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[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Rules and Regulations]
[Page 77431-77472]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de08-24]
[[Page 77431]]
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Part V
Department of Justice
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28 CFR Part 75
Revised Regulations for Records Relating to Visual Depictions of
Sexually Explicit Conduct; Inspection of Records Relating to Depiction
of Simulated Sexually Explicit Performance; Final Rule
[[Page 77432]]
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DEPARTMENT OF JUSTICE
28 CFR Part 75
[Docket No. CRM 104; CRM 105; AG Order No. 3025-2008----]
RIN 1105-AB18; RIN 1105-AB19
Revised Regulations for Records Relating to Visual Depictions of
Sexually Explicit Conduct; Inspection of Records Relating to Depiction
of Simulated Sexually Explicit Performance
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This rule finalizes two proposed rules and amends the record-
keeping, labeling, and inspection requirements to account for changes
in the underlying statute made by Congress in enacting the Adam Walsh
Child Protection and Safety Act of 2006.
DATES: This rule is effective January 20, 2009. Compliance date: The
requirements of this rule apply to producers of visual depictions of
the lascivious exhibition of the genitals or pubic area of a person and
producers of simulated sexually explicit conduct as of March 18, 2009.
FOR FURTHER INFORMATION CONTACT: Andrew Oosterbaan, Chief, Child
Exploitation and Obscenity section, Criminal Division, United States
Department of Justice, Washington, DC 20530; (202) 514-5780. This is
not a toll-free number.
SUPPLEMENTARY INFORMATION: The Child Protection and Obscenity
Enforcement Act of 1988, Public Law 100-690, codified at 18 U.S.C.
2257, imposes certain name- and age-verification, record-keeping, and
labeling requirements on producers of visual depictions of actual human
beings engaged in sexually explicit conduct. Specifically, section 2257
requires producers of such material to ``ascertain, by examination of
an identification document containing such information, the performer's
name and date of birth,'' to ``ascertain any name, other than the
performer's present and correct name, ever used by the performer
including maiden name, alias, nickname, stage, or professional name,''
and to record and maintain this information. 18 U.S.C. 2257(b).
Violations of these record-keeping requirements are criminal offenses
punishable by imprisonment of not more than five years for a first
offense and not more than 10 years for subsequent offenses. See id.
2257(i). Any matter containing such visual depictions must be labeled
with a statement indicating where the records are located, and those
records are subject to inspection by the government. See id. 2257(c),
(e). These provisions supplement the federal statutory provisions
criminalizing the production and distribution of materials visually
depicting minors engaged in sexually explicit conduct. See id. 2251,
2252.
The regulations in 28 CFR part 75 implement section 2257. On May
24, 2005, the Department of Justice (``the Department'') published a
final rule that updated those regulations to account for changes in
technology, particularly the Internet, and to implement the
Prosecutorial Remedies and Other Tools to End the Exploitation of
Children Today (PROTECT) Act of 2003, Public Law 108-21. See Inspection
of Records Relating to Depiction of Sexually Explicit Performances, 70
FR 29607 (May 24, 2005) (CRM 103; RIN 1105-AB05).
On July 27, 2006, President George W. Bush signed into law the Adam
Walsh Child Protection and Safety Act, Public Law 109-248 (``the Adam
Walsh Act'' or ``the Act''). As described in more detail below, the Act
made a number of changes to section 2257 and added section 2257A to
title 18, imposing similar record-keeping requirements on producers of
visual depictions of simulated sexually explicit conduct. Furthermore,
the Act created a certification regime for producers of such conduct
and for producers of depictions of one type of actual sexually explicit
conduct to exempt them from the detailed regulatory requirements.
This final rule amends the regulations in part 75 to comport with
these statutory changes. As described in more detail below, the
Department published two separate proposed rules, one to implement the
revision to section 2257 and the other to implement the requirements of
section 2257A with regard to simulated sexually explicit conduct and
its certification regime. This rule finalizes both proposed rules in
one rulemaking in order to simplify and coordinate implementation of
the Adam Walsh Act. Most importantly, this approach ensures that the
requirements of revised section 2257 go into effect in coordination
with the effectiveness of the certification regime applicable to it.
The final rule also makes numerous changes to the proposed rules that
will simplify the regulatory process and lessen the burden on
businesses covered by the Act.
Background
Protecting children from sexual exploitation is one of government's
most important responsibilities. Children are incapable of giving
voluntary and knowing consent to perform in pornography. Furthermore,
children often are forced to engage in sexually explicit conduct for
the purpose of producing pornography. For these reasons, visual
depictions of sexually explicit conduct that involve persons under the
age of 18 constitute child pornography under federal law. See 18 U.S.C.
2256(8). Producers of such depictions are subject to appropriately
severe penalties. See id. 2251.
Establishing the identity of every performer in a depiction of
sexually explicit conduct is critical to ensuring that no performer is
a minor and that, hence, the depiction is not child pornography.
Section 2257 has facilitated identification and age-verification
efforts by requiring producers to ascertain the identity and age of
performers in their depictions and to maintain records evidencing such
compliance. Producers are less likely as a result of these requirements
to exploit children and to create child pornography through
carelessness, recklessness, or deliberate indifference. As for those
who intentionally produce material depicting minors engaged in sexually
explicit conduct, the statute and regulations provide an additional
basis for prosecuting such individuals besides the applicable child-
exploitation statutes. In addition, the statute and the regulations
``deprive child pornographers of access to commercial markets by
requiring secondary producers to inspect (and keep a record of) the
primary producers' proof that the persons depicted were adults at the
time they were photographed or videotaped.'' Am. Library Ass'n v. Reno,
33 F.3d 78, 86 (D.C. Cir. 1994).
In the Adam Walsh Act, Congress filled two gaps in section 2257 by
amending it to cover lascivious exhibition of the genitals or pubic
area (``lascivious exhibition'') and by enacting section 2257A to cover
simulated sexually explicit conduct, while at the same time creating an
exception from these new record-keeping requirements in certain
circumstances.
With regard to lascivious exhibition, the Act corrected an anomaly
in the definition of ``sexually explicit conduct'' to which section
2257's requirements apply. Prior to the enactment of the Act, section
2257 referenced the definition of ``sexually explicit conduct'' for
purposes of Chapter 110 of the U.S. Code in section 2256(2)(A) and
listed four of the five categories of conduct included in that section.
Section 2257 did not include ``lascivious exhibition of the genitals or
[[Page 77433]]
pubic area of any person.'' 18 U.S.C. 2256(2)(A)(v). The Act revised
section 2257 to include that category along with the others. See Adam
Walsh Act, Public Law 109-248 Sec. 502(a)(4). Because part 75 defines
``sexually explicit conduct'' by referencing that term in section
2256(2)(A), part 75 will apply to depictions of ``lascivious
exhibition.''
With regard to simulated sexually explicit conduct, it is crucial
to note that Chapter 110 of title 18 of the U.S. Code (``Sexual
Exploitation and Other Abuse of Children'') already covers both actual
and simulated sexually explicit conduct. Specifically, it defines
``sexually explicit conduct'' as:
(A) * * * actual or simulated--(i) sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex; (ii) bestiality; (iii)
masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious
exhibition of the genitals or pubic area of any person;
(B) For purposes of subsection 8(B) of this section [part of the
definition of ``child pornography''], ``sexually explicit conduct''
means--(i) graphic sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between persons of
the same or opposite sex, or lascivious simulated sexual intercourse
where the genitals, breast, or pubic area of any person is
exhibited; (ii) graphic or lascivious simulated; (I) bestiality;
(II) masturbation; or (III) sadistic or masochistic abuse; or (iii)
graphic or simulated lascivious exhibition of the genitals or pubic
area of any person * * *.
18 U.S.C. 2256(2) (emphases added).
Numerous States' child-exploitation statutes refer to both
simulated and actual sexual conduct. See Alaska Stat. Sec. 11.41.455;
Ariz. Rev. Stat. Sec. 13-3551; Ark. Code Ann. Sec. 5-27-302; Cal.
Penal Code Sec. 311.11; Colo. Rev. Stat. Sec. 18-6-403; Conn. Gen.
Stat. Sec. 53a-193; Fla. Stat. Sec. 827.071; Ga. Code Ann. Sec. 16-
12-100; Idaho Code Ann. Sec. 18-1507; 720 Ill. Comp. Stat. Ann. 5/11-
20.1; Kan. Stat. Ann. Sec. 21-3516; Ky. Rev. Stat. Ann. Sec. 531.300;
La. Rev. Stat. Ann. Sec. 14:81.1; Mass. Ann. Laws ch. 272 Sec. 29C;
Mich. Comp. Laws Serv. Sec. 750.145c; Minn. Stat. Sec. 617.246; Miss.
Code Ann. Sec. 97-5-33; Mo. Rev. Stat. Sec. 573.010; Mont. Code Ann.
Sec. 45-5-625; Nev. Rev. Stat. Sec. 200.725; N.H. Rev. Stat. Ann.
Sec. 649-A:2; N.M. Stat. Ann. Sec. 30-6A-3; N.Y. Penal Sec. 263.00;
N.D. Cent. Code Sec. 12.1-27.2-01; Okla. Stat. tit. 21 Sec. 1024.1;
Or. Rev. Stat. Sec. 163.665; S.D. Codified Laws Sec. 22-24A-2 to -3;
Tenn. Code Ann. Sec. 39-17-1003; Tex. Penal Code Ann. Sec. 43.25;
Utah Code Ann. Sec. 76-5a-2; Va. Code Ann. Sec. 18.2-390; Wash. Rev.
Code Sec. 9.68A.011; W. Va. Code Sec. 61-8C-1; Wis. Stat. Sec.
948.01; Wyo. Stat. Ann. Sec. 6-4-303. Accordingly, ``simulated'' in
the context of sexually explicit conduct is neither a novel nor an
uncommon term.
These statutes recognize that a child may be harmed both physically
and psychologically in the production of visual depictions of simulated
sexually explicit conduct, even if no sexually explicit conduct
actually takes place. Furthermore, producers of visual depictions of
actual sexually explicit conduct often substitute a visual depiction of
simulated sexually explicit conduct (so-called ``soft-core''
pornography) in place of the actual sexually explicit conduct; then the
soft-core pornography is often distributed more widely than the
unedited version of the same production. In such cases, the protection
of children from exploitation in the production of a visual depiction
of actual sexually explicit conduct necessitates that producers of
visual depictions of simulated sexually explicit conduct also be
required to maintain records and label their products.
Sections 2257 and 2257A thus operate in tandem to protect children
from exploitation in visual depictions of sexually explicit conduct.
Part 75 implementing those statutes has undergone significant public
comment, and several courts have found it to be a constitutional
exercise of governmental authority. See Am. Library Ass'n v. Reno, 33
F.3d 78 (D.C. Cir. 1994); Free Speech Coalition v. Gonzales, 406 F.
Supp. 2d 1196 (D. Colo. 2005) (``Free Speech I'') (upholding certain
aspects of part 75, although preliminarily enjoining others); Free
Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2007)
(``Free Speech II''); but see also Connection Distrib. Co. v. Gonzales,
2006 WL 1305089, 2006 U.S. Dist. LEXIS 29506 (N.D. Ohio, May 10, 2006)
(upholding the constitutionality of part 75), rev'd and remanded sub
nom. Connection Distrib. Co. v. Keisler, 505 F.3d 545 (6th Cir. 2007)
(striking down section 2257, but not directly addressing the
constitutionality of part 75), vacated and rehearing en banc granted
sub nom. Connection Distrib. Co. v. Mukasey, 2008 U.S. App. LEXIS 9032
(6th Cir. Apr. 10, 2008). Although one court invalidated part 75 as
ultra vires to the extent it regulated those whose activity ``does not
involve hiring, contracting for[,] managing, or otherwise arranging for
the participation of the performers depicted,'' see Sundance Assocs.,
Inc. v. Reno, 139 F.3d 804, 808 (10th Cir. 1998) (quotation marks
omitted; alteration in original), Congress subsequently amended the
statute, see Adam Walsh Act, Public Law 109-248 section 502(a)(4), and
adopted the Attorney General's interpretation of section 2257. Cf. Free
Speech Coalition II, 483 F. Supp. 2d at 1075 (suggesting that the
enactment of section 502 of the Act moots the plaintiff's ultra vires
challenge to part 75).
The Proposed Rules
Revisions to Section 2257
The Department issued a proposed rule to implement the revisions to
section 2257 on July 12, 2007. See Revised Regulations for Records
Relating to Visual Depictions of Sexually Explicit Conduct, 72 FR 38033
(July 12, 2007) (CRM 104; RIN 1105-AB18). The proposed rule reflected
the change to the definition of ``actual sexually explicit conduct'' to
include lascivious exhibition by adding to the definitional section of
the regulations at Sec. 75.1(n). Although proposed part 75 applied to
the ``lascivious exhibition of the genitals or pubic area of a
person,'' it did not define this term beyond the language of section
2256(2)(A). Case law provides guidance as to the types of depictions
that federal courts have considered to be lascivious exhibition of the
genitals or pubic area, and the Department will rely on such precedent
in the context of section 2257 investigations and prosecutions.
The leading case is United States v. Dost, 636 F. Supp. 828 (S.D.
Cal. 1986), aff'd sub nom. United States v. Weigand, 812 F.2d 1239 (9th
Cir. 1987), which provides a list of factors for determining whether a
visual depiction constitutes lascivious exhibition:
(1) Whether the focal point of the visual depiction is on the
child's genitalia or pubic area;
(2) whether the setting of the visual depiction is sexually
suggestive, i.e., in a place or pose generally associated with sexual
activity;
(3) whether the child is depicted in an unnatural pose, or in
inappropriate attire, considering the age of the child;
(4) whether the child is fully or partially clothed, or nude;
(5) whether the visual depiction suggests sexual coyness or a
willingness to engage in sexual activity;
(6) whether the visual depiction is intended or designed to elicit
a sexual response in the viewer.
Dost, 636 F. Supp. at 832. Several courts of appeals have relied
upon the Dost factors. See, e.g., United States v. Grimes, 244 F.3d 375
(5th Cir. 2001); United States v. Knox, 32 F.3d 733 (3d Cir. 1994);
United States v. Wolf, 890 F.2d 241 (10th Cir. 1989).
The July 2007 proposed rule noted that, although these factors have
been used to determine whether visual
[[Page 77434]]
depictions of children constituted lascivious exhibition for purposes
of criminal prosecution for violations of sections 2251, 2252, and
2252A of title 18, only the third factor is necessarily dependent on
the age of the person depicted. The other factors provide guidance as
to the types of depictions that would constitute lascivious exhibition
for purposes of section 2257 and part 75, as well, even though those
sections apply to any performers regardless of age.
The July 2007 proposed rule noted that the applicability of part 75
was to be prospective from the effective date of the Adam Walsh Act. It
therefore contemplated that the rule applied only to depictions whose
original production date was on or after July 27, 2006. That is, under
the proposed rule, records would not be required to be maintained
either by a primary producer or by a secondary producer for a visual
depiction of lascivious exhibition, the original production date of
which was prior to July 27, 2006. In the case of a secondary producer,
the proposed rule stated that even if the secondary producer
``produces'' (as defined in the regulation) such a depiction on or
after July 27, 2006, he need not maintain records if the original
production date of the depiction is prior to that date.
Second, the Adam Walsh Act revised the exclusions in the statute
for the operations of Internet companies. Specifically, the Act amended
section 2257 by excluding from the definition of ``produces'' the
``provision of a telecommunications service, or of an Internet access
service or Internet information location tool * * * or the
transmission, storage, retrieval, hosting, formatting, or translation
(or any combination thereof) of a communication, without selection or
alteration of the content of the communication.'' These exclusions are
based on the definitions in section 231 of the Communications Act of
1934, 47 U.S.C. 231.
Third, the Adam Walsh Act made several changes in the terminology
of the statute. In subsection 2257(e)(1), it added at the end the
following: ``In this paragraph, the term `copy' includes every page of
a Web site on which matter described in subsection (a) appears.'' That
change was reflected in the proposed rule at Sec. Sec. 75.1(e)(3),
75.6(a), and 75.8(d). The change materially affects the regulation's
labeling requirement as applied to Web sites. Section 75.8(d) of the
current regulations permits a producer of a computer site of service or
Web site to affix the label stating where the records required under
the regulations are located ``on its homepage, any known major entry
points, or principal URL (including the principal URL of a subdomain),
or in a separate window that opens upon the viewer's clicking a
hypertext link that states, `18 U.S.C. 2257 RecordKeeping Requirements
Compliance Statement.' '' Because of the change in the statute, the
proposed rule eliminated that portion of the current regulations. The
proposed rule required, per the statute, that the statement describing
the location of the records required by this part be affixed to every
page of a Web site (controlled by the producer) on which visual
depictions of sexually explicit conduct appear.
Finally, the Adam Walsh Act confirmed that the statute applies to
secondary producers as currently (and previously) defined in the
regulations. Specifically, the Act defines any of the following
activities as ``produces'' for purposes of section 2257:
(i) Actually filming, videotaping, photographing, creating a
picture, digital image, or digitally- or computer-manipulated image
of an actual human being;
(ii) Digitizing an image[ ] of a visual depiction of sexually
explicit conduct; or, assembling, manufacturing, publishing,
duplicating, reproducing, or reissuing a book, magazine, periodical,
film, videotape, digital image, or picture, or other matter intended
for commercial distribution, that contains a visual depiction of
sexually explicit conduct; or
(iii) Inserting on a computer site or service a digital image
of, or otherwise managing the sexually explicit content[ ] of a
computer site or service that contains a visual depiction of,
sexually explicit conduct * * *
18 U.S.C. 2257(h)(2)(A).
It excludes from the definition of ``produces,'' however, the
following activities, in pertinent part:
(i) Photo or film processing, including digitization of
previously existing visual depictions, as part of a commercial
enterprise, with no other commercial interest in the sexually
explicit material, printing, and video duplication.
(ii) Distribution;
(iii) Any activity, other than those activities identified in
subparagraph (A), that does not involve the hiring, contracting for,
managing, or otherwise arranging for the participation of the
depicted performers * * *
Id. 2257(h)(2)(B), as amended.
This language replaces the previous definition of ``produces'' in
the statute, which stated, in pertinent part, as follows:
[T]he term ``produces'' means to produce, manufacture, or
publish any book, magazine, periodical, film, video tape, computer
generated image, digital image, or picture, or other similar matter
and includes the duplication, reproduction, or reissuing of any such
matter, but does not include mere distribution or any other activity
which does not involve hiring, contracting for managing, or
otherwise arranging for the participation of the performers depicted
* * *
18 U.S.C. 2257(h) (2000 ed. & Supp. V) (former version).
In enacting the revised language, Congress upheld the Department's
consistently held position that the rule's requirements for secondary
producers have been in effect since the rule's original publication. As
explained by the sponsor of the Act in the House of Representatives:
Congress previously enacted the PROTECT Act of 2003 against the
background of Department of Justice regulations applying section
2257 to both primary and secondary producers. That fact, along with
the Act's specific reference to the regulatory definition that
existed at the time, reflected Congress's agreement with the
Department of Justice's view that it already had the authority to
regulate secondary procedures [sic] under the applicable law.
A federal court in Colorado, however, recently enjoined the
Department from enforcing the statute against secondary producers,
relying on an earlier Tenth Circuit precedent holding that Congress
had not authorized the Department to regulate secondary producers.
These decisions conflicted with an earlier DC Circuit decision
upholding Congress's authority to regulate secondary producers.
Section 502 of the bill is meant to eliminate any doubt that section
2257 applies both to primary and secondary producers, and to reflect
Congress's agreement with the regulatory approach adopted by the
Department of Justice in enforcing the statute.
152 Cong. Rec. H5705, H5725 (2006) (statement of Rep. Pence).
Congress thus rejected the interpretation adopted by the court in
Sundance Associates v. Reno, 139 F.3d 804 (10th Cir. 1998), in favor of
the DC Circuit's decision upholding the application of the statute to
secondary producers. Am. Library Ass'n v. Reno, 33 F.3d 78 (D.C. Cir.
1994). In upholding the constitutionality of the secondary-producer
requirements, the D.C. Circuit both recognized the importance of these
requirements and effectively rejected the argument that Congress lacked
the authority to regulate secondary producers.
In accordance with the current law, the proposed rule retained July
3, 1995, as the effective date of the rule's requirements for secondary
producers. (The current regulations, published in 2005, adopted July 3,
1995, as the effective date of enforcement of section 2257 based on the
court's order in American Library Association v. Reno, No. 91-0394 (SS)
(D.D.C. July 28, 1995). The one exception was that the proposed rule
would not have penalized
[[Page 77435]]
secondary producers for failing to maintain required records in
connection with those acts of production that occurred prior to the
effective date of the Act. While the law would permit the Department to
apply the statute and regulations to actions that occurred prior to
that date, the Department determined that the proposed rule would not
apply in such circumstances to avoid any conceivable ex post facto
concern.
In addition to implementing the changes in the statute described
above, the July 2007 proposed rule clarified several other issues.
First, it clarified that primary producers may redact non-essential
information from copies of records provided to secondary producers,
including addresses, phone numbers, social security numbers, and other
information not necessary to confirm the name and age of the performer.
However, the identification number of the picture identification card
presented to confirm name and age--such as drivers' license number or
passport number--may not be redacted, so that its validity may be
confirmed. Second, the proposed rule clarified that producers of visual
depictions performed live on the Internet need not maintain a copy of
the full running-time of every such depiction. Rather, they may
maintain a copy that contains running-time sufficient to identify each
and every performer with the records needed to confirm his or her age.
Third, the proposed rule clarified that, with regard to the
government-issued photo identification required for records, a foreign-
government-issued picture identification is acceptable if the performer
providing it is a foreign citizen and the producer maintaining the
records produces the visual depiction of the performer in a foreign
country, no matter whether the producer is a U.S. or foreign citizen.
That is, a U.S. producer who produces a depiction of sexually explicit
conduct while located in a foreign country may rely on a foreign-
government-issued picture identification card of a performer in that
depiction who is a foreign citizen. All other requirements of the
regulations continue to apply mutatis mutandis--i.e., the producer must
examine and maintain a legible copy of the foreign-government-issued
picture identification card in his records. Furthermore, a foreign-
government-issued picture identification card is not sufficient to
comply with the regulations for U.S. citizens, even when abroad. That
is, if a U.S. producer travels to a foreign country to produce a
depiction of sexually explicit conduct, all U.S. citizens performing in
the depiction must have a U.S.-government-issued picture identification
card, even though a foreign citizen performing in the same depiction
may provide a foreign-government-issued picture identification card.
And, as is the case in the current regulation, only a U.S.-government-
issued picture identification card complies with the regulations
relating to productions in the United States, no matter whether the
performer is a U.S. or foreign citizen. The regulation also states that
producers of visual depictions made after July 3, 1995, the effective
date of the regulations published in 1992, and before June 23, 2005,
the effective date of the current regulations published in 2005, may
rely on picture identification cards issued by private entities such as
schools or private employers that were valid forms of required
identification under the provisions of part 75 in effect on the
original production date. Finally, although it was not necessary to
change the text of the regulations for this purpose, the Department
clarified at the time that it issued the proposed rule that a producer
need not keep a copy of a URL hosting a depiction that the producer
produced but over which he exercises no control.
Section 2257A
As noted above, on June 6, 2008, the Department published a
proposed rule making additional amendments to part 75 to implement
section 2257A. See Inspection of Records Relating to Depiction of
Simulated Sexually Explicit Performances, 73 FR 32262 (June 6, 2008)
(CRM. 105; RIN 1105-AB19). The June 2008 proposed rule contained two
key elements--a definition of ``simulated sexually explicit conduct''
and the details of the certification regime.
As to the definition of ``simulated sexually explicit conduct,'' as
noted above, ``sexually explicit conduct'' is defined in section
2256(2)(A) with reference to certain physical acts and with reference
to both ``actual'' and ``simulated'' performance of those acts. No
definition of ``actual'' or ``simulated'' is contained in section 2256,
or anywhere else in chapter 110. When first published in 1990, amended
in 2005, and proposed to be amended in 2007, part 75 did not adopt a
definition of ``actual,'' because the Department believed that in the
context of the acts described, the meaning of the term was sufficiently
precise for regulatory purposes. Public comments on the previous
versions of part 75 did not address the definition of ``actual,'' nor
has the meaning of that term arisen in litigation regarding the
regulations.
With the extension of part 75 to cover simulated conduct, however,
and with the statutory provision for a certification regime for
simulated conduct, the Department believed that a definition of the
term ``simulated sexually explicit conduct'' was necessary. A
definition would make clear to the public what types of conduct come
within the ambit of the regulation, as distinct from conduct not
covered at all, and what types of conduct will be eligible for the
certification regime.
The Department started its analysis of the proper definition of the
term for regulatory purposes with the term's plain meaning. The word
``simulated'' is typically defined as ``made to look genuine.''
Merriam-Webster's Collegiate Dictionary 1162 (11th ed. 2003).
The Department believes that an objective standard--that is, one
defined in terms of a reasonable person viewing the depiction--is
appropriate to add to this basic definition. The proposed rule's
definition of ``simulated sexually explicit conduct'' thus read as
follows: ``[S]imulated sexually explicit conduct means conduct engaged
in by performers in a visual depiction that is intended to appear as if
the performers are engaged in actual sexually explicit conduct, and
does so appear to a reasonable viewer.''
The June 2008 proposed rule's definition was based on the plain
meaning of the term and is supported by extrinsic sources of meaning.
Chapter 110 was created by the Protection of Children Against Sexual
Exploitation Act of 1977, which defined ``sexually explicit conduct''
to include both ``actual or simulated'' acts. See Protection of
Children Against Sexual Exploitation Act of 1977, Public Law 95-225,
section 2(a), 92 Stat. 7, 8 (1978). That statute did not define
``simulated,'' however, and the legislative history of the act does not
indicate that Congress considered defining that term. See S. Rep. No.
438, 95th Cong., 1st Sess. (1977); H.R. Report No. 696, 95th Cong., 1st
Sess. (1977). When Congress amended chapter 110 in 1984, it considered
defining ``simulated'' but ultimately did not do so, thereby leaving
the definition of that term to the discretion of the Attorney General.
As noted above, most States have laws similar to the federal
statute criminalizing production, distribution, and possession of
simulated sexually explicit conduct involving a minor. A number of
those States' statutes, in contrast to section 2257A, define
``simulated,'' and therefore may inform the federal definition of that
term in part
[[Page 77436]]
75. State definitions of ``simulated'' generally fall into three
categories:
(1) Definitions based on giving the appearance of actual sexually
explicit conduct. For example: ``An act is simulated when it gives the
appearance of being sexual conduct.'' Cal. Penal Code section
311.4(d)(1); 14 V.I. Code section 1027(b). `` `Simulated sexually
explicit conduct' means a feigned or pretended act of sexually explicit
conduct which duplicates, within the perception of an average person,
the appearance of an actual act of sexually explicit conduct.'' Utah
Code Ann. section 76-5a-2(9). ``Sexual intercourse is simulated when it
depicts explicit sexual intercourse which gives the appearance of the
consummation of sexual intercourse, normal or perverted.'' Mass. Ann.
Laws ch. 272, section 31; N.H. Rev. Stat. Ann. section 649-A:2(III).
(2) Definitions based on depiction of genitals that gives the
impression of actual sexually explicit conduct, such as: `` `Simulated'
means any depicting of the genitals or rectal areas that gives the
appearance of sexual conduct or incipient sexual conduct.'' Ariz. Rev.
Stat. section 13-3551(10); Miss. Code Ann. section 97-5-31(f); Mont.
Code Ann. section 45-5-625(5)(c).
(3) Definitions based on (a) the depiction of uncovered portions of
the body and (b) that gives the impression of actual sexually explicit
conduct, such as: `` `Simulated' means the explicit depiction of
[sexual] conduct * * * which creates the appearance of such conduct and
which exhibits any uncovered portion of the breasts, genitals, or
buttocks.'' Fla. Stat. Sec. 827.071(1)(i). `` `Simulated' means the
explicit depiction of sexual conduct that creates the appearance of
actual sexual conduct and during which a person engaging in the conduct
exhibits any uncovered portion of the breasts, genitals, or buttocks.''
Tex. Penal Code Sec. 43.25(a)(6). `` `Simulated' means the explicit
depiction of any [sexual] conduct * * * which creates the appearance of
such conduct and which exhibits any uncovered portion of the breasts,
genitals or buttocks.'' N.Y. Penal L. Sec. 263.00(6).
The definitions categorized above as ``based on giving the
appearance of actual sexually explicit conduct'' are closest to that
proposed by the Department in the proposed rule. The other two
definitions, which require the actual depiction of nudity, are overly
restrictive in that a child may be exploited in the production of a
visual depiction of simulated sexually explicit conduct even if no
nudity is present in the final version of the visual depiction. The
producer of the depiction may arrange the camera or the body positions
to avoid depicting uncovered genitals, breasts, or buttocks yet still
cause harm to the child by having him or her otherwise realistically
appear to be engaging in sexually explicit conduct.
It is also important to note that ``simulated'' in this context
does not mean ``virtual.'' For purposes of chapter 110, including
sections 2256, 2257, and 2257A, and for purposes of part 75,
``simulated sexual explicit conduct'' means conduct engaged in by real
human beings, not conduct engaged in by computer-generated images that
only appear to be real human beings. Although Congress did attempt to
criminalize production, distribution, and possession of ``virtual''
child pornography on the basis that it contributed to the market in
child pornography involving real children, the Supreme Court held that
the child-protection rationale for the criminalization of child
pornography under Ferber did not apply to images in which no real
children were harmed. See Ashcroft v. Free Speech Coalition, 535 U.S.
234, 250-51 (2002). Section 2257A does not cover such ``virtual'' child
pornography, but rather ``simulated'' sexually explicit conduct, the
production of which, as noted above, can exploit a real child. The
Court's decision in Ashcroft is thus not relevant to sections 2257 or
2257A, or part 75, which, for clarity's sake, consistently refers to
sexually explicit conduct engaged in by an ``actual human being.''
The second key element of the proposed rule was the crafting of the
certification regime. In enacting section 2257A, Congress determined it
would be appropriate, in certain circumstances, to exempt producers of
visual depictions of lascivious exhibition (for which records must be
kept under section 2257, as amended by the Act) and producers of visual
depictions of simulated sexually explicit conduct (for which records
must be kept under section 2257A) from statutory requirements otherwise
applicable to such visual depictions. See 18 U.S.C. 2257A(h).
The safe harbor provision in the statute in essence permits certain
producers of visual depictions of lascivious exhibition or of simulated
sexually explicit conduct to certify that in the normal course of
business they collect and maintain records to confirm that performers
in those depictions are not minors, while not necessarily collected and
maintained in the format required by part 75. Where a producer makes
the required certification, matter containing such visual depictions is
not subject to the labeling requirements of the statute.
In the June 2008 proposed rule, the Department crafted a
certification regime that would have implemented the safe harbor in
such a way as to permit such producers, in accordance with the statute,
to be subject to lesser record-keeping burdens than those in part 75
while still protecting children from sexual exploitation. The proposed
rule would have required producers to include the following information
in certifications: (1) The legal basis for the exemption and basic
evidence in support; (2) a statement that they collect and maintain the
requisite individually identifiable information concerning their
employees; (3) a list of the producer's materials depicting simulated
sexually explicit conduct or lascivious exhibition that show non-
employee performers; (4) a list of the producer's materials depicting
simulated sexually explicit conduct or lascivious exhibition produced
since the last certification; (5) with respect to foreign-produced
material, a statement that the foreign producer of that material either
collects and maintains the requisite records or itself has made a
certification, or, with respect to material depicting sexually explicit
conduct only, a statement that the producer took reasonable steps to
confirm that the performers depicted in that material are not minors;
(6) if applicable, a list of the foreign-produced material depicting
simulated sexually explicit conduct that the producer took reasonable
steps to confirm did not depict minors; and (7) if applicable, a
statement that the primary producer of material secondarily produced by
the certifying producer either collects and maintains the requisite
records or itself has made a certification. The proposed rule would
also have required that the certification be submitted every two years.
Changes From the Proposed Rules
This final rule makes a number of changes in the proposed rules in
response to commenters' concerns. The Department believes that the
changes, while still enabling the Department to enforce the statutes,
will considerably lessen the burdens on the regulated industries.
Most significantly, as described in more detail below in response
to specific comments, the Department has done the following:
Consolidated the publication of the final versions of the
two proposed rules into one final rule;
[[Page 77437]]
Ensured that the regulatory requirements applicable to
depictions of actual sexually explicit conduct consisting of lascivious
exhibition apply starting on the date of availability of the
statutorily provided safe harbor;
Permitted the use of third-party custodians of records;
Permitted records to be maintained digitally;
Clarified the definition of ``simulated sexually explicit
conduct'';
Clarified the exemption from the record-keeping
requirements for those engaged in distribution;
Clarified that, for purposes of the requirement that every
page of a Web page contain the disclosure statement, a hyperlink or
``mouseover'' is permitted;
Eliminated the requirement that statements on the location
of records contain a date of production (or any other date), although
added a requirement that primary producers create a record of the date
of production;
Clarified the application of the requirements regarding
location of the statement to DVDs; and
Eliminated the detailed information required by the
certification regime, and replaced it with a significantly simpler
certification.
Comments on the Proposed Rules
The following section reviews comments to the proposed rules and
how, if at all, the Department has changed the final rule in response
to them. Comments on both proposed rules are included in this section,
organized according to the subsections of the rule.
Definitions
The proposed rule outlined several changes to definitions of terms
that are contained in 28 CFR 75.1. The Department received a number of
comments regarding the proposed definitions.
Picture Identification Card
The proposed rule requires in Sec. 75.1(b) that a producer of
actual sexually explicit conduct check a picture identification card
issued by a United States or State government entity for a performer
who is an American citizen, whether the production occurs in the United
States or abroad. Under the proposed rule, a producer abroad may rely
on foreign government identification cards for foreign performers, but
must maintain a copy of that identification, and a producer may not
rely on a foreign identification card for a foreign citizen when
production occurs in the United States, but must check a United States
identification card in that circumstance. The Department received three
comments on this proposal, all of which voiced opposition.
One comment noted that a producer cannot hire a foreign adult
performer to work in the United States who lacks American documents,
but that if the producer took her across the border, then she could
work with foreign documents, a situation the commenter suggested would
not help children. The commenter also states that because the proposed
rule lacked a good faith exception, a producer operating outside the
United States would need to make sure that a performer using foreign
documents was not in fact an American citizen. Moreover, the commenter
claims that the goal of avoiding errors in immigration status that the
proposed rule would therefore achieve did not help children.
The Department declines to adopt this comment. Protecting American
citizens is a top priority of the Department, and given the more
stringent standards for issuing government identification documents in
recent years, the Department believes that children will be best
protected by a requirement that American identification documents be
provided before an American is hired to engage in sexually explicit
conduct. It further believes that conduct within American borders
should necessitate that the producer check for American issued
identification documents even if the performer is a foreign citizen, so
that all producers in this country check the age and identification of
all performers. It is true that the rules will differ if the production
occurs in foreign countries with foreign performers. Given the
Department's resources and concerns regarding comity, the Department
continues to believe that the proposed rule best addresses this issue.
One comment expressed the belief that the Department should not
always require that a producer obtain a copy of a picture
identification card before creating an actual sexually explicit
depiction. It hypothesizes the existence of a recording of a sexual act
by a Congressman in a public place. It argues that a news organization
could not air this recording under the proposed rule in the absence of
the checking of a picture identification card, even though the
Congressman by constitutional operation must be at least 25 years old.
The Department declines to adopt this comment. Regardless of the
apparent age or identity of an individual, the rule appropriately
requires that identification be checked to determine that the performer
is of legal age. The individual pictured in this hypothetical may only
appear to be a Congressman, for instance. Moreover, an entity regulated
by the FCC, which the comment presupposes for airing such a depiction,
may well be able to utilize the exemption provisions of section 2257A.
The Department has also clarified that a picture identification
card must include the performer's date of birth. Such a requirement was
implicit in the proposed rule in that picture identification documents
issued by government agencies, such as a passport or driver's license,
normally contain the individual's date of birth. The final rule makes
this requirement explicit.
Producer
The Department received thousands of comments that appear to be
part of an orchestrated campaign that opposes the requirement in the
proposed rule that adult social-networking sites obtain and maintain
personal information concerning their users, including obtaining and
maintaining users' photo identification, as well the ability of the
Department to inspect such records and invade user privacy without
safeguarding the information once observed. They state that it is not
feasible to have adult networking sites for thousands of users under
the rule, and they note that users of such sites already certify that
they are over 18.
The Department does not adopt these comments. First, most social
networking sites would appear not to be covered by the statute and the
rule under the definition of ``produces'' in section 2257(h)(2)(B)(v)
and Sec. 75.1(c)(4)(v), respectively. The statutory definition
excludes from ``produces'': ``the transmission, storage, retrieval,
hosting, formatting, or translation (or any combination thereof) of a
communication, without selection or alteration of the content of the
communication.'' See also 28 CFR 75.1(c)(4)(v) (excluding ``[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''). Therefore, the
Department does not accept that such sites cannot operate under the
proposed rule, or that such sites must maintain information concerning
their users, much less that the Department must be able to inspect such
data. However, one who posts sexually explicit activity on ``adult''
networking sites may well be a primary or secondary producer. Users of
social networking sites may therefore be subject to the proposed rule,
depending on their conduct. That such users may certify without penalty
or effective
[[Page 77438]]
monitoring that they are over 18 is irrelevant to compliance with the
proposed rule, since they may not in fact be above 18. Moreover,
depictions such users put on the sites may feature not only themselves
but other people who have not even made the unverifiable certification
required by a social networking site.
One comment states that the Department must clarify the distinction
between secondary producers and distributors. The comment notes that
the Act amended the statutory definition of ``produces'' to broaden the
distribution exclusion from ``mere distribution'' to ``distribution.''
See 18 U.S.C. 2257(h)(2)(B)(ii). The comment states that this means
``distribution'' is not meant to be narrowly construed, and that the
Department should thus state that ``unless an entity that disseminates
a depiction of sexually explicit conduct is responsible for creating or
materially altering its content, or for its physical construction, the
entity is engaged in `distribution' and is exempt from the statute and
rules.'' The comment goes on to note that ``non-material alteration''
should include removing or pixilating depictions of sexually explicit
conduct.
The Department adopts this comment in part. The Department cannot
adopt the comment in toto because doing so would conflict with the
statute in that sections 2257(h)(2)(A)(ii) and (iii) include several
activities under the definition of ``produces,'' such as digitizing an
image, inserting an image on a computer site or service, or managing
the sexually explicit content of a computer site or service, that would
fall under the comment's proposed definition of ``distribution.'' The
Department, however, states in the final rule that, unless activities
are described in section 2257(h)(2)(A), an entity whose activities are
limited to the dissemination of a depiction of sexually explicit
conduct without having created it or altered its content is excluded
from the definition of ``producer.''
The Department cannot adopt the suggestion as to ``non-material
alteration'' of depictions for two reasons: First, pixilating an image
would appear to constitute ``creating a digitally- or computer-
manipulated image of an actual human being,'' and thus would fall under
the definition of ``produces'' in section 2257(h)(2)(A)(i); second, to
the extent images are posted on Web sites, alteration (and subsequent
posting on a Web site) of an image would appear to constitute
``inserting * * * [such image] on a computer site * * * or otherwise
managing the sexually explicit content'' of such a site. While the
comment correctly states that the proposed exclusion is analogous to
the exclusion for transmission, which permits a transmitter to delete
material that it considers ``obscene * * * or otherwise objectionable''
without being considered to have selected or altered the content of the
communication, see 18 U.S.C. 2257(h)(2)(B)(v) (citing 47 U.S.C.
230(c)), Congress did not provide similar language modifying the
exclusion for distribution of the image, and thus the Department is
limited by the statutory text.
In addition, as described in more detail below, in certain
circumstances a pixilated depiction can still constitute lascivious
exhibition. United States v. Knox, 32 F.3d 733 (3d Cir. 1994). A
categorical exemption for persons who pixilated or otherwise obscured
depictions would risk creating a loophole for the production of
material that is in fact covered by the definition of sexually explicit
conduct.
Several commenters ask the Department to exclude news and
documentary programming from the definition of ``producer.'' The
comments claim that producers of that programming use footage provided
by others under the fair use doctrine. The comments posit that if a
producer includes news and documentary producers, then such producers
either will lose the ability to obtain footage depicting any adult
sexual conduct, or will be forced to make payments to the original
producer notwithstanding the fair use doctrine.
The Department declines to adopt this comment. The First Amendment
does not permit even a bona fide reporter to trade in child pornography
in order to create a work of journalism, see United States v. Matthews,
209 F.3d 338 (4th Cir. 2000), not to mention the possibility that
someone might purport to be a news or documentary producer to evade the
statute. Accordingly, it is consistent with the law for the final rule
to cover journalistic and similar works.
One comment inquires whether a secondary producer is required by
the proposed rule's change to Sec. 75.2(a)(1) to ``examin[e] * * * a
picture identification card prior to production of the depiction,'' or
whether this obligation is limited to the primary producer. The
commenter asks that the Department allow an entity that obtains a
domestic or foreign-made film or program for American distribution but
has no role in the production of that film or program to be considered
a ``distributor'' rather than a ``secondary producer'' of such
material, and therefore to be exempt from the requirements. The comment
would allow secondary producers to disseminate a work in the United
States even when a primary producer failed to obtain the required
records prior to the date of original production.
The Department declines to adopt this comment. The comment would
effectively turn all secondary producers into distributors, exempting
them from section 2257's requirements, contrary to the Act's making
section 2257 applicable to that activity. A significant goal of the
legislation was to eliminate commercial markets for non-commercially
produced child pornography. Although the rule does not require
secondary producers to check identification themselves, secondary
producers should be aware that they incur a significant risk if they do
not avail themselves of the identification documents that primary
producers have created. Secondary producers who do not check records
run the risk that they are distributing child pornography if the
performers depicted in fact were not of legal age. Furthermore, to the
extent that such foreign-produced material includes only lascivious
exhibition, a U.S. secondary producer could avail itself of the
provisions of the certification.
One comment notes the proposed rule's elimination of ``mere'' from
the term ``mere distribution'' that is contained in the current
regulation and requests that the Department add ``or gratuitous
transfer'' after the word ``distribution'' in the definition of
``producer'' in Sec. 75.1(c)(4)(ii). The comment suggests that adding
``or gratuitous transfer'' would avoid a potential problem in the
meaning of the word ``distribution'' when read in connection with the
term's restriction to commercial contexts in Sec. 75.1(d) of the
current regulations. The comment believes that the latter provision
correctly suggests that the regulations' record-keeping requirements
are restricted to commercial production operations. And it requests
that the Department to elaborate whether or which transfers should
require disclosure statements.
The Department declines to adopt this comment. The definitions in
the proposed rule are (with minor grammatical changes to conform to the
structure of the regulation) exactly those in the statute, and the
Department sees no need for further clarification, particularly with
respect to a particular term that itself would have to be defined.
One comment asks the Department to remove the term ``assembles''
from the definition of ``producer'' in Sec. 75.1(c)(2). The Department
declines to adopt this comment. As noted above, the
[[Page 77439]]
definitions in the regulations are those contained in the statute, and
the statutory definition of ``produces'' includes ``assembling * * * a
book, magazine, periodical, film, videotape, digital image, or picture,
or other matter intended for commercial distribution, that contains a
visual depiction of sexually explicit conduct.'' 18 U.S.C.
2257(h)(2)(A)(ii).
One comment notes that many depictions will have more than one
primary producer, as a depiction can be photographed, then digitized,
or be generated by computer from a depiction of an actual person.
Various entities could be involved in creating a particular depiction.
Each entity or person who performed even one of these tasks would be a
primary producer. Moreover, since only secondary producers can rely on
copies of documents, the comment requests that the Department provide
that only one primary producer should be designated and required to
maintain records.
Another comment states that the rules are unclear concerning how
many or which producers must be named if there is more than one primary
or secondary producer. It notes that parents and subsidiaries may not
have the same address. The Department adopts this comment in part by
stating that the final rule provides that where a primary producer is a
corporate entity, only one primary producer associated with that entity
will exist. For purposes of efficiency in inspection, where the
corporate parent entity is the primary producer, that is the entity
that should be named in the disclosure statement as the keeper of the
records.
The Department adopts these comments in part. In response to a
similar comment, the final rule published in 2005 stated, ``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 producer 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.'' However, upon
reconsideration, the Department has decided to clarify that if multiple
individuals are all employed by the same entity, the entity constitutes
the ``primary producer'' for purposes of record-keeping, not the
individuals.
Similarly, one comment notes that a single reproduction can create
numerous secondary producers. Under Sec. 75.1(c)(2), a preexisting
photograph can be digitized by one person, inserted on a computer site
by another, which is managed by a third, and if each of these is
employed by a corporation, then there are now seven secondary producers
arising out of a single reproduction, each of whom must now seek and
obtain from the primary producer information concerning every depicted
performer. The commenter considers this scenario to be unlikely,
threatening availability of the depiction.
As with the similar comment regarding multiple primary producers,
the Department adopts this comment in part. The Department has
clarified that if multiple individuals are all employed by the same
entity, the entity constitutes the ``secondary producer'' for purposes
of record-keeping, not the individuals. However, there may be multiple
secondary producers who are separate entities engaged in separate
commercial enterprises--e.g., one company purchases a depiction from
the primary producers and publishes it on a Web site and another
purchases and publishes the same depiction in a magazine several years
later--and who must each maintain the records associated with the
depiction.
One comment questions whether Sec. 75.1(c)(4)(v), which allows a
Web site such as YouTube to post depictions without having to keep
records, allows someone to display a YouTube video on their own Web
site and still fall within the exemption because YouTube would not have
the records itself and the person downloading from YouTube would not
have access to the records. As described in the comment, it would
appear that the individual who downloads a depiction of actual sexually
explicit material from a another site onto a site that he or she
controls is a producer because he or she has ``reproduc[ed]'' or
``insert[ed] on a computer site or service a digital image of, or
otherwise manage[ed] 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'' within the meaning of the
definition of ``secondary producer'' in Sec. 75.1(c)(2). Whether or
not the source for the person is a site such as YouTube, which may not
be required to maintain records as a secondary producer, since the
original individual producer who posts a depiction on that site is
required to affix a disclosure notice to each page of the sexually
explicit depiction, a secondary producer who downloads that depiction
onto another site should be able to obtain the requisite information
for compliance with its own record-keeping and disclosure requirements.
Date of Original Production
The proposed rule defined ``date of original production'' to mean
the date that the primary producer actually created the image of actual
sexually explicit conduct. One comment requests that the Department
define this term in this fashion for primary producers, but, in the
case of secondary producers, that the date of original production
should also be permitted, at the discretion of the secondary producer,
to be the date of the secondary producer's relevant conduct.
The Department adopts this comment. Obtaining the date of the
original production from the primary producer should not pose a problem
for a secondary producer, since the secondary producer obtains the
records of the production from the producer. As explained more fully
below, the Department in the final rule has eliminated the requirement
that the statement of location of records required by Sec. 75.6
contain a date of original production (or any other date, as in the
regulation currently in force). Hence, a secondary producer is not
responsible for including that information in a statement that it
affixes to material it secondarily produces. However, primary
producers, as explained below, will henceforth be required to create
and maintain a record of the date of original production, such record
being transferred to the secondary producer along with all other
records required by part 75.
To the extent that this is a new requirement for both primary and
secondary producers that did not exist previous to the proposed rule,
the Department clarifies that it applies only prospectively from the
date of the publication of this final rule.
Also, in response to a comment, the Department has clarified that
if a depiction is made over the course of multiple dates, the date of
original production consists of the earliest of those dates. There is
no requirement in the rule that any depicted performer be 18 on the
date of original production so long as that performer is 18 as of the
date that a depiction of that individual is created. Producers who keep
records demonstrating that performers are 18 as of the date of original
production conform to the requirements of the rule. The final rule has
been changed to reflect that in the case of a performer who was under
18 at the time that production began, but became of legal age before he
or she was depicted, an alternative date of original production
[[Page 77440]]
with respect to that performer is the first date that that performer
was actually filmed for the production at issue.
The Department has also clarified the meaning of ``date of original
production'' with respect to matter that is a secondarily produced
compilation of one or more separate, primarily produced depictions. The
final rule provides that with respect to such a compilation, the date
of original production of the matter is the earliest date after July 3,
1995, on which any individual depiction therein was produced. In the
event a performer in any of the individual depictions was under 18 on
that date, the alternative date of original production with respect to
that performer is the first date that any scene depicting that
performer was actually recorded.
Employed by
One comment states that the Department erred in defining
``employed'' in the 2257A proposed rule because the Department cannot
make the term broader than it is normally understood by simply defining
it broadly. The comment goes on to state that ``[w]e do not think that
it is a rare case at all that a producer creates images covered by
sections 2257 or 2257A which depict non-employees--as properly
understood--in sexual roles. But defining `employe[e]' more broadly
than usual defeats the obvious sense of the safe harbor provision which
Congress has promulgated.''
The Department declines to adopt this comment. The definition of
``employed'' used in the proposed rule is consistent with the commonly
understood definition, which does not necessarily require that an
employee be paid by an employer. One common definition of ``employ'' is
``to use or engage the services of,'' while another is ``to provide
with a job that pays wages or a salary.'' Merriam-Webster Collegiate
Dictionary 408 (11th ed. 2003). Although the commenter seeks to
characterize the Department's definition of the term as somehow broader
than normal, the Department's definition is wholly consistent with the
dictionary definition of the term in that it covers not only a producer
providing a person with a job that pays wages but also a producer using
or engaging the services of a person. The Department thus does not
believe that the proposed rule's definition of ``employed'' is
inconsistent with the text of the statute.
Sexually Explicit Conduct
Many comments argue that the Dost factors are vague and not readily
transferable to an adult, notwithstanding the Department's statements
concerning the proposed rule. These comments asserted that inquiring
whether setting, pose, and visual depictions are appropriate, natural,
or suggestive for a child are nonsensical for adults because such
conduct is not improper for adults. One comment maintained that the
Dost factors represent in this context an inappropriate burden shift
from presumed constitutional expression to a presumption of child
pornography, and another suggested that an image not otherwise
lascivious could be inappropriately found to be lascivious based on its
proximity to adult lascivious images.
The Department does not adopt these comments. The Department does
not consider application of the Dost test to adults to be nonsensical.
The point of the factors is to determine whether a particular depiction
is of actual sexually explicit conduct for purposes of determining
whether compliance with various legal requirements is necessary. The
age of the person depicted is irrelevant to whether the image depicts
actual sexually explicit conduct, except for one Dost factor that is
age-dependent and which the proposed rule identified as not being
relevant to the depiction's status as actual sexually explicit conduct.
If the acts depicted would fall within any of the remaining Dost
factors if they were performed by a minor, one who produces actual
sexually explicit conduct must take the requisite steps necessary to
ensure that the individual performing these acts is of legal age. The
proposed rule creates no presumption of or against the existence of
child pornography. The rule's applicability depends on the image as it
is without reliance on any presumptions. The Dost factors themselves do
not erect any presumption. Nor is the lasciviousness determination made
with regard to anything but the depiction that is produced.
One comment, relying on a Court of Appeals decision that accepted
the relevance of the Dost factors, United States v. Knox, 32 F.3d 733
(3d Cir. 1994), maintains that their applicability here would mean that
millions of images on Myspace or Youtube or Facebook may require
section 2257 compliance even though they do not involve nudity or
sexual activity. The comment states that the rule must define
exhibition of the genitals to consist only of nude exhibition.
Otherwise, it maintains, every photo of male water polo players or
other competitive swimmers would be potentially subject to section 2257
record-keeping, as would other depictions of persons in tight clothing
suggestive of genitalia.
The Department does not adopt this comment. The comment takes an
overly broad reading of the law of child pornography and applies that
reading to produce a nonsensical result. The Knox case does not stand
for the proposition claimed by the comment. It is not the case that
pictures of boys' water polo teams constitute child pornography. The
images at issue in Knox were lasciviously displayed. Although the
genitals were clothed in that case, they were covered by thin, opaque
clothing with an obvious purpose to draw attention to them, were
displayed by models who spread or extended their legs to make the pubic
and genital region entirely visible to the viewer, and were displayed
by models who danced or gyrated in a way indicative of adult sexual
relations. 32 F.3d at 746-47. None of these attributes remotely applies
to standard swim team photographs or underwear or other mainstream
advertising. Therefore, very few images posted on Myspace or Youtube of
clothed individuals would require section 2257 compliance, and the
description in this rule of the kinds of images that do so provides
clear guidance to the narrow situations in which clothed images would
trigger section 2257 compliance.
One comment suggests, as an alternative to the Dost factors, that
the rule define ``lascivious exhibition of the genitals'' to mean
images that display an individual's naked genital area.
The Department declines to adopt this comment. As discussion of the
depictions at issue in the Knox case shows, there are instances when
covered genitals can amount to child pornography. When such images are
created, if the performers are under 18, what is being produced is
child pornography. The obligations of the proposed rule must apply to
producers who create depictions that could constitute lascivious
exhibition, so as to reduce the possibility of child exploitation. One
comment asks whether the depiction of scantily clad women in a strip
club or bedroom would be subject to the regulations and criminal
penalties. The comment maintains that the need to pose such a question
means that producers would not know what materials trigger the record-
keeping requirements, which would cause a chilling effect. The comment
claims that creators of widely shown films and television programs who
make a mistake in this respect risk prosecution.
The Department does not adopt this comment. The proposed rule
rejected a
[[Page 77441]]
categorical approach that would state whether every possible depiction
was one that fell within a definition. Rather, it adopted the Dost
factors, which rely on context as well as content. A depiction of
scantily clad women in a strip club or bedroom can appear in limitless
permutations, and the Department cannot state that all or none would
constitute lascivious exhibition of the genitals without consideration
of the Dost factors. Those factors provide the context that producers
and the Department will rely on to determine whether an image depicts
actual sexually explicit conduct so as to minimize any chilling effect.
Film and television producers are particularly unlikely to risk
prosecution for displaying scantily clad performers because of the
certification option.
One comment suggested that because of the vagueness of the Dost
test, a producer may not know that he must obtain identification before
production. If the producer does not do so, the comment asks what
options are then available to the secondary producer who determines
that the Dost test applies. The comment maintains that as a result,
some producers may not be able to acquire and disseminate a wide range
of movies and television programs, especially foreign productions.
The Department does not adopt this comment. Prosecutions for
production of child pornography have been upheld by many courts
applying the Dost test to determine whether a depiction is one that
lasciviously exhibits the genitals. See, e.g., United States v. Horn,
187 F.3d 781 (8th Cir. 1999); United States v. Villard, 885 F.2d 117,
122 (3d Cir. 1989). That they have done so contradicts the argument
that the test amounts to unconstitutional vagueness in defining
``lascivious exhibition.'' A secondary producer who is concerned that a
primary producer may have violated the requirements of the statute and
the regulation has the options of requesting that the primary producer
revisit the issue and examine picture identification cards and compile
age records. Furthermore, secondary producers of qualifying material
may be able to avail themselves of the certification in section 2257A
and its implementing regulation.
One comment disputed the Act's extension of section 2257 to cover
lascivious exhibition as closing a previous loophole in that statute.
The comment asserts that the prior version reflected a desire to limit
the law to depictions that involve actual sexually explicit activity
and avoid overbreadth through inapplicability of its provisions to
fully clothed adults.
The Department does not adopt this comment. The characterization of
the Act is not an operative part of the regulation that requires a
response.
One comment requests that the Department distinguish between actual
and simulated masturbation in defining actual sexually explicit
conduct. The Department declines to adopt this comment. To the extent
that this is merely a subset of a larger question as to the distinction
between ``actual'' and ``simulated'' conduct, the meaning of ``actual''
conduct with respect to all the conduct covered by the statute and the
regulation is clear on its face. To the extent that ``simulated'' was
not clear on its face, this final rule regulation contains a
definition.
One comment requests that the Department define ``sadistic or
masochistic abuse'' because some people believe that safe and
consensual bondage is not abuse, and requests that the Department
distinguish between actual and simulated sadistic or masochistic abuse.
The Department declines to adopt this comment. That term is not a
subject of this rulemaking. Moreover, actual sexually explicit conduct
depends on the content of what is being displayed, not on whether the
content is subjectively considered to be abusive. If belief as to abuse
were to control, a producer who determined that nothing was abusive
would be able to avoid compliance with the regulations in their
entirety, creating massive opportunity for child exploitation.
One comment contends that the definition of ``sexual'' varies among
communities and that the final rule should contain more guidance as to
the meaning of the term. It asks whether nude photos of a single
person's erect penis is sexual, or whether a hand over the pubic area
is sexual.
The Department declines to adopt this comment. It believes that the
definition of actual sexually explicit conduct contained in the final
rule is clear. The Department does not believe that a producer would
have any difficulty in determining whether hypothetical depictions of
the kind posed by the commenter would constitute actual sexually
explicit conduct within the meaning of the rule.
Simulated Sexually Explicit Conduct
In the proposed rule to implement section 2257A, the Department
started its analysis of the proper definition of the term for
regulatory purposes with the term's plain meaning. The term
``simulated'' is generally defined as ``made to look genuine.''
Merriam-Webster's Collegiate Dictionary 1162 (11th ed. 2003). The
Department believed that an objective standard--that is, one defined in
terms of a reasonable person viewing the depiction--is appropriate to
add to this basic definition. The proposed rule's definition of
``simulated sexually explicit conduct'' thus read as follows:
``[S]imulated sexually explicit conduct means conduct engaged in by
performers in a visual depiction that is intended to appear as if the
performers are engaged in actual sexually explicit conduct, and does so
appear to a reasonable viewer.''
Three comments state that the final rule should incorporate the
definition of ``simulated sexual intercourse'' provided by the Supreme
Court in United States v. Williams, 128 S. Ct. 1830, 1840-41 (2008).
One comment further recommends that the definition should explicitly
incorporate by reference the definition in Williams. That definition
reads, in pertinent part:
``simulated'' sexual intercourse is not sexual intercourse that is
merely suggested, but rather sexual intercourse that is explicitly
portrayed, even though (through camera tricks or otherwise) it may
not actually have occurred. The portrayal must cause a reasonable
viewer to believe that the actors actually engaged in that conduct
on camera.
Id. While the Williams definition refers to ``simulated sexual
intercourse,'' not ``simulated sexually explicit conduct,'' the
Department understands the comments to recommend that the final rule
use the Williams definition as appropriately amended to refer to
``simulated sexually explicit conduct,'' not ``simulated sexual
intercourse.''
The Department believes that the Williams definition conceptually
is not dissimilar to that outlined in the proposed rule, and adopts
both comments. The final rule thus incorporates a revised definition of
``simulated sexually explicit conduct.''
One comment recommends that the proposed rule's definition of
``sexually explicit conduct'' should refer to 18 U.S.C. 2256(2)(B), not
18 U.S.C. 2256(2)(A). The comment states that the narrower definition
at section 2256(2)(B), which would require depictions to be graphic or
lascivious, would be more consistent with the state laws the Department
rejected in determining how to define ``simulated sexually explicit
conduct.''
The Department declines to adopt this comment. The definition at
section 2256(2)(B) is limited, by its own terms, to images described in
section 2256(8)(B)--images that are ``a digital image, computer image,
or computer-generated image that is, or is indistinguishable from, that
of a minor engaging in sexually explicit conduct.''
[[Page 77442]]
In other words, section 2256(2)(B) has no relevance to a regulation
that concerns actual persons as opposed to virtual persons.
All Performers, Including Minor Performers
One comment states that the proposed rule is unclear as to whether
the record-keeping requirements apply to all performers in a depiction,
or to primary performers, and recommends that the Department should
clarify that these requirements apply only to primary performers and
not to any background performers in the depiction.
The Department declines to adopt this comment. The commenter did
not attempt to define ``primary'' or ``background'' in this context,
and the Department has difficulty in doing so. As a practical matter,
in many cases it would be difficult to determine whether a performer in
a visual depiction of lascivious exhibition or simulated sexually
explicit conduct is a ``primary'' or a ``background'' performer. For
example, in a lascivious exhibition depiction of a person on a bed, a
person depicted in that same image as standing nearby, wearing
lingerie, and watching the person on the bed could well be a
``primary'' performer--however that term were to be defined--depending
on the level of interaction between that person and the person depicted
on the bed. On the other hand, conceivably a fully clothed person could
be considered a ``background'' performer even if located on the same
bed, again depending on the level of interaction between the
performers. Similar confusion would apply in the context of depictions
of simulated sexually explicit conduct. In order to avoid such
confusion, the Department believes that it is appropriate to require,
as stated in the proposed rule, that all performers in depictions of
lascivious exhibition or simulated sexually explicit conduct be
covered.
Maintenance of Records
Date of Original Production
One comment characterizes the proposed rule as faulty because it
does not specifically require that a record be made of the date of
original production, although the proposed rule will require that this
date be stated in the disclosure statement.
The Department adopts the comment's view that it was an oversight
that the proposed rule did not require that a record otherwise be made
of the date of production. As noted above, the Department, after
careful consideration, has amended the record-keeping requirement to
include that a primary producer record the date of original production
at the time it examines the picture identification card of the first
performer in the depiction. Again, to the extent that this is a new
requirement for primary producers, the Department clarifies that it
applies only prospectively from the date of the publication of this
final rule.
Several comments note that in Sec. 75.2(a)(1) of the proposed
rule, producers are required to create and maintain records of the name
and date of birth of each performer obtained by the producer's
examination of a picture identification card prior to the date of
production of the depiction. They point out that the Act made no change
to section 2257(b), which is the source of this requirement. The
comments ask the Department to state that only the ``examination'' of
the picture identification card that must take place prior to the
production of sexually explicit images, and not necessarily the
creation of a record based on the examination of the picture
identification that must occur before production.
The Department declines to adopt these comments. As noted above,
the Department believes that in order to fully implement the purpose of
the statute, the record must be made at the time of examination of the
document and has clarified that in this final rule. Furthermore, the
Department requires in the final rule that a primary producer make a
record of the date of original production. This record will then flow
to secondary producers and enable them to affix the date to the
disclosure statement. However, in order to simplify the requirement,
the Department has clarified that if a depiction is made over the
course of multiple dates, the date of original production consists of
the single and earliest of those dates.
One comment states that the original production date is not often
available, particularly because it was never a requirement of section
2257. The comment cautions that were the final rule to require keeping
this information, hosts of most Web sites will be immediately out of
compliance. Another comment notes that the Department stated in its
proposed rule that secondary producers need comply only with the rules
for material that was produced after the Act's 2006 effective date, and
Sec. 75.2(c) states that producers of visual depictions made after
1995 and before 2005 may rely on identification that was valid under
the record-keeping and labeling regulations that were in force on the
date of original production.
As noted above, the Department adopts the comment seeking
prospective application of the record-keeping requirements documenting
that identification was checked prior to the occurrence of production.
The comment noting that producers may rely on identification rules and
record-keeping requirements that applied on the date of original
production of the depiction is correct, and demonstrates that Web site
owners will not have to conform their existing records to the new
requirements, contrary to the statement contained in the comment noted
above.
Two comments request that the record-keeping requirements with
respect to viewing identification documents prior to production apply
only to primary producers. According to the comments, only primary
producers have an opportunity to examine picture identification cards
prior to the production. At most, the comments ask, secondary producers
should be required to examine what they receive from the primary
producer that relates to depictions from the primary producer. One of
the comments believes that without such an alternative, there will be
an effective prohibition on disseminating numerous widely disseminated
productions. And even then, it claims, foreign films would not have
such documentation because even if a secondary producer could obtain
and inspect the required records retroactively, it may be unable to do
so because of difficulties in locating performers or because of data
protection laws.
The Department adopts these comments in part. It rejects some of
the concerns as reflecting a misunderstanding of the requirements of
the final rule. A secondary producer is not required under the rule to
check identification documents. That is a responsibility only of the
primary producer. A secondary producer may risk child pornography
offenses, however, if he does not take steps to assure himself that the
performer is actually of legal age. Nonetheless, the secondary producer
is required by the final rule only to retain records. Those records
enable the Department to identify who the primary producer was for any
depiction and to verify that the depicted performers were of legal age.
The Department believes that to avoid a commercial market in child
pornography through the witting or unwitting actions of secondary
producers, secondary producers must keep records that each depiction
occurred only after the primary producer checked valid identification
documents. Were secondary producers to be exempted from this
requirement, a real risk of commercial marketing of
[[Page 77443]]
illegal product would develop. The comments are mistaken in postulating
that the final rule imposes a duty on a secondary producer to locate
foreign performers after the fact. What the secondary producer must do,
even for foreign productions, is to ensure that it has copies of the
records that show that the primary producer checked the legal age of
performers prior to the date of original production.
Requirement of Hard Copies
The proposed rule amends Sec. 75.2(a) concerning requirements for
maintenance of records. The proposed rule requires that the copy of the
identification documents be retained in hard copy form. The Department
received four comments regarding the proposed rule's requirements for
maintaining copies of identification card records in hard copy form.
Two comments state that nothing in the Act or proposed rule
requires that records be kept in hard copy format. It contends that
there is no justification with contemporary technology for requiring
hard copies. The comment also notes that the proposed rule represents a
departure from Sec. 75.2(f), which permits records to be kept in
digital form if they include scanned copies of identification
documents. Another comment reiterates that point, and adds that
electronic copies would permit the passage of records along the chain
of distribution as the rules contemplate. Otherwise, records could be
divided when shared, which could create losses or errors and put the
producer in danger of violating rules by having incomplete or
improperly maintained records. This comment asks that the Department
return Sec. 75.(2)(a)(1) to its current form by deleting the word
``hard,'' or consider the new requirement for a hard copy of the
picture identification document to be satisfied by scanning the
identification card or a hard copy of it, and/or by electronic versions
that can be printed out to create hard copies at the time of
inspection.
The Department adopts these comments. Nothing in section 2257
requires that records be kept in hard copy format, and, indeed,
existing Sec. 75.2(f) permits copies of identification documents to be
scanned and stored electronically if they can be authenticated by a
custodian. The proposed rule did not seek to amend Sec. 75.2(f). The
proposed rule's changes to Sec. 75.2(a) that mandate the retention of
all copies of identification documents and pictures in hard copy format
would create a conflict with the terms of Sec. 75.2(f). The final
rule, therefore, amends proposed Sec. 75.2(a)(1) to add ``or digitally
scanned or other electronic copy of a hard copy.'' Note, however, that
in the event a regulated entity or individual decides to retain records
in electronic format, nothing in the Act or the regulations provides
that technical difficulties would excuse failure to make the records
available at reasonable times for inspection.
One comment notes that in the proposed rule the Department stated
that a producer need not keep a copy of a URL hosting a depiction that
the producer produced ``but over which he exercises no control.'' The
commenter asks that the Department modify this statement to read ``but
over which he exercises no corporate control'' or other such language
that clarifies that the producer is not responsible for Web sites not
owned by the producer.
The Department declines to adopt this comment. Were the Department
to state that the producer is not responsible for Web sites the
producer does not own, the final rule would not apply to a producer who
influenced or directed what happened to the depiction, even if he did
not own the Web site. If a producer exercises control over a depiction,
whether as an individual or as a corporate entity, and regardless of
whether the producer owns the Web site on which the depiction is
displayed, then the producer must retain the copy of the URL hosting a
depiction that the producer produced. The only exception to this
requirement, as noted above, is where an individual who would be a
primary producer under the final rule's definition is an employee of a
corporate primary producer. Under such circumstances, that individual
will not be considered a primary producer.
Redaction
One comment states that the viewer of the identification document
need not know the Social Security number or exact birth date of a
performer.
The Department does not adopt this comment. The proposed rule quite
clearly allows a producer to redact the performer's Social Security
number. An exact birth date sometimes may be redacted so long as the
year is not obscured. However, if a performer is 18 on the date of
original production, the month or even the day of the month must not be
redacted if a question would exist whether he was of legal age at the
time of the original production.
Compliance Date
In accordance with current law, the final rule retains July 3,
1995, as the effective date of the rule's requirements for secondary
producers related to depictions of actual sexually explicit conduct.
(The current regulations, published in 2005, adopted July 3, 1995, as
the effective date of enforcement of section 2257 based on the court's
order in American Library Association v. Reno, No. 91-0394 (SS) (D.D.C.
July 28, 1995).)
In response to a comment stating that the proposed rule created
potential confusion by omitting language from the 2007 proposed rule
implementing the Adam Walsh Act's changes to section 2257, the
Department clarifies, as stated in the preamble to the 2007 proposed
rule, see 72 FR at 38036, that the one exception is that this final
rule would not penalize secondary producers for failing to maintain
required records in connection with those acts of production that
occurred prior to the effective date of the Adam Walsh Act. The
proposed rule also stated that producers of visual depictions of actual
sexually explicit conduct made after July 3, 1995, the effective date
of the regulations published in 1992, and before June 23, 2005, the
effective date of the current regulations published in 2005, may rely
on picture identification cards issued by private entities such as
schools or private employers that were valid forms of required
identification documentation under the provisions of part 75 in effect
on the original production date. Finally, the proposed rule stated that
the effective date concerning depictions of simulated sexually explicit
conduct will be 90 days after it is published in the Federal Register
as a final rule.
Two comments address the disparity between the statutory effective
date of section 2257's coverage of depictions of lascivious exhibition
(July 27, 2006) and the statutory effective date of section 2257A (90
days after publication of this final rule implementing section 2257A),
which includes the safe harbor provision exempting producers who
certify from section 2257's provisions concerning depictions of
lascivious exhibition. One comment recommends that the Department make
the safe harbor provision retroactive to the July 27, 2006, effective
date of section 2257 concerning depictions of lascivious exhibition.
The other comment states that the Department should make the effective
date of part 75 with respect to depictions of lascivious exhibition the
same date as the statutory effective date of section 2257A. This
comment further states that setting the same effective date for rules
regulating depictions of lascivious exhibition and simulated sexually
explicit conduct would ``avoid[ ] potentially fatal vagueness problems
under the First Amendment.''
[[Page 77444]]
Under either suggestion, the effective date of the safe harbor
provision and the regulatory requirements concerning depictions of
lascivious exhibition would be the same.
The Department adopts these comments in part. The final rule
provides that the regulatory requirements applicable to depictions of
lascivious exhibition apply starting 90 days after the publication of
this final rule.
Two comments argue that the proposed rule creates First Amendment
vagueness and ex post facto problems because individuals did not create
records as of the effective date of the proposed rule which they did
not think would be necessary. The Department does not accept the
comment that the proposed rule created any First Amendment vagueness
problem, see American Library Ass'n, supra, but does accept the comment
insofar as the proposed rule would operate retroactively and, as stated
above, modifies the compliance date accordingly.
Two comments state that to avoid retroactivity, the final rule
should not apply to material that is actually sexually explicit only
because it displays lascivious exhibition of the genitals and that was
acquired by a secondary producer prior to the compliance date of the
regulation. One of these comments requests the Department, if it adopts
a different standard, to define ``acts of production,'' so that a
secondary producer would know based on an acquisition date or other
standard what content required record-keeping and what did not.
The Department declines to adopt this comment. Although the
Department is sympathetic to the concerns expressed in the comment, and
wishes to avoid retroactivity, it does not agree that the date that a
secondary producer obtained the image displaying lascivious exhibition
of the genitals should determine whether the regulation applies. There
is no requirement in the existing or proposed rules that secondary
producers document the date they obtained particular depictions. Were
the Department to adopt the comment, unscrupulous secondary producers
could claim that they acquired any depiction created before the final
rule's compliance date prior to that date. Secondary producers who
wished to demonstrate in good faith that their collections contained
depictions that were obtained only after the compliance date of the
final rule would be obliged to mark every such depiction currently in
their possession to prove that they possessed it as of that date.
Moreover, the Department would have no way of proving that the producer
acquired the depiction prior to the compliance date of the final rule.
The Department seeks to ensure that prohibited depictions were not
created on or after the compliance date as herein modified. This
concern derives from the statutory language, which turns on the date of
production. The date that the secondary producer acquired the image is
of no relevance. A secondary producer will be able to comply with the
final regulation on an exclusively prospective basis by determining
that appropriate procedures were followed for such depictions that were
originally produced after the compliance date of the final rule.
Another comment requests that, even if the Department were to adopt
a prospective compliance date, the final rule not apply to images (as
opposed to depictions) created before the compliance date, i.e., a
digitization of a previously existing depiction. The comment points out
that a digital image made after the compliance date could be based on
an initial depiction that could be older. The producer of the digital
image could not use that earlier depiction, even if it were eighty
years old, because it could not reconstruct the records. Therefore, the
comment concludes that the final rule should be limited to images first
created before the compliance date. The comment also states that the
Department must accept that it cannot address preexisting content.
The Department declines to adopt this comment. The Department does
agree that because the final rule will apply prospectively, it cannot
address preexisting depictions that constitute actual sexually explicit
material only because they display lascivious exhibition of the
genitals. However, the Department can address digitized or other
modified versions of preexisting content where the modifications occur
after the final rule's compliance date. In light of the changed
compliance date of the rule, any preexisting depiction of lascivious
exhibition of the genitals that is not now digitized can be digitized
before the rule takes effect. That will avoid the problem stated by the
comment. Any secondary producer after that date who digitizes a
depiction without obtaining records showing that the depiction was in
accordance with the final rule will either need to obtain another
digitized version of the depiction that does so or track down the
primary producer of either the original or another digitized version of
the depiction to create the records.
One comment notes that the statutory language on this point is
broader than the language of the proposed rule. The statute says that
section 2257 does not apply to ``any depiction of actual sexually
explicit conduct'' involving lascivious exhibition of the genitals that
was produced ``in whole or in part'' prior to the compliance date. The
comment states that the final rule should track that language.
The Department declines to adopt this comment. The comment implies
that under the statutory language, any depiction of lascivious
exhibition of the genitals that was produced after the compliance date
of the final rule is not covered by section 2257 if any other part of
the image was produced before the compliance date. The Department does
not so read the statute. There are five situations in which the
statutory language discussed could apply, and the Department believes
that it is important to set forth the applicability of the statutory
language to each.
First, prior to the compliance date of the final rule, a depiction
could have been created of lascivious exhibition of the genitals and no
other form of actual sexually explicit conduct as that term is defined
after the compliance date of the final rule. Prior to the final rule,
this was not a depiction of actual sexually explicit conduct. If the
depiction were modified or another depiction connected to it that did
not contain lascivious exhibition or another form of actual sexually
explicit conduct, then the final rule would not apply because the
lascivious exhibition of the genitals was produced before the
compliance date of the final rule.
Second, a depiction produced before the compliance date could have
contained neither actual sexually explicit conduct as that term was
then defined nor lascivious exhibition of the genitals. If a producer
then altered or added to the depiction, or to a connected depiction, a
depiction of lascivious exhibition of the genitals after the compliance
date, this comment implies, the depiction would be one of lascivious
exhibition of the genitals that was ``in part'' created after the
compliance date of the final rule, and the final rule would not apply.
The Department disagrees. No depiction of lascivious exhibition of the
genitals was contained in this image before the compliance date of the
regulation. All such material appeared only after the compliance date
of the regulation, and, therefore, such material is covered by the
final rule.
Third, a depiction of actual sexually explicit material as it was
then defined, but which did not depict lascivious
[[Page 77445]]
exhibition of the genitals, could have been produced before the
compliance date of the final rule. After that date, a producer might
then add lascivious exhibition of the genitals to the depiction itself
or to a connected depiction. According to the implication of the
comment, section 2257 could not apply to the depiction that contains
lascivious exhibition of the genitals because it was produced in part
prior to the compliance date of the final rule. In fact, the image was
already covered by the statute because it displayed actual sexually
explicit content as that term was defined prior to the compliance date
of the final rule. Nothing in the Act made material that was previously
subject to section 2257 lose that status. No depiction of actual
sexually explicit conduct involving lascivious depiction of the
genitals was produced in whole or in part prior to the compliance date.
Notwithstanding that the depiction of lascivious exhibition was added
after the compliance date, the depiction nonetheless is subject to
section 2257. Otherwise, any depiction of actual child pornography
could be taken out of the scope of section 2257 by modifying or
connecting to such an image a depiction of lascivious exhibition of the
genitals that was produced prior to the compliance date of the final
rule. A statute passed to enhance prosecution of child pornography
cannot reasonably be read so as to prevent the prosecution of all child
pornography offenses through such a simple subterfuge.
Fourth, a depiction could have been produced prior to the
compliance date of the final rule that depicted lascivious exhibition
of the genitals and no other form of actual sexually explicit conduct.
Suppose that after the compliance date of the final rule, another
depiction of lascivious exhibition of the genitals were then added,
whether or not it also displayed any other example of actual sexually
explicit conduct. The implication of the comment is that the depiction
contains lascivious exhibition of the genitals that was produced ``in
part'' before the compliance date of the final rule, and therefore is
beyond the reach of the final rule. Under this theory, even if the
after-added actual sexually explicit conduct were in fact child
pornography, section 2257 could not apply because the earlier image
contained a depiction of lascivious exhibition of the genitals that was
produced prior to the compliance date of the regulation. The Department
disagrees. It will treat each such image separately. The depiction of
lascivious exhibition of the genitals that was produced before the
compliance date of the final rule will not be governed by the final
rule although some of the image was produced after its compliance date.
This is the case because part of the depiction was produced before the
compliance date. The connected depiction of actual sexual sexually
explicit conduct in this example was produced after the compliance date
of the rule, and must conform to its strictures.
Fifth, a depiction could have been produced before the compliance
date of the rule that contained both lascivious exhibition of the
genitals and actual sexually explicit conduct as it was defined before
passage of the Adam Walsh Act. Then, following the compliance date of
the final rule, the depiction could have had appended to it any form of
actual sexually explicit conduct, including actual child pornography.
Under the implication of the comment, the depiction would contain, in
part, lascivious exhibition of the genitals that was produced before
the compliance date of the Act, and, therefore, none of the material
would be subject to the final rule. Under this approach, even the
material that was actual sexually explicit conduct under its pre-Act
definition would no longer be covered by section 2257. The Department
disagrees. There is no indication that Congress intended to accomplish
that result. Under this approach, every example of child pornography--
even those that have been subject to section 2257--could never yield a
prosecution if it were appended to a depiction of lascivious exhibition
of the genitals that was produced before the compliance date of the
final rule. No such result is required. In this circumstance, each
depiction would be treated separately. The part of the depiction that
involved only lascivious exhibition of the genitals and was produced
prior to the compliance date of the final rule would not be subject to
the final rule. The other parts of the depiction would be subject to
the final rule, either because they were examples of actual sexually
explicit conduct as that term was defined before the compliance date of
the final rule or they were produced after the compliance date of the
final rule and met the definition of the term as it existed upon that
compliance date.
Inspections
Although the proposed rule made no changes to the inspection
requirements contained in Sec. 75.5, the Department received a number
of comments on the existing regulations.
One comment proposes that the amount of time for which business
premises be open for inspections should not be 20 hours per week as per
Sec. 75.5(c). The comment says that there is a need to address
inspection timing where a producer has an entirely separate full-time
job elsewhere. Two comments, including this one, contend that this
problem would be eliminated by using third-party record-keepers. Four
comments state that small businesses in this field work out of their
homes, and cannot staff their operation for 20 hours per week while
performing outside employment. These comments also expressed concern
about inspections occurring in their homes.
The same question was raised in the context of the rulemaking on
the prior version of the regulations, and the Department declined to
accept the comment. See Inspection of Records Relating to Depiction of
Sexually Explicit Performances, 70 FR 29607, 29614 (May 24, 2005). At
the time, the Department believed that permitting third-party
custodianship would unnecessary complicate the inspection process and
undermine its effectiveness.
Upon reconsideration, the Department adopts this comment in part.
The Department now believes that it can still accomplish the purposes
of the statute--in particular, effective inspections--even allowing for
third-party custodianship of the records. Hence, although it will not
modify Sec. 75.5(c), the Department will permit records required under
part 75 to be held by third parties. By allowing third-party custodians
to maintain the records, the burden on small businesses is reduced,
including any fears arising from posting home addresses, where many of
these small businesses are reported to operate, and any concerns of
record-keeping inspections of those same premises. In the text of the
regulation, such a third party is referred to a ``non-employee
custodian of records'' to distinguish it from the producer and any
person he may directly employ to maintain the records.
In addition to this change, in response to one comment, the
Department has eliminated the requirement that the name of an
individual be listed on the disclosure statement and has permitted only
the title to be listed.
One comment states that section 2257 allows the Attorney General to
inspect records, and that, therefore, the obligation of the producer is
to make records available only to ``the Attorney General.'' Section
75.5(a) allows inspectors other than the Attorney General, and the
comment claims that the statute does not permit such individuals to
inspect. The comment further notes that the rule should
[[Page 77446]]
identify the class of persons who are investigators, lest the custodian
be uncertain concerning which people he should allow to inspect the
premises. The comment maintains that there is a need for the Department
to demonstrate to those subject to inspections that the inspection
authority will not be abused.
The Department declines to adopt this comment. Under general
principles of delegation, the Attorney General may delegate to
subordinate officials the performance of the Attorney General's duties.
The commenter's fear that under the language of the proposed rule,
unaccountable or unknown individuals could conduct the record searches
is therefore unwarranted.
The Department received thousands of similar comments that note
that Sec. 75.5(b) provides for inspections without advance notice and
request that it should instead require such notice. Some commenters say
producers will not destroy any records if given notice because they
would then face liability for a missing record. If notice is used to
put into order records that have not been organized, then the comment
believes that no legitimate purpose of the record-keeping requirement
would be harmed by providing notice. The commenters further ask the
Department to specify the consequences at the premises if no one is
present when the investigator arrives, such as whether the inspector
will knock down the door. Two other comments request that the
Department eliminate no-notice inspections.
The Department declines to adopt these comments. As it stated
previously:
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.
70 FR at 29619.
The Department received thousands of similar comments that argue
that non-routine inspections should always require probable cause and a
search warrant. The Department declines to adopt these comments. These
inspections are administrative in nature, and, under well-established
legal principles, no search warrant is required. See id.
One comment states that a single owner of a home-based Web site
would be captive in his own home for 20 hours per week. The Department
responds to this comment by noting that it is permitting required
records under Part 75 to be held by third parties.
One comment maintains that the ``reasonable times'' provision of
Sec. 75.5(c)(1) could mean that an inspection could be made at 2:30
a.m. if a live Webstream or production work is being conducted then,
and that such an inspection would interrupt production. Moreover,
according to the comment, production could be done during the day in
Europe while it is 2:30 a.m. in the United States, even though it would
not yet be clear which images will be published and there will not have
been time to cross-reference. The comment argues that if there is
probable cause to believe that an underage performer is actually
working in an off-hours production, the courts can issue warrants
without the need for any late-night records inspection at all.
The Department declines to adopt this comment. The ``reasonable
times'' provision will be applied according to its plain meaning.
Moreover, the comment misunderstands the nature of the statutory
requirement which the rule implements. The goal of the record-keeping
regime is not to intervene to stop crimes involving underage performers
that have already occurred. Rather, the point of the record-keeping is
to prevent victimization in the future. The inspection requirement is
designed to ensure that the prophylactic identification- and age-
verification measures are complied with.
One comment concerning the four-month interval for inspections
states that although some large entities or a custodian arrangement may
warrant inspections as often as every four months, the many small
production operations with small numbers and static images do not. It
claims that inspections of such entities that occurred with such
frequency would simply mean that inspectors would review the same
images, which it contends is an invitation to harassment. The
Department responds to this comment by noting that while inspections
may take place as often as every four months, they are not required to
occur so frequently. Moreover, the regulation requires that inspections
``be conducted so as not to unreasonably disrupt the operations of the
establishment.''
One comment notes that Sec. 75.5(c)(4) specifies what the
investigator may say at the end of an inspection, and what the producer
is permitted to say. The comment expresses that the regulations should
also include a statement that the authority to search does not include
the authority to require that any questions be answered. The comment
also maintains that the regulation should say that everyone on the
premises is free to leave before or during a records inspection. If
everyone is not free to leave, the comment believes that the rule
should say so and include the constitutional safeguards appropriate for
custodial investigation situations.
The Department declines to adopt this comment. Administrative
inspections are not custodial investigations that would require
advisories concerning the right to counsel or to avoid self-
incrimination.
One comment states that the Department should consider
``legislation'' forbidding anyone other than a custodian or a
Department investigator from moving, disturbing, or interfering with
the required records in any way. It contends that the integrity of the
records, including their cross-referencing, otherwise could be
disturbed. The comment also asks that this notice clarify that the
seizure or theft of some or all of the records does not require the
cessation of any ongoing or planned ``expression.'' If the seizure did
have this effect, according to the comment, then the records would have
to be returned within 24 hours so that ``expression'' could promptly
resume.
The Department declines to adopt this comment. The Department has
no evidence that unauthorized individuals have interfered with records
or that there is a serious risk of such interference occurring in the
future. (The Department also notes that it lacks the authority to enact
laws, and that its authority is limited to executing laws, including
through the publication of implementing regulations such as this one.)
One comment posits that searches under section 2257 have not
identified any underage performers, so their purpose cannot be to catch
and prosecute people who arrange for such performances. It claims that
no producer knowingly uses underage performers, and that section 2257
is an after-the-fact tool, not one that advances prevention.
The Department does not adopt this comment. It does not agree that
no producer knowingly uses underage performers. On the contrary, the
Department's successful prosecution of child pornography cases every
year proves that some producers do knowingly or recklessly use underage
performers. Further, as discussed above, the Department believes that
section 2257 is in fact preventive because it ensures that before any
production occurs, the producer undertakes steps to ensure that the
performers are of legal
[[Page 77447]]
age. Finally, the purpose of the regulation in large part is to prevent
unknowing use of underage performers.
Location of Records
Statement of Location of Books and Records
The proposed rule changes the requirement under Sec. 75.6(a) that
producers place on every ``copy'' of a depiction of sexually explicit
conduct a statement that indicates the location of books and records.
Under the current regulation, that statement could be contained in a
label or a hyperlink. The proposed rule would require that the
definition of ``copy'' mean that the producer must attach a ``statement
describing the location of records * * * [that is to] be affixed to
every page of a Web site (controlled by the producer) on which visual
depictions of sexually explicit conduct appear.''
One comment argues that an exemption statement is not required if a
depiction is produced by foreign producers who did not intend at the
time of production for the depiction to enter the United States market.
The Department does not adopt this comment. Determining when the
producers of the foreign production intended to distribute the
depiction in the United States would be essentially impossible, leaving
producers free to claim that they had no such intention on the date of
original production. If the depiction is made available in the United
States, then the disclosure statement is required, regardless of the
intent at the time of production.
Eleven comments claim that the proposed rule's change to including
the statement on every page could lead to harassment of Web page
operators who operate their sexually explicit businesses out of their
homes, potentially resulting in physical injury, stalking, burglary, or
identity theft. They say that placing a link on the Web page
constitutes affixing the copy to a Web page but avoids harassment risk
because the exposure of the custodian's name will be limited to people
who are seriously seeking the records information. Two commenters raise
their concerns that sharing this information with secondary producers
could result in the same harms and ask that secondary producers not
keep this information. Nine comments raise similar harms as potentially
occurring to performers if the location of the records were placed on
every page. One comment expresses concern that the primary producer's
sharing with others of the addresses and other contact information
could make it liable for how the information might be used by others,
including crimes against the performers. Two comments request that the
secondary producer's home address not appear on the disclosure
statement, while another comment recommends that the secondary
producer's street address be included but not the street address of the
primary producer, which would keep the secondary producer's statements
of locations of records from being unmanageably long due to the
inclusion of other producers' locations. One comment states that the
proposed rule will greatly increase exposure of identification of
producers, chill protected speech, and serve the rule's purpose no
better than a link would.
One comment reported that Web sites based on static pages would
have to manually update every page if changes must be made to the
compliance notice, such as the publication date, business address,
producer name, and custodian name. Each update would cause the
potential for error, and each honest mistake could result in
prosecution. Although dynamic sites could more easily update the
compliance notice, extra processing by the Web site server would be
necessary, which is costly. There would be a considerable extra load on
the server for individual page compliance, according to the comment,
and dynamic pages will face technical challenges if operators of such
Web sites are to comply.
The Department adopts these comments in part. The Act requires that
the location of the records must appear on each ``copy'' of a depiction
of sexually explicit conduct, meaning every Web page for Internet
sites. The Department believes that its final rule allowing producers
to place records in the care of third-party custodians will obviate any
harms to performers that might otherwise occur due to disclosure of the
address where the records are kept. It also will amend the final rule
to permit the posting of a link or ``mouseover'' on each Web page to
satisfy the requirement that every page of a Web site provide the
location where the required records are stored.
Five comments say that a hyperlink text to a full statement that
can be updated as needed would fulfill the purpose of the proposed
rule. The hyperlink would appear on each page. One of these comments
notes that the Act requires that a notice appear on every page on which
a depiction appears, but that notice could still appear in a dedicated
link. It claims that although the Act required that the notice appear
on every page, the Act did not alter the manner in which the notice is
presented. One comment says that the Web site could use an
appropriately labeled link that opens to several pages of disclosure
statements or an elaborate table of disclosure statements. Producers
could use a series of links to keep individual disclosure statements
close to the galleries to which they relate. One comment believes that
one notice linked to every page of a site provides everything the
Department needs to enforce the statute by identifying the responsible
record and the place where the records are located.
Four comments claim that the requirement that a notice appear on
every page would ruin the aesthetics of the Web site. Attention of
viewers is measured in seconds, according to these comments, and
clutter will harm gaining attention. One comment thought that a
solution to the aesthetics problem would be to avoid having the
disclosure statement appear on the face of the image, so as not to
increase the size of the image files or to harm the integrity of the
image itself. If the disclosure statement appeared in a comment field
within the digital file, at a defined location, then both the producer
and the Department would know where it could be found, the comment
concluded.
The Department adopts these comments in part. Without accepting as
valid every fear that the comments raise, the Department does believe
that the language in the proposed rule, and even its comments at 72 FR
at 38035, allow it to require a less-burdensome disclosure statement
than commenters anticipated by eliminating language in the current
regulation that permitted a home page statement or hyperlink on that
page. Although the current regulations that allow such a statement to
be placed only on the home page cannot be squared with the statutory
changes, the Department does believe that the Act would permit the
required statement that appears on each page to be a hyperlink that
contained all the statutorily required record-keeping compliance
information. By adopting this change, the Department believes that it
will respond to essentially every concern that a comment raised
regarding privacy, threats, aesthetics, or computer technology.
Seven comments state that moving the disclosure statement from the
main page to every page is unnecessary and a nuisance. One comment says
that each printed page is necessary for records and books, but an
explanation is needed for applying this mandate to electronic media.
Another comment thought that the disclosure statement could be affixed
to a magazine or other printed matter in the same fashion as a
shoplifting tag, not printed on the copy
[[Page 77448]]
itself, and that only movies would actually require appearance of the
statement on the work itself. Two comments state that the existing
requirement of a disclosure statement on the homepage or principal URL
of a Web site has worked well and that there is no need for it to
appear on each and every Web page where the triggering content appears.
Two comments state that it is impossible to apply the requirement
that the disclosure statement appear on every Web page to live Web
casts. Another contends that it is unrealistic to expect a separate
disclosure statement or a separate line in a disclosure statement for
every separate work that is placed on each and every Web page. One
comment notes that for composite works, there are thousands of images
often organized into separate galleries. A Web page could have an index
page with 100 images that were produced on different dates, according
to the comment, and that more generality should be allowed in the
statement.
The Department declines to adopt these statements. Section
2257A(e)(1) requires that a statement describing where the records are
located ``shall cause to be affixed to every copy,'' and provides
specifically that ``the term `copy' includes every page of a Web site
on which matter describes in subsection (a) appears.'' The Department
must issue regulations implementing the statute, and it is prevented
from adopting those comments asking that each page not be required to
contain the disclosure notice, or stating that such notices are
unnecessary, that notices should be able to appear on a separate tag,
or that it is unrealistic to expect that each Web page will contain a
disclosure notice. And because the statutory requirement applies to
``[a]ny person to whom subsection (a) applies,'' the Department may
exempt neither primary producers, secondary producers, nor producers of
live Web casts. As noted in the proposed rule, and finalized in this
rule at Sec. 75.2(a)(1), however, producers of live Web casts may
satisfy the requirement by ``includ[ing] a copy of the depiction with
running-time sufficient to identify the performer in the depiction and
to associate the performer with the records needed to confirm his or
her age.''
One comment states that the records should require not the name and
address of the individual, but a title, since the name of the relevant
individual changes over time. The comment believes that such a change
would avoid an invasion of privacy if the person maintaining the
records is a performer. The comment believes that this is the same
privacy interest that led the Department in the proposed rule to redact
non-essential information from copies of performers' identification
cards before providing secondary producers with copies of records. The
Department believes that its allowance of the keeping of the records by
third-party custodians eliminates any possibility of invasions of
privacy of this type. The Department also accepts the comment's view
that the title of the custodian could be provided rather than the name
of a specific individual, since the responsible person could change
over time, otherwise requiring that each existing disclosure statement
be changed.
One comment expressed the view that the disclosure statement should
provide information concerning the date of photography and the name,
address, and title of a person who produced it, including its insertion
into a Web page, and state the name of the person responsible for
maintaining the records. The Department declines to adopt this comment,
because the Department does not believe it is necessary for the
disclosure statement to contain all of this information. Instead, the
Department believes that the objectives of the statute are advanced
through the rule's record-keeping requirements, which will ensure that
the necessary information is available, while at the same time reducing
the burdens on entities compared to those that would be imposed by
additional requirements concerning the disclosure statement.
One comment recommends that the existing regulations on the
appearance of the disclosure statement contained at Sec. 75.6(e)
should be changed. It contends that the typeface requirements are
inadequate because point size is an objective criterion. It would
prefer that the regulation specify how large the type should be but not
how large it is compared to other printing. It also argues that a
point-measured minimum size is irrelevant on a computer site because
the appearance of the text will depend on the settings of each monitor
displaying it.
The Department has declined to adopt this comment. Precisely
because typeface appearance can vary, the Department believes that it
is important to require that disclosure-statement typeface be a certain
size compared to other printing. Because the size of computer screens
and their settings tend to vary little among the general public, the
Department concludes that specifications governing the size of type
should be retained.
One comment asks which entity bears the obligation of providing a
disclosure statement when one Web site frames content originating from,
and wholly contained on, the servers of another producer, where the
content is selected and changed in the originator's sole and exclusive
discretion. The Department states that where a Web site operator
operates as a producer, even as a secondary producer, it must comply
with the disclosure statement requirements of the final rule. Where a
Web site operator is a distributor, it need not comply with those
requirements.
Date of Original Production
The proposed rule also would require that the date of original
production be among the records that are required to be contained in
the statement describing the location of books and records. One comment
argues that it is sensible to use the date of first production because
this is the date that matters for the production of child pornography,
to which the records relate, and which would determine when the record-
keeping obligations expire. However, this comment states that the date
of original production should not appear on the disclosure statement
because it is important only once the performers' dates of birth are
known. Since that information is not a part of the disclosure
statement, the comment states that inclusion of the production date
makes no sense. The commenter suggests requiring that the records
referred to in the disclosure statement themselves detail the relevant
production dates: The earliest date that the primary producer created
any sexual image depicted of each performer.
As noted above, the Department adopts this comment.
Location of the Statement
One comment requests that the Department describe how the rules
requiring a statement apply to simulated sexually explicit material on
digital video discs (DVDs) that are divided into different segments,
such as bonus material. The regulations at Sec. 75.8, the comment
notes, tell what should be done where end credits exist, but often such
bonus material has no end credits. The comment advocates that Sec.
75.8(e) should apply in this circumstance rather than Sec. Sec.
75.8(b) and (c). The comment also asks the Department to conclude that
the statement can appear at the end of each item of bonus material
available, or if identical for all materials, in a separate dedicated
menu option that opens the statement.
The Department adopts this comment and has clarified in the final
rule that for purpose of Sec. 75.8, a DVD containing
[[Page 77449]]
multiple depictions is a single matter for which the statement may be
located in a single place covering all depictions on the DVD. This is
analogous to a magazine containing multiple depictions, per Sec.
75.8(a), locating the statement on a single page.
Two comments state that some Web sites contain thousands of pages
of constitutionally protected visual depictions and other content. They
question whether producers would be required to display thousands of
disclosure statements, especially when so many different depictions can
appear on one site. They contend that affixing disclosure statements to
thousands of depictions would create a stigma based on an ambiguous
definition of lascivious exhibition in one picture out of thousands.
The Department does not adopt these comments. If any entity
operates a Web site that contains thousands of pages of depictions of
sexually explicit conduct, then those entities are required by law to
display thousands of disclosure statements. As noted, the Department in
this final rule is permitting those statements to appear as hyperlinks.
The number of depictions on a site is not the relevant issue, but
whether on a particular Web page there appears one or more such
depictions. If the owner of a Web site chooses to display thousands of
depictions on one Web page and one of those is a depiction of
lascivious exhibition, then that Web page must contain a disclosure
statement. The comments offer no evidence to support a view that such a
statement would create a stigma, nor does the Department believe that
``lascivious exhibition'' is defined ambiguously. Any person who
believes that only one depiction among thousands is of lascivious
exhibition can display that depiction on a Web page unto itself.
Moreover, a studio or any other entity that conforms to section 2257A's
certification safe harbor will not face the situation that these
comments hypothesize.
These comments also ask the Department to delay the compliance date
of the disclosure statement until the Department issues its regulations
effectuating the safe harbor of section 2257A, which may apply to the
entities referenced in the comments. The Department believes that
Congress intended that the safe harbor was to be available to entities
who qualified for its operation in a manner that would preclude the
need for such entities to conform to the disclosure and record-keeping
requirements. Therefore, as noted earlier, the Department adopts this
portion of the comments.
One comment specifically requests that the current language of
Sec. 75.8(d) that permits a hyperlink on the homepage of a URL be
retained. The Department declines to adopt this comment. The Act
requires a disclosure statement on each page of a Web site. As noted
above, however, the Department will allow that statement to appear as a
hyperlink that is displayed on each page that depicts sexually explicit
conduct.
One comment asks that if the Department allows a hyperlink on the
index page, that it make clear where the disclosure hyperlink should
appear since the first page may not contain any covered depiction.
Because the Department does not adopt the view that the Act permits the
appearance of a hyperlink only on an index page, it does not adopt this
comment.
Two comments ask whether the disclosure statement that the Act
requires for each page depicting actual sexually explicit conduct
applies to every page of such Web site, or only the pages that contain
actual sexually explicit conduct. The Department responds to this
comment by referencing that the plain language of section 2257A(e)(1)
of the Act provides that a disclosure statement must appear on ``every
page of a Web site on which matter described in subsection (a)
appears.''
One comment asks what the word ``matter'' means, and the Department
again references the plain language of the Act in subsection (a), which
refers to depictions of sexually explicit conduct. Another comment asks
whether a Web site is a ``matter'' subject to regulation and, if so,
whether each of its elements is an individually ``matter'' for such a
purpose. It also inquires whether a Web site as a whole is a ``matter''
or whether it is simply an amalgamation of many matters, and whether
the Department is requiring many different disclosure statements
because a Web site has many different pages.
The Department answers this comment by stating that it requires
many different disclosure statements only when a Web site displays many
different depictions of sexual explicit conduct. The Act requires that
when any page of any Web site depicts any sexually explicit conduct--
''matter'' as contained in subsection (a)--then the page must contain a
disclosure statement. Hence, it is not the Web site or its pages that
is a ``matter,'' but the depiction itself.
One comment related that neither the statute nor regulations define
a ``Web page.'' The comment says that the term could mean a screen that
appears on a computer, an HTML document on the Internet, or anything
covered by a single URL. The comment suggests that a definition is
needed to avoid vagueness and provides a list of 28 definitions of the
term.
The Department declines to adopt this comment. The use of the term
``Web page'' in the regulation predates the amendment of the statute in
the Act, and the lack of a definition of ``Web page'' was not
previously raised in the comments in the rulemaking for the 2005
version of the regulation. That is the case even though the definition
of ``URL'' was commented upon, and responded to by the Department. See
70 FR and 29610. This confirms the Department's belief that a
definition of the term is not needed for compliance with the
regulation.
The same comment contends that it would be impractical and
unnecessary to require the disclosure statement to appear on the screen
during the playing of a video clip that depicts actual sexually
explicit conduct. The Department does not accept this comment. It
refers the commenter to the terms of existing Sec. 75.8(b), which
describes where the disclosure statement must appear for a motion
picture or videotape.
Exemption Statement
One comment states that there should not be an exemption statement
under Sec. 75.7. Even in the presence of such a statement, the comment
contends that the government must still prove all the elements of an
offense. It says that many depictions are not required to contain a
disclosure statement--not just ones produced before the compliance
date, but also later depictions for which the record-keeping period has
expired. The comment also maintains that no such exemption statement is
required if a depiction is foreign-produced by producers who did not
intend at the time of production for the depiction to enter the United
States market, or by married couples who produce videotaped images of
themselves for their own personal use.
The Department declines to adopt these comments. It does not agree
that foreign-produced materials will not require disclosure statements
if they were not intended to be made available in the United States at
the time of production. Determining when the producers of the foreign
production intended to distribute the depiction in the United States
would be essentially impossible, and even if it were possible to do so,
producers would simply claim that on the date of original production,
no such intent had manifested itself. If
[[Page 77450]]
the depiction is made available in the United States, then the
disclosure statement is required, regardless of the intent at the time
of production. With respect to personal use, the Department does not
construe section 2257 and part 75 to encompass an adult couple's
recording of its intimate activity for the couple's private use in the
home.
Exemption From Statutory Requirements With Respect to Visual Depictions
of Lascivious Exhibition and of Simulated Sexually Explicit Conduct In
Certain Circumstances and Associated Certification Regime
As outlined above, Congress in the Act filled two gaps left by the
original section 2257 by amending section 2257 to cover lascivious
exhibition and by enacting section 2257A to cover simulated sexually
explicit conduct. In enacting section 2257A, Congress determined it
would be appropriate, in certain circumstances, to exempt producers of
visual depictions of lascivious exhibition (for which records must be
kept under section 2257, as amended by the Act) and producers of visual
depictions of simulated sexually explicit conduct (for which records
must be kept under section 2257A) from statutory requirements otherwise
applicable to such visual depictions. See 18 U.S.C. 2257A(h).
The safe harbor provision in the statute in essence permits certain
producers of visual depictions of lascivious exhibition or of simulated
sexually explicit conduct to certify that in the normal course of
business they collect and maintain records to confirm that performers
in those depictions are not minors, although the records may not
necessarily be collected and maintained in the format required by part
75. Where a producer makes the required certification, matter
containing such visual depictions is not subject to the labeling
requirements of the statute.
In the proposed rule, the Department crafted a certification regime
(described in detail below) that would have implemented the safe harbor
in such as way as to permit such producers, in accordance with the
statute, to be subject to lesser record-keeping burdens than those in
part 75, while still protecting children from sexual exploitation. Four
comments recommend several major changes to the certification
provision. These comments are described below.
Who May Certify
Any entity that meets the statutory requirements for eligibility,
which are incorporated verbatim in the proposed rule, may certify that
it meets the requirements of section 2257A(h). In addition, an entity
may certify for itself and all sub-entities that it owns or controls.
The names of all sub-entities covered must be listed in such
certification, however, and must be cross-referenced to the matter for
which the sub-entity served as the producer.
Both United States and foreign entities may certify. In the case of
a certification by a foreign entity, the foreign entity, which may be
unlikely to collect and maintain information in accordance with United
States federal and state tax and other laws, may certify that it
maintains the required information in accordance with their foreign
equivalents. The Department considers the statute's use of a broad
description of laws and other documentation that would satisfy the
certification to provide authority for this permission to foreign
entities.
The proposed rule would have required that the certification be
signed by the chief executive officer of the entity making the
certification, or in the event an entity does not have a chief
executive officer, the senior manager responsible for overseeing the
entity's activities.
One comment recommends that due to chief executive officers'
demanding schedules, other executive officers should be able to sign
the certification. The Department adopts this comment.
One comment urges the Department to confirm that if an entity
produces both materials that are and are not covered by the
certification regime, the entity is not disqualified from using the
certification regime for covered materials. The Department adopts this
comment.
The certification regime in the proposed rule was similar for
producers of lascivious exhibition and producers of simulated sexually
explicit conduct, but differed in some material respects, as described
below.
Time Period for Certification
The proposed rule would have required the certification to be filed
every two years. The Department could have chosen a shorter period for
certification, a longer period, or a permanent certification. The
Department believed, however, that two years is a reasonable period, as
it would ensure that certifications remained up-to-date without
imposing overly onerous burdens on regulated entities.
One comment recommends the elimination of proposed Sec. 75.9(e),
which would require certifications every two years. The comment points
out that if the requirement to list the titles of works covered by the
certification and other related information were deleted, it would not
be necessary to require producers to submit certifications every two
years. Instead, the Department could simply require re-certification if
there are material changes in the information the producer certified
under Sec. 75.9(c)(1) and (2) concerning how the producer collects and
maintains information concerning its employees who perform in its works
covered by the certification regime.
The Department adopts this comment. As explained below, as the
Department adopts various comments concerning the information to be
provided in the certification under Sec. 75.9, it is not necessary to
require producers to re-certify every two years. It is, however, still
necessary to establish certifications on the record as soon as
possible. Accordingly, the Department will require an initial
certification due 180 days after the publication of this proposed rule
as a final rule. This will provide sufficient time for entities to
determine if they wish to certify and to come into compliance with the
certification requirements. Initial certifications of producers who
begin production after the publication of this proposed rule but before
the expiration of the 180-day period following its publication as a
final rule are due on the last day of the 180-day period. Initial
certifications of producers who begin production after the expiration
of the 180-day period are due within 60 days of the start of
production. In any case where a due date or last day of a time period
falls on a Saturday, Sunday, or federal holiday, the due date or last
day of a time period is considered to be the next day that is not a
Saturday, Sunday, or federal holiday.
Enforcement of the Certification
All of the statements in the certification are subject to
investigation. The proposed rule stated that ``a false certification
will result in a violation of section 2257A and potentially other
criminal statutes.'' See 72 FR at 32266.
One comment asks the Department to clarify that a ``false
certification'' is one that is knowingly and willfully false, and to
specify the criminal statutes that may be violated by such a false
certification.
The Department adopts this comment. The federal statute
criminalizing a false certification is 18 U.S.C. 1001, which requires
that a statement be knowingly and willfully false. Depending on the
facts of a particular case, however, a person submitting a false
certification could violate other federal statutes. The Department
notes that a false certification would necessarily result in
[[Page 77451]]
a violation of sections 2257 or 2257A if a producer submitting that
false certification did not comply with the record-keeping provisions
of the relevant statute.
Form and Content of the Certification
The certification regime in the proposed rule requires that a
producer provide a letter to the Attorney General that:
(1) Sets out the statutory basis under which it and any relevant
sub-entities are permitted to avail themselves of the safe harbor;
(2) Certifies that regularly and in the normal course of business,
the producer, and any relevant sub-entities collect and maintain
individually identifiable information regarding all performers employed
by the producer who appear in visual depictions of simulated sexually
explicit conduct or of lascivious exhibition;
(3) Lists the titles, names, or other identifying information of
visual depictions (or matter containing them) that include non-employee
performers;
(4) Lists the titles, names, or other identifying information of
visual depictions (or matter containing them) produced since the last
certification;
(5) Certifies that any foreign producers of visual depictions
acquired by the certifying entity either maintain the records required
by section 2257A or have themselves provided a certification to the
Attorney General, and the producer making the certification has copies
of those records or certification; or, for visual depictions of
simulated sexually explicit conduct only, has taken reasonable steps to
confirm that the performers are not minors;
(6) Lists the titles, names, or other identifying information of
the foreign-produced visual depictions (or matter containing them) that
include performers for whom no information is available but for whom
the U.S. entity has taken reasonable steps to confirm that the
performers are not minors; and
(7) Certifies that U.S. primary producers of visual depictions
acquired by the certifying entity either maintain the records required
by section 2257A or certify themselves under the statute's safe harbor,
and that the producer making the certification has copies of those
records or certification(s). See 28 CFR 75.1(c)(1).
The Department received several comments on the certification
provisions of the proposed rule. These comments are discussed below in
turn.
One comment states that the Department should prepare a form for
the certification instead of requiring producers to submit a letter.
The Department declines to adopt this comment. As outlined below,
the Department has simplified the requirements for the certification in
response to comments received. Accordingly, the short letter that would
be required would not be significantly more burdensome on producers, if
at all, than requiring producers to fill out a form.
Statutory Basis for the Certification
The first requirement is straightforward--the entity providing the
certification must state why it is entitled to certify under the terms
of the statute. This will include citation to the specific subsections
of the statute under which it is making the certification and to basic
evidence justifying that citation. Specifically, the letter should
either: (i) Cite 18 U.S.C. 2257A(h)(1)(A) and 28 CFR Sec. 75.9 and
state that the visual depictions listed in the letter are ``intended
for commercial distribution,'' ``created as a part of a commercial
enterprise'' that meets the requirements of 18 U.S.C.
2257A(h)(1)(A)(ii), and are ``not produced, marketed or made available
* * * in circumstances such tha[t] an ordinary person would conclude
that * * * [they] contain a visual depiction that is child pornography
as defined in section 2256(8)''; or (ii) cite 18 U.S.C. 2257A(h)(1)(B)
and 28 CFR Sec. 75.9 and state that the visual depictions listed in
the letter are ``subject to regulation by the Federal Communications
Commission acting in its capacity to enforce 18 U.S.C. 1464 regarding
the broadcast of obscene, indecent or profane programming'' and are
``created as a part of a commercial enterprise'' that meets the
requirements of 18 U.S.C. 2257A(h)(1)(B)(ii).
No comments were received on this provision.
Certification of Collection and Maintenance of Records
The second requirement is the certification under either subsection
2257A(h)(1)(A)(ii) or (B)(ii). Under either subsection, the certifier
must demonstrate its compliance with five elements: that the entity (1)
``regularly and in the normal course of business collects and
maintains'' (2) ``individually identifiable information'' (3)
``regarding all performers, including minor performers employed by''
the entity (4) ``pursuant to Federal and State tax, labor, and other
laws, labor agreements, or otherwise pursuant to industry standards''
(5) ``where such information includes the name, address, and date of
birth of the performer.'' The Department will consider any entity's
procedures that include these basic elements to be in compliance with
the certification.
One comment states that the proposed rule's certification statement
is inconsistent with the statutory safe harbor provision because it
requires the producer to certify that it maintains records concerning
all performers employed by the producer who appear in depictions of
simulated sexually explicit conduct or lascivious exhibition, whereas
the statute permits a blanket certification as to all performers
employed by the producer. The comment then states that requiring the
producer to certify only as to performers who appear in visual
depictions of simulated sexually explicit conduct or lascivious
exhibition would first require the producer to determine which
depictions may contain simulated sexually explicit conduct or
lascivious exhibition, which would be difficult and time-consuming
(another comment also notes the ``troubling'' nature of requiring
producers to determine what materials depict lascivious exhibition or
simulated sexually explicit conduct ``given the vagueness of the
definitions for these terms''). Moreover, the comment states that the
proposed rule would be inconsistent with Congressional intent because
it would deny producers the ability to make the blanket certification
contemplated by the statute. The comment also states that a blanket
certification will better serve the Department's goals than a tailored
certification. The comment thus recommends that the certification
language at Sec. 75.9(c)(2) be revised to end at ``all performers
employed by [name of entity],'' deleting ``who appear in visual
depictions of simulated sexually explicit conduct or of lascivious
exhibition of the genitals or pubic area.'' The comment makes a
conforming recommendation that the definitions of ``regularly and in
the normal course of business collects and maintains'' and ``all
performers, including minor performers'' at Sec. 75.1(p) and (r),
respectively, be amended to clarify that the certification applies to
all performers a producer employs, not just those appearing in
depictions of lascivious exhibition or simulated sexually explicit
conduct.
The Department adopts this comment. Section 75.9(c)(2) in the final
rule thus has been amended to end at ``all performers employed by [name
of entity].'' Sections 75.1(p) and (r) in the final rule have also been
amended pursuant to the comment.
[[Page 77452]]
List of the Titles, Names, or Other Identifying Information of Visual
Depictions That Include Non-Employee Performers
As an extra precaution against evasion, the proposed rule's third
requirement would have been a list of all visual depictions or matter
containing visual depictions in which non-employees have engaged in
sexually explicit conduct. This would have provided the Department with
notice and a record that such visual depictions by the producers exist
and, if necessary, would have enabled the Department to investigate the
bona fides of the certifying entity. The Department believed the list
would not be so burdensome as to have defeated the purpose of the
certification regime--namely, reducing the burden of the record-keeping
requirements otherwise imposed in part 75. Rather than maintaining age-
verification records, copies of each performance, etc., the certifying
entities would have needed only to provide a list of their productions
that include depictions of lascivious exhibition or simulated sexually
explicit conduct by non-employee performers.
Four comments state that this provision, Sec. 75.9(c)(3) of the
proposed rule, is overly burdensome, not contemplated by the statute,
and should be stricken. Four comments also state that Sec. 75.9(c)(4)
and (6) should be stricken, while three comments state that Sec.
75.9(c)(5) and (7) should be stricken. Because these comments generally
apply to Sec. 75.9(c)(3) through (7) of the proposed rule, the
Department will summarize and respond to them all here rather than
repetitively throughout the preamble.
These comments make various claims, described below, in seeking the
deletion of these provisions. First, these provisions go beyond the
statutory requirements for the certification by requiring the producer
to determine whether materials depict lascivious exhibition or
simulated sexually explicit conduct. Second, these provisions are
inconsistent with the statutory requirements for the certification by
requiring the producers to make lists, whereas the statute does not
mention lists at all. Third, the list requirements would likely be
found unconstitutional because they would result in eviscerating the
statutory safe harbor: By limiting the safe harbor to producers who go
through the burdensome process of identifying which materials depict
lascivious exhibition or simulated sexually explicit conduct, the
proposed rule would impose substantial content-based restrictions on
protected speech, with the result that the government would interfere
with protected speech in the name of targeting unprotected speech.
Fourth, unlike other provisions of the relevant statutes, which
expressly permit the Department to specify the records that must be
kept and how they must be maintained, section 2257A(h) does not provide
the Department any flexibility as to what a producer must certify to be
eligible for the safe harbor. Fifth, the list provisions are
inconsistent with Congressional intent that once a producer makes the
certification required by statute, it should ``not be subject to the
more burdensome requirements of this statute.'' Sixth, much ``back
office'' work will be required to enable producers to have a reasonable
basis for the expansive certifications required. Seventh, while the
certification process as outlined in the proposed rule may be less
burdensome than full record-keeping under part 75, the difference is
only a matter of degree, as the amount of information required to
complete a certification under the proposed rule would be significant.
The Department adopts these comments in part, and will strike Sec.
75.9(c)(3), (4), (6), and (7) from the final rule. As explained below,
the Department will amend Sec. 75.9(c)(5) in the final rule rather
than striking it entirely.
List of the Titles, Names, or Other Identifying Information of Visual
Depictions Produced Since the Last Certification
The fourth requirement in the proposed rule would have provided the
Department with both a notice and a record regarding which depictions
or matters are subject to the certification. In drafting the proposed
rule, the Department considered simply allowing entities to make a
blanket assertion that they maintain the required records on all
employees who perform in all matter they produce. The Department
initially determined, however, that depiction-specific information
would enable investigators more easily to determine whether a visual
depiction is covered by the section 2257A certification regime. The
list submitted by a certifying entity would have included the titles,
names, or other identifying information of visual depictions acquired
by the certifying entity from foreign or U.S. primary producers.
As noted above, the Department is adopting comments to strike this
provision from the final rule.
Certification for Entities Acquiring Foreign-Produced Matter
The fifth requirement in the proposed rule was a subsidiary
certification for entities acquiring matter subject to the record-
keeping requirements from foreign producers. The Department understands
that many producers in the United States acquire films and other matter
that may contain visual depictions of lascivious exhibition or
simulated sexually explicit conduct from producers abroad. In order to
produce that matter for the U.S. market and comply with the law, the
U.S. entity acquiring the matter must certify either that the foreign
producer in the first instance maintained the records required by the
statute and that the U.S. entity has copies of those records, or that
the foreign entity has certified on its own that it (the foreign
producer) maintains foreign-equivalent records in the normal course of
business, and that the U.S. entity has a copy of that certification.
The Department believes it is appropriate for the exemption to apply
based on certifications that foreign producers maintain foreign-
equivalent records because foreign countries generally have tax and
employment laws requiring identification of employees that are
substantially similar to requirements under U.S. law.
There may be cases where a U.S. entity acquires foreign-produced
matter and cannot certify the information above. In such a case, the
U.S. entity would not be able to produce the matter in the United
States. Denying the market in the United States access to a large
amount of foreign-produced matter, however, could be construed as a
burden on American citizens' First Amendment rights to free expression.
At the same time, the Department cannot risk permitting either foreign
children to be exploited in the visual depictions produced for the U.S.
market or evasion of the statute by unscrupulous U.S. producers.
Therefore, U.S. entities making the certification may certify that,
to the extent that they have acquired visual depictions or matter
containing visual depictions of simulated sexually explicit conduct
from foreign entities, and, to the extent that the primary foreign
producer does not either maintain the records required by the statute
or provide a certification to the Attorney General itself, the entity
making the certification has made reasonable efforts to ensure that no
performer in any such foreign visual depiction is a minor.
[[Page 77453]]
One comment describes as vague and unreasonably burdensome the
proposed rule's certification at Sec. 75.9(c)(5) that U.S. secondary
producers take ``reasonable steps to confirm'' that performers in
foreign works are not minors. The comment states that the Department
should either impose a lesser standard, such as a good faith belief
that the foreign work does not depict minors, or specify what is meant
by ``reasonable steps.'' The comment suggests that ``reasonable steps''
could include reliance on representations and warranties from a foreign
producer. Another comment makes the same points, stating that if the
proposed rule's Sec. 75.9(c)(5) is not stricken, the section should be
amended to specify what constitutes ``reasonable steps'' and that such
steps should not impose a duty to investigate but rather should permit
reliance on a review of the work itself and/or reliance on a
representation or warranty of the foreign producer. This comment also
notes that the certification as to the age of the performers should
explicitly state that the performer was not a minor at the time the
visual depiction was produced.
The Department adopts these comments to the extent they recommend
clarification of ``reasonable steps,'' with the caveat that any review
of the materials or reliance on the representations made by a foreign
producer must itself be in good faith. The Department also adopts these
comments to the extent they recommend the certification be revised to
state the performer's age at the time the visual depiction was
originally produced. Accordingly, the corresponding section in the
final rule (designated as Sec. 75.9(c)(3) due to the deletion of the
proposed rule's Sec. 75.9(c)(3) and (4)) will explain that reasonable
steps may include, but are not limited to, a good-faith review of the
material itself or good-faith reliance on representations and
warranties from a foreign producer, and the certification will be
revised to state that the performers were not minors at the time the
visual depiction was originally produced.
One comment states that the proposed rule's Sec. 75.9(c)(5) would
require a producer to take affirmative steps where a foreign producer
either did not make a certification itself to the Attorney General or
does not collect and maintain the requisite records, which would be an
additional burden. Another comment vigorously opposes any suggestion
that foreign producers must comply with any provision of section 2256
or 2257A in order for their material to be eligible into the United
States, and acknowledged that the Department itself recognized that any
such suggestion could be construed as a burden on First Amendment
rights. A third comment also notes the Department's recognition of this
constitutional concern, stating that ``permitting a secondary producer
to make an alternative certification [the ``reasonable steps''
certification under the proposed rule's Sec. 75.9(c)(5)] for such
[foreign-produced] materials is consistent with the purpose of the Act
and constitutional principles.'' This commenter believes that the
alternative certification ``is a reasonable accommodation to ensure
that American citizens are not deprived of access to a substantial
amount of foreign material.''
The Department of course recognizes that the ``reasonable steps''
certification would require a U.S. producer to take additional steps
concerning foreign-produced material if the foreign producer neither
has made a certification to the Attorney General nor collects and
maintains foreign-equivalent records. For the reasons outlined above,
however, a certification that provided no assurance or indication
whatsoever that the performers in foreign-produced works are not minors
could lead to the possibility that U.S. producers could inadvertently
introduce foreign material depicting minors engaged in simulated
sexually explicit conduct into the United States market. The Department
believes that the alternate certification for foreign-produced material
in the final rule, which is significantly less burdensome than that
originally proposed (because it does not require the production of any
list of covered material and specifies that a U.S. producer may rely on
the representations and warranties of the foreign producer), strikes an
appropriate balance.
The proposed rule would not have permitted the same certification
process for visual depictions of lascivious exhibition acquired from
foreign entities. The Department considered that the risks of
exploitation of children in such visual depictions and the risk of
evasion of the record-keeping requirements would be too great to permit
the accommodation for visual depictions of simulated sexually explicit
conduct outlined above. The Department was further concerned that
providing a method for weaker enforcement of section 2257 with regard
to lascivious exhibition would undermine the existing section 2257
requirements. The Department did note, however, that Congress clearly
considered non-compliance with record-keeping requirements concerning
visual depictions of simulated sexually explicit conduct (under section
2257A) to be a less-serious crime than non-compliance with analogous
requirements for visual depictions of actual sexually explicit conduct
(under section 2257), as exemplified by the misdemeanor penalty for
violation of the former section versus the felony penalty for violation
of the latter section.
Three comments state that the alternative certification outlined
above concerning foreign-produced material depicting simulated sexually
explicit conduct should also be available for foreign material
depicting lascivious exhibition. One of these comments provided the
following proposed text for this certification: ``I hereby certify that
with respect to foreign primary producers who do not either collect and
maintain the records required by sections 2257 and 2257A of title 18 of
the U.S. Code, or certify to the Attorney General that they collect and
maintain individually identifiable information regarding all
performers, including minor performers, whom they employ pursuant to
tax, labor, and other laws, labor agreements, or otherwise pursuant to
industry standards, where such information includes the names,
addresses, and dates of birth of the performers, in accordance with 28
CFR part 75, [name of entity] has taken reasonable steps to confirm
that the performers in any depictions that may potentially constitute *
* * [simulated sexually explicit conduct] or * * * [lascivious
exhibition] are not minors.'' This comment further notes that ``[d]ue
to the comparably small number of foreign films at issue, the burdens
associated with making such reasonable efforts would be minimal when
compared with the burdens of reviewing all domestically-produced matter
to identify scenes containing'' simulated sexually explicit conduct or
lascivious exhibition.
One comment explained that the Department was wrong to suggest, by
providing an alternate certification for materials depicting simulated
sexually explicit conduct but not for materials depicting lascivious
exhibition, that ``posing a minor for simulated sexual conduct is
necessarily less abusive than depicting a minor in the lascivious
display of genitals or pubic area'' and that the Department should
treat both kinds of material similarly to minimize constitutional
concerns. The comment also notes that expanding the alternate
certification to cover lascivious exhibition materials will not place
foreign children at risk of being victimized through the production of
child pornography because ``the
[[Page 77454]]
importation and even the mere possession of child pornography remains
seriously criminal in all of the United States, even if all of the
children depicted are other than U.S. nationals.'' Another comment
states that it was inexplicable for the Department to permit an
alternative certification for materials depicting simulated sexually
explicit conduct but not for materials depicting lascivious exhibition.
The Department adopts these comments. Accordingly, in the final
rule Sec. 75.9(c)(3) (renumbered from the proposed rule's Sec.
75.9(c)(5)) will use the text proposed by the comment above.
List of All Foreign-Acquired Matter for Which Records of Performers Are
Not Available
The sixth requirement in the proposed rule would have required that
the entity making the certification include a list of the visual
depictions or matter, including those visual depictions for which no
records exist but for which the certifying entity had made reasonable
efforts to ensure that no performer in any visual depiction is a minor.
As with the case of non-employee performers, this list would have
provided the Department with notice and a record that such visual
depictions existed and, if necessary, would have enabled investigation
of such matter. At the same time, the requirement of the list and a
certification of reasonable efforts by the secondary producer in the
United States would have provided as much protection as possible
without unduly infringing on constitutional rights. The Department
considered that the risk of evasion would have been mitigated by the
severe criminal penalties for production of child pornography that
would apply to any matter covered by the record-keeping requirements.
As noted above, the Department is adopting comments to strike this
provision from the final rule.
Certification of Record-Keeping by Primary Producers
The seventh requirement in the proposed rule would have been that,
as with foreign primary producers, an entity acquiring visual
depictions must certify either that the primary producer in the first
instance maintained the records required by the statute and that the
certifying entity has copies of those records, or that the primary
producer has certified on its own that it (the primary producer) has
made a certification and that the entity has a copy of that
certification.
As noted above, the Department is adopting comments to strike this
provision from the final rule. A key consideration in the Department's
determination to adopt these comments is that this provision
necessarily would have only applied to material produced in the United
States. As the U.S. primary producers of that material would either be
required to comply with the record-keeping provisions of sections 2257
or 2257A or to have themselves provided with the certification to the
Attorney General required by Sec. 75.9, it appears that the Act's
goals would be met without requiring the secondary producers to provide
another certification.
Application to Secondary Producers
The Department has received many comments on the application of the
proposed rule to secondary producers. Two comments note that the
proposed rule applies to secondary producers as of July 3, 1995, except
that no penalties would be imposed against secondary producers who
failed to maintain records for acts of production that occurred prior
to the 2006 effective date of the Adam Walsh Act. The comments argue
that this would allow criminal prosecutions of secondary producers to
be based on materials that were not covered at the time of their
creation. The Department believes that application of its regulations
to secondary producers has reflected the statutory language since 1995
and that the Act reinforces this applicability. Nonetheless, the
Department, recognizing that some secondary producers might not have
believed that they were required to adhere to the requirements of part
75, agreed in the proposed rule to apply the penalties against
secondary producers only for depictions with dates of production after
the 2006 effective date of the Act. However, the statutory language is
clear that secondary producers are subject to the Act, and, therefore,
it is not the case that any prosecution of any secondary producer for
failure to adhere to part 75 for depictions originally produced prior
to the Act's 2006 effective date would subject anyone to criminal
sanctions based on materials that were not covered at the time of their
creation.
One comment states that the regulations should not apply to a
secondary producer who obtained the materials before the compliance
date without reproduction rights. According to the commenter, the
republication rights would be worthless since it is impossible to go
back to the primary producer to obtain those records, particularly if
the contract at the time did not permit providing the records.
The Department does not adopt this comment. As stated above, once
the Adam Walsh Act took effect, all secondary producers were clearly on
notice that part 75 applied to all depictions that were originally
produced after the compliance date. However difficult obtaining the
necessary records may now be, the secondary producer could have done so
at the time in accordance with its statutory obligation. Failure to
have done so will not excuse noncompliance. However, as elaborated more
fully below, the Department in response to comments has changed the
compliance date of the final rule for entities who can claim the
exemption from part 75 obligations that is contained in section 2257A.
Thus, although secondary producers who are governed by part 75 must
comply with its provisions with respect to depictions of actual
sexually explicit conduct originally produced after the Act's
compliance date, secondary producers who can claim the exemption in
section 2257A will not need to comply with part 75 in the interim.
Two comments argue that secondary producers will not be able to
comply with the terms of the proposed rule because primary producers
have not made information available to secondary producers in all cases
due to privacy concerns. Two other comments remark that even if the
primary producer provides the records to the secondary producer,
requiring the secondary producer to keep the records harms the
performers' privacy.
The Department does not adopt these comments. The Act applies to
secondary producers, and, therefore, the final rule does so as well.
Moreover, privacy concerns may not always be the reason why a primary
producer chooses not to provide such identification records. The
possibility exists that the primary producer declines to provide the
records because the models are not of legal age. Congress applied
section 2257 to secondary producers, and reaffirmed that applicability
in the Act, so that child pornography would not be able to gain a
market among secondary producers. Eliminating that market is critical
to the suppression of child pornography. Given the Department's
willingness to allow redaction of personal information to the extent
possible to protect privacy while at the same time confirming legal
age, it believes that there will be no unwarranted invasion of the
performers' privacy as a result of the proposed rule.
Four comments objected to applicability of the proposed rule to
secondary producers on the ground that
[[Page 77455]]
secondary producers rarely come into contact with performers. These
commenters claim that it is impossible for secondary producers to
inspect the original identification of the performers, and that
secondary producers cannot comply with this requirement.
The Department declines to adopt these comments. As stated,
Congress intended to prevent secondary producers from creating a
commercial market for child pornography by relying on their lack of
knowledge of the age of performers used by primary producers. The
Department believes that it is inaccurate to state that secondary
producers cannot comply with the proposed rule. No aspect of the rule
is such that secondary producers will find it ``impossible'' in any
sense to comply with them. Moreover, the legal duty that the final rule
imposes on secondary producers relates to record-keeping only. The
comments' claim that the secondary producer must inspect the original
identification documents of the performers is incorrect, although
secondary producers should take steps to ensure that they do not
violate criminal prohibitions relating to child pornography.
Another comment states that secondary producers cannot know whether
the information that the primary producers possess is accurate. It
notes that a secondary producer can be non-compliant despite taking all
possible compliance measures. The Department agrees that both primary
and secondary producers who keep the required records may lack full
certainty that the information that they have is accurate. However, the
rule does not require that producers be completely certain of accuracy.
Primary producers must check documents and keep records based on those
documents, with the entitlement to see driver's license or passport
numbers to ensure that the identification validly identifies that the
named performer is of legal age. A secondary producer is not required
to examine documents, and if it chooses to do so, will not face
liability simply because the documents are not accurate.
Two comments contend that the proposed rule should not extend to
secondary producers because concerns relating to those entities'
document availability can be addressed by referencing the name and
address of the primary producer's records custodian, without requiring
a duplicate and separate set of regulatory documents by the secondary
producer. A third comment makes a similar point, noting that such a
reference is permitted under the current Sec. 75.2(b) of the
regulations. The comment asks that only primary producers--not
secondary producers--be required to personally discharge the record-
keeping requirements.
The Department does not adopt these comments. Under the suggested
approach, the secondary producer will not have demonstrated that he has
actually received copies of the records from the primary producer. If
secondary producers were exempted from an obligation to keep records,
then the Department could never determine the identity of the primary
producer. Failing to have the rule apply to secondary producers would
also thwart the language of the Act that makes section 2257 applicable
to secondary producers, increasing the chances that a commercial market
would exist for child pornography and thus for child exploitation.
One related comment notes that under the proposed rule and section
2257(f)(4), each republisher must include the producer's disclosure
statement on every republished copy. According to the comment, an
investigator would therefore know where to find the primary producer,
and it would be easier for an investigator to locate the primary
producer rather than to inspect the secondary producer's records. Two
other comments state that secondary producers should not be inspected
because they use content provided by primary producers; they argue that
inspection of primary producers' records would be easier than
inspecting thousands of secondary producer sites.
The Department declines to adopt these comments. The Act imposed a
requirement for secondary producers to maintain records that governs
the Department's final regulation.
One comment posits that when original footage is created by a
foreign primary producer, but an American secondary producer seeks to
use the footage in news or a documentary, the foreign producer is
beyond the reach of section 2257 and may not have any documents. The
secondary producer in this circumstance will be unable to obtain the
necessary records, and will have to forgo the footage or risk criminal
penalties. According to the comment, this would result in a ban on
certain programming, raising major First Amendment concerns.
The Department does not adopt this comment. In such a circumstance,
the U.S. producer would be able to rely on the certification.
General Comments
Numerous comments address the proposed rules in general ways that
do not require individual responses. For example, many comments argue
that the rule is an unconstitutional burden on free speech, a violation
of the Equal Protection Clause of the Constitution, a violation of the
Fourth Amendment, or a violation of privacy rights. Other comments
argue that the rule legislates morality, targets a legal industry for
harassment, impedes citizen access to the Internet, or establishes
government surveillance of citizens' Internet activities. Some comments
recommend that rather than the government publishing this rule, the
government should encourage better parenting, enforce laws prohibiting
and punishing child pornography more vigorously, or establish an
alternative age verification program, such as a database of all
performers. A number of comments claim that the rule unfairly burdens
small businesses run by women. Some comments misunderstand the scope of
the rule to apply to consumers of pornography and therefore suggest
that consumers be subject to age verifications procedures. Three
comments raised the possibility that producers might experience stress
over the fear that they might go to jail for inadvertently misfiling or
misplacing records, another commenter is concerned that a person could
face liability for inadvertently posting a depiction of sexually
explicit conduct, and other commenters fear that producers are liable
to suit for disclosing information about performers or that a Web site
operator could be liable to suit for disclosing information about those
who post depictions on their Web sites. Other commenters request
exemptions for certain types of media or Web site operations that are
not provided for in the statute. One comment recommends ending all
record-keeping requirements prior to this rule and starting anew.
The Department notes that these comments essentially took issue
with the underlying statute and its requirements. The Department
responds with three points. First, many of the comments either
misunderstand or overstate the effect of the regulation. Second, courts
have upheld existing section 2257 and its implementing regulation as a
valid exercise of power by Congress and the Executive Branch, and the
Department believes that the Adam Walsh Act and the final regulations
are as well. Third, the Department is under a statutory obligation to
publish the rule and cannot ignore its duty or change the statutory
requirements through its rulemaking. To the extent these comments raise
issues relating to the regulations themselves, the Department
[[Page 77456]]
also relies on the discussion in other parts of the supplementary
information in support of the rule.
Finally, the Department responds to three other comments regarding
the regulation's applicability to non-commercial activities. One
comment states that the definition of ``sell, distribute, redistribute,
and re-release,'' in Sec. 75.1(d) suggests that the entire record-
keeping obligation of producers is limited to commercial production
operations. One comment stated that age-verification requirements
should apply only to producers who pay performers, not individuals who
post photos of themselves, and another comment maintains that an
exemption statement should not be required if a depiction is produced
by married couples who produce videotaped images of themselves for
their own personal use.
The Department adopts these comments in part and rejects them in
part. The statute is not clearly limited to producers who pay
performers. However, it is limited to pornography intended for sale or
trade. Section 2257 speaks in terms of participants in the professional
pornography industry: The persons exhibited are ``sexual performers''
who must provide their ``alias, nickname, stage, or professional
name,'' 18 U.S.C. 2257(b)(2), and the producer's relationship with the
``performer'' is described as ``hiring, contracting for, managing and
otherwise arranging for the depiction of'' the individual to be shown
in the images, id. 2257(h)(2)(B)(iii). Similarly, records must be kept
for ``every performer portrayed'' (suggesting multiple ``performers'');
a disclosure statement is to be affixed to ``every copy'' of covered
sexually explicit material (suggesting multiple copies); and producers
working with images already in existence by definition produce
materials ``intended for commercial distribution.'' Id. 2257(a),
(e)(1), (h)(2)(A)(ii). Further, age records must be maintained at the
producer's ``business premises'' and made available for administrative
inspection. Id. 2257(c). Likewise, under the implementing regulations,
age records must be cross-indexed by performer and by title of the
explicit work, 28 CFR 75.2, and maintained ``at the producer's place of
business,'' id. Sec. 75.4. Finally, records inspections may be carried
out at ``any establishment of a producer,'' and ``during the producer's
normal business hours.'' Id. Sec. 75.5. The legislative history of
section 2257 further underscores Congress's intent to regulate images
produced by the pornography industry: The age-verification system was
proposed by the 1986 Pornography Commission, which described the
recommended legislation as reaching anyone ``engaged in the sale or
trade of sexually explicit material'' so that minors could be protected
``through every level of the pornography industry.'' Atty Gen. Comm'n
on Pornography, Final Report at 619 (1986).
Regulatory Procedures
Regulatory Flexibility Act--Final Regulatory Flexibility Analysis
The Department of Justice drafted this rule in a way to minimize
its impact on small businesses in accordance with the Regulatory
Flexibility Act, 5 U.S.C. 601-612, while meeting its intended
objectives. Because the Department, based on the preliminary
information available to it through past investigations and enforcement
actions involving the affected industry, was unable to state with
certainty that the proposed rule, if promulgated as a final rule, would
not have any effect on small businesses of the type described in 5
U.S.C. 601(3), the Department prepared preliminary Regulatory
Flexibility Analyses in accordance with 5 U.S.C. 604. Based on this
same information, the Department concluded that there were likely to be
a number of small businesses that are producers of sexually explicit
conduct as defined in the statute, as amended by the Act. In the
proposed rules, the Department specifically requested information from
affected entities. This information was requested, in part, to assist
us in determining the nature and extent of the impact the final rule
will have on affected entities. Although the Department received some
comments, the information we received was not sufficiently detailed to
allow us to state with certainty that this rule, if promulgated, will
not have the effect on small businesses of the type described in 5
U.S.C. 605. Accordingly, the Department has prepared the following
final Regulatory Flexibility Act analysis in accordance with 5 U.S.C.
603.
A. Need for and Objectives of the Rules
As described in detail in the ``Background'' section above, the
objectives of the rules were to reduce the chances that minors are
depicted in actual or simulated sexually explicit conduct by requiring
that producers ensure that all performers are in fact of legal age, so
as to reduce harm to children at the time of production and in
subsequent years.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
The Department received 35 comments on its preliminary Regulatory
Flexibility Analysis with regard to the proposed rule implementing
revised section 2257. No commenters on the proposed rule to implement
section 2257A commented specifically on that proposed rule's Regulatory
Flexibility Analysis; comments as to the cost of that proposed rule are
addressed below in the sections on the Small Business Regulatory
Enforcement Fairness Act of 1996 and Paperwork Reduction Act.
Many of these provided general comments about expenses that small
businesses would incur without comparing such costs to their total
revenues. One comment states that individual women who put depictions
of lascivious exhibition on the Web make between $15,000 and $50,000
and do not have the money to buy office space. Three comments noted
that producers who work from home will have to rent office space if
they want to keep their home address private, or they will be required
to pay for day care. One comment states that the proposed rule would
create significant bureaucratic challenges to content producers by
implementing a requirement to provide production-date information in
more locations.
The significant issues raised by the public comments in response to
the initial regulatory flexibility analysis are as follows: One comment
estimated that costs of compliance for an ``adult business'' would be
$250,000, about 25% of the business' net revenues.
For example, one comment remarked that his business would need to
hire three full-time staff to manage and collect information concerning
205,000 profile holders on a personal posting Web site and compile the
required age documents. The comment estimated that the cost of the
three base salaries would be $150,000 per year, which exceeded the
business' current revenue, and that his home (office space) lacked room
for three additional staff. The comment also notes that it could not
pass these costs on because the business did not charge a membership
fee, and that making copies of records on 205,000 users would mean that
it would have to purchase 136 three-drawer filing cabinets. It contends
that the space required for this many cabinets would mean that it would
have to rent external storage units for $67,200 per year, that the cost
of the filing cabinets would be $68,000, and that the total compliance
cost for the business would be $345,800.
[[Page 77457]]
Three comments made similar comments concerning types of expenses
without specifying amounts.
Six comments claim that compliance costs for collecting records,
documentation, updating, cross-referencing, and legal services would be
high. One comment states that small businesses would incur excessive
legal costs because of the ``draconian sanctions'' for failure to
comply with the substantive or procedural requirements of the statute
and regulations. One comment claims that the costs of compliance would
present a large obstacle to expanding a business. Three comments state
generally that the proposed rule would harm small business. Two
comments point out that small businesses would need to separate these
records from others, which would be costly, and that they would incur
vastly increased storage costs due to the necessity of maintaining
records for every photograph of every performer. Two comments contend
that the proposed rule would place an unreasonable burden on many law-
abiding businesses. One comment claims that the vast majority of Web
sites are small entities, and that listing their owner's street (often
home) address and individual name is a substantial burden and creates a
chilling effect on constitutionally protected expression. One comment
states that secondary producers are often small businesses that could
not afford the time or expense to obtain and maintain copies of records
that are best created and maintained by the primary producer that does
see the original documents. Two commenters represented that some
secondary producers will go out of business due to the proposed rule's
requirements. One comment states that it would lose revenue from
international profile holders because he will not be able to obtain
required United States documents from foreigners who post self-nudes on
the commenter's profile Web site. Two commenters from small businesses
claimed that they could never generate the money necessary to pay for
the increased expenses associated with the proposed rule.
One comment states that the Department would greatly reduce
compliance costs if section 2257 producers could take advantage of the
2257A process under 2257A(h)(1)(A)(ii). The comment states that this
would eliminate the need to produce and maintain segregated records.
Doing so, the comment states, would give these producers the same
compliance option as producers who are identical in every permissible
relevant respect. One comment argues that the Department is required
under 5 U.S.C. 605(b) to conduct analyses to ensure that the regulation
will not have a ``significant impact on a number of small entities.''
The comment states that analyses are required unless the agency can
make a ``no significant impact'' certification. One comment argues that
the Department failed to conduct or write a proper initial regulatory
flexibility analysis.
These comments are not all specifically addressed to the proposed
rule's initial regulatory flexibility analysis, but the content of the
comments raise issues that are in substance addressed to the analysis,
and are therefore discussed in the final regulatory flexibility
analysis. The Department offers the following as a summary of its
assessment of the issues that were raised.
The Department believes that there is merit in those comments that
raised cost impact and logistical concerns relating to individuals who
produce actual sexually explicit depictions on Web sites at their
homes. The Department has made changes to the proposed rule as a result
of these comments. The Department believes that the final rule relieves
three restrictions that will largely respond to the generalized
comments that the Department received concerning the cost impact of the
proposed rule on small businesses. First, the final rule does not
require the keeping of hard copies, only that such copies be produced
on the demand of inspectors. This relief of a restriction will reduce
costs of storage, personnel, and related expenses that were noted in
the comments. The combined effect of these reliefs of restrictions will
greatly reduce the impact of the rule on law-abiding businesses, on
expanding businesses, and on the profitability of businesses. Second,
the final rule, in a change from the proposed rule, allows hyperlinks
to appear on each Web page, rather than require that the full
disclosure statement appear on each such Web page. This relief of a
restriction will reduce the cost of providing information concerning
the original production date in more locations, as one comment raised.
Third, the final rule permits the producer not to retain records
onsite. Rather, the required records can be retained by third-party
custodians. This change, although imposing a cost of custodian services
by those entities that choose to take advantage of it, will greatly
reduce compliance costs in the categories of storage, rental space, and
record-keeping including segregation of records, legal, and staff
salaries. Additionally, this change will relieve other burdens on small
businesses enunciated by the comments, such as release of home address
information. Finally, small businesses that can fall within the safe
harbors contained in section 2257A will be relieved of record-keeping
and disclosure-statement requirements altogether as outlined above.
In addition to the reduction in burden on small businesses
associated with substantive changes to the proposed rule, the
Department notes the importance of the change in the compliance date of
the final rule in alleviating burdens on small businesses. Originally,
the record-keeping obligations that the rule imposes on small
businesses were to relate to all works produced after the effective
date of the statute in 2006. But the Department has changed the final
rule's compliance date to the compliance date of the final rules that
will be issued to implement section 2257A. The Department believes that
the two statutes are interrelated because section 2257A contemplates
that some entities, including some small businesses, are to be able to
comply with its terms, and that by doing so, they would not have to
comply with the regulations issued under the Act. Because the final
rule's record-keeping requirements will never apply even for a single
day to small businesses that comply with the section 2257A
certification process, the record-keeping cost burden on such small
businesses is completely eliminated. Moreover, even those small
businesses that will eventually need to comply with the final rule
because their conduct does not permit them to use the section 2257A
certification exemption will not have to expend resources complying
with the final rule for the years that have lapsed since the proposed
rule's compliance date.
Two of the commenters were Internet sites on which users can post
profiles who claim that the rule would adversely affect their business
operations. The Department does not believe that these comments
reflected the effect of either the proposed rule or the final rule on
their businesses. A profile site is not normally a producer. The
individuals who post depictions of lascivious exhibition on those sites
are producers. It is the latter, not the former, assuming that the Web
site does not act as a producer, who are required to comply with the
record-keeping and disclosure statements. Furthermore, this final rule
does not impose as large an impact on small business as some commenters
understood from the proposed rule.
[[Page 77458]]
The Department responds to the comment that recommends that small
businesses receive the opportunity to comply with the statutory safe
harbor by stating that the exemption referred to in the comment is
available to any producer who can meet its conditions. The Department's
ability to apply an exemption is limited by the statutory language.
However, the Department has recognized the exception that is created in
section 2257A(h)(1)(A)(ii), and in its final rule, the Department has
stated that it will ensure that the applicability of that safe harbor
will operate despite the fact that no regulation implementing it has
been promulgated. As stated above, the Department has set the
compliance date for the final rule so as to allow entities who are
compliant with section 2257A(h)(1)(A)(ii) not to comply with the final
rule or incur the costs of doing so, even as an interim measure.
Moreover, the Department notes that applicability of the exemption does
not turn on whether the entity seeking to comply with the safe harbor
is a large or small business. The exemption turns on the conduct of the
entity that seeks to utilize it, not the status of the entity itself.
With respect to the procedural requirements for a regulatory
flexibility analysis, the Department believes that this final
regulatory flexibility analysis fully satisfies 5 U.S.C. 604.
As in its initial regulatory flexibility analysis, the Department
continues to believe that approximately 500,000 Web sites involving
5,000 businesses that depict actual sexually explicit conduct are
affected by the rule. As a result of being subject to the final rule,
these businesses will be required to check identification documents,
record information about production dates and age and names of
performers, and affix disclosure statements to each copy of a page that
depicts actual sexually explicit conduct. These businesses are in the
film, magazine, Internet, satellite, mail order, magazine, content
aggregation, and wholesaler industries. Although one commenter claims
that there are more affected businesses based on considerable exposure
to the industry, the comment provides no specific basis for that
belief, nor did it offer any competing number or evidence for such a
number. One other commenter notes that there are about 1,000 firms that
operate more than 100,000 adult subscription Web sites. This statement
does not affect the validity of the Department's estimates of the
number of Web sites and firms that the rule would affect. The
Department's estimate did not estimate the number of subscription sites
or the number of firms that operate them. The commenter's estimate of a
portion of the relevant site universe is fully consistent with the
Department's estimate of the entire number of affected Web sites. No
other commenters specifically took issue with the Department's
estimate, which it continues to adhere to.
The final rule requires small businesses and other entities that
produce actual sexually explicit materials to undertake record-keeping
and other compliance requirements. They must check particular forms of
identification to determine that all performers portrayed in such
depictions are of legal age, they must keep records, they must
segregate the records, and they must place disclosure statements on
each page of a Web site that contains actual sexually explicit conduct.
The professional skills required to comply are those necessary to
produce the records and to place the disclosure statement on a
hyperlink on each page of a Web site.
C. Description and Estimates of the Number of Small Entities Affected
by the Rules
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). As in its initial regulatory flexibility
analysis, the Department continues to believe that approximately
500,000 Web sites involving 5,000 businesses that depict actual
sexually explicit conduct are affected by the rule. The Department
believes that of these 5,000 businesses, 4,000 are small businesses. It
reaches this conclusion from comments that stated that the vast
majority of businesses affected by the final rule are small businesses.
In the proposed rule to implement revisions to section 2257, the
Department stated that, based upon the information provided to the
Department through past investigations and enforcement actions
involving the affected industry, there are likely to be a number of
small businesses that are producers of visual depictions of sexually
explicit conduct as defined in the statute, as amended by the Adam
Walsh Act. In the proposed rule to implement section 2257A, the
Department stated that based upon the information available to the
Department, there are likely to be a significant number of small
businesses that are producers of visual depictions of simulated
sexually explicit conduct.
Pursuant to the RFA, the Department requested affected small
businesses to estimate what these regulations will cost as a percentage
of their total revenues in order to enable the Department to ensure
that small businesses are not unduly burdened.
The Department also stated that the proposed rules had no effect on
State or local governmental agencies.
D. Description of the Proposed Reporting, Record-Keeping and Other
Compliance Requirements of the Rule
In the proposed rule to implement revisions to section 2257, the
Department stated that the proposed rule modified existing requirements
for private companies with regard to visual depictions of sexually
explicit conduct to ensure that minors are not used in such depictions.
One of these requirements that would specifically affect private
companies is Congress's expansion of the coverage of the definition of
``sexually explicit conduct'' to cover lascivious exhibition of the
genitals.
In the proposed rule to implement section 2257A, the Department
stated that the proposed rule imposed requirements on private companies
with respect to visual depictions of simulated sexually explicit
conduct to ensure that minors are not used in such depictions.
Specifically, the Department noted, the rule imposed certain name- and
age-verification and record-keeping requirements on producers of visual
depictions of simulated sexually explicit conduct concerning the
performers portrayed in those depictions. The Department also noted
that the proposed rule, however, provided an exemption from these
requirements applicable in certain circumstances.
The costs of the rule to small entities are less than the
Department originally anticipated. Thus, the conclusions of the cost
estimate that was submitted to the Department by Georgetown Economic
Services reflect assumptions that no longer apply. For instance, that
report estimated average small business monthly compliance costs of
$5,000, plus up-front conversion costs and time to ensure initial
compliance. The report contends that most small businesses in the
pornography industry generate insufficient revenue to cover this level
of regulatory cost imposition. However, because the Department has
listened to the comments that it has received, and
[[Page 77459]]
believes that its objectives can be accomplished while at the same time
implementing regulatory changes resulting in imposing a lighter burden
on regulated industry, it does not believe that the report's
conclusion, if it ever was correct, applies to the final rule.
For instance, the report assumes in its high cost estimate figures
related to formatting section 2257 records and leasing storage space.
However, the final rule changed the requirements that imposed these
costs so as to dramatically reduce them. For instance, far less storage
space is needed now that the final rule, in response to comments, has
eliminated the hard-copy requirement. It was the proposed rule's hard-
copy requirement that had generated the need for significant storage
space. Similarly, the cost of legal fees will be significantly less
than anticipated. The report estimated that the proposed rule would
require affected businesses to hire at least one full-time employee to
maintain the database at a cost of $20 per hour. Since the final rule,
responding to various comments concerning the need to hire employees
and the difficulties that this requirement posed for part-time
operators and for operations that were run out of the home, has
permitted records to be stored in offsite, third-party locations,
businesses will not need to incur the cost of hiring full-time
individuals to maintain only their own records. And it bears repeating
that the cost estimate's figures for online dating sites misapprehend
the nature of both the proposed and final rules. The operator of such a
site incurs no obligations under either rule if it simply operates as a
location where users post lascivious exhibitions; it is the individual
producer who posts such material on the Web site who must comply with
the regulatory provisions.
E. Description of the Steps Agency Has Taken To Minimize the
Significant Adverse Economic Impact on Small Entities
The Department took numerous steps to minimize the economic impact
on small entities consistent with the objectives of the Act. As noted
above, precisely to minimize the concerns of commenters that
significant compliance costs would be incurred by small businesses if
the proposed rule were promulgated without change as a final rule, the
Department adopted three significant substantive changes to that
proposed rule: (1) Elimination of a ``hard copy'' requirement for
record-keeping; (2) allowing third parties to be custodians of the
records; and (3) allowing the disclosure statement to appear as a
hyperlink, rather than in full, on each page. The Department also
changed the compliance date. These changes will reduce staffing
requirements, the need to rent or purchase filing cabinets, the cost of
modifying existing images, and other small business compliance costs
that commenters have raised. Although some of the general comments that
the Department received were rejected based on policy concerns, few of
the comments submitted on the economic impact of the rule on small
business were rejected for policy reasons. Such comments were either
adopted to reduce the restrictions on small businesses where the Act
permitted or, in almost all circumstances, were rejected because the
Act did not legally permit the Department to adopt them.
Section 2257(a) requires that whoever produces matter that contains
actual sexually explicit conduct ``create and maintain individually
identifiable records pertaining to every performer portrayed in such a
visual depiction.'' This requirement prevents the Department from
modifying the proposed rule to exempt secondary producers or small
businesses as a class. Moreover, each person with this obligation must
ascertain by examining identification documents the name and date of
birth of each performer who is visually depicted in sexually explicit
conduct. And each must also ascertain other names of the performer.
Subsection (c) requires that the records be maintained under the terms
of regulations promulgated by the Attorney General and that they be
made available at all reasonable times for inspection. These provisions
impose burdens on small and other businesses that are not reducible to
insignificance. Similarly, subsection (e) requires that all covered
entities affix to every copy of sexually explicit material a statement
indicating where the mandated records are kept. Those records are to
conform to standards issued by the Attorney General. And section
2257A(h) contains a specific safe harbor certification process that
allows some entities to avoid compliance with these requirements.
The Department, however, may not expand the category of entities
that fall within that subsection's parameters beyond those who meet the
statutory conditions. Nor may the Department exempt secondary producers
from record-keeping and other compliance requirements that the Act
mandates. Therefore, the Department accepted alternatives to the
proposed rule that effectuated the statutory objectives while reducing
the compliance burdens of small businesses, but rejected those
alternatives that were inconsistent with the statute and its purposes.
One proposed reduction in compliance costs for small businesses
that was rejected on policy grounds was the request to end the
segregation-of-records requirement for section 2257 records. Because
the Attorney General must inspect these records, the Department
believes that a lesser imposition will occur on those subject to
inspection if the requisite records are kept separately. The Attorney
General will not then need to review all of a producer's records in
search of section 2257 records, nor will the small business need to
disrupt its business for the length of time for all of its records to
be inspected. Therefore, the Department believes that its position on
this point will not impose substantial cost on small business. Further,
it believes that it has drafted the final rule to take into account the
legitimate cost concerns of small businesses to the proposed rule
wherever possible. The Department is unaware of any other federal rules
that may duplicate or conflict with the proposed rule, and no commenter
has brought any such rule to its attention.
Executive Order 12866
This final rule has been drafted and reviewed in accordance with
section 1(b) of Executive Order 12866 (Principles of Regulation). The
Department has determined that this rule is a ``significant regulatory
action'' under section 3(f) of Executive Order 12866. Accordingly this
rule has been reviewed by the Office of Management and Budget.
The benefit of the rule is that children will be better protected
from exploitation in the production of visual depiction of sexually
explicit conduct by ensuring that only those who are at least 18 years
of age perform in such depictions. The costs to the industry include
slightly higher record-keeping costs.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Executive Order
13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
[[Page 77460]]
Executive Order 12988
This rule meets the applicable standards set forth in sections 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
Proposed Rule on Revisions to Section 2257
At the time of the proposed rule the Department stated that the
proposed rule was not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, codified at
5 U.S.C. 804. 72 FR at 38037. The Department determined that the
proposed rule would 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.
One comment disputes the Department's view that the proposed rule
would not cost the economy more than $100,000,000. According to this
comment, software support and legal advice costs ``will be substantial
and probably incalculable.'' It claims that secondary producers will
need to employ a records custodian at least 20 hour per week and that
doing so for the 5,000 businesses that the Department estimates will be
affected would cost $30,000 each, for a total cost of more than
$100,000,000. One comment cited a poll of businesses asking them what
they expected the cost of compliance with the proposed rule would be
and determined an average cost of more than $210,000 per business. The
comment asks that the proposed rule be reviewed and promulgated in
accordance with requirements pertaining to rules that impose a greater
than $100,000,000 impact on the economy. The Department received a
comment containing a long technical cost estimate that had been
prepared by an entity other than the commenter that posited that
compliance costs associated with the proposed rule would be
significant.
The Department does not adopt these comments. First, as outlining
the substance of the comments in the notice demonstrates, not all
commenters have accurately understood the proposed rule. In each
instance, those commenters overstate the burden of the proposed rule
upon them. That overstatement would necessarily cause such entities who
participated in a poll to overestimate the compliance costs they would
incur as a result of the rule. Second, the comments on the proposed
rule by affected entities were entirely unfavorable. These entities
would have every reason to overstate their compliance costs, and there
is reason to believe that this has occurred. The Department questions
the salary estimates that were offered for hiring staff to keep
records, for instance. Similarly, one commenter states that compliance
costs per small business would amount to $30,000 and another that the
cost would be more than $200,000. This chasm in the estimates raises
serious questions concerning the accuracy of the estimates and the
methodology that produced them.
Moreover, whatever validity these estimates may have had with
respect to the proposed rule, the decreased compliance costs due to
removing restrictions as contained in the final rule reduces the
accuracy of the submitted estimates significantly. Although a business
that produces depictions of lascivious exhibition will be required to
keep records, because such a business could use a third-party custodian
that would benefit from economies of scale, because hard copies would
not have to be kept, and because the disclosure statement requirements
have been significantly eased, such a business would avoid significant
amounts of compliance costs for such categories as legal, storage, and
staffing costs. There is no reason to believe that the final rule would
impose $100,000,000 in costs on the economy. Many of the entities
covered by this final rule already produce actual sexually explicit
conduct as defined under the narrower existing rule, which imposes
greater costs on such entities than those associated with this final
rule; hence, they will face only negligible additional costs.
Because the cost estimates are based on assumptions regarding the
proposed rule that were changed for the final rule, its conclusions
that ``most web-based businesses will exit from the industry'' and that
other types of businesses ``will either shut down or move their
businesses to another country'' are not valid. The Department has
adopted the legitimate concerns of legitimate pornographic small
businesses, and has changed the final rule in ways that significantly
reduce the costs of the regulations on operations, and that will result
in few if any business failures on the part of entities that wish to
comply with the laws against producing child pornography.
In addition, the Department believes that the best estimate of cost
of compliance per affected small business is in actuality far less than
what commenters have submitted. The Department is aware of the
existence of businesses that provide section 2257 services to regulated
entities to ensure satisfaction of the requirements of the 2005 final
rule, and it therefore fully expects that such entrepreneurial activity
will also provide compliance services with respect to this final rule.
Various Web sites provide model releases, software, technical support,
installation, assistance with data, and additional hardware such as
scanners. For example, one service provides tracking of content,
performers, identification, and other section 2257 compliance
information for a cost of $8,000 to the producer. Another Web site
offers similar services with respect to performer data collection,
creation of digitized images, indexing, cross-referencing, record-
creation, offsite maintenance of records, release documents, reports,
correction of record discrepancies, generation of documents for vendors
and distributors, storage of scanned releases and compliance
statements, and storage of names and aliases, for an initial cost of
$1,500 plus $60 per month for online record access and stored performer
records.
The Department also expects that since the final rule allows third
parties to hold records of small businesses, even apart from the
services now being offered, some of which include offsite record
maintenance, a third-party custodian industry will exist to support
regulated small businesses at reasonable costs, should a small business
wish to outsource only those elements of its compliance costs with the
final rule.
One comment states that many of the entities regulated by the final
rule would be considered small businesses, in that their revenue would
be less than $27,000,000, or if secondary producers, $23,000,000, or
$13,500,000, or $6,500,000, depending on their respective operations;
however, the comment provided no average revenue per small business. In
any event, averages in the context of the rule could diverge widely
from medians. Suffice it to say, given that the comment states that the
adult pornography business generates $12 billion in revenues, even
[[Page 77461]]
a small business with revenues considerably less than the smallest
category of small business--$6,500,000--would not find to be overly
burdensome compliance costs ranging from (at the low end) $1,500 plus
$60 per month to (at the high end) $8000.
One comment argues that SBREFA requires agencies to consider
alternatives that fit federal regulatory initiatives to the scope and
scale of small entities. It states that agencies must consider the
regulatory impact of their rules on small businesses, and analyze
alternatives that minimize effects on small businesses. The Department
adopts this comment, and as noted elsewhere in this notice, has made
multiple changes to the proposed rule that demonstrate consideration of
alternatives that would reduce the impact of the rule on small
businesses, and has adopted several proposals that commenters have
asked the Department to accept where the statutory language permitted
it to do so.
One comment characterizes the compliance costs of the proposed rule
as burdensome with respect to staffing, software development, updating
and maintenance, and institution of new compliance procedures. The
Department has addressed this comment in part by adopting the cost-
saving measures described earlier in this preamble: reducing the
staffing and computer burdens of the final rule by allowing third-party
custodians to keep records, by eliminating the hard copy requirement of
the proposed rule, and by permitting the disclosure statement to appear
on each page by hyperlink text.
Five comments state that the proposed rule would force small
companies to shut down. These five comments also maintained that
surviving firms would face a much harder time in continuing operations.
Yet another comment posited that the remaining firms would produce less
output as a result of the proposed rule. One comment raised concerns
that affiliate sites that contain photographs will not be able to
survive the cost of formatting records, maintaining a database, and
leasing space, and may go out of business as a result. One other
comment related that dating sites that displayed about 8,000,000
profiles with graphic content would need to make photo records at 3
minutes per record, with a staffer paid $20 per hour to create a
picture for every file. That comment cited a National Research Council
report that compliance with the regulations would be likely to increase
expenses and drive out some of the small enterprises.
The Department does not adopt these comments. First, as stated
above, the Department does not believe that the final rule will cause
the outcomes that the comments predicted, since the final rule takes
into account so many of the concerns of small businesses. Also, as
stated above, businesses such as dating services that in fact do not
produce depictions of sexually explicit conduct, are not the entities
that are responsible for record-keeping and disclosure statements.
Those responsibilities in those circumstances would fall upon the
individuals who post graphic content on the site. To the extent that
the final regulation does impose costs on small businesses that could
affect their operations, the Department believes that these costs are
the irreducible minimum costs that Congress imposed in the Act as a
consequence of increasing the likelihood that underage depictions would
not be produced or that demand for and distribution of such depictions
would not be increased because of the existence of secondary producers
who wittingly or unwittingly made them available.
In addition, the Department does not believe that the National
Research Council's 2002 report, Youth, Pornography, and the Internet,
quoted by one commenter, provides support for the commenter's position.
First, the report is now six years old and was issued before the
current regulations were published. Second, the report did not quantify
the purported effect of regulations on small businesses that would
occur as a result of even the prior rules, much less this rule.
Moreover, at page 213, the report notes that ``[m]ore active
enforcement'' of the record-keeping requirements ``may better protect
minors from participation in the creation of child pornography.'' To
the extent that the comment relies on the report to claim that the
effect of the rule might be to drive some small operators out of
business, the Department agrees, but that report makes that statement
only with respect to businesses who do not comply with their statutory
obligations.
Many comments pertained to the proposed rule's effect on social
networking sites. These comments claim that the proposed rule would
harm adult social networking sites because of record-keeping
requirements on users, a decline in the number of users, and their
unwillingness to provide the required information because of fear of
discrimination, because their names would be posted. Additionally, they
state that the effect of the proposed rule could be the elimination of
the social networking site industry, which the comments described as a
legal and valuable way for adults to meet one another.
The Department does not adopt these comments. Although the rule
would require users who chose to display actual sexually explicit
conduct on adult social networking sites to keep records, the rule is
inapplicable to social network site operators. The rule cannot exempt
users from the record-keeping requirements the Act imposes. The
Department has minimized these effects by reducing the costs of
compliance. Moreover, it has eliminated any concerns, whether or not
justified, that such users would face discrimination by allowing third-
party custodians to maintain the records. The user's disclosure
statement that is required to appear on the Web site would therefore
not need to identify any name or address of the user, but merely the
location of the third party that holds the records.
Two comments claim that secondary producers' income would decline
as a result of having to comply with the rule. According to these
commenters, out of fear of relying on primary producers' records,
rather than reproducing depictions provided by primary producers, they
would instead use text links to primary producers' sites. The
Department does not adopt these comments. As a result of the final
rule, secondary producers can trust that primary producers complied
with section 2257 and did not employ underage performers.
Four comments state that the proposed rule would not affect foreign
Web masters, and the federal government would have to spend funds to
determine which businesses were or were not foreign. These comments
also contend that harm to domestic business would occur vis-a-vis
foreign businesses as perhaps more production would occur offshore,
which would circumvent the safeguards. One comment claims that the rule
would worsen the balance of payments because Americans will have to
obtain their pornography from foreign sources. One comment states that
the regulation would create an unfair trade barrier (against the United
States) because offshore personal page Web sites will be more
attractive for American citizens who wish to self-post nude content,
and all users will shift their profiles to offshore sites.
The Department does not adopt these comments. The rule can apply
only to circumstances to which the Act applies. Congress has limited
authority to apply American criminal prohibitions against entities that
operate only in foreign
[[Page 77462]]
countries, and the Department can only issue regulations implementing
those prohibitions that have the same reach. To the extent that
production of depictions of actual sexually explicit conduct shifts
offshore as a result of record-keeping requirements generally, that is
the unavoidable effect of the Act. The Department has minimized burdens
on small business to minimize the effect of the rule on the situation
these comments raise. To the extent that the rule reduces production of
child pornography in the United States, that is the desired goal of
both the Act and the rule. With respect to balance of payments,
Americans who seek pornography will have access to numerous domestic
sources of pornography under the rule, even if some production moved
offshore. The comment makes no showing that the rule will cause the
price of access to domestic pornography to rise compared to foreign
pornography to a level that would lead pornography-seeking Americans to
shift their purchases from domestic to imported product.
One commenter notes that the EU Privacy Directive means that some
primary producers will only obtain affidavits that relate to people
under 18 and that state where the records are located. Therefore,
American businesses could not obtain needed records, while foreign
competitors do not need to worry about the need to comply or experience
compliance costs.
The Department does not adopt this comment. The Act requires that
records exceeding those allowed in the EU Privacy Directive be kept.
Foreign competitors will operate under different rules to the extent of
U.S. and EU authority. The Department is unable to change that fact.
Proposed Rule To Implement Section 2257A
As stated in the proposed rule, the Department is unable to
estimate with any precision the number of entities producing visual
depictions of simulated sexually explicit conduct. Because the issue of
the number of entities producing visual depictions of simulated
sexually explicit conduct is a new issue that has arisen precisely
because of the enactment of section 2257A, there does not appear to be
much available information concerning the number of entities producing
such material. As a partial indication, according to the U.S. Census
Bureau, in 2002 there were 11,163 establishments engaged in motion
picture and video production in the United States. Based on a rough
estimation that 10% were engaged in the production of visual depictions
of simulated sexually explicit conduct, the Department estimated that
approximately 1,116 motion picture and video producing establishments
would be covered. The underlying statute provides an exemption from
these requirements applicable in certain circumstances, and it requires
producers to submit certifications to qualify for this exemption. The
Department has no information concerning the number of otherwise
covered entities that would qualify for this statutory exemption, nor
is it able to estimate this number. For entities that qualify for the
statutory exemption, however, the Department estimated that it would
take less than 20 hours per year, at an estimated cost of less than
$25.00 per hour, to prepare the biennial certification required for the
statutory exemption. The Department's burden-hour estimate for
preparing the biennial certification required for the statutory
exemption was based on the proposed rule's requirements for such
certification, which have been drastically curtailed and simplified in
the final rule. The proposed rule would have required that the
certification take the form of a letter indicating that the producer
regularly and in the normal course of business collects and maintains
individually identifiable information regarding all performers employed
by that person, and would have required a list of the titles, names, or
other identifying information of visual depictions of simulated
sexually explicit conduct or lascivious exhibition produced since the
last certification, as well as a list of the titles, names, or other
identifying information of visual depictions of simulated sexually
explicit conduct or lascivious exhibition that include non-employee
performers. The Department assumed that the certification's main burden
would have been to require producers to maintain a list of the visual
depictions produced during the certification period, and that the
majority of the work to prepare the certification would be performed by
administrative staff. The Department further estimated that 90% of such
entities would qualify for the exemption.
The Department received three comments contesting the Department's
estimates for preparing the certification contemplated by the proposed
rule. One comment states that the Department's estimation that
preparing the certification would require less than 20 hours a year of
administrative staff time at a cost of less than $25 per hour ``grossly
understates the burden at issue'' because the determination as to
whether given depictions constituted lascivious exhibition or simulated
sexually explicit conduct, a prerequisite to preparing the lists
contemplated by the proposed rule, would require attorneys to review
the depictions at a cost far higher than $25 per hour, and thousands of
hours of material would have to be reviewed. The comment thus concludes
that ``the regulations impose not a trivial burden, but a very
substantial one that will surely chill legitimate expression by
producers anxious to avoid criminal sanctions.''
The second comment states flatly that the Department's estimate
that the certification contemplated by the proposed rule would require
less than 20 hours per year to prepare, at an estimated cost of less
than $25 per hour ``has no basis in reality'' because some producers
will have hundreds or even thousands of depictions, and also because
the producers will have certain obligations with respect to foreign-
produced materials such as seeking to determine if foreign producers
comply with the requirements of United States law or taking reasonable
steps to assure that foreign materials do not depict minors in
depictions of lascivious exhibition or simulated sexually explicit
conduct. This comment also explains that the determination as to
whether depictions constitute lascivious exhibition or simulated
sexually explicit conduct will have to made with the assistance of
counsel, which will entail increased costs.
The third comment bluntly states that the Department's
``assumptions regarding the time and cost of compliance with the
proposed [certification] regime * * * are unsupported and fallacious.''
The comment states that Department's citation to the 11,163 producers
in 2002, above, ``represented only `primary producers' '' and that
``there have long been many, many times that many websites featuring
sexually explicit materials operating from the United States.'' This
comment also states that the Department's estimation that 10% of the
11,163 producers ``disseminate simulated sexually explicit materials or
material with lascivious exhibition * * * cannot be justified and seems
unrealistic to us.'' Moreover, the comment states that ``since domestic
`secondary producers' are substantially dependent upon foreign primary
producers, limiting the number of producers to those counted by the
Census Bureau excludes thousands more primary producers'' and
``including `secondary producers' '' into the Department's numbers
multiplies the scope by magnitudes.'' The
[[Page 77463]]
comment concludes that ``[a]ssuming a more realistic number of several
million adult websites, even keeping the unjustified and unjustifiable
ten percent [that produce depictions of lascivious exhibition or
simulated sexually explicit conduct], the Department has undercounted
the number of entities affected by a factor of one hundred or more''
and that ``rather than the 1100 producers claimed by the Department,
there are likely several hundred thousand.''
The Department recognizes the difficulty of estimating the burden
of preparing the certification contemplated by the proposed rule and
the difficulty of estimating the number of producers of depictions of
lascivious exhibition and simulated sexually explicit conduct.
Accordingly, the Department appreciates the comments that responded to
the Department's request for input on these issues.
With respect to the burden of preparing the certification required
by the final rule, the Department believes that it would be minimal
compared to the burden of preparing the certification contemplated by
the proposed rule. The certification in the final rule does not require
producers to identify which of their materials constitute depictions of
lascivious exhibition or simulated sexually explicit conduct, nor does
it require producers to keep records concerning the depictions produced
that include non-employee performers, the depictions produced since the
last certification, the foreign-produced depictions that the certifier
took reasonable steps to confirm did not depict minors, or a
certification that a primary producer either collects and maintains the
records required by sections 2257 and 2257A or has itself made the
requisite certification to the Attorney General. The final rule now
only requires that the producer state the basis under which it
qualifies for the certification regime, using the brief certification
statement contained in Sec. 75.9(c)(2) of the final rule. For foreign-
produced materials, a producer would use either the certification or
alternate certification contained in Sec. 75.9(c)(3) of the final
rule. The Department thus believes that the certification would impose
a far smaller burden than that contemplated by the proposed rule.
In cases other than those involving foreign-produced material, for
which the alternate certification is necessary, the Department
estimates the certification would require less than two hours to
complete. A further reduction in the burden as compared to the
certification contemplated by the proposed rule is that the final rule
only requires that the certification be submitted once and amended only
as needed, rather than requiring that a certification be submitted
every two years. Estimating that the certification is prepared by an
administrative staffer at a cost of $25 per hour, the certification
should cost a producer no more than $50.
In cases involving foreign-produced material where the alternate
certification contained in Sec. 75.9(c)(3) of the final rule is
necessary, a producer would have to take ``reasonable steps to
confirm'' that depictions do not depict minors. The certification in
the final rule would impose a reduced burden in this circumstance as
well, as the final rule clarifies that such ``reasonable steps'' can
include simply reviewing the depictions or relying on a representation
or warranty made by the foreign producer of these materials. In cases
where the foreign producer makes such a representation or warranty, the
Department estimates little or no additional cost in preparing the
certification. In cases where the producer is required to review the
materials, the Department believes that U.S. producers for sound
business reasons already review the materials they obtain from foreign
producers, and the review contemplated by the certification would
involve little or no additional cost. In particular, the Department
does not believe this review would be required to be conducted by an
attorney, as a good-faith belief that the material does not depict
minors would be sufficient to meet the certification's standard.
Accordingly, even assuming that the Department understated the
number of producers by a factor of one hundred as stated by one comment
cited above, resulting in an estimate of roughly 100,000 producers in
the United States, and further estimating that 90% of these producers
qualify for the exemption, the total cost of preparing the
certification required for the statutory exemption would be
approximately $4.5 million (100,000 producers times 90% times $50
each). Given that a study submitted as a comment to the proposed rule
implementing section 2257 (and submitted as an attachment to a comment
on the proposed rule implementing section 2257A) estimated that the
adult industry had revenues of $12.9 billion in 2006 ($9.2 billion from
sectors including: video sales and rentals, the Internet, magazines,
cable/satellite/hotel, and mobile), the Department believes the $4.5
million estimated cost of preparing the certification is not excessive.
In the proposed rule, the Department estimated that if 3,000,000
visual depictions of simulated sexually explicit conduct are created
each year and that it requires 6 minutes to complete the record-keeping
requirement for each depiction, the record-keeping requirements would
impose a burden of 300,000 hours. Based on the Department's estimation
that producers of 90% of these depictions would qualify for the
statutory exemption from these requirements, the proposed rule
estimated that the requirements would only impose a burden of 30,000
hours. The Department further estimated that the record-keeping
requirements would cost $6.00 per hour to complete and $0.05 for each
image of a verifiable form of identification.
The Department received two comments on its estimate for collecting
the required records for those producers that do not qualify for the
statutory exemption. One comment states that it was ``ludicrous'' for
the Department to estimate that it would only take six minutes to
complete the record-keeping requirement for each depiction, estimating
four performers in each depiction, often foreign records for each
performer, and the need to cross-reference the records to the
performance. The comment states that ``there is no possibility that the
process could take only six minutes, even for one performer.'' The
other comment states that it is ``extraordinarily unlikely that * * *
record-keeping associated with certification would `cost $6.00 per hour
to complete.' ''
The Department notes, however, that a study submitted as a comment
to the proposed rule implementing section 2257 (and submitted as an
attachment to a comment on the proposed rule implementing section
2257A) ``assume[d], based on industry interviews, that * * * [i]t takes
at least three minutes to complete a Section 2257 file for a photograph
* * * [and] [t]he market rate in California for a worker who can
complete a Section 2257 file without error quickly is $20 per hour,
including all benefits.'' The Department thus declines to accept the
comment that a six-minute-per-depiction estimate is unrealistic, but
accepts the comment that its $6 per hour estimate for these record-
keeping tasks understates the costs. Given the nature of the work and
the availability of software to assist in the record-keeping, it seems
unlikely that the associated tasks would require skilled labor. Even
providing roughly 130% of the Federal minimum wage for work that would
appear to be essentially data
[[Page 77464]]
entry would yield only $10 per hour. Therefore, the Department rejects
the view that $20 per hour is an accurate estimate, but adopts $10 as
more reasonable.
No commenter disputed the Department's 3,000,000 images figure.
Therefore, the Department continues to estimate that 3,000,000 visual
depictions potentially covered by the statutory exemption are created
each year. Applying its estimation that it takes 6 minutes to complete
the record-keeping requirement for each depiction, the Department
therefore continues to calculate that the record-keeping requirements
would impose a burden of 300,000 hours. Although one commenter alleged
that the Department understated the number of producers by 100 to 1, no
commenter disputed that 90% of those producers would qualify for the
statutory exemption. Hence, based on the Department's continued
estimation that producers of 90% of the 3,000,000 depictions would
qualify for the statutory exemption from these requirements, the final
rule continues to estimate that the requirements would only impose a
burden of 30,000 hours. The Department now estimates, however, that the
record-keeping requirements would cost $10.00 per hour to complete. In
an abundance of caution, to account for the costs of software noted
above, the Department now estimates that each image would cost $.10 to
process (i.e., twice the original estimate). Furthermore, the
Department, based on the comment claiming underestimation of the number
of primary and secondary producers by 100 to 1, adopts 100,000 as the
total number of affected producers. Accordingly, the Department now
estimates that the total annual cost for the 10% of entities (i.e.,
10,000) not qualifying for the statutory exemption would be $330,000
(30,000 hours times $10 per hour, plus $.10 times 300,000 images).
Thus, the average cost to an individual small business producer who did
not qualify for the exemption would be $33.00 per year ($330,000
divided by 10,000). Even at the commenter's suggested $20, the cost per
small business would be $66.00 per year. As mentioned above, even a
small business in the lowest revenue level would find this cost to be
manageable.
Paperwork Reduction Act
This final rule modifies existing requirements to conform to newly
enacted legislation. It contains a revised information collection that
satisfies the requirements of existing regulations to clarify the means
of maintaining and organizing the required documents. This information
collection will be submitted to the Office of Management and Budget for
regular approval in accordance with the Paperwork Reduction Act of
1995. In the proposed rule, the Department asked for public comment on
four issues: (1) Whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility; (2) the
accuracy of the agency's estimate of the burden of the proposed
collection of information, including the validity of the methodology
and estimations used; (3) how to enhance the quality, utility, and
clarity of the information to be collected; and (4) how to minimize the
burden of the collection of information on those who are to respond,
including through the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology (e.g., permitting electronic submission of
responses). The Department estimated that there are 500,000 Web sites
and at least 200 producers of DVDs, videos, and other images containing
visual depictions of actually explicit conduct (as defined by the
revised section 2257), constituting 5000 businesses, and invited
comments on these estimates. The Department also invited comments on
its estimates that the proposed rule implementing section 2257 applied
to 2,000,000 depictions of actual sexually explicit conduct (including
the visual depictions of lascivious exhibition of the genitals or pubic
area of a person not covered by the regulation), that each depiction
would generate 6 minutes to complete its associated record-keeping, and
that the record-keeping requirements would impose a burden of 200,000
hours.
Two comments state that the entire record-shifting burden arises
from the requirement that records be maintained at the producer's own
place of business. If third parties were custodians, and their location
were properly disclosed, then both primary and secondary producers
could rely on the same third-party custodian using the same disclosure
statement. This would minimize the record-keeping burdens by
concentrating them on third parties who were willing and able to
receive the information and then organize, maintain, and make the
information available for inspection. The comments posit that there may
be interest in the regulated industry to assist in having third-party
professional record-keepers trained and compliant in the record-
keeping. These third parties would perform cross-reference and
maintenance, and allow records to be available for forty hours per
week, dramatically easing the overall burdens. According to the
comments, the secondary producer could then fulfill its record-keeping
obligations by merely referring to the location of the records created
by the primary producer.
The Department adopts the comments in part. As stated above, the
Department believes that its objectives can be accomplished and the
burden reduced on small business by allowing producers to use third-
party custodians to store their records. The final rule reflects this
change from the proposed rule. The Department believes, however, as
stated above, that a secondary producer who does not actually see
copies of identification cards that the primary producer uses to prove
that the performer was at least 18 years old as of the date of original
production may take an unnecessary risk of distributing child
pornography.
One comment remarked that some producers of actual sexually
explicit conduct exist only virtually and that their records should
therefore be permitted to be created only virtually. The Department
accepts this comment in part. Regardless of the nature of the entity
that produces actual sexually explicit conduct, the final rule permits
records to be kept in electronic form.
One comment states that subjecting those who exclusively produce
depictions involving lascivious exhibitions to record-keeping as of
July 2006 would create a paperwork burden not intended by Congress. The
comment expressed the view that Congress intended to reduce these
entities' paperwork by creating a certification process. As stated
above, the Department is delaying the imposition of the record-keeping
requirements for entities whose activities enable them to confirm to
the certification safe harbor until such time as the Department issues
the final rule that implements section 2257A.
One comment notes the burden imposed by having each Web page
contain a substantial amount of regulatory information to enable the
producer to display otherwise constitutionally protected expression
without criminal penalties, which it contends violates free expression.
The Department adopts this comment in part. The final rule's display
requirements will not require substantial regulatory information, but
will permit hyperlinks. The Department does not accept the remainder of
the comment. Under the terms of the final rule, producers of
constitutionally
[[Page 77465]]
protected depictions of actual sexually explicit conduct will be fully
able to create such images without risk of criminal penalties so long
as they maintain records and affix a disclosure statement to each page
that displays such an image. Without such compliance, there is no
guarantee that the depiction is in fact constitutionally protected
expression. In fact, experience demonstrates that there is too great a
likelihood that a child will have been victimized by such a depiction,
and that such a depiction may be used to victimize others.
Four comments state that compliance with the proposed rule is
expensive, invasive, and burdensome. One comment notes that the
proposed rule placed a burden on a person who displayed depictions of
actual sexually explicit conduct to keep and distribute information to
strangers about the performers. The Department adopts these comments in
part. Although some of the requirements of the Adam Walsh Act will
result in additional expenses for businesses, the Department has
reduced those burdens in the final rule. It has eliminated the hard
copy requirement, permitted hyperlinks rather than complete disclosure
statements on each Web page, and permitted producers to place required
records in the hands of third-party custodians. Primary producers must
share information on performers with secondary producers, but that is a
requirement of the Act.
Two comments state that hard copy is not required and is very
expensive. One comment says that hard copy is counter to the
requirements of the Paperwork Reduction Act requirement that agencies
minimize the burden of information collections through appropriate
electronic or other information technology. One comment notes that some
Web sites have many thousands of pages of actual sexually explicit
material, and it argues that there is no reason for a hard copy.
Inexpensive scanners, it maintains, can produce digital depictions at a
resolution such as 300 dots per inch that can eliminate the need to
read a copy of the identification document, and that hard copies may be
less clear for inspectors. The Department accepts these comments,
without necessarily agreeing with the characterization of the proposed
rule under the PRA and, as stated, will permit the required records to
be stored electronically.
One comment notes that the proposed rule is burdensome given its
requirements concerning the date of original production, which would
mandate overhauling each and every disclosure on a Web site after
identifying such a date for those images. The Department adopts this
comment. Identification of the original date of production is crucial
to the inspection process, and the records must indicate that date;
however, it is not necessary to have on the disclosure statement.
Accordingly, the final rule eliminates Sec. 75.6(B)(2).
Four comments state that the proposed rule would achieve none of
its stated goals, either because people will lie about their age or
produce fake identification documents or because illicit entities would
not keep records. Thirty-five comments claim that the rule would do
little to protect minors or curb child pornography.
The Department does not adopt these comments. People who lie about
their age must still produce identification cards, or the producers
will be criminally liable for depicting them. The Department cannot
guarantee that some individuals will not provide fake documents, but
such individuals risk incurring criminal penalties, and the Department
believes that the existence of these penalties will persuade many
people who would be tempted to use fake documentation to avoid doing
so. Further, the Department believes the rule will achieve its
objective of implementing the policies of the Act, whether or not it is
completely successful in eradicating the production of all child
pornography.
On a related issue, one comment notes that false identification
cards can appear authentic and lead to the production of many
depictions and subsequent republications of the performer's image.
However, since the rule requires that a copy of each image must be kept
in the records of each of the many producers, the comment asks what
producers are to do once the fraud is revealed. It states that
producers will destroy their images when the fraud is revealed, but
asks if the rule permits the destruction of the records, and if not,
asks how custodians would be protected against state laws that
criminalize even the private possession of child pornography.
The Department responds to this comment by stating that records of
the production of such depictions must be retained even after the fraud
is discovered. The Department would need to be able to inspect the
identification documents that were provided as a basis for creating the
depiction.
One comment states that secondary producers cannot determine if a
scanned or faxed document was actual or altered, and could unknowingly
accept false information. The comment questions whether the producer
would be shielded from prosecution if the primary producer presents
false or altered documents, and asks whether there will be a database
for the secondary producer to check whether the primary producer's age
documents are valid, as would be the case with a passport.
The Department responds to this comment by stating that the
secondary producer must keep a copy of the relevant identification
documents under the terms of the rule. So long as the producer keeps a
copy of the document that reasonably appears to conform to the
requirements of the rule, the producer will not face criminal
liability. But as stated above, the producer must keep the records even
if the image turns out not to relate to a performer of legal age. As
discussed above, the Department will not establish a database as part
of this rule.
One comment states that secondary producers have no relationship
with the performers depicted in actual sexually explicit conduct, and
that applying the record-keeping requirements to them therefore
accomplishes nothing. The Department does not adopt this comment.
Unless the secondary performer keeps appropriate records, then the
fears that Congress expressed that secondary producers will knowingly
or unknowingly create a commercial market for child pornography may
materialize.
One comment contends that the proposed rule's requirement that
information be placed on every page will not make the required
information more easily accessible to the Department, and that it will
increase compliance costs. The Department does not adopt this comment.
Placement of the required information on every page will enable the
Department to determine that any given depiction of actual sexual
conduct is of a person who is of appropriate age, and the adherence to
this requirement will make that information more accessible to the
Department. Additionally, the Act requires that the Department's final
rule impose such a requirement, and the Department notes that the final
rule will impose the minimal compliance costs associated with the Act's
requirement by permitting hyperlinks rather than the full disclosure
statement to appear on each regulated page.
One comment concedes that the cross-referencing requirement has a
governmental purpose when an inspector needs to obtain performance
records based upon a legal name or an alias or a title of a work.
However, the
[[Page 77466]]
comment contends that there is no basis to require cross-referencing so
that an inspector can obtain an alias name that was never used in
productions and was never used as an adult, or records concerning
unknown works.
The Department does not adopt this comment. The Department would
not know (and questions whether many producers would know) that an
alias was never used in productions. If an alias had in fact been used
in productions, it is vital for the Department to be able to determine
that such depictions were originally produced when the performers were
over 18. If an alias was never used while a performer was an adult, it
may have been used when the performer was a child. Being able to trace
records when the performer may have been a minor is of obvious
significance to the Department's efforts to combat child exploitation.
One comment requests that the Department prepare a form analogous
to an IRS form that, if properly completed, will assure the filer that
it has complied with all statutory and regulatory reporting
requirements. The form would be available for employers to record the
fact that they have examined appropriate identification requirements
before employing any individual in covered employment. The comment
believes that primary producers should not have to guess concerning the
required content of their records or to seek expensive legal advice
from attorneys. The comment recommends that the form should be one that
is used to create paper records or that can be digitally incorporated
into record-keeping software for those who choose to keep the records
in digital form.
The Department does not adopt this requirement. It is not possible
for the Department to create a form that would ensure that the
regulated entity has complied with all requirements. It is the actual
performance of the checking function that the record-keeping must
document. Individualized records must be kept, rather than filling out
a form indicating merely that identity was checked. Moreover, copies of
the identification cards must be kept to prove that the performers were
of age. Finally, the comment seeks what is essentially a compliance
certification procedure rather than a record-keeping principle.
Congress created a particular means by which entities may be found to
be in compliance with the rule even though the statutory record-keeping
and disclosure requirements are not adhered to. The Department is not
free to write another alternative method of compliance.
Two comments claim that the current regulations are more than
adequate to fulfill their purpose. The Department does not accept this
comment. Congress enacted the Act to impose additional requirements to
prevent the production of child pornography because section 2257's pre-
Act definition of ``actual sexually explicit conduct'' and accompanying
regulations were insufficient to achieve that objective. The Department
must therefore issue the final rule per statutory command and believes
that these additional requirements will make the production of child
pornography more difficult than under current rules.
One comment states that some sites have many thousands of images
and that each would take many kilobytes of storage and that the largest
sites would need many gigabytes of storage to comply with the rule. It
claims that sites with streaming video need to retain seven years'
worth of recorded video. According to the comment, regardless of
whether video is live or recorded, and regardless of whether copies are
held in hard form or electronically, the size and number of video files
will create a significant burden, in some cases requiring storage of
gigabytes of data or thousands of videos. The comment wonders what
governmental benefits these requirements will produce.
The Department does not adopt this comment. As to live
performances, the proposed rule specifically provides, ``For any
performer in a depiction performed live on the Internet, the records
shall include a copy of the depiction with running-time sufficient to
identify the performer in the depiction and to associate the performer
with the records needed to confirm his or her age.'' 72 FR at 38036.
This will significantly reduce the storage costs the commenter
discusses. As to recorded performances, the Department does not accept
the alleged burdensome nature of the storage costs. The district court
in Free Speech Coalition v. Gonzales favorably cited the Department's
expert witness to the effect that ``large numbers of depictions can be
electronically stored by purchasing hard drives at insubstantial
prices.'' Free Speech I, 406 F. Supp. 2d at 1208.
Several commenters address the time period for the retention of
records. One comment views the seven-year record retention requirement
as excessive, noting that at three inspections per year, the producer
would face 20 or 21 inspection cycles. The comment believes that there
is no reason why that many inspections would be needed for a particular
record and that the Department would learn the actual age of a depicted
performer before so many inspections were carried out. The comment asks
that the final rule make clear that the records of a depiction can be
disposed of seven years after a depiction's creation, and that a
producer's records concerning a performer can be disposed of seven
years after the performer is last depicted by the producer.
One comment points out that the required time for keeping records
can be seventeen years. If a corporation leaves the adult entertainment
business just before the seven-year record-keeping requirement, it must
keep the records for an additional five years. And if the company goes
out of business altogether, then the individual custodian must keep the
records for another five years. The comment asks that the final rule
should say that the operative period is the shortest of whichever of
these three contingencies occurs first.
One comment notes that a secondary producer must keep the relevant
record for seven years after the depiction was reproduced, perhaps
beginning seven years after the depiction was produced. The comment
points out that the information in the records properly relates to the
initial production and not the reproduction. It posits that there is no
reason to restart the clock for each republication. The comment also
expresses concern that requiring the records to be maintained as long
as the depiction is in circulation would be so cumulatively burdensome
as to unconstitutionally harm expression.
One comment asks that no one be required to keep records of a
particular depiction more than seven years after it was initially
created. A secondary producer may want to reproduce a depiction eight
years after it was made, but the primary producer may have eliminated
the records. The comment asks whether the secondary producer can
reproduce without the records, or its further reproduction is
restricted at the cost of the constitutional rights of the primary
producer who is also now quite lawfully without the records.
The Department declines to adopt these comments. Concerns about the
retention period for records were addressed in the final rule published
in 2005. At that time, the Department stated, ``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
[[Page 77467]]
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 Association v. Reno. In
that case, the DC Circuit held that part 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.'' 70 FR at 29614.
One comment believes that the proposed rule's record-keeping
requirements impose a heavy burden. It argues that copies of the full
set of required records must follow any depiction to any secondary
producer who assists in disseminating the constitutionally protected
expression, which will restrict such dissemination.
The Department does not adopt this comment. Although a burden is
imposed by the record-keeping requirement, it is necessary that
secondary producers retain copies of records that the primary producer
examined prior to producing depictions of sexually explicit conduct.
Otherwise, there is no way to determine that the depiction is in fact
constitutionally protected expression rather than a record of child
exploitation. Since preventing the existence of a commercial market for
child pornography is a major purpose of the Act, the Department
believes that it has adopted the least-restrictive burden for secondary
producers and the Department to be sure that the performers were of
legal age on the original production date of the depiction of actual
sexually explicit conduct.
One comment points out that because a secondary producer cannot
assemble records from scratch, he should be able to receive a copy of
the primary producer's records so long as the secondary producer also
obtains, records, and maintains the primary producer's business
address. The comment expressed a belief that the volume and complexity
of the requirements will limit the distribution of constitutionally
protected material. It complains that if a primary producer licenses
some but not all of a set of its images, it will be difficult for a
secondary producer to untangle the cross-references so that the
secondary possesses the required records (because possessing extraneous
matter subjects that individual to a five-year sentence per Sec.
75.2(e)). The comment anticipates that some primary producers will not
want to share records concerning identification cards because secondary
producers might compete with those primary producers if they knew where
to find the performers. Moreover, if the performer obtained an
agreement from the primary producer not to use a secondary producer to
republish their depiction, then constitutionally protected expression
will be frozen out of existence.
The Department does not adopt this comment. For a secondary
producer to know that as of the original production date, the
performers were of legal age, copies of the records of the primary
producer must be provided that demonstrate that fact. To identify the
appropriate primary producer, the secondary producer must keep records
itself. The only means of ensuring that children are not performing in
the depiction is to determine the birthdates of the performers and to
keep records. The Department must have access to these records to
ensure that children are not being depicted. First Amendment rights are
not implicated if, in response to the rule, primary producers choose
not to share records because they fear that secondary producers may
compete with them. Moreover, if a performer obtains an agreement
through an agent that the primary producer will not use a secondary
producer to republish a depiction, then the reason that the secondary
producer would become unable to obtain the image is through the
operation of the agreement, whether or not the Department had ever
issued any regulations. The First Amendment is not implicated under
those circumstances.
One comment states that a secondary producer can satisfy the Act by
requiring only an email or a letter from the primary producer attesting
to the availability of the date of birth documentation's availability
at the primary producer's place of business, unless the secondary
producer is also a primary producer. The Department does not adopt this
comment. A secondary producer's reliance on an email or letter does not
ensure that the secondary producer actually retains records documenting
that the performer was of legal age as of the date of original
production.
One comment notes that each Web site can contain multiple
depictions, which may have been created on different dates. Each
webmaster would have to develop a unique system of cross-referencing,
coding, or identifying the production date of each depiction. The
comment would prefer that webmasters be permitted to identify the most
relevant date, of either production, duplication, reproduction, or
reissuance of a depiction.
The Department does not adopt this comment. Apart from the lack of
clarity concerning what the most relevant date from the choices above
for a particular depiction, the Department believes that the date of
original production is a critical element for the disclosure statement
that Congress has required. Confirmation of the date of birth of the
performer and of the date of original production are the two most
important pieces of information necessary to be recorded if child
pornography is to be kept out of production and commercial
distribution. Knowledge of only a later date that is unrelated to the
date of original production of the image will not ensure that the
performer was of legal age as of the date that the depiction was
created, the key factor determining whether a particular depiction is
child pornography or not.
Two comments oppose cross-referencing requirements because, the
commenters say, they are a means only to harass producers. The
Department does not adopt this comment. Cross-referencing requirements,
as described above, are vital to determining whether a performer under
any name that the performer has used has been depicted in actual
sexually explicit conduct despite their status as a minor. Cross-
referencing will enable the Department to establish, whatever name may
be used, whether a performer's identification card demonstrates
legality of age for such productions.
[[Page 77468]]
Two comments suggest that the burden of segregating records in
Sec. 75.2(d) and (e) is too stringent. One points out that if a stray
1099 form, model release, or I-9 form were to wind up in the section
2257 records instead of the more general personnel file, then the
producer or custodian would face years in prison. The comment contends
that there should be a different rule for inadvertent misfiling.
The Department does not accept this comment. The segregation
requirement in fact reduces the burden that the rule imposes upon the
regulated entity. Due to segregation of records, the inspector need
only review a unified set of records, without need to search every
document in the facility.
Two comments request that the final rule reduce the burden on
primary producers by not requiring that they make or receive sworn
statements that all content is legal and all models are over 18. The
Department declines to adopt this comment, as it describes the effect
of neither the proposed rule nor existing regulation.
The Department received no comments challenging its estimates that
2,000,000 depictions of actual sexually explicit conduct would be
generated this year, that the associated record-keeping for each
depiction would amount to 6 minutes, and that the total related burden
of compliance for this category was 200,000 hours, and it therefore
continues to adhere to these estimates. Two million depictions at a
cost of $10 per hour of record-keeping and a duplication cost of $0.10
per depiction produces a total cost of compliance with the final
section 2257 rule of $2,400,000.
The OMB Control Number pertaining to the rule is 1105-0083.
List of Subjects in 28 CFR Part 75
Crime, infants and children, Reporting and record-keeping
requirements.
0
Accordingly, for the reasons set forth in the preamble, part 75 of
chapter I of title 28 of the Code of Federal Regulations is amended as
follows:
PART 75--CHILD PROTECTION RESTORATION AND PENALTIES ENHANCEMENT ACT
OF 1990; PROTECT ACT; ADAM WALSH CHILD PROTECTION AND SAFETY ACT OF
2006; RECORDKEEPING AND RECORD-INSPECTION PROVISIONS
0
1. The authority citation for part 75 is revised to read as follows:
Authority: 18 U.S.C. 2257, 2257A.
0
2. The heading of part 75 is revised to read as set forth above.
0
3. Amend Sec. 75.1 by revising paragraphs (b), (c)(1), (c)(2), (c)(4),
(d), and (e), and by adding paragraphs (m) through (s), to read as
follows:
Sec. 75.1 Definitions.
* * * * *
(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, the name of
the individual identified, and the date of birth of that individual,
and provides specific information sufficient for the issuing authority
to confirm its validity, such as a passport, Permanent Resident Card
(commonly known as a ``Green Card''), or employment authorization
document issued by the United States, a driver's license or other 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 the person who is the subject of the picture identification
card is a non-U.S. citizen located outside the United States at the
time of original production and the producer maintaining the required
records, whether a U.S. citizen or non-U.S. citizen, is located outside
the United States on the original production date. The picture
identification card must be valid as of the original production date.
* * * * *
(c) * * *
(1) Primary producer is any person who actually films, videotapes,
photographs, or creates a digitally- or computer-manipulated image, a
digital image, or a picture of, or who digitizes an image of, a visual
depiction of an actual human being engaged in actual or simulated
sexually explicit conduct. When a corporation or other organization is
the primary producer of any particular image or picture, then no
individual employee or agent of that corporation or other organization
will be considered to be a primary producer of that image or picture.
(2) Secondary producer is any person who produces, assembles,
manufactures, publishes, duplicates, reproduces, or reissues a book,
magazine, periodical, film, videotape, or 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 or simulated 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 or simulated sexually explicit conduct, including any person who
enters into a contract, agreement, or conspiracy to do any of the
foregoing. When a corporation or other organization is the secondary
producer of any particular image or picture, then no individual of that
corporation or other organization will be considered to be the
secondary producer of that image or picture.
* * * * *
(4) Producer does not include persons whose activities relating to
the visual depiction of actual or simulated 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 duplication;
(ii) 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) The provision of a telecommunications service, or of an
Internet access service of Internet information location tool (as those
terms are defined in section 231 of the Communications Act of 1934 (47
U.S.C. 231));
(v) The transmission, storage, retrieval, hosting, formatting, or
translation (or any combination thereof) of a communication, without
selection or alteration of the content of the communication, except
that deletion of a particular communication or material made by another
person in a manner consistent with section 230(c) of the Communications
Act of 1934 (47 U.S.C. 230(c)) shall not constitute such selection or
alteration of the content of the communication; or
(vi) Unless the activity or activities are described in section
2257(h)(2)(A), the dissemination of a depiction without having created
it or altered its content.
(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 or simulated sexually explicit conduct,
but does not refer to noncommercial or
[[Page 77469]]
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;
(2) In reference to a visual depiction of sexually explicit
conduct, means a duplicate of the depiction itself (e.g., the film, the
image on a Web site, the image taken by a webcam, the photo in a
magazine); and
(3) In reference to an image on a webpage for purposes of
Sec. Sec. 75.6(a), 75.7(a), and 75.7(b), means every page of a Web
site on which the image appears.
* * * * *
(m) Date of original production or original production date means
the date the primary producer actually filmed, videotaped, or
photographed, or created a digitally- or computer-manipulated image or
picture of, the visual depiction of an actual human being engaged in
actual or simulated sexually explicit conduct. For productions that
occur over more than one date, it means the single date that was the
first of those dates. For a performer who was not 18 as of this date,
the date of original production is the date that such a performer was
first actually filmed, videotaped, photographed, or otherwise depicted.
With respect to matter that is a secondarily produced compilation of
individual, primarily produced depictions, the date of original
production of the matter is the earliest date after July 3, 1995, on
which any individual depiction in that compilation was produced. For a
performer in one of the individual depictions contained in that
compilation who was not 18 as of this date, the date of original
production is the date that the performer was first actually filmed,
videotaped, photographed, or otherwise depicted for the individual
depiction at issue.
(n) Sexually explicit conduct has the meaning set forth in 18
U.S.C. 2256(2)(A).
(o) Simulated sexually explicit conduct means conduct engaged in by
performers that is depicted in a manner that would cause a reasonable
viewer to believe that the performers engaged in actual sexually
explicit conduct, even if they did not in fact do so. It does not mean
not sexually explicit conduct that is merely suggested.
(p) Regularly and in the normal course of business collects and
maintains means any business practice(s) that ensure that the producer
confirms the identity and age of all employees who perform in visual
depictions.
(q) Individually identifiable information means information about
the name, address, and date of birth of employees that is capable of
being retrieved on the basis of a name of an employee who appears in a
specified visual depiction.
(r) All performers, including minor performers means all performers
who appear in any visual depiction, no matter for how short a period of
time.
(s) Employed by means, in reference to a performer, one who
receives pay for performing in a visual depiction or is otherwise in an
employer-employee relationship with the producer of the visual
depiction as evidenced by oral or written agreements.
0
4. Amend Sec. 75.2 by:
0
a. Revising paragraph (a) introductory text and paragraphs (a)(1) and
(a)(2), and adding paragraph (a)(4);
0
b. Adding two sentences at the end of paragraph (b);
0
c. Revising paragraphs (c) and (d); and
0
d. Adding paragraphs (g) and (h).
The additions and revisions read as follows:
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 is produced in whole or in part with
materials that have been mailed or shipped in interstate or foreign
commerce, or is shipped, transported, or 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 (except lascivious exhibition of the genitals
or pubic area of any person) made after July 3, 1995, or one or more
visual depictions of an actual human being engaged in simulated
sexually explicit conduct or in actual sexually explicit conduct
limited to lascivious exhibition of the genitals or pubic area of any
person made after March 18, 2009, shall, for each performer portrayed
in 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 prior to
production of the depiction. For any performer portrayed in a depiction
of an actual human being engaged in actual sexually explicit conduct
(except lascivious exhibition of the genitals or pubic area of any
person) made after July 3, 1995, or of an actual human being engaged in
simulated sexually explicit conduct or in actual sexually explicit
conduct limited to lascivious exhibition of the genitals or pubic area
of any person made after March 18, 2009, the records shall also include
a legible hard copy or legible digitally scanned or other electronic
copy of a hard copy of the identification document examined and, if
that document does not contain a recent and recognizable picture of the
performer, a legible hard copy of a picture identification card. For
any performer portrayed in a depiction of an actual human being engaged
in actual sexually explicit conduct (except lascivious exhibition of
the genitals or pubic area of any person) made after June 23, 2005, or
of an actual human being engaged in simulated sexually explicit conduct
or in actual sexually explicit conduct limited to lascivious exhibition
of the genitals or pubic area of any person made after March 18, 2009,
the records shall include a copy of the depiction, and, where the
depiction is published on an Internet computer site or service, a copy
of any URL associated with the depiction. If no URL is associated with
the depiction, the records shall include another uniquely identifying
reference associated with the location of the depiction on the
Internet. For any performer in a depiction performed live on the
Internet, the records shall include a copy of the depiction with
running-time sufficient to identify the performer in the depiction and
to associate the performer with the records needed to confirm his or
her age.
(2) Any name, other than the 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 a
visual depiction of an actual human being engaged in actual sexually
explicit conduct (except lascivious exhibition of the genitals or pubic
area of any person) made after July 3, 1995, or of an actual human
being engaged in simulated sexually explicit conduct or in actual
sexually explicit conduct limited to lascivious exhibition of the
genitals or pubic area of any person made after March 18, 2009, 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.
* * * * *
[[Page 77470]]
(4) The primary producer shall create a record of the date of
original production of the depiction.
(b) * * * The copies of the records may be redacted to eliminate
non-essential information, including addresses, phone numbers, social
security numbers, and other information not necessary to confirm the
name and age of the performer. However, the identification number of
the picture identification card presented to confirm the name and age
may not be redacted.
(c) The information contained in the records required to be created
and maintained by this part need be current only as of the date of
original production of the visual depiction to which the records are
associated. 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 an Internet computer site or service) that contains one or more
visual depictions of an actual human being engaged in actual or
simulated 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).
Producers of visual depictions made after July 3, 1995, and before June
23, 2005, may rely on picture identification cards that were valid
forms of required identification under the provisions of part 75 in
effect during that time period.
(d) For any record of a performer in a visual depiction of actual
sexually explicit conduct (except lascivious exhibition of the genitals
or pubic area of any person) created or amended after June 23, 2005, or
of a performer in a visual depiction of simulated sexually explicit
conduct or actual sexually explicit conduct limited to lascivious
exhibition of the genitals or pubic area of any person made after March
18, 2009, 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 an Internet computer site or
service). 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 an Internet computer site or service) that contains one or more
visual depictions of an actual human being engaged in actual or
simulated 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.
* * * * *
(g) Records are not required to be maintained by either a primary
producer or by a secondary producer for a visual depiction of sexually
explicit conduct that consists only of lascivious exhibition of the
genitals or pubic area of a person, and contains no other sexually
explicit conduct, whose original production date was prior to March 18,
2009.
(h) A primary or secondary producer may contract with a non-
employee custodian to retain copies of the records that are required
under this part. Such custodian must comply with all obligations
related to records that are required by this Part, and such a contract
does not relieve the producer of his liability under this part.
0
5. Revise Sec. 75.4 to read as follows:
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 or at the
place of business of a non-employee custodian of records. 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 or at the place of business of a non-employee
custodian of records. If the organization is dissolved, the person who
was responsible for maintaining the records, as described in Sec.
75.6(b), shall continue to maintain the records for a period of five
years after dissolution.
0
6. Section 75.5 is amended by revising:
0
a. Paragraphs (c)(1), (c)(3), and (c)(4);
0
b. Paragraph (d); and
0
c. Paragraph (e).
The revisions read as follows:
Sec. 75.5 Inspection of records.
* * * * *
(c) Conduct of inspections. (1) Inspections shall take place during
normal business hours 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, for inspections to be
held at the place of business of a producer, any other time during
which the producer is actually conducting business relating to
producing a depiction of actual sexually explicit conduct. To the
extent that the producer does not maintain at least 20 normal business
hours per week, the producer 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 20 hours per week.
* * * * *
(3) The inspections shall be conducted so as not to unreasonably
disrupt the operations of the establishment.
(4) At the conclusion of an inspection, the investigator may
informally advise the producer or his non-employee custodian of records
of any apparent violations disclosed by the inspection. The producer or
non-employee custodian or records may bring to the attention of the
investigator any pertinent information regarding the records inspected
or any other relevant matter.
* * * * *
(d) Frequency of inspections. Records 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 or to his non-employee custodian of records, during the
inspection, any record that is subject to inspection.
* * * * *
0
7. Amend Sec. 75.6 by:
0
a. Revising paragraph (a);
0
b. Removing and reserving paragraph (b)(2), and removing the second
sentence from paragraph (b)(3);
0
c. Revising paragraph (c); and
0
d. Adding paragraph (f).
The addition and revisions read as follows:
[[Page 77471]]
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 an Internet
computer site or service) 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 after July 3, 1995, or of a
performer in a visual depiction of simulated sexually explicit conduct
or actual sexually explicit conduct limited to lascivious exhibition of
the genitals or pubic area of any person made after March 18, 2009,
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. In this paragraph, the
term ``copy'' includes every page of a Web site on which a visual
depiction of an actual human being engaged in actual or simulated
sexually explicit conduct appears.
* * * * *
(c) If the producer is an organization, the statement shall also
contain the title and business address of the person who is responsible
for maintaining the records required by this part.
* * * * *
(f) If the producer contracts with a non-employee custodian of
records to serve as the person responsible for maintaining his records,
the statement shall contain the name and business address of that
custodian and may contain that information in lieu of the information
required in paragraphs (b)(3) and (c) of this section.
0
8. Revise Sec. 75.7 to read as follows:
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) or 18 U.S.C.
2257A(a)-(c), as applicable, and of this part if:
(1) The matter contains visual depictions of actual sexually
explicit conduct made only before July 3, 1995, or was last produced,
manufactured, published, duplicated, reproduced, or reissued before
July 3, 1995. Where the matter consists of a compilation of separate
primarily produced depictions, the entirety of the conduct depicted was
produced prior to July 3, 1995, regardless of the date of secondary
production;
(2) The matter contains only visual depictions of simulated
sexually explicit conduct or of actual sexually explicit conduct
limited to lascivious exhibition of the genitals or pubic area of any
person, made before March 18, 2009;
(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) or 18 U.S.C. 2257A(a)-
(c), as applicable, and of this part.
0
9. Amend Sec. 75.8 by:
0
a. Revising paragraph (d);
0
b. Redesignating paragraph (e) as paragraph (f); and
0
c. Adding a new paragraph (e).
The revisions and additions read as follows:
Sec. 75.8 Location of the statement.
* * * * *
(d) A computer site or service or Web address containing a
digitally- or computer-manipulated image, digital image, or picture
shall contain the required statement on every page of a Web site on
which a visual depiction of an actual human being engaged in actual or
simulated sexually explicit conduct appears. Such computer site or
service or Web address may choose to display the required statement in
a separate window that opens upon the viewer's clicking or mousing-over
a hypertext link that states, ``18 U.S.C. 2257 [and/or 2257A, as
appropriate] Record-Keeping Requirements Compliance Statement.''
(e) For purpose of this section, a digital video disc (DVD)
containing multiple depictions is a single matter for which the
statement may be located in a single place covering all depictions on
the DVD.
* * * * *
0
10. Add Sec. 75.9 to read as follows:
Sec. 75.9 Certification of records.
(a) In general. The provisions of Sec. Sec. 75.2 through 75.8
shall not apply to a visual depiction of actual sexually explicit
conduct constituting lascivious exhibition of the genitals or pubic
area of a person or to a visual depiction of simulated sexually
explicit conduct if all of the following requirements are met:
(1) The visual depiction is intended for commercial distribution;
(2) The visual depiction is created as a part of a commercial
enterprise;
(3) Either--
(i) The visual depiction is not produced, marketed or made
available in circumstances such that an ordinary person would conclude
that the matter contains a visual depiction that is child pornography
as defined in 18 U.S.C. 2256(8), or,
(ii) The visual depiction is subject to regulation by the Federal
Communications Commission acting in its capacity to enforce 18 U.S.C.
1464 regarding the broadcast of obscene, indecent, or profane
programming; and
(4) The producer of the visual depiction certifies to the Attorney
General that he regularly and in the normal course of business collects
and maintains individually identifiable information regarding all
performers, including minor performers, employed by that person,
pursuant to Federal and State tax, labor, and other laws, labor
agreements, or otherwise pursuant to industry standards, where such
information includes the name, address, and date of birth of the
performer. (A producer of materials depicting sexually explicit conduct
not covered by the certification regime is not disqualified from using
the certification regime for materials covered by the certification
regime.)
(b) Form of certification. The certification shall take the form of
a letter addressed to the Attorney General signed either by the chief
executive officer or another executive officer of the entity making the
certification, or in the event the entity does not have a chief
executive officer or other executive officer, the senior manager
responsible for overseeing the entity's activities.
(c) Content of certification. The certification shall contain the
following:
(1) A statement setting out the basis under 18 U.S.C. 2257A and
this part under which the certifying entity and any sub-entities, if
applicable, are permitted to avail themselves of this exemption, and
basic evidence justifying that basis.
[[Page 77472]]
(2) The following statement: ``I hereby certify that [name of
entity] [and all sub-entities listed in this letter] regularly and in
the normal course of business collect and maintain individually
identifiable information regarding all performers employed by [name of
entity]''; and
(3) If applicable because the visual depictions at issue were
produced outside the United States, the statement that: ``I hereby
certify that the foreign producers of the visual depictions produced by
[name of entity] either collect and maintain the records required by
sections 2257 and 2257A of title 18 of the U.S. Code, or have certified
to the Attorney General that they collect and maintain individually
identifiable information regarding all performers, including minor
performers, employed by that person, pursuant to tax, labor, and other
laws, labor agreements, or otherwise pursuant to industry standards,
where such information includes the name, address, and date of birth of
the performer, in accordance with 28 CFR part 75; and [name of entity]
has copies of those records or certifications.'' The producer may
provide the following statement instead: ``I hereby certify that with
respect to foreign primary producers who do not either collect and
maintain the records required by sections 2257 and 2257A of title 18 of
the U.S. Code, or certify to the Attorney General that they collect and
maintain individually identifiable information regarding all
performers, including minor performers, whom they employ pursuant to
tax, labor, or other laws, labor agreements, or otherwise pursuant to
industry standards, where such information includes the names,
addresses, and dates of birth of the performers, in accordance with 28
CFR part 75, [name of entity] has taken reasonable steps to confirm
that the performers in any depictions that may potentially constitute
simulated sexually explicit conduct or lascivious exhibition of the
genitals or pubic area of any person were not minors at the time the
depictions were originally produced.'' ``Reasonable steps'' for
purposes of this statement may include, but are not limited to, a good-
faith review of the visual depictions themselves or a good-faith
reliance on representations or warranties from a foreign producer.
(d) Entities covered by each certification. A single certification
may cover all or some subset of all entities owned by the entity making
the certification. However, the names of all sub-entities covered must
be listed in such certification and must be cross-referenced to the
matter for which the sub-entity served as the producer.
(e) Timely submission of certification. An initial certification is
due June 16, 2009. Initial certifications of producers who begin
production after December 18, 2008, but before June 16, 2009, are due
on June 16, 2009. Initial certifications of producers who begin
production after June 16, 2009 are due within 60 days of the start of
production. A subsequent certification is required only if there are
material changes in the information the producer certified in the
initial certification; subsequent certifications are due within 60 days
of the occurrence of the material change. In any case where a due date
or last day of a time period falls on a Saturday, Sunday, or federal
holiday, the due date or last day of a time period is considered to run
until the next day that is not a Saturday, Sunday, or federal holiday.
Dated December 9, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-29677 Filed 12-17-08; 8:45 am]
BILLING CODE 4410-14-P
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