individual
who has qualified for an amateur service
operator license can use an amateur
radio station consistent with the basis
and furthering the purpose of the
amateur service. The amended rules
apply exclusively to individuals who
are licensees in the amateur radio
service. Given the definition of a ‘‘small
entity,’’ none of these individuals are
small entities as the term is used in the
RFA. In addition, the amended rules
reflected in this Report and Order
potentially could affect manufactures of
amateur radio equipment. Based on
requests that the Commission has
received for certification of amplifiers
under part 97 of the Rules, we estimate
that there are between five and ten
manufactures of amateur radio
amplifiers and that by the relevant SBA
standard none of these manufactures are
small entities. We also note that the rule
changes will apply to amateur radio
licensees and control operators of
amateur radio stations and will not have
a necessary impact on manufactures of
amplifiers that may be used at amateur
radio stations. Therefore, we certify that
the rules reflected in this Report and
Order will not have a significant
economic impact on a substantial
number of small entities.
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]]>Agencies
[Federal Register Volume 71, Number 220 (Wednesday, November 15, 2006)]
[Rules and Regulations]
[Pages 66457-66460]
From the Federal Register Online via the Government Printing 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.
-----------------------------------------------------------------------
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 https://www.dtic.mil/whs/
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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 https://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
