New 2257 Regulations As Published A Few Minutes Ago..

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and each homepage must feature the statement. For example, http://www.usdoj.gov
is the full domain name of the Web site of the Department

of Justice. http://www.usdoj.gov/criminal is the Web page of the

Criminal Division, which is hosted by the Department's Web site. Under
this rule, http://www.usdoj.gov would be required to have a statement and that statement would cover anything contained on http://www.usdoj.gov/criminal.
However, http://www.ojp.usdoj.gov is a

subdomain of the full domain http://www.usdoj.gov and would be required

to have its own statement on that page, which would then cover any
material on a Web page linked to it, such as http://www.ojp.usdoj.gov/ovc/
, the Web page of the Office for Victims of Crime.

One commenter commented that the exception under Sec.
75.1(c)(4)(iv-v) for Web hosting, electronic communication, and remote
computing services should be extended to 18 U.S.C. 2257(f)(4).
Providers of Web hosting, bulletin boards, or electronic mail services
could be found liable for not ascertaining that the appropriate label
was affixed to a depiction transferred by one of their users. The
Department declines to adopt this comment, which would require an
amendment to the statute and is beyond the authority of the Department
to change by regulation. Moreover, the Department notes that 18 U.S.C.
2257(f)(4) makes it a crime for a person ``knowingly to sell or
otherwise transfer'' any sexually explicit material that does not have
a statement affixed describing the location of the records. Thus,
knowledge on the part of the transferor is an element of the offense.
One commenter commented that the proposed rule's record-keeping
requirements were troublesome in light of the 2003 amendment to section
2257(d), which authorizes the use of such records as evidence in
prosecuting obscenity or child pornography cases. According to the
commenter, this violates the Fifth Amendment right against mandatory
self-incrimination. The Department declines to adopt this comment, for
two reasons. First, the comment is not directly related to the rule but
rather is directed at the statute. Second, the amendment to section
2257(d) does not violate the Fifth Amendment since some sexually
explicit materials are protected speech and not obscene. Hence, the
reporting requirement is not directed at ``a highly selective group
inherently suspect of criminal activities.'' Albertson v. Subversive
Activities Control Bd., 382 U.S. 70, 79 (1965).
One commenter commented that the definition of producer is too
broad, such that one depiction may have multiple primary producers,
including, e.g., the photographer and a different individual who
digitizes the image. The commenter argued that the definition should be
written so that each depiction has only one primary producer. The
Department declines to adopt this comment. The Department does not
believe that logic, practicability of record-keeping or inspections, or
the statue dictates that there be one and only one primary producer for
any individual sexually explicit depiction. Any of the persons defined
as primary producers has easy access to the performers and their
identification documents and should therefore each have responsibility
individually and separately of maintaining the records of those
documents.
Two commenters commented that the definition of producer in the
proposed rule was too broad and would encompass a convenience store
that sold sexually explicit magazines or a movie theater that screened
R-rated movies. The Department declines to adopt this comment. As the
rule makes clear, mere distributors of sexually explicit material are
excluded from the definition of producers and under no plausible
construction of the definition would a movie theater be covered merely
by screening films produced by others.
One commenter commented that it was not clear in the proposed rule
whether, in cases in which it is discovered that a performer is
underage, the possessors of those images are required to destroy copies
of images required in the records in order to comply with the child
pornography laws. The Department declines to adopt this comment because
existing statutes make clear that it is unlawful knowingly to produce,
advertise, distribute, transport, receive, or possess child
pornography. See 18 U.S.C. 2251, 2252, and 2252A. Producers, like all
citizens, must comply with those statutes. Nothing in the rule changes
or obscures these existing legal obligations. Furthermore, there is a
good-faith defense to possession of child pornography for the
destruction or reporting to law enforcement of its existence. See 18
U.S.C. 1466A(e).

Burdensomeness

Thirty-six commenters commented that even if the effective date
were changed to July 3, 1995, the regulation would be overly burdensome
on secondary producers because producers would be required to obtain
records for thousands--even hundreds of thousands--of sexually explicit
depictions dating back a number of years. These commenters claimed that
secondary producers would likely be unable to locate many of those
records from primary producers who may have moved, shut down, or
otherwise disappeared. According to the commenters, those secondary
producers who could not locate such records would be forced to remove
the sexually explicit depictions, which would be a limit on
constitutionally protected material.
The Department declines to adopt these comments. Producers were on
notice that records had to be kept at least by primary producers for
depictions manufactured after July 3, 1995. In addition, commenters
were similarly on notice that the D.C. Circuit, in American Library
Ass'n v. Reno, had upheld the requirement that secondary producers
maintain records. The Department is not responsible if secondary
producers chose to rely on the Tenth Circuit's holding in Sundance and
not to maintain records while ignoring the D.C. Circuit's holding in
American Library Ass'n v. Reno. A prudent secondary producer would have
continued to secure copies of the records from primary producers after
July 3, 1995. If those records, which are statutorily required, are not
currently available, then the commenters are correct that they will be
required to comply with the requirements of all applicable laws,
including section 2257(f). They are incorrect, however, to claim that
this would result in an impermissible burden on free speech. As the
D.C. Circuit held, the government has a compelling state interest in
protecting children from sexual exploitation. If the producers (primary
and secondary) of sexually explicit depictions cannot document that
children were not used for the production of the sexually explicit
depictions, then they must take whatever appropriate actions are
warranted to comply with the child exploitation, obscenity, and record-
keeping statutes. The First Amendment is not offended by making it
unlawful knowingly to fail or refuse to comply with the record-keeping
or labeling provisions of this valid statute.
Two commenters commented that secondary producers should not be
required to maintain records at all because they are not proximate
enough to the production of the depictions to secure the requisite
information, and their retention of records would not further the
purpose of the statute. One commenter commented that secondary
producers should only be required to

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retain on file the contact information for the primary producers'
custodians of records. The Department declines to adopt these comments.
As publishers of sexually explicit material, secondary producers are
equally responsible for protecting minors from exploitation as the
primary producers who photograph sexually explicit acts. Most
importantly, secondary producers are equally covered by the terms of
section 2257. In addition, the D.C. Circuit in American Library Ass'n
v. Reno, held that such a requirement was not unconstitutionally
burdensome.
Thirty-five commenters commented that the indexing and cross-
indexing requirements are unduly burdensome and argued that the records
should be indexed only by the performer's legal name, the name used in
the depiction, or the title of the depiction. The Department declines
to adopt these comments. As the D.C. Circuit held in American Library
Ass'n v. Reno, the indexing and cross-indexing requirements were not
unduly burdensome. Word-processing, bookkeeping, and database software
commonly in use by businesses and even for home computers can
accomplish the indexing and cross-indexing required by the rule. The
Department continues to believe that investigators must be able to
access records through cross-indexing in order to ensure completeness
and to enable investigation on the basis of less-than-full information.
Thirty-two commenters commented that the requirement that a copy of
each depiction be maintained would be unduly burdensome, leading to
vast stocks of magazines and videotapes, and even storage of computer
images would be unmanageable and prohibitive for small businesses.
Thirty-five commenters also commented that the requirement to keep
copies of each image is impossible to comply with due to the vast
amount of data involved in storing digital images, especially, e.g.,
producers of live streaming video. The Department declines to adopt
these comments. Maintaining one copy of each publication, production,
or depiction is critical to making the inspection process meaningful.
Commercial publishers and producers can reasonably be expected to
comply. Furthermore, modern computer and disk storage capacities make
digital archiving and back-up relatively inexpensive and space-
efficient. Finally, reviewing identification records in a vacuum would
be meaningless without being able to cross-reference the depictions,
and having the depictions on hand is necessary to determine whether in
fact age-verification files are being maintained for each performer in
a given depiction. In addition, without the depictions, inspectors
could not confirm that each book, magazine, periodical, film, videotape
or other matter has affixed to it a statement describing the location
of the records, as required by the existing regulations. Exceptions
cannot be made for producers of digital depictions, and indeed, it is
likely less onerous to store digital images than paper images. Children
are just as easily exploited in live streaming video as in any other
visual medium. Therefore, an exception cannot be made for producers of
live streaming video.
Thirty-nine commenters commented that the requirement that records
be available for inspection during specified normal business hours and
any time business is conducted would be impossible for small businesses
to meet, especially those run on a part-time basis or during non-
traditional hours. These commenters pointed out that the prior
regulations simply provided that the availability be reasonable. The
Department adopts this comment. The Department can accept that the
producers of the sexually explicit depictions subject to the statute do
not necessarily maintain traditional 9 a.m. to 5 p.m. business hours.
Accordingly, the rule will be adjusted to permit inspections during the
producer's normal business hours. To the extent the producer does not
maintain or post regular business hours, producers will be required to
provide notice to the inspecting agency of the hours during which their
records will be available for inspection, which must total no less than
twenty (20) per week, in order to permit reasonable access for
inspectors.
Thirty commenters commented that the proposed rule's requirement
that the statement appear on the homepage of a Web site would lead to
excessively lengthy statements that could deter viewers from
downloading site content. The commenters suggested that web sites
should be permitted to provide links that open windows to complex
disclosure statements. In response to these comments, the Department
has amended the proposed rule such that the final rule permits web
sites to contain a hypertext link that states, ``18 U.S.C. 2257 Record-
Keeping Requirements Compliance Statement,'' that will open in a
separate window that contains the required statement.
Five commenters commented that the requirement that copies of each
image be kept together with the records would interfere with the
requirement that records be segregated. According to these commenters,
hard copies of depictions cannot, by definition, be held together with
electronic copies, and if computer records are kept, it is not possible
for a producer to segregate records stored on a computer because they
are all found on the same storage device. Further, claimed the
commenters, the requirement under Sec. 75.2(e) that records be
segregated from other records, not contain other records, or be
contained within other records is vague. They claimed that it is
unclear whether copies of records may never be in any other company
files, which would be an irrational requirement and would open
inadvertent misfilings to criminal prosecution.
The Department declines to adopt this comment. The requirement that
records maintained pursuant to section 2257 be segregated not only
streamlines the inspection process but protects producers from
unbridled fishing expeditions. Inspectors should not be faced with
situations in which they have to sift through myriad filing cabinets to
find the records they are seeking, and producers should not be faced
with the risks that such exploration might create. Hard copies,
electronic copies, or files consisting of both can be segregated in
separate storage containers or hard drives (or even in separate
directories or folders on a hard drive) in/on which no other records
are held. Two commenters commented that the implicit requirement that
records be kept at a place of business is unreasonable and argued that
the regulation should permit third-party custody of records. The
Department declines to adopt this comment. Permitting a third party to
possess the records would unnecessarily complicate the compliance and
inspection processes by removing the records from the physical location
where they were initially collected, sorted, indexed, and compiled. For
example, producers could provide false names and addresses to the third
party as a means to avoid scrutiny by law enforcement. Historically,
producers have used front corporations in order to evade both law
enforcement and tax authorities. Permitting third-party custodianship
would exacerbate this problem. Custodians could, for example, disclaim
any responsibility for the condition or completeness of the records or
be unable to provide additional information regarding the status of the
records. Permitting such third-party custodians in the final rule would
thus require additional regulations to ensure that the third-party
custodian could guarantee the accuracy

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of the records, would act as a legally liable agent of the producer,
and would raise other administrative issues as well.
Furthermore, permitting a third party to maintain the records
would, if anything, exacerbate the concerns of numerous commenters
regarding the privacy of information on performers and businesses by
placing that information in the hands of another party.
Three commenters commented that the record-shifting requirements
under Sec. Sec. 75.2(a) and (b) are impermissibly burdensome.
According to the commenters, primary producers would resist turning
over records that contain trade secrets, such as the identities of
performers. The Department declines to adopt these comments. The D.C.
Circuit Court clearly held in American Library Ass'n v. Reno that the
record-keeping requirements were not unconstitutionally burdensome. Any
primary producer who fails to release the records to a secondary
producer is simply in violation of the regulations and may not use the
excuse that the records contain alleged trade secrets to avoid
compliance.
Three commenters commented that the requirement that the statement
appear in font size equal in size to the names of the performers,
director, producer, or owner, whichever is larger, and no smaller in
size than the largest of those names, and in no case in less than 11-
point type, in black on a white, untinted background amounts to forced
speech, would ruin the aesthetic quality of web pages and other media,
and is impractical. Another commenter commented that the requirement
that the statement appear in a certain typeface cannot apply to web
sites, whose appearance depends on the viewer's computer. In response
to these comments, the Department has revised final rule to require
that the statement appear in typeface that is no less than 12-point
type or no smaller than the second-largest typeface on the website, and
in a color that contrasts with the background color. Regarding the
claim that such an administrative label constitutes forced speech, the
Department notes that the federal government imposes a range of such
requirements, such as nutritional labels on food products and safety
warnings on a myriad of products.
Two commenters commented that the length of retention of records
was too long and could multiply to include excessively long periods of
time. The commenters also claimed that the periods of time in the
proposed rule were contrary to the D.C. Circuit's opinion in American
Library Ass'n v. Reno. The Department declines to adopt this comment.
The regulation provides for retention of records for seven years from
production or last amendment and five years from cessation of
production by a business or dissolution of the company. The Department
does not believe that these limits are unreasonable. The only way to
satisfy the commenters' objection that the periods of time can multiply
would be to impose a blanket short period of time no matter what
changes to the records were made. Such a change would frustrate the
ability to ensure that records were maintained up-to-date and prevent
inspectors from examining older records to determine if a violation had
been committed. In addition, the time periods, contrary to the claim of
the commenters, do not violate American Library Ass'n v. Reno. In that
case, the D.C. Circuit held that Sec. 75 could not require records to
be maintained for as long as the producer remained in business and
allowed a five-year retention period ``[p]ending its replacement by a
provision more rationally tailored to actual law enforcement needs.''
33 F.3d at 91. The Department has determined that the seven-year period
is reasonable, thus satisfying the court's directive. The production of
child pornography statute of limitations was increased in the PROTECT
Act from five years to the life of the child, and the increase
contained in the regulation seeks to comport with that extended statute
of limitations.
Finally, the Department wishes to clarify that the statute requires
that each time a producer publishes a depiction, he must have records
proving that the performers are adults. Thus, if a producer purges his
or her records after the retention period but continues to use a
picture for publication, the producer would be deemed in violation of
the statute for not maintaining records that the person depicted was an
adult. Records are required for every iteration of an image in every
instance of publication.
One commenter objected to the proposed rule's lack of prior
announcement of inspections. Advance notice, the commenter stated,
would allow producers to put records in proper order and ensure that
someone would be on the premises when investigators visited. The rule
should specify what happens in cases in which no one is present when
the investigator arrives. The Department declines to adopt this
comment. Advanced notice would provide the opportunity to falsify
records in order to pass inspection. Lack of specific case-by-case
notice prior to inspection will promote compliance with the statute and
encourage producers to maintain the records in proper order at all
times, as is contemplated by the statute. The rule will specify that
inspections are to occur during the producer's normal business hours.
The inspection process clearly does not contemplate warrantless forced
entry solely because no one is present when the investigator arrives.
One commenter commented that the proposed rule appeared to require
hard copies of records and suggested that digital copies be permitted
in order to simplify storage and indexing. The Department adopts this
comment. Records may be maintained in either ``hard'' (paper) form or
digital form, provided that they include scanned forms of
identification and that there is a custodian of records who can
authenticate each digital record. The regulation has been revised to
clarify this point.
One commenter commented that the regulation should permit the
statement to be located on main menu screen of a DVD, rather than
requiring the statement to appear in the movie itself. The Department
declines to adopt this comment. The statement cannot be severed from
the actual depiction because that could lead to confusion on the part
of the public as to the applicability of the statement in cases, for
example, when there is more than one film on a DVD or when a movie on a
DVD is also available in other contexts in which the statement must be
appended (e.g., posted on a Web site).
One commenter commented that the list of acceptable forms of
performer identification in the proposed rule is unduly restrictive and
argued that college and employer identification cards should be
acceptable. The Department declines to adopt this comment. The
regulation properly requires a government-issued identification
document because other forms of identification are too susceptible to
forgery to accomplish the purposes of the Part.
One commenter who supported the proposed rule stated that he
created a system to help webmasters comply with the rules and protect
the identity of individuals depicted in the images while allowing
verification by law enforcement. The commenter stated that no
webmasters took advantage of his system because, he said, they believe
that there is an extremely remote possibility of being prosecuted for
non-compliance and that the Sundance ruling protects them. The comment
tends to demonstrate that the claim by industry groups that the rule is
unconstitutionally burdensome is

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exaggerated. Nonetheless, the Department does not endorse this
commenter's particular system as it has no means to determine whether
the system actually works.
One commenter commented that the provision for inspections every
four months is too frequent and is an invitation for harassment. Some
businesses are so small and static that the required records are
unlikely to change over a particular four-month period. The Department
declines to adopt this comment. The regulations necessarily are
designed to provide an adequate inspection interval for the most
prolific producers as well as the relatively small-scale producers. The
Department has determined that limiting the frequency of inspections to
every four months will allow inspectors to keep pace with major
producers while at the same time avoid excessive inspections of smaller
producers. Moreover, four months denotes the maximum frequency of
inspections; inspectors may inspect less frequently at their
discretion.

Privacy

Sixty-two commenters commented that revealing personal information
of performers, for example, in the form of their addresses on drivers'
licenses used as identification documents in compliance with this
regulation, is an invasion of performers' privacy and could lead to
identity theft or violent crimes. Forty commenters commented that
including the names and addresses of businesses where the records at
issue are located would similarly lead to crimes against those
businesses. The Department declines to adopt these comments. While the
Department is certainly concerned about possible crimes against
performers and businesses that employ them, the necessity of
maintaining these records to ensure that children are not exploited
outweighs these concerns. Furthermore, specifically regarding personal
information about performers required to be provided to primary
producers, the Department notes that the information required is no
different from that required by other forms of employee or business
records, such as social security numbers and dates of birth required
for tax reporting purposes, emergency contact numbers in case of health
problems, or addresses used to transmit paychecks. Regarding
information about producers, such as their physical location, that
those producers must include in their statements, the Department notes
that producers are already required, under the current Part 75
regulations, to include that information. Finally, regarding personal
information about performers that must be transmitted to secondary
producers, the Department again notes, first, that such information is
already required by the current Part 75 regulations, and, second, that
none of the commenters presented any evidence that a hypothetically
possible crime, such as the stalking of a performer, was in any way
tied to the dissemination of the information about a performer provided
to a producer in compliance with Part 75.
Another commenter proposed that secondary producers be required to
store sanitized (i.e., without personal information such as home
address) hard or digital copies of performers' identification documents
along with a notarized affidavit from the primary producer stating the
location of the complete records. The Department declines to adopt this
comment. Although the Department understands the commenter's desire to
protect private information about performers from being too widely
disseminated, it believes that the suggested plan would be overly
burdensome on primary producers and add an unnecessary layer of
complexity to the record-keeping process. Primary producers would be
required first to sanitize the identification documents and then to
draft, sign, and pay for a notarized affidavit. It is simpler and less
burdensome simply to have primary producers transfer a copy of the
records to secondary producers.
One commenter also commented that the proposed rule may force
foreign primary producers to violate foreign laws regarding protection
of information. If primary producers in foreign countries decide to
comply with their home privacy laws and not provide materials to U.S.
entities, the regulation will chill the availability of materials and
speech to U.S. citizens. The Department declines to adopt this comment.
The rule is no different from other forms of labeling requirements
imposed on foreign producers of, e.g., alcohol, tobacco, or food items
that are imported into the United States. In order to sell in the U.S.
market, foreign producers must comply with U.S. laws. This rule applies
equally to any sexually explicit material introduced into the stream of
commerce in the United States no matter where it was produced. Foreign
producers have the option of not complying with the rule, but then
their access to the U.S. market is justly and lawfully prohibited.

Miscellaneous

Five commenters commented that the proposed rule would hurt U.S.
businesses and remove money from the U.S. economy by driving the
pornography industry to other countries. In addition, these commenters
claimed, most sexually explicit web sites are, in any event, already
located in other countries and the rule would be ineffective in
regulating them. Similarly, one commenter commented that the proposed
changes will be ineffective in addressing the problem of child
pornography because most, if not all, of child pornography web sites
are located outside the United States.
The Department disagrees with these comments. First, the purpose of
the statute, and the rule to implement it, is not to drive the
pornography industry out of the United States. Rather, the purpose is
to protect children from sexual exploitation, and the rule is designed
to do so while not burdening protected speech. The D.C. Circuit, in
American Library Ass'n v. Reno, held that the current regulations are
not unconstitutionally burdensome, and the final rule is merely a
refinement and update of those regulations. Thus, the pornography
industry should not in fact be driven overseas. Indeed, the commenters
do not provide any evidence either for their proposition that most
sexually explicit web sites are in fact based abroad or for their
proposition that those web sites that are located in the United States
will relocate. Second, the Department does not currently exercise
jurisdiction over foreign web sites, but it must promulgate regulations
within its legitimate jurisdiction in the United States in order to
accomplish the purpose of the statute.
Two commenters suggested that rather than regulating sexually
explicit Web sites, the Department should invest more resources into
fighting child pornography through education of parents and children
and through enhanced criminal investigation. In response, the
Department points out that it currently invests significant resources
in criminal investigation and prosecution of child pornography and in
other activities to promote the protection of children. The final rule
is part of this effort and is aimed at preventing any child pornography
from being produced under the guise of constitutionally protected
sexually explicit depictions and must necessarily require legitimate
businesses to maintain the records at issue. One commenter supported
the Department's

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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

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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

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are addressed in the Responses to Public Comments section of this
Supplemental Information.
Nevertheless, the Department is aware from those qualitative
statements that certain alternatives to the rule are possible. For
example, two commenters commented that the regulation should permit
third-party custody of records in order to reduce the burdens of
storing material at a producer's place of business and of maintaining
certain business hours in order to be available for inspection. The
Department believes that allowing third-party custody, however, would
be detrimental to the goals of the statute. It would unnecessarily
complicate the compliance and inspection processes by removing the
records from the physical location where they were initially collected,
sorted, indexed, and compiled. Furthermore, permitting a third party to
maintain the records would, if anything, exacerbate the concerns of
numerous commenters regarding the privacy of information on performers
and businesses by placing that information in the hands of another
party.
Other alternatives suggested by commenters included the
establishment of a national ``sex ID'' system with which performers
would register with the government in a national database, and the
creation of a password-protected database of identification records
available to law enforcement. As explained above, the Department
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.
The Department has, however, adopted numerous changes to the
proposed rule in response to comments that it was too burdensome. For
example, because commenters argued that the requirement that the
statement appear on the homepage of any web site was too burdensome,
the final rule permits web sites to contain a hypertext link that
states, ``18 U.S.C. 2257 Record-Keeping Requirements Compliance
Statement,'' that will open in a separate window that contains the
required statement. Likewise, in response to public comments, the
Department amended the proposed rule such that the final rule no longer
requires businesses to be available for inspection from 8 a.m. to 6
p.m. every day, but rather permits inspections during the producer's
normal business hours. Further, the Department modified the
requirements regarding the size and typeface of the statement in
response to public comments, as well as clarified that records may be
maintained in either ``hard'' (paper) form or digital form.
At the same time, the Department also rejected potential changes
that would extend the burdensomeness of the rule. For example, the
Department did not adopt a comment that two forms of identification
should be required of performers.
For these reasons, the Department believes that, although private
companies will be affected by the rule, the costs are reasonable in
light of the purpose of the statute and that it has imposed the
regulation in the least burdensome manner possible.

Executive Order 12866

This regulation has been drafted and reviewed in accordance with
Executive Order 12866, Sec. 1(b), Principles of Regulation. The
Department of Justice has determined that this rule is a ``significant
regulatory action'' under Executive Order 12866, Sec. 3(f).
Accordingly this rule has been reviewed by the Office of Management and
Budget.
The benefit of the regulation is that children will be better
protected from exploitation in the production of sexually explicit
depictions by ensuring that only those who are at least 18 years of age
perform in such sexually explicit depictions. The costs to the industry
include slightly higher record-keeping costs and the potential time
spent assisting inspectors in the process of inspecting the required
records. In the proposed rule, the Department expressly encouraged all
affected commercial entities to provide specific estimates, wherever
possible, of the economic costs that this rule will impose on them.
Notwithstanding that request, not a single commenter provided any data
on this aspect of the rule. Accordingly, the costs that this final rule
will impose remain uncertain.

Executive Order 13132

This regulation 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 regulation meets the applicable standards set forth in
Sec. 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. 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 rule modifies existing requirements to clarify the record-
keeping requirements pursuant to Congressional enactments and the
development of the Internet.
This rule contains a new information collection that satisfies the
requirements of existing regulations to clarify the means of
maintaining and organizing the required documents. This information
collection, titled Inspection of Records Relating to Depiction of
Sexually Explicit Performances, has been submitted to the Office of
Management and Budget (OMB) for approval. Although comments were
solicited from the public, in accordance with the Paperwork Reduction
Act of 1995, 44 U.S.C. 3501 et seq., in the proposed rule, no comments
were received.

List of Subjects in 28 CFR Part 75

Crime, Infants and children, Reporting and recordkeeping
requirements.


0
Accordingly, the Attorney General amends chapter I of title 28 of the
Code of Federal Regulations as follows:
0
1. Part 75 of title 28 CFR is revised to read as follows: