80 FR 79526 - Prohibition of the Sale or Rental of Sexually Explicit Material on DoD Property

DEPARTMENT OF DEFENSE
Office of the Secretary

Federal Register Volume 80, Issue 245 (December 22, 2015)

This rulemaking codifies in the Code of Federal Regulations the policy for restrictions on the sale or rental of sexually explicit materials on property under the jurisdiction of the DoD, or by Service members or DoD civilian employees acting in their official capacities based on 10 U.S.C. 2495b. It also establishes the Resale Activities Review Board (referred to in this rule as the ``Board'').

[Federal Register Volume 80, Number 245 (Tuesday, December 22, 2015)]
[Proposed Rules]
[Pages 79526-79528]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-31918]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 235

[Docket ID: DOD-2013-OS-0220]
RIN 0790-AJ15


Prohibition of the Sale or Rental of Sexually Explicit Material 
on DoD Property

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

ACTION: Proposed rule.

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SUMMARY: This rulemaking codifies in the Code of Federal Regulations 
the policy for restrictions on the sale or rental of sexually explicit 
materials on property under the jurisdiction of the DoD, or by Service 
members or DoD civilian employees acting in their official capacities 
based on 10 U.S.C. 2495b. It also establishes the Resale Activities 
Review Board (referred to in this rule as the ``Board'').

DATES: Comments must be received by February 22, 2016.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate of Oversight and Compliance, Regulatory 
and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-
9010.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) 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: Ryan Atkins, 703-588-0619.

SUPPLEMENTARY INFORMATION: Revisions to the rulemaking will be reported 
in future status updates as part of DoD's retrospective plan under 
Executive Order 13563 completed in August 2011. DoD's full plan can be 
accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-
0036.

Executive Summary

    10 U.S.C. 2495b prohibits the sale or rental of sexually explicit 
material on property under DoD jurisdiction. The section also requires 
DoD to establish the Resale Activities Review Board (the Board) to 
review material offered for sale or rental on property under DoD 
jurisdiction and to make recommendations to the Secretary of Defense, 
in accordance with section 2495b. Any material that is determined to be 
sexually explicit, as defined by section 2495b, is not offered and if 
materials are already on store shelves, they are removed.
    This proposed rule will cost the DoD approximately $5,500 annually 
for the life of the rule to manage the Board. It is anticipated that 
the costs will recur for the life of the proposed rule varying for 
inflation. 10 U.S.C. 2495b authorizes Board members travel expenses 
while away from their homes or regular places of business in the 
performance of services for the Board. DoD implemented section 2495b by 
issuing DoD Instruction (DoDI) 4105.70, ``Prohibition of the Sale or 
Rental of Sexually Explicit Material on DoD Property'' (the 
Instruction). This instruction is available on the Internet from the 
DoD Issuances Web site at http://www.dtic.mil/whs/directives. The 
Instruction established DoD policy that prohibits the sale or rental of 
sexually explicit material on property under DoD jurisdiction, and no 
Service member or DoD civilian employee, acting in his or her official 
capacity, will provide for sale, remuneration, or rental any sexually 
explicit material to another person. This proposed rule facilitates 
DoD's compliance with the requirements of 10 U.S.C. 2495b and fulfills 
the requisite public notification of the DoD process to implement this 
statutory requirement.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 13563 and 12866 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, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This proposed rule has been designated a ``significant 
regulatory action,'' although not economically significant, under 
section 3(f) of Executive Order 12866. Accordingly, this proposed rule 
has been reviewed by the Office of Management and Budget.

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

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. In 
2014, that threshold is approximately $141 million. This proposed 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. 601)

    The Department of Defense certifies that this proposed rule is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601) 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)

    It has been certified that 32 CFR part 235 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This proposed rule will not have a substantial effect on 
State and local governments.

List of Subjects in 32 CFR Part 235

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


[[Page 79527]]


    Accordingly 32 CFR part 235 is proposed to be revised to read as 
follows:

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

Sec.
235.1 Purpose.
235.2 Applicability.
235.3 Definitions.
235.4 Policy.
235.5 Responsibilities.
235.6 Resale Activities Review Board.

    Authority: 10 U.S.C. 2495b.


Sec.  235.1  Purpose.

    (a) Pursuant to 10 U.S.C. 2495b and consistent with DoD Instruction 
1330.09 ``Armed Services Exchange Policy,'' (available at http://www.dtic.mil/whs/directives/corres/pdf/133009p.pdf), this part 
establishes policy and assigns responsibilities concerning the 
prohibition on the sale or rental of sexually explicit materials:
    (1) On property under the jurisdiction of the DoD; and
    (2) By Service members or DoD civilian employees acting in their 
official capacities.
    (b) Establishes the Resale Activities Review Board (the Board) 
pursuant to 10 U.S.C. 2495b and consistent with DoD Instruction 
5105.18, ``DoD Intergovernmental and Intragovernmental Committee 
Management Program'' (available at http://www.dtic.mil/whs/directives/corres/pdf/510518p.pdf).


Sec.  235.2  Applicability.

    This part applies to the Office of the Secretary of Defense, the 
Military Departments, the Office of the Chairman of the Joint Chiefs of 
Staff and the Joint 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 DoD (referred to collectively in this part as the ``DoD 
Components'').


Sec.  235.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part.
    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 DoD. Includes commissaries, 
all facilities operated by the Army and Air Force Exchange Service, the 
Navy Exchange Service Command, the Navy Resale and Services Support 
Office, and the Marine Corps Exchange; 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 will be offered for sale or 
rental on property under DoD jurisdiction.
    (b) No Service member or DoD civilian employee, acting in an 
official capacity, may offer for sale, remuneration, or rental sexually 
explicit material to another person.


Sec.  235.5  Responsibilities.

    (a) The Assistant Secretary of Defense for Manpower and Reserve 
Affairs (ASD(M&RA)), under the authority, direction, and control of the 
Under Secretary of Defense for Personnel and Readiness (USD(P&R)), and 
in accordance with DoD Directive 5124.02, ``Under Secretary of Defense 
for Personnel and Readiness (USD(P&R))'' (available at http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf) and DoD Directive 
5124.09, ``Assistant Secretary of Defense for Readiness and Force 
Management (ASD(R&FM))'' (available at http://www.dtic.mil/whs/directives/corres/pdf/512409p.pdf), will:
    (1) Monitor and ensure compliance with this part.
    (2) Establish the nine-member Board.
    (3) Appoint six Board members and three alternates in accordance 
with 10 U.S.C. 2495b and paragraph (a) of Sec.  235.6.
    (4) Designate one Board member to be the Chair.
    (5) Monitor the activities of the Board and ensure that the Board 
discharges its responsibilities as described in Sec.  235.6.
    (6) Review the Board's recommendations and make the final 
determination whether material is sexually explicit, as defined by 10 
U.S.C. 2495b.
    (b) Under the authority, direction, and control of the ASD(M&RA), 
the Deputy Assistant Secretary of Defense for Military Community and 
Family Policy (DASD(MC&FP)) will:
    (1) Administer the Board and provide military resale policy 
guidance.
    (2) Publicize the Board's recommendations through the Office of the 
USD(P&R) public Web site.
    (c) The General Counsel of the Department of Defense will provide 
legal advice to the Board.
    (d) The Secretaries of the Military Departments will:
    (1) Ensure that their respective Department's resale activities 
comply with this part.
    (2) Each appoint one member to the Board, in accordance with 10 
U.S.C. 2495b.
    (3) Provide nominees to the ASD(M&RA) concerning the six Board 
members and three alternates appointed by the ASD(M&RA) in accordance 
with paragraph (a) of Sec.  235.6.
    (4) Promptly notify the DASD(MC&FP) of a current or projected 
vacancy on the Board.
    (e) The Chief of the National Guard Bureau recommends to the 
ASD(M&RA) a senior noncommissioned officer for appointment to the Board 
who will represent the Senior Enlisted Advisor of the National Guard 
Bureau.


Sec.  235.6  Resale Activities Review Board.

    (a) Composition. The Board will have nine members and three 
alternates, including at least one member appointed by the ASD(M&RA) 
with experience managing or advocating for military family programs and 
who is also an eligible patron of the Defense commissary system and the 
Defense exchange system.
    (1) Board members and alternates will be representatives of the 
following:
    (i) The Senior Enlisted Advisors of the Army, the Navy, the Air 
Force, Marine Corps, and the National Guard Bureau;
    (ii) The Surgeons General of the Army, the Navy, and the Air Force;
    (iii) The military community and family programs of the Army, Navy, 
Air Force, and Marine Corps.
    (2) Board members will be senior full-time or permanent part-time 
DoD civilian employees or active duty Service members not currently 
assigned to or employed by the Army and Air Force Exchange Service, the 
Navy Exchange Service Command, or the Marine Corps Exchange Service.
    (3) The ASD(M&RA) will appoint one member to be Chair for a 2-year 
term; the Chair will rotate among the Military Departments.
    (4) A vacancy on the Board will be filled in the same manner as the 
original appointment.
    (b) Authorities. (1) The Board has the authority and responsibility 
to review material offered or to be offered for sale or rental on 
property under DoD jurisdiction and to recommend to the ASD(M&RA) 
whether any such material is sexually explicit as defined in 10 U.S.C. 
2495b.

[[Page 79528]]

    (2) If the ASD(M&RA) determines that any material offered for sale 
or rental on property under DoD jurisdiction is sexually explicit, such 
material must be withdrawn from all retail outlets where it is sold or 
rented and returned to distributors or suppliers. Any material that is 
determined to be sexually explicit will not be offered for sale or 
rental on property under DoD jurisdiction unless the Board reconsiders 
the material under paragraph (c)(4) of this section, and the ASD(M&RA) 
decides that the material is not sexually explicit.
    (c) Procedures. (1) The Board will convene at least once a year, 
and additionally as necessary, to review and make recommendations to 
the ASD(M&RA) concerning whether any material offered or to be offered 
for sale or rental on property under DoD jurisdiction is sexually 
explicit as defined in 10 U.S.C. 2495b. The Board will, to the extent 
practicable, maintain and update relevant information about Board 
recommendations.
    (2) At the conclusion of the Board's review and the ASD(M&RA) 
determination, the ASD(M&RA) will issue guidance to the Military 
Departments for exchange service headquarters, purchasing agents, and 
managers of retail outlets about the purchase, withdrawal, and return 
of sexually explicit material. The ASD(M&RA) may also provide guidance 
to the Military Departments for exchange service headquarters, 
purchasing agents, and managers of retail outlets about material that 
he or she has determined is not sexually explicit. Purchasing agents 
and managers of retail outlets will continue to follow their usual 
purchasing and stocking practices unless instructed otherwise by the 
ASD(M&RA).
    (3) Any purchasing agent or manager of a retail outlet must request 
in writing a review from the Board and ASD(M&RA) determination about 
questionable material either before purchase or as soon as possible if:
    (i) He or she 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 in 10 U.S.C. 2495b.
    (ii) Such material is not addressed by the ASD(M&RA)'s guidance 
issued in paragraph (c)(2) of this section.
    (4) Material determined to be sexually explicit by the ASD(M&RA) 
may be submitted to the Board 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.
    (5) The Board will establish procedures for the exchange services 
to provide material for the Board to review.

    Dated: December 15, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-31918 Filed 12-21-15; 8:45 am]
BILLING CODE 5001-06-P