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definition does not alter the Department's representation to the court
in American Library Ass'n v. Reno, and it remains true that a secondary
producer not in privity with the primary producer may rely upon records
provided to it by the immediately preceding secondary producer.
However, on-line distributors who digitize depictions on the covers of
videos, DVDs, magazines, and other material such that new depictions
are created and displayed on the Internet are covered by the definition
of producer and must maintain the required records.
Three commenters commented that it is unclear whether the
requirement that the statement include date of production,
manufacturing, publication, duplication, reproduction, or re-issuance
must include all of the listed events or only one. In addition,
according to these commenters, the only relevant date for the statute's
purposes is the date of creation, i.e., the date the actual live event
was depicted. Finally, claimed these commenters, the term date of
production is also vague in that it is not clear how a producer should
date a film made over several days. The Department declines to adopt
this comment. Given the statute's purpose of protecting minors against
sexual exploitation, with respect to primary producers, clearly the
date of production is the most pertinent because it will reflect the
youngest age of the performer involved. Secondary producers should list
whichever date or dates are relevant to their conduct. Moreover, this
requirement already existed before the proposed rule was published, and
therefore, this comment does not pertain to the proposed rule. See 28
CFR 75.6(a)(2) (2003).
Two commenters commented that the definition of picture
identification card is vague, in particular because it does not include
documents issued by a foreign government but does include as an example
a foreign passport. In response to these comments, the Department has
clarified that the definition includes a foreign government-issued
passport or any other document issued by a foreign government or a
political subdivision thereof only when both the person who is the
subject of the picture identification card and the producer maintaining
the required records are located outside the United States. The
definition also clarifies that it includes a U.S. government-issued
Permanent Resident Card (commonly known as a ``Green Card'') or other
U.S. government-issued Employment Authorization Document.
Two commenters commented that the proposed rule did not define
qualifications for, or process for authorization of, inspectors. The
Department declines to adopt this comment. Through 18 U.S.C. 2257
Congress has authorized the Attorney General to inspect records, and
the Attorney General may delegate this authority to any agency deemed
appropriate by virtue of the Attorney General's delegation authority
under 28 U.S.C. 510.
One commenter commented that the inclusion in the definition of
secondary producer of anyone who ``enters into a contract, agreement,
or conspiracy'' to produce a sexually explicit depiction was irrational
because such a person was not likely to have had a relationship with
the performer and may not have had knowledge of the content of the
depiction. The Department declines to adopt this comment. The statute
contemplates such relationships as being covered by its requirements.
One commenter commented that the definition of a primary producer
as anyone who ``digitizes an image'' could be read to include anyone
who scans or digitizes a photograph or negative. The commenter
suggested that someone who performs that activity should be exempted
from the record-keeping requirements in the same way that photo
processors are exempt under Sec. 75.1(c)(4)(i). The Department adopts
this comment and has clarified in the final rule that someone who
solely digitizes a pre-existing photograph or negative as part of a
commercial enterprise and has no other commercial interest in the
production, reproduction, sale, distribution, or other transfer of the
sexually explicit depiction is exempt from the requirements of Sec.
75. As reflected in the phrase ``has no other commercial interest in
the production, reproduction, sale, distribution, or other transfer of
the sexually explicit depiction,'' this definition is intended to apply
to businesses that are analogous to photo processors in their lack of
commercial interest in the sexually explicit material, and who are
separate and distinct from the on-line distributors of pornography who
digitize the covers of videos, DVDs, etc., who are included in the
definition of secondary producer, as discussed above.
One commenter commented that the requirement regarding the
placement of the statement in films and videotapes in Sec. 75.8 was
unclear as to whether the statement was required in the ``end
credits,'' ``end titles,'' or ``final credits'' and what constituted
those sections of the film. The commenter also suggested that Sec.
75.8(b) and (c) be combined more easily to describe the placement of
the statement. The Department adopts this comment. It has combined
Sec. 75.8(b) and (c) and clarified that the statement must appear in
the end credits of films and videotapes that have such end credits,
which are defined as the section of the film that lists information
about the production, direction, distribution, names of performers, or
any other matter that is normally understood as constituting ``end
credits'' of a commercial film or videotape.
One commenter commented that the definition of sell, distribute,
redistribute, and re-release in Sec. 75.1(d) is redundant because it
restricts the terms to their commercial meaning but then notes that the
terms do not apply to noncommercial or educational distribution. In
addition, the commenter comments, it provides examples of the type of
education institutions whose distributions would not be covered.
According to the commenter, this list is also redundant. The Department
declines to adopt this comment. The definition's plain language is not
redundant; rather, it is as specific as possible regarding what is
commercial and what is noncommercial. In addition, the examples clearly
constitute a non-exhaustive list of institutions and clarify the
meaning of the term noncommercial.
One commenter commented that the rule should define the term
transfer, as used in section 2257, in order to, e.g., specify whether
the statement is required if a husband mails to his wife a sexually
explicit videotape depicting the couple engaged in consensual sexual
activity. The Department declines to adopt this comment. The Department
believes that the definition of sell, distribute, redistribute, and re-
release in Sec. 75.1(d) subsumes the statute's use of the term
transfer, which is not used in the proposed or final rule in a way
requiring definition. In addition, the definition in Sec. 75.1(d)
makes clear that only commercial transfers are covered and the
hypothetical transfer that the commenter posits would by the plain
meaning of the rule never be covered.
One commenter commented that the requirement that the statement
appear on the home page of a Web site is vague because many web sites
operate with subdomains, making the actual homepage or principal URL
difficult to identify. The Department declines to adopt this comment.
Subdomains, as the name implies, are URLs that share the top-level
domain name's basic URL and have additional identifying address
information to provide additional content on a separate Web page. Each
subdomain thus has its own homepage