SUMMARY: This rule amends the record-keeping and inspection
requirements of 28 CFR part 75 to bring the regulations up to date with
current law, to improve understanding of the regulatory system, and to
make the inspection process effective for the purposes set by Congress
in enacting the Child Protection and Obscenity Enforcement

[[Page 29608]]

Act of 1988, as amended, relating to the sexual exploitation and other
abuse of children.

DATES: This final rule is effective June 23, 2005.

FOR FURTHER INFORMATION CONTACT: Andrew Oosterbaan, Chief, Child
Exploitation and Obscenity section, Criminal Division, United States
Department of Justice, Washington, DC 20530; (202) 514-5780. This is
not a toll-free number.

SUPPLEMENTARY INFORMATION:

Background

On June 25, 2004, the Department of Justice published a proposed
rule in the Federal Register at 69 FR 35547, to update the regulations
implementing the record-keeping requirements of the Child Protection
and Obscenity Enforcement Act of 1988. The proposed rule updated those
regulations to account for changes in technology, particularly the
Internet, and to implement the Prosecutorial Remedies and Other Tools
to End the Exploitation of Children Today (PROTECT) Act of 2003, Pub.
L. 108-21, 117 Stat. 650 (April 30, 2003) (``2003 Amendments''). The
statute requires producers of sexually explicit matter to maintain
certain records concerning the performers to assist in monitoring the
industry. See 18 U.S.C. 2257. The statute requires the producers of
such matter to ``ascertain, by examination of an identification
document containing such information, the performer's name and date of
birth,'' to ``ascertain any name, other than the performer's present
and correct name, ever used by the performer including maiden name,
alias, nickname, stage, or professional name,'' and to record this
information. 18 U.S.C. 2257(b). Violations of these record-keeping
requirements are criminal offenses punishable by imprisonment for not
more than five years for a first offense and not more than ten years
for subsequent offenses. See 18 U.S.C. 2257(i). These provisions
supplement the federal statutory provisions criminalizing the
production and distribution of materials visually depicting minors
engaged in sexually explicit conduct. See 18 U.S.C. 2251, 2252.
The record-keeping requirements apply to ``[w]hoever produces'' the
material in question. 18 U.S.C. 2257(a). The statute defines
``produces'' as ``to produce, manufacture, or publish any book,
magazine, periodical, film, video tape, computer-generated image,
digital image, or picture, or other similar matter and includes the
duplication, reproduction, or reissuing of any such matter, but does
not include mere distribution or any other activity which does not
involve hiring, contracting for[,] managing, or otherwise arranging for
the participation of the performers depicted.'' 18 U.S.C. 2257(h)(3).
The Attorney General, under 18 U.S.C. 2257(g), issued regulations
implementing the record-keeping requirements on April 24, 1992. See 57
FR 15017 (1992); 28 CFR 75. In addition to the record-keeping
requirements specifically discussed in section 2257, the regulations
require producers to retain copies of the performers' identification
documents, to cross-index the records by ``[a]ll names(s) of each
performer, including any alias, maiden name, nickname, stage name or
professional name of the performer; and according to the title, number,
or other similar identifier of each book, magazine, periodical, film,
videotape, or other matter,'' and to maintain the records for a
specified period of time. 28 CFR 75.2(a)(1), 75.3, 75.4.
Most recently, in 2003, Congress made extensive amendments to the
child exploitation statutory scheme based on detailed legislative
findings, which the Department adopts as grounds for proposing this
rule. See 2003 Amendments.
The Department agrees with each of these findings, and hereby
amends the regulations in 28 CFR part 75 to comport with these specific
findings. As explained more fully below, the rules implement a more
detailed inspection system to ensure that children are not used as
performers in sexually explicit depictions.

Need for the Rule

Recent federal statutory enactments and judicial interpretations
have highlighted the urgency of protecting children against sexual
exploitation and, consequently, the need for more specific and clear
regulations detailing the records and inspection process for sexually
explicit materials to assure the accurate identity and age of
performers.
The identity of every performer is critical to determining and
assuring that no performer is a minor. The key Congressional concern,
evidenced by the child exploitation statutory scheme, was that all such
performers be verifiably not minors, i.e. not younger than 18. 28
U.S.C. 2256(1), 2257(b)(1). Minors--children--warrant a special concern
by Congress for several reasons as discussed more specifically in
relation to the inspection process. Children themselves are incapable
of giving voluntary and knowing consent to perform or to enter into
contracts to perform. In addition, children often are involuntarily
forced to engage in sexually explicit conduct. For these reasons,
visual depictions of sexually explicit conduct that involve persons
under the age of 18 constitute unlawful child pornography.
This rule provides greater details for the record-keeping and
inspection process in order to ensure that minors are not used as
performers in sexually explicit depictions. The rule does not restrict
in any way the content of the underlying depictions other than by
clarifying the labeling on and record-keeping requirements pertaining
to, that underlying depiction. Cf. 27 CFR 16.21 (alcoholic beverage
health warning statement; mandatory label information). However,
compliance with the record-keeping requirements of this part has no
bearing on the legality or illegality of the underlying sexually
explicit material.
Moreover, the growth of Internet facilities in the past five years,
and the proliferation of pornography on Internet computer sites or
services, requires that the regulations be updated. In the rule, a
number of definitions are revised to facilitate the application of the
rule to the modern modes of communication.

Response to Public Comments on the Proposed Rule

The Department of Justice published the proposed rule on June 25,
2004, and comments were due to the Department on or before August 24,
2004. The following discussion responds to comments received from the
public and explains why the Department either adopted changes or
declined to adopt changes to the proposed rule in response to the
comments. Many commenters commented on identical issues, and as a
result, the number of comments exceeds the number of issues addressed
below. Commenters addressed issues that can be separated into five
general categories: General Legal Issues; Vagueness/Overbreadth Issues;
Burdensomeness; Privacy Concerns; and Miscellaneous Issues.

General Legal Issues

Four commenters commented that the proposed rule encroached on
adult citizens' constitutional right to view pornography under the
guise of protecting children from exploitation. The Department
disagrees with this comment. The final rule does not impinge upon the
constitutionally protected right to free speech. This claim was fully
litigated following enactment of the statute and the publication of the
first version of the section 2257 regulations. The D.C. Circuit, while
invalidating certain