[Federal Register Volume 64, Number 26 (Tuesday, February 9, 1999)]
[Rules and Regulations]
[Pages 6218-6219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3023]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 235
Sale or Rental of Sexually Explicit Material on DoD Property
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This rule concerns sexually explicit audio recordings, films,
video recordings, or periodicals with visual depictions available for
sale or rental on property under the jurisdiction of the Department of
Defense. It implements 10 U.S.C. 2489a.
EFFECTIVE DATE: This rule is effective June 29, 1998.
FOR FURTHER INFORMATION CONTACT: LTC Bernard Ingold, USA, 703-697-3387.
SUPPLEMENTARY INFORMATION:
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that 32 CFR part 235 is not a significant
regulatory action. The rule does not:
(1) Have an annual effect to the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Pub. L. 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that this 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.
Pub. L. 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that this part does not impose any reporting
or recordkeeping requirements under the Paperwork Reduction act of
1995.
List of Subjects in 32 CFR Part 235
Business, Civilian personnel, Concessions, Government contracts,
Military personnel.
Accordingly, title 32 of the Code of Federal Regulations, Chapter
I, subchapter M, is amended to add 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.
[[Page 6219]]
Sec. 235.1 Purpose.
This part implements 10 U.S.C. 2489a, consistent with DoD Directive
1330.9 \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 are available at http://web7.osd.mil/corres.htm.
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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 (including the Coast Guard when it is
operating as a Service in the Navy), the Chairman of the Joint Chiefs
of Staff, the Combatant Commands, the Inspector General of the
Department of Defense, the Defense Agencies, and the DoD Field
Activities.
(b) Shall not confer rights on any person.
Sec. 235.3 Definitions.
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 operated by the Defense Commissary Agency and facilities
operated by the Army and Air Force Exchange Service, the Navy Exchange
Service Command, the Marine Corps Exchanges, and U.S. Navy ships'
stores (sometimes referred to collectively herein as ``retail
outlets''), excluding, for the purposes of this part, entities that are
not instrumentalities of the United States.
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.
In implementing 10 U.S.C. 2489a, it is DoD policy that: (a) No
sexually explicit material may be offered for sale or rental on
property under the jurisdiction of the Department of Defense, 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 Assistant Secretary of Defense for Force Management Policy,
under the Under Secretary of Defense for Personnel and Readiness,
shall:
(1) Monitor and, as to DoD resale activities under the Assistant
Secretary's authority, direction and control, ensure compliance with
this part;
(2) Establish, and appoint a chair of, the Resale Activities Board
of Review (the ``Board'') and approve senior representatives from the
Army and Air Force Exchange Service, the Navy Exchange Service, 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) Monitor the activities of the Resale Activities Board of Review
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 have the authority and responsibility
periodically to review material offered or to be offered for sale or
rental on property under DoD jurisdiction, and to determine whether any
such material is sexually explicit in accordance with this part. Within
60 days of the issuance of this part, the Board shall undertake and
complete an initial review of material that is offered for sale or
rental on the date that this part becomes effective.
(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) Following its initial review under paragraph (a) of this
section, 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
instructions issued under paragraph (e) of this section, he or she
shall request a determination from the Board about such material.
(e) At the conclusion of its initial review under paragraph (a) of
this section, and, thereafter, from time to time as necessary, the
Board shall provide instructions to purchasing agents and managers of
retail outlets about the withdrawal and return of sexually explicit
material. The Board may also provide instructions 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.
Sec. 235.7 Information requirements.
The Chair, Resale Activities Board of Review, shall submit to the
Assistant Secretary of Defense for Force Management Policy an annual
report documenting the activities, decisions, and membership of the
Board. The annual report shall be due on October 1. The annual report
required by this part is exempt from licensing in accordance with
paragraph 5.4.3. of DoD 8910.1-M.\2\
\2\ See footnote 1 to Sec. 235.1.
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Dated: February 3, 1999.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 99-3023 Filed 2-8-99; 8:45 am]
BILLING CODE 5000-04-M
