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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