[[Page 29616]]

position, as the commenter stated, because of concern about
exploitation of children.
One commenter commented that certain types of files--e.g., .jpeg
and .gif photos--cannot have a statement appended when uploaded. The
Department declines to adopt this comment. The rule makes clear that
whenever Internet depictions are involved, the statement must appear on
the website's home page, not on the image itself.
One commenter commented that the term technologies is improperly
used in Sec. 75.1(a), which states that the proposed rule's
definitions of terms ``are not meant to exclude technologies or uses of
these terms as otherwise employed in practice or defined in other
regulations or federal statutes * * *.'' The Department declines to
amend the proposed rule in response to this comment. The Department
believes the commenter may have misunderstood the sentence. As Sec.
75.1(a) explains, the definitions in the rule are not used in their
technical senses and do not, therefore, exclude any particular type of
technology, or technologies, currently existing or invented in the
future on the basis of the language used in the Part.
The same commenter objected to the proposed rule's use of the
phrase ``myriad of'' in the definition of the term Internet in Sec.
75.1(f). The Department declines to adopt this comment. According to
Merriam-Webster's Collegiate Dictionary (11th ed., 2003), ``Recent
criticism of the use of myriad as a noun, both in the plural form
myriads and in the phrase myriad of, seems to reflect a mistaken belief
that the word was originally and is still properly only an adjective *
* *. The noun myriad has appeared in the works of such writers as
Milton (plural myriads) and Thoreau (a myriad of), and it continues to
occur frequently in reputable English. There is no reason to avoid
it.'' Merriam-Webster's Collegiate Dictionary 821 (11th ed., 2003).
One commenter commented regarding a minor drafting error in which
Sec. 75.2(a)(1) of the proposed rule incorrectly referenced the
definition of an identification document in 18 U.S.C. 1028. The
Department has eliminated entirely the reference to 18 U.S.C. 1028,
which is redundant in light of the final rule's defined term picture
identification card.
One commenter suggested that the regulation state that no person
convicted of pedophilia, endangerment of a minor, or any sexual
misconduct involving a minor be eligible to produce sexually explicit
material or act as custodian of records required by the regulation. The
Department is unable to adopt this comment, because the suggestion goes
beyond the Department's authority to implement the statute.
Two commenters suggested alternative means to implement the
statute. One suggested that the Department establish a national ``sex
ID'' system with which performers would register with the government in
a national database. In the commenter's scheme, the model would receive
an ID number that would be superimposed on images of the performer,
enabling federal law enforcement officers to determine compliance with
the rule by cross-referencing the ID numbers with the database. Another
suggested that each producer store required identification records,
indexed by URL, on a computer server in a password-protected folder
made available to law enforcement. The Department declines to adopt
these suggestions because it believes that they would be more
burdensome on both the Department and producers to create, implement,
and manage than the record-keeping system established by the rule. In
addition, creation of such systems would likely require several years'
work and delay implementation of the statute's record-keeping
requirements.
Similarly, two commenters suggested specific additions to the
record-keeping requirements in the proposed rule. One commented that
two forms of identification should be required of performers. The
Department declines to adopt this comment because it believes that one
form of valid photo identification is sufficient to establish the
identity and age of the performer and that requiring more would be
overly burdensome on businesses and performers themselves.
One commenter commented that the exemption statement in the rule is
unnecessary and redundant because if no statement is necessary, then
the regulation does not apply and no statement of any kind can be
required. The Department declines to adopt this comment for three
reasons. First, the Department notes that the exemption-statement
requirement was included in the previous version of the regulation.
Second, the commenter is wrong to state that it is redundant. Since a
primary or secondary producer could possess various sexually explicit
depictions, some subject to the regulation and some not, it would be
necessary for the producer to label both types, rather than only label
those that are subject to the rules and give the impression both to the
public and to government inspectors that the producer is not in
compliance with the regulation. Third, the lack of an exemption
statement could lead to a waste of resources by prompting inspections
where none were needed because, unbeknownst to the inspector, the
producer was exempt from the regulation.
One commenter commented that Internet Presence Providers (IPPs)
should receive the same exemption from the rule as Internet Service
Providers (ISPs). The Department understands that IPPs are similar to
ISPs in that they both act as hosts for web pages that are created and
owned by other persons. It appears, however, that IPPs can also take on
other responsibilities, including managing the operations of web sites
themselves. The Department has amended the proposed rule to exclude
web-hosting services to the extent that their employees are not, and
cannot reasonably be, engaged in managing the sexually explicit content
of the site (for either technical or contractual reasons). The
Department does not believe it is appropriate to provide a blanket
exemption from the regulation for IPPs because it would enable owners
of such web sites to disclaim responsibility for complying with the
regulation by asserting that the IPPs are actually engaged in regulated
activities while also exempting IPPs in toto, thus leading to a gap in
coverage of producers.
One commenter commented that the regulation should specify that a
record-keeper may refuse to speak to an investigator or may leave the
premises during an investigation, so that no questions arise regarding
whether the inspection rises to the level of custodial interrogation.
The Department declines to adopt this comment. A record keeper's
conduct during an inspection will not be regulated. To the extent that
it becomes necessary in any given case, both the government and the
individual will have available to them the full panoply of
constitutional and legal protections and authorities to allow a court
to determine, in the normal course of any prosecution that may arise
and on a case-by-case basis, whether a custodial interrogation occurred
at the time of inspection, and will bear the consequences of the
court's determination.
One commenter commented that the proposed rule did not define how
an inspector could copy physical or digital records during an
inspection. The Department declines to adopt this comment. The
inspectors will avail themselves of a portable photocopier or means to
copy digital records (e.g., computer disks) as needed, and the final