New 2257 Regulations As Published A Few Minutes Ago..

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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:

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PART 75--CHILD PROTECTION RESTORATION AND PENALTIES ENHANCEMENT ACT
OF 1990 AND PROTECT ACT; RECORD-KEEPING AND RECORD INSPECTION
PROVISIONS

Sec.
75.1 Definitions.
75.2 Maintenance of records.
75.3 Categorization of records.
75.4 Location of records.
75.5 Inspection of records.
75.6 Statement describing location of books and records.
75.7 Exemption statement.
75.8 Location of the statement.

Authority: 18 U.S.C. 2257.


Sec. 75.1 Definitions.

(a) Terms used in this part shall have the meanings set forth in 18
U.S.C. 2257, and as provided in this section. The terms used and
defined in these regulations are intended to provide common-language
guidance and usage and are not meant to exclude technologies or uses of
these terms as otherwise employed in practice or defined in other
regulations or federal statutes (i.e., 47 U.S.C. 230, 231).
(b) Picture identification card means a document issued by the
United States, a State government or a political subdivision thereof,
or a United States territory, that bears the photograph and the name of
the individual identified, and provides sufficient specific information
that it can be accessed from the issuing authority, such as a passport,
Permanent Resident Card (commonly known as a ``Green Card''), or other
employment authorization document issued by the United States, a
driver's license issued by a State or the District of Columbia, or
another form of identification issued by a State or the District of
Columbia; or, a foreign government-issued equivalent of any of the
documents listed above 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.
(c) Producer means any person, including any individual,
corporation, or other organization, who is a primary producer or a
secondary producer.
(1) A primary producer is any person who actually films,
videotapes, photographs, or creates a digitally- or computer-
manipulated image, a digital image, or picture of, or digitizes an
image of, a visual depiction of an actual human being engaged in actual
sexually explicit conduct.
(2) A secondary producer is any person who produces, assembles,
manufactures, publishes, duplicates, reproduces, or reissues a book,
magazine, periodical, film, videotape, digitally- or computer-
manipulated image, picture, or other matter intended for commercial
distribution that contains a visual depiction of an actual human being
engaged in actual sexually explicit conduct, or who inserts on a
computer site or service a digital image of, or otherwise manages the
sexually explicit content of a computer site or service that contains a
visual depiction of an actual human being engaged in actual sexually
explicit conduct, including any person who enters into a contract,
agreement, or conspiracy to do any of the foregoing.
(3) The same person may be both a primary and a secondary producer.
(4) Producer does not include persons whose activities relating to
the visual depiction of actual sexually explicit conduct are limited to
the following:
(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 duplicators;
(ii) Mere distribution;
(iii) Any activity, other than those activities identified in
paragraphs (c) (1) and (2) of this section, that does not involve the
hiring, contracting for, managing, or otherwise arranging for the
participation of the depicted performers;
(iv) A provider of web-hosting services who does not, and
reasonably cannot, manage the sexually explicit content of the computer
site or service; or
(v) A provider of an electronic communication service or remote
computing service who does not, and reasonably cannot, manage the
sexually explicit content of the computer site or service.
(d) Sell, distribute, redistribute, and re-release refer to
commercial distribution of a book, magazine, periodical, film,
videotape, digitally- or computer-manipulated image, digital image,
picture, or other matter that contains a visual depiction of an actual
human being engaged in actual sexually explicit conduct, but does not
refer to noncommercial or educational distribution of such matter,
including transfers conducted by bona fide lending libraries, museums,
schools, or educational organizations.
(e) Copy, when used:
(1) In reference to an identification document or a picture
identification card, means a photocopy, photograph, or digitally
scanned reproduction, and
(2) When used in reference to a sexually explicit depiction means
the sexually explicit image itself (e.g., a film, an image posted on a
web page, an image taken by a webcam, a photo in a magazine, etc.).
(f) Internet means collectively the myriad of computer and
telecommunications facilities, including equipment and operating
software, which constitute the interconnected world-wide network of
networks that employ the Transmission Control Protocol/Internet
Protocol, or any predecessor or successor protocols to such protocol,
to communicate information of all kinds by wire or radio.
(g) Computer site or service means a computer server-based file
repository or file distribution service that is accessible over the
Internet, World Wide Web, Usenet, or any other interactive computer
service (as defined in 47 U.S.C. 230(f)(2)). Computer site or service
includes without limitation, sites or services using hypertext markup
language, hypertext transfer protocol, file transfer protocol,
electronic mail transmission protocols, similar data transmission
protocols, or any successor protocols, including but not limited to
computer sites or services on the World Wide Web.
(h) URL means uniform resource locator.
(i) Electronic communications service has the meaning set forth in
18 U.S.C. 2510(15).
(j) Remote computing service has the meaning set forth in 18 U.S.C.
2711(2).
(k) Manage content means to make editorial or managerial decisions
concerning the sexually explicit content of a computer site or service,
but does not mean those who manage solely advertising, compliance with
copyright law, or other forms of non-sexually explicit content.
(l) Interactive computer service has the meaning set forth in 47
U.S.C. 230(f)(2).


Sec. 75.2 Maintenance of records.

(a) Any producer of any book, magazine, periodical, film,
videotape, digitally- or computer-manipulated image, digital image,
picture, or other matter that contains a depiction of an actual human
being engaged in actual sexually explicit conduct that is produced in
whole or in part with materials that have been mailed or shipped in
interstate or foreign commerce, or is shipped or transported or is
intended for shipment or transportation in interstate or foreign
commerce and that contains one or more visual depictions of an actual
human being engaged in actual sexually explicit conduct made after July
3, 1995 shall, for each performer portrayed in

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such visual depiction, create and maintain records containing the
following:
(1) The legal name and date of birth of each performer, obtained by
the producer's examination of a picture identification card. For any
performer portrayed in such a depiction made after July 3, 1995, the
records shall also include a legible copy of the identification
document examined and, if that document does not contain a recent and
recognizable picture of the performer, a legible copy of a picture
identification card. For any performer portrayed in such a depiction
after June 23, 2005, the records shall include
(i) A copy of the depiction, and
(ii) Where the depiction is published on an Internet computer site
or service, a copy of any URL associated with the depiction or, if no
URL is associated with the depiction, another uniquely identifying
reference associated with the location of the depiction on the
Internet.
(2) Any name, other than each performer's legal name, ever used by
the performer, including the performer's maiden name, alias, nickname,
stage name, or professional name. For any performer portrayed in such a
depiction made after July 3, 1995, such names shall be indexed by the
title or identifying number of the book, magazine, film, videotape,
digitally- or computer-manipulated image, digital image, picture, URL,
or other matter. Producers may rely in good faith on representations by
performers regarding accuracy of the names, other than legal names,
used by performers.
(3) Records required to be created and maintained under this part
shall be organized alphabetically, or numerically where appropriate, by
the legal name of the performer (by last or family name, then first or
given name), and shall be indexed or cross-referenced to each alias or
other name used and to each title or identifying number of the book,
magazine, film, videotape, digitally- or computer-manipulated image,
digital image, picture, URL, or other matter.
(b) A producer who is a secondary producer as defined in Sec.
75.1(c) may satisfy the requirements of this part to create and
maintain records by accepting from the primary producer, as defined in
Sec. 75.1(c), copies of the records described in paragraph (a) of this
section. Such a secondary producer shall also keep records of the name
and address of the primary producer from whom he received copies of the
records.
(c) The information contained in the records required to be created
and maintained by this part need be current only as of the time the
primary producer actually films, videotapes, or photographs, or creates
a digitally or computer-manipulated image, digital image, or picture,
of the visual depiction of an actual human being engaged in actual
sexually explicit conduct. If the producer subsequently produces an
additional book, magazine, film, videotape, digitally- or computer-
manipulated image, digital image, or picture, or other matter
(including but not limited to Internet computer site or services) that
contains one or more visual depictions of an actual human being engaged
in actual sexually explicit conduct made by a performer for whom he
maintains records as required by this part, the producer may add the
additional title or identifying number and the names of the performer
to the existing records maintained pursuant to Sec. 75.2(a)(2).
(d) For any record created or amended after June 23, 2005, all such
records shall be organized alphabetically, or numerically where
appropriate, by the legal name of the performer (by last or family
name, then first or given name), and shall be indexed or cross-
referenced to each alias or other name used and to each title or
identifying number of the book, magazine, film, videotape, digitally-
or computer-manipulated image, digital image, or picture, or other
matter (including but not limited to Internet computer site or
services). If the producer subsequently produces an additional book,
magazine, film, videotape, digitally- or computer-manipulated image,
digital image, or picture, or other matter (including but not limited
to Internet computer site or services) that contains one or more visual
depictions of an actual human being engaged in actual sexually explicit
conduct made by a performer for whom he maintains records as required
by this part, the producer shall add the additional title or
identifying number and the names of the performer to the existing
records and such records shall thereafter be maintained in accordance
with this paragraph.
(e) Records required to be maintained under this part shall be
segregated from all other records, shall not contain any other records,
and shall not be contained within any other records.
(f) Records required to be maintained under this part may be kept
either in hard copy or in digital form, provided that they include
scanned copies of forms of identification and that there is a custodian
of the records who can authenticate each digital record.


Sec. 75.3 Categorization of records.

Records required to be maintained under this part shall be
categorized alphabetically, or numerically where appropriate, and
retrievable to: All name(s) of each performer, including any alias,
maiden name, nickname, stage name or professional name of the
performer; and according to the title, number, or other similar
identifier of each book, magazine, periodical, film, videotape,
digitally- or computer-manipulated image, digital image, or picture, or
other matter (including but not limited to Internet computer site or
services). Only one copy of each picture of a performer's picture
identification card and identification document must be kept as long as
each copy is categorized and retrievable according to any name, real or
assumed, used by such performer, and according to any title or other
identifier of the matter.


Sec. 75.4 Location of records.

Any producer required by this part to maintain records shall make
such records available at the producer's place of business. Each record
shall be maintained for seven years from the date of creation or last
amendment or addition. If the producer ceases to carry on the business,
the records shall be maintained for five years thereafter. If the
producer produces the book, magazine, periodical, film, videotape,
digitally- or computer-manipulated image, digital image, or picture, or
other matter (including but not limited to Internet computer site or
services) as part of his control of or through his employment with an
organization, records shall be made available at the organization's
place of business. If the organization is dissolved, the individual who
was responsible for maintaining the records on behalf of the
organization, as described in Sec. 75.6(b), shall continue to maintain
the records for a period of five years after dissolution.


Sec. 75.5 Inspection of records.

(a) Authority to inspect. Investigators authorized by the Attorney
General (hereinafter ``investigators'') are authorized to enter without
delay and at reasonable times any establishment of a producer where
records under Sec. 75.2 are maintained to inspect during regular
working hours and at other reasonable times, and within reasonable
limits and in a reasonable manner, for the purpose of determining
compliance with the record-keeping requirements of the Act and any
other provision of the Act (hereinafter ``investigator'').
(b) Advance notice of inspections. Advance notice of record
inspections shall not be given.
(c) Conduct of inspections.
(1) Inspections shall take place during the producer's normal
business hours

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and at such places as specified in Sec. 75.4. For the purpose of this
part, ``normal business hours'' are from 9 a.m. to 5 p.m., local time,
Monday through Friday, or any other time during which the producer is
actually conducting business relating to producing depiction of actual
sexually explicit conduct. To the extent that the producer does not
maintain at least 20 normal business hours per week, producers must
provide notice to the inspecting agency of the hours during which
records will be available for inspection, which in no case may be less
than twenty (20) hours per week.
(2) Upon commencing an inspection, the investigator shall:
(i) Present his or her credentials to the owner, operator, or agent
in charge of the establishment;
(ii) Explain the nature and purpose of the inspection, including
the limited nature of the records inspection, and the records required
to be kept by the Act and this part; and
(iii) Indicate the scope of the specific inspection and the records
that he or she wishes to inspect.
(3) The inspections shall be conducted so as not to unreasonably
disrupt the operations of the producer's establishment.
(4) At the conclusion of an inspection, the investigator may
informally advise the producer of any apparent violations disclosed by
the inspection. The producer may bring to the attention of the
investigator any pertinent information regarding the records inspected
or any other relevant matter.
(d) Frequency of inspections. A producer may be inspected once
during any four-month period, unless there is a reasonable suspicion to
believe that a violation of this part has occurred, in which case an
additional inspection or inspections may be conducted before the four-
month period has expired.
(e) Copies of records. An investigator may copy, at no expense to
the producer, during the inspection, any record that is subject to
inspection.
(f) Other law enforcement authority. These regulations do not
restrict the otherwise lawful investigative prerogatives of an
investigator while conducting an inspection.
(g) Seizure of evidence. Notwithstanding any provision of this part
or any other regulation, a law enforcement officer may seize any
evidence of the commission of any felony while conducting an
inspection.


Sec. 75.6 Statement describing location of books and records.

(a) Any producer of any book, magazine, periodical, film,
videotape, digitally- or computer-manipulated image, digital image, or
picture, or other matter (including but not limited to Internet
computer site or services) that contains one or more visual depictions
of an actual human being engaged in actual sexually explicit conduct
made after July 3, 1995, and produced, manufactured, published,
duplicated, reproduced, or reissued on or after July 3, 1995, shall
cause to be affixed to every copy of the matter a statement describing
the location of the records required by this part. A producer may cause
such statement to be affixed, for example, by instructing the
manufacturer of the book, magazine, periodical, film, videotape,
digitally- or computer-manipulated image, digital image, picture, or
other matter to affix the statement.
(b) Every statement shall contain:
(1) The title of the book, magazine, periodical, film, or
videotape, digitally- or computer-manipulated image, digital image,
picture, or other matter (unless the title is prominently set out
elsewhere in the book, magazine, periodical, film, or videotape,
digitally- or computer-manipulated image, digital image, picture, or
other matter) or, if there is no title, an identifying number or
similar identifier that differentiates this matter from other matters
which the producer has produced;
(2) The date of production, manufacture, publication, duplication,
reproduction, or reissuance of the matter; and, (3) A street address at
which the records required by this part may be made available. The
street address may be an address specified by the primary producer or,
if the secondary producer satisfies the requirements of Sec. 75.2(b),
the address of the secondary producer. A post office box address does
not satisfy this requirement.
(c) If the producer is an organization, the statement shall also
contain the name, title, and business address of the individual
employed by such organization who is responsible for maintaining the
records required by this part.
(d) The information contained in the statement must be accurate as
of the date on which the book, magazine, periodical, film, videotape,
digitally or computer-manipulated image, digital image, picture, or
other matter is produced or reproduced.
(e) For the purposes of this section, the required statement shall
be displayed in typeface that is no less than 12-point type or no
smaller than the second-largest typeface on the material and in a color
that clearly contrasts with the background color of the material. For
any electronic or other display of the notice that is limited in time,
the notice must be displayed for a sufficient duration and of a
sufficient size to be capable of being read by the average viewer.


Sec. 75.7 Exemption statement.

(a) Any producer of any book, magazine, periodical, film,
videotape, digitally- or computer-manipulated image, digital image,
picture, or other matter may cause to be affixed to every copy of the
matter a statement attesting that the matter is not covered by the
record-keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part
if:
(1) The matter contains only visual depictions of actual sexually
explicit conduct made before July 3, 1995, or is produced,
manufactured, published, duplicated, reproduced, or reissued before
July 3, 1995;
(2) The matter contains only visual depictions of simulated
sexually explicit conduct; or,
(3) The matter contains only some combination of the visual
depictions described in paragraphs (a)(1) and (a)(2) of this section.
(b) If the primary producer and the secondary producer are
different entities, the primary producer may certify to the secondary
producer that the visual depictions in the matter satisfy the standards
under paragraphs (a)(1) through (a)(3) of this section. The secondary
producer may then cause to be affixed to every copy of the matter a
statement attesting that the matter is not covered by the record-
keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part.


Sec. 75.8 Location of the statement.

(a) All books, magazines, and periodicals shall contain the
statement required in Sec. 75.6 or suggested in Sec. 75.7 either on
the first page that appears after the front cover or on the page on
which copyright information appears.
(b) In any film or videotape which contains end credits for the
production, direction, distribution, or other activity in connection
with the film or videotape, the statement referred to in Sec. 75.6 or
Sec. 75.7 shall be presented at the end of the end titles or final
credits and shall be displayed for a sufficient duration to be capable
of being read by the average viewer.
(c) Any other film or videotape shall contain the required
statement within one minute from the start of the film or videotape,
and before the opening scene, and shall display the statement for a
sufficient duration to be read by the average viewer.