18 U.S.C. 2257(h)(2)(A), as amended.
It excludes from the definition of ``produces,'' however, the
following activities, in pertinent part:
(i) Photo or film processing, including digitization of
previously existing visual depictions, as part of a commercial
enterprise, with no other commercial interest in the sexually
explicit material, printing, and video duplication;
(ii) Distribution;
(iii) Any activity, other than those activities identified in
subparagraph (A), that does not involve the hiring, contracting for,
managing, or otherwise arranging for the participation of the
depicted performers * * *.
Id. 2257(h)(2)(B), as amended.
This language replaced the previous definition of ``produces'' in
the statute, which stated, in pertinent part, as follows:
[T]he term `produces' means 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
* * *.
In enacting this language, Congress upheld the Department's
consistently held position that the rule's requirements for secondary
producers have been in effect since the rule's original publication. As
explained by
[[Page 38036]]
the sponsor of the Act in the House of Representatives:
Congress previously enacted the PROTECT Act of 2003 against the
background of Department of Justice regulations applying section
2257 to both primary and secondary producers. That fact, along with
the Act's specific reference to the regulatory definition that
existed at the time, reflected Congress' agreement with the
Department of Justice's view that it already had the authority to
regulate secondary procedures under the applicable law.
A federal court in Colorado, however, recently enjoined the
Department from enforcing the statute against secondary producers,
relying on an earlier Tenth Circuit precedent holding that Congress
had not authorized the Department to regulate secondary producers.
These decisions conflicted with an earlier D.C. Circuit decision
upholding Congress' authority to regulate secondary producers.
Section 502 of the bill is meant to eliminate any doubt that section
2257 applies both to primary and secondary producers, and to reflect
Congress' agreement with the regulatory approach adopted by the
Department of Justice in enforcing the statute.
Congressional Record, 109th Cong., 2d Sess., July 25, 2006, at H5725.
Congress thus rejected the interpretation adopted by the court in
Sundance Assocs., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), in favor
of the DC Circuit's decision upholding the application of the statute
to secondary producers, Am. Library Ass'n v. Reno, 33 F.3d 78 (DC Cir.
1994). In upholding the constitutionality of the secondary-producer
requirements, the DC Circuit both recognized the importance of these
requirements and effectively rejected the argument that Congress lacked
the authority to regulate secondary producers.
In accordance with current law, the proposed rule retains July 3,
1995, as the effective date of the rule's requirements for secondary
producers. (The current regulations, published in 2005, adopted July 3,
1995, as the effective date of enforcement of section 2257 based on the
Court's order in American Library Association v. Reno, No. 91-0394 (SS)
(D.D.C. July 28, 1995)). The one exception is that the proposed rule
would not penalize secondary producers for failing to maintain required
records in connection with those acts of production that occurred prior
to the effective date of the Act. While the law would permit the
Department to apply the statute and regulations to actions that
occurred prior to that date, the Department has determined that the
rule shall not apply in such circumstances to avoid any conceivable ex
post facto concern.
In addition to implementing the changes in the statute described
above, the proposed rule clarifies several other issues. First, it
clarifies that primary producers may redact non-essential information
from copies of records provided to secondary producers, including
addresses, phone numbers, social security numbers, and other
information not necessary to confirm the name and age of the performer.
However, the identification number of the picture identification card
presented to confirm name and age--such as drivers' license number or
passport number--may not be redacted, so that its validity may be
confirmed. Second, the proposed rule clarifies that producers of visual
depictions performed live on the Internet need not maintain a copy of
the full running-time of every such depiction. Rather, they may
maintain a copy that contains running-time sufficient to identify each
and every performer in the depiction and associate each and every
performer with the records needed to confirm his or her age.
Third, the proposed rule clarifies that, with regard to the
government-issued photo identification required for records, a foreign-
government-issued picture identification card is acceptable if the
performer providing it is a foreign citizen and the producer
maintaining the records produces the visual depiction of the performer
in a foreign country, no matter whether the producer is a U.S. or
foreign citizen. That is, a U.S. producer who produces a depiction of
sexually explicit conduct while located in a foreign country may rely
on a foreign-government-issued picture identification card of a
performer in that depiction who is a foreign citizen. All other
requirements of the regulations continue to apply mutatis mutandis--
i.e., the producer must examine and maintain a legible copy of the
foreign-government-issued picture identification card in his records.
Furthermore, a foreign-government-issued picture identification card is
not sufficient to comply with the regulations for U.S. citizens, even
when abroad. That is, if a U.S. producer travels to a foreign country
to produce a depiction of sexually explicit conduct, all U.S. citizens
performing in the depiction must have a U.S.-government-issued picture
identification card, even though a foreign citizen performing in the
same depiction may provide a foreign-government-issued picture
identification card. And, as is the case in the current regulation,
only a U.S.-government-issued picture identification card complies with
the regulations in the United States, no matter whether a performer is
a U.S. or foreign citizen. The regulation also states that producers of
visual depictions made after July 3, 1995, the effective date of the
regulations published in 1992, and before June 23, 2005, the effective
date of the current regulations published in 2005, may rely on picture
identification cards issued by private entities such as schools or
private employers that were valid forms of required identification
documentation under the provisions of part 75 in effect on the original
production date.
Finally, although it is not necessary to change the text of the
regulations for this purpose, the Department hereby clarifies that a
producer need not keep a copy of a URL hosting a depiction that the
producer produced but over which he exercises no control.
Regulatory Procedures
Regulatory Flexibility Act
The Department has drafted this proposed rule in accordance with
the Regulatory Flexibility Act, 5 U.S.C. 601-612. The Department
drafted the rule to minimize its effect 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. 601(3). Accordingly, the Department has prepared a preliminary
Regulatory Flexibility Act analysis in accordance with 5 U.S.C. 604, as
follows:
A. Need for and Objectives of This Rule
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, is that all such
performers verifiably not be minors, i.e., not younger than 18 years of
age. See 18 U.S.C. 2256(1), 2257(b)(1). As discussed above, Congress
has recognized that minors warrant special concern in this area.
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. See 18 U.S.C. 2256(8).
[[Page 38037]]
This proposed rule amends certain provisions of the existing
regulations to conform to the Act, as described above.
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 small businesses that are producers
of visual depictions of sexually explicit conduct as defined in the
statute, as amended by the Act.
Pursuant to the RFA, the Department requests 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.
The proposed rule has no effect on State or local governmental
agencies.
C. Specific Requirements Imposed That Would Affect Private Companies
The proposed rule modifies existing requirements for private
companies with regard to visual depictions of sexually explicit conduct
to ensure that minors are not used in such depictions. One of these
requirements that would specifically affect private companies is
Congress's expansion of the coverage of the definition of ``sexually
explicit conduct'' to cover lascivious exhibition.
Executive Order 12866
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department has determined that this rule is a ``significant regulatory
action'' under Executive Order 12866, section 3(f). Accordingly this
rule has been reviewed by the Office of Management and Budget.
The benefit of the rule is that children will be better protected
from exploitation in the production of visual depictions of sexually
explicit conduct by ensuring that only those who are at least 18 years
of age perform in such depictions. The costs to the industry include
slightly higher record-keeping costs. The Department encourages all
affected commercial entities to provide specific estimates, wherever
possible, of the economic costs that this rule will impose on them.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Executive Order
13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988
This rule meets the applicable standards set forth in Sec. 3(a)
and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1501 et seq.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, codified at
5 U.S.C. 804. This rule will not result in an annual effect on the
economy of $100,000,000 or more; a major increase in costs or prices;
or significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Paperwork Reduction Act
This proposed rule modifies existing requirements to conform to
newly enacted legislation. It contains a revised information collection
that satisfies the requirements of existing regulations to clarify the
means of maintaining and organizing the required documents. This
information collection will be submitted to the Office of Management
and Budget for regular approval and comments from the public, in
accordance with the Paperwork Reduction Act of 1995. Any comments
received during the comment period should address one or more of the
following four points: (1) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the agency, including whether the information will have practical
utility; (2) the accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) how to enhance the quality,
utility, and clarity of the information to be collected; and (4) how to
minimize the burden of the collection of information on those who are
to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology; e.g., permitting electronic
submission of responses.
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Originally Posted by Madame0120
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