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rule does not need to include details such as these.
One commenter commented that it is unclear whether a producer that
provides content to a secondary producer must maintain a list of its
URLs. According to the commenter, keeping such a list would be
impossible, given the number of URLs and the fact that many URLs are
generated dynamically, making the requirement technologically
impossible. Further, claimed the commenter, if a URL is required to be
indexed with an identification record, one URL (the site entrance)
should be sufficient. In addition, the commenter commented, URLs
outside the direct control of the content provider should not be
covered under the regulations, and secondary producers should be
permitted to simply list the producer's 2257 statement on the home
page.
The Department declines to adopt this comment. The Department
understands that it would not be possible to track or maintain records
of dynamically generated URLs. The existing regulations require
producers to maintain the names of the performers ``indexed by the
title or identifying number of the book, magazine, film, videotape, or
other matter.'' See 28 CFR 75.2(a)(2). The rule updates this
requirement expressly to include Internet depictions by requiring that
this indexing also include any static URLs associated with depictions
of that performer and to maintain a copy of the depiction with the
static URL associated with the depiction. Existing regulations require
any producer to affix a statement describing the location of the
records, and permit producers to provide the address of the primary
producer, or, for secondary producers satisfying the requirements of
Sec. 75.2(b), the address of the secondary producer. See 28 CFR 75.6,
75.6(b); see also 28 CFR 75.2(b) (permitting secondary producers to
maintain records by accepting copies of records from a primary
producer). This rule merely updates this requirement to expressly cover
Internet depictions.

Regulatory Procedures

Regulatory Flexibility Act

The Department of Justice has drafted this regulation in accordance
with the Regulatory Flexibility Act, 5 U.S.C. 601-612. The Department
of Justice drafted this rule to minimize its impact on small businesses
while meeting its intended objectives. Based upon the preliminary
information available to the Department through past investigations and
enforcement actions involving the affected industry, the Department is
unable to state with certainty that this rule, if promulgated as a
final rule, will not have any effect on small businesses of the type
described in 5 U.S.C. Sec. 601(3). Accordingly, the Department has
prepared a final Regulatory Flexibility Act analysis in accordance with
5 U.S.C. 604, as follows:

A. Need for and Objectives of This 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. 18
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 merely 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., e.g., 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 final rule,
a number of definitions are revised to accomplish the application of
the rule to the modern modes of communication.

B. Description and Estimates of the Number of Small Entities Affected
by This Rule

A ``small business'' is defined by the Regulatory Flexibility Act
(RFA) to be the same as a ``small business concern'' under the Small
Business Act (SBA), 15 U.S.C. 632. Under the SBA, a ``small-business
concern'' is one that: (1) is independently owned and operated; (2) is
not dominant in its field of operation; and (3) meets any additional
criteria established by the SBA. See 5 U.S.C. 601(3) (incorporating by
reference the definition of ``small business concern'' in 15 U.S.C.
632).
Based upon the information available to the Department through past
investigations and enforcement actions involving the affected industry,
there are likely to be a number of producers of sexually explicit
depictions who hire or pay for performers and who, accordingly, would
come under the ambit of the proposed rule. However, none of the changes
made by this rule affect the number of producers that would be covered.
The rule clarifies the meaning of an existing definition and how that
definition covers electronic sexually explicit depictions, but does not
expand that definition.
Pursuant to the RFA, in the proposed rule the Department encouraged
all affected commercial entities to provide specific estimates,
wherever possible, of the economic costs that this rule will impose on
them and the benefits that it will bring to them and to the public. The
Department asked affected small businesses to estimate what these
regulations will cost as a percentage of their total revenues in order
to enable the Department to ensure that small businesses are not unduly
burdened. No specific estimates of the economic costs that the rule
would impose were received.
The regulation has no effect on State or local governmental
agencies.

C. Specific Requirements Imposed That Would Impact Private Companies

The final rule provides clearer requirements for private companies
to maintain records of performers of sexually explicit depictions to
ensure that minors are not used in such sexually explicit depictions.
The final rule requires that these records be properly indexed and
cross-referenced. In the proposed rule, the Department specifically
sought information from affected producers on the costs of the record-
keeping, indexing, and cross-referencing requirements. No commenters
provided such information beyond qualitative assessments, which