Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct, 38033-38039 [E7-13500]

Agencies

• Department of Justice

[Federal Register Volume 72, Number 133 (Thursday, July 12, 2007)]
[Proposed Rules]
[Pages 38033-38039]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-13500]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

28 CFR Part 75

[Docket No. CRM 104; AG Order No. 2888-2007]
RIN 1105-AB18


Revised Regulations for Records Relating to Visual Depictions of 
Sexually Explicit Conduct

AGENCY: Department of Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule proposes to amend 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: Written comments must be received by September 10, 2007.

ADDRESSES: Written comments may be submitted to: Andrew Oosterbaan, 
Chief, Child Exploitation and Obscenity Section, Criminal Division, 
United States Department of Justice, Washington, DC 20530; Attn: 
``Docket No. CRM 104.''
    Comments may be submitted electronically to: Admin.ceos@usdoj.gov 
or to www.regulations.gov by using the electronic comment form provided 
on that site. Comments submitted electronically must include Docket No. 
CRM 104 in the subject box. You may also view an electronic version of 
this rule at the www.regulations.gov site.
    Facsimile comments may be submitted to: (202) 514-1793. This is not 
a toll-free number. Comments submitted by facsimile must include Docket 
No. CRM 104 on the cover sheet.

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 actual 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

[[Page 38034]]

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 for 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 70 FR 
29607 (May 24, 2005).
    On July 27, 2006, President George W. Bush signed into law the Adam 
Walsh Child Safety and Protection Act, Public Law 109-248 (``the 
Act''). As described in more detail below, the Act made a number of 
changes to section 2257. This proposed rule amends the regulations in 
part 75 to comport with these statutory changes.

Need for the Rule

    In publishing the May 24, 2005, regulations, the Department 
explained the urgency of protecting children against sexual 
exploitation and, consequently, the need for more specific and clear 
regulations detailing the records and inspection process for sexually 
explicit materials to ensure the accurate identity and age of 
performers.
    The identity of every performer is critical to determining and 
ensuring that no performer is a minor. The key congressional concern, 
evidenced by the child exploitation statutory scheme, is that all such 
performers verifiably not be minors, i.e., not be younger than 18. See 
18 U.S.C. 2256(1), 2257(b)(1). Congress has recognized that minors 
warrant special concern in this area. Children are incapable of giving 
voluntary and knowing consent to perform, or to enter into contracts to 
perform, in visual depictions of sexually explicit conduct. In 
addition, children often are involuntarily forced to engage in sexually 
explicit conduct. For these reasons, visual depictions of sexually 
explicit conduct that involve persons under the age of 18 constitute 
child pornography. See id. 2256(8).
    The current regulations and this revised proposed rule provide 
greater details for the record-keeping and inspection process in order 
to ensure that minors are not exploited in visual depictions of actual 
sexually explicit conduct. Neither the current regulations nor this 
revised proposed rule restrict in any way the content of the depictions 
themselves. Instead, the rules clarify the identity verification, 
record-keeping, and labeling requirements pertaining to the depictions.
    By requiring producers to ascertain the age of performers in their 
depictions, and maintain records evidencing such compliance, the 
statute helps to ensure that producers will not exploit minors, either 
through carelessness, recklessness, or deliberate indifference. As for 
those who intentionally produce material depicting minors engaged in 
sexually explicit conduct, the statute and regulations either require 
them to maintain records of their crimes or provide an additional basis 
for prosecuting such individuals besides the applicable child-
exploitation statutes. In addition, by confirming that the statute and 
regulations apply to ``secondary producers,'' the revised proposed rule 
will make it more difficult for the purveyors of such material to 
access the market. As the U.S. Court of Appeals for the DC Circuit 
explained in partially upholding the constitutionality of an earlier 
version of the regulations, one of the reasons for the regulations is 
``to 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.'' American Library Ass'n v. 
Reno, 33 F.3d 78, 86 (DC Cir. 1994).
    The proposed revision of the existing regulations also reflect 
several significant changes to section 2257 made by the Act.
    First, 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 pubic area of a 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 Child Safety and 
Protection Act, Public Law 109-248, section 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 the 
``lascivious exhibition of the genitals or pubic area of a person.''
    The proposed rule reflects this change by adding to the 
definitional section of the regulations at Sec.  75.1(n). Although 
proposed part 75 applies to the ``lascivious exhibition of the genitals 
or pubic area of a person,'' it does 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 as lascivious 
exhibition of the genitals or pubic area (hereinafter, ``lascivious 
exhibition''), 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. Knox, 32 F.3d 733 (3d 
Cir. 1994); United States v. Grimes, 244 F. 3d 375 (5th Cir. 2001); 
United States v. Wolf, 890 F.2d 241 (10th Cir. 1989).
    It should be noted that, although these factors have been used to 
determine whether visual 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

[[Page 38035]]

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 applicability of part 75 to lascivious exhibition is 
prospective from the effective date of the Act. The rule therefore 
applies only to depictions whose original production date is on or 
after July 27, 2006. That is, records are not 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, 
this means 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.
    Along with adding the requirement that producers of lascivious 
exhibition maintain records under section 2257, the Act created a new 
section of the Federal criminal code, 18 U.S.C. 2257A. See Adam Walsh 
Child Safety and Protection Act, Public Law 109-248, section 503. 
Section 2257A requires that producers of visual depictions of simulated 
sexually explicit conduct maintain records documenting that performers 
in those depictions not be minors. It thus brings the record-keeping 
requirements in line with the definition of sexually explicit conduct 
in section 2256(2)(A), which includes both actual and simulated 
conduct. See 18 U.S.C. 2256(2)(A). The Department is preparing a 
separate rule to implement this section.
    In section 503, the Act also created an exemption from the record-
keeping requirements of section 2257, to the extent it applies to 
lascivious exhibition, and of section 2257A. One part of this exemption 
states that section 2257 (to the extent it applies to lascivious 
exhibition) and section 2257A do not apply to matter that is (i) 
Intended for commercial distribution, (ii) is created as a part of a 
commercial enterprise by a person who certifies to the Attorney General 
that he regularly and in the normal course of business collects and 
maintains individually identifiable name and age information regarding 
all performers for purposes such as Federal and State tax, labor, and 
other laws, and (iii) is not produced, marketed, or otherwise made 
available in circumstances such that an ordinary person would conclude 
that it is child pornography. See 18 U.S.C. 2257A(h)(1)(A). The other 
part of this exemption states that section 2257 (to the extent it 
applies to lascivious exhibition) and section 2257A do not apply to 
matter that is produced by someone subject to the Federal 
Communications Commission's authority to enforce federal bans on the 
broadcast of obscene, indecent, or profane programming, and is created 
as a part of a commercial enterprise by a person who certifies to the 
Attorney General that he regularly and in the normal course of business 
collects and maintains individually identifiable name and age 
information regarding all performers, for purposes such as Federal and 
State tax, labor, and other laws. See id. 2257A(h)(1)(B). The rule to 
implement section 2257A will also implement this exemption and the 
associated certification regime, which, as noted, will also apply to 
matter and producers covered by this proposed rule.
    Second, the 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 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 is 
reflected in the proposed rule at Sec. Sec.  75.1(e)(3), 75.6(a), and 
75.8(d). The change materially affects the regulations' 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 Record-Keeping Requirements 
Compliance Statement.''' Because of the change in the statute, the 
proposed rule eliminates this portion of the current regulations. The 
proposed rule requires, 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 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), as amended.

    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 replaced 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 
* * *.

    In enacting this 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

[[Page 38036]]

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' agreement with the 
Department of Justice's view that it already had the authority to 
regulate secondary procedures 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 D.C. Circuit decision 
upholding Congress' 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' agreement with the regulatory approach adopted by the 
Department of Justice in enforcing the statute.

Congressional Record, 109th Cong., 2d Sess., July 25, 2006, at H5725.
    Congress thus rejected the interpretation adopted by the court in 
Sundance Assocs., Inc. 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 (DC Cir. 
1994). In upholding the constitutionality of the secondary-producer 
requirements, the DC 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 current law, the proposed rule retains 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 is that the proposed 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 Act. While the law would permit the 
Department to apply the statute and regulations to actions that 
occurred prior to that date, the Department has determined that the 
rule shall 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 proposed rule clarifies several other issues. First, it 
clarifies 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 clarifies 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 in the depiction and associate each and every 
performer with the records needed to confirm his or her age.
    Third, the proposed rule clarifies that, with regard to the 
government-issued photo identification required for records, a foreign-
government-issued picture identification card 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 in the United States, no matter whether a 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 
documentation under the provisions of part 75 in effect on the original 
production date.
    Finally, although it is not necessary to change the text of the 
regulations for this purpose, the Department hereby clarifies 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.

Regulatory Procedures

Regulatory Flexibility Act

    The Department has drafted this proposed rule in accordance with 
the Regulatory Flexibility Act, 5 U.S.C. 601-612. The Department 
drafted the rule to minimize its effect on small businesses while 
meeting its intended objectives. Based upon the preliminary information 
available to the Department through past investigations and enforcement 
actions involving the affected industry, the Department is unable to 
state with certainty that this rule, if promulgated as a final rule, 
will not have any effect on small businesses of the type described in 5 
U.S.C. 601(3). Accordingly, the Department has prepared a preliminary 
Regulatory Flexibility Act analysis in accordance with 5 U.S.C. 604, as 
follows:
A. Need for and Objectives of This Rule
    The identity of every performer is critical to determining and 
assuring that no performer is a minor. The key congressional concern, 
evidenced by the child exploitation statutory scheme, is that all such 
performers verifiably not be minors, i.e., not younger than 18 years of 
age. See 18 U.S.C. 2256(1), 2257(b)(1). As discussed above, Congress 
has recognized that minors warrant special concern in this area. 
Children themselves are incapable of giving voluntary and knowing 
consent to perform or to enter into contracts to perform. In addition, 
children often are involuntarily forced to engage in sexually explicit 
conduct. For these reasons, visual depictions of sexually explicit 
conduct that involve persons under the age of 18 constitute unlawful 
child pornography. See 18 U.S.C. 2256(8).

[[Page 38037]]

    This proposed rule amends certain provisions of the existing 
regulations to conform to the Act, as described above.
B. Description and Estimates of the Number of Small Entities Affected 
by This Rule
    A ``small business'' is defined by the Regulatory Flexibility Act 
(``RFA'') to be the same as a ``small business concern'' under the 
Small Business Act (``SBA''), 15 U.S.C. 632. Under the SBA, a ``small-
business concern'' is one that: (1) Is independently owned and 
operated; (2) is not dominant in its field of operation; and (3) meets 
any additional criteria established by the SBA. See 5 U.S.C. 601(3) 
(incorporating by reference the definition of ``small business 
concern'' in 15 U.S.C. 632).
    Based upon the information available to the Department through past 
investigations and enforcement actions involving the affected industry, 
there are likely to be a number of small businesses that are producers 
of visual depictions of sexually explicit conduct as defined in the 
statute, as amended by the Act.
    Pursuant to the RFA, the Department requests 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 proposed rule has no effect on State or local governmental 
agencies.
C. Specific Requirements Imposed That Would Affect Private Companies
    The proposed rule modifies 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.

Executive Order 12866

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this rule is a ``significant regulatory 
action'' under Executive Order 12866, section 3(f). 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 depictions 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. The Department encourages all 
affected commercial entities to provide specific estimates, wherever 
possible, of the economic costs that this rule will impose on them.

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.

Executive Order 12988

    This rule meets the applicable standards set forth in Sec.  3(a) 
and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995, 2 U.S.C. 1501 et seq.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, codified at 
5 U.S.C. 804. This rule will not result in an annual effect on the 
economy of $100,000,000 or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Paperwork Reduction Act

    This proposed 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 and comments from the public, in 
accordance with the Paperwork Reduction Act of 1995. Any comments 
received during the comment period should address one or more of the 
following four points: (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 assumptions 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 of Justice has no way of estimating the annual cost 
burden because of the multitude of variables within the control of 
producers of depictions of actual sexually explicit conduct. In 
publishing the proposed rule for the current part 75, the Department 
estimated that there were 100,000 Web sites and 200 producers of DVDs, 
videos, and other images containing visual depictions of actually 
explicit conduct (as defined by the language of section 2257 at that 
time), constituting 2000 businesses. The Department invited comments on 
these estimates but received none. The Department estimates currently 
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. Again, the Department invites comments on these 
numbers. The Department also invites comments on the total number of 
visual depictions that will be subject to the proposed rule and the 
cost of compliance of the rule for each visual depiction.
    All comments and suggestions, or questions regarding additional 
information, should be directed to 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. Comments should also be sent to: Lynn Bryant, 
Clearance Officer, United States Department of Justice, Policy and 
Planning Staff, Justice Management Division, Patrick Henry Building, 
601 D Street, NW., Washington, DC 20530.

[[Page 38038]]

List of Subjects in 28 CFR Part 75

    Crime, Infants and children, Reporting and recordkeeping 
requirements.

    Accordingly, for the reasons set forth in the preamble, part 75 of 
chapter I of title 28 of the Code of Federal Regulations is proposed to 
be amended as follows:

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

    1. The authority citation for part 75 continues to read as follows:

    Authority: 18 U.S.C. 2257.

    2. Amend Sec.  75.1 by revising paragraphs (b), (c)(4), and (e), 
and adding new paragraphs (m) and (n), 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 and the name of 
the individual identified, and provides sufficient specific information 
that the issuing authority can confirm its validity, such as a 
passport, Permanent Resident Card (commonly known as a ``Green Card''), 
or other employment authorization document issued by the United States, 
a driver's license issued by a State or the District of Columbia, or 
another form of identification issued by a State or the District of 
Columbia; or, a foreign government-issued equivalent of any of the 
documents listed above when 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.
    (c) * * *
    (4) Producer does not include persons whose activities relating to 
the visual depiction of actual sexually explicit conduct are limited to 
the following:
    (i) Photo or film processing, including digitization of previously 
existing visual depictions, as part of a commercial enterprise, with no 
other commercial interest in the sexually explicit material, printing, 
and video duplication;
    (ii) Distribution;
    (iii) Any activity, other than those activities identified in 
pargraphs (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 or Internet information location tool (as those 
terms are defined in section 231 of the Communications Act of 1934 (47 
U.S.C. 231)); or
    (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; and
* * * * *
    (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);
    (3) In reference to an image on a webpage for purposes of 
Sec. Sec.  75.6(a) and 75.8(d), 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, 
digital image, or picture, of the visual depiction of an actual human 
being engaged in actual sexually explicit conduct.
    (n) Sexually explicit conduct has the meaning set forth in 18 
U.S.C. 2256(2)(A).
    3. Amend Sec.  75.2 by revising paragraph (a)(1), adding two new 
sentences to the end of paragraph (b), revising paragraph (c), and 
adding a new paragraph (g), to read as follows:


Sec.  75.2  Maintenance of records.

    (a) * * *
    (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 such a 
depiction made after July 3, 1995, the records shall also include a 
legible 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 such a depiction after June 23, 2005, 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.
* * * * *
    (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 Internet computer site or services) that contains one or more visual 
depictions of an actual human being engaged in actual sexually explicit 
conduct made by a performer for whom he maintains records as required 
by this part, the producer may add the additional title or identifying 
number and the names of the performer to the existing records 
maintained pursuant to Sec.  75.2(a)(2). 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 
documentation under the provisions of part 75 in effect during that 
time period.
* * * * *
    (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

[[Page 38039]]

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 July 27, 2006.
    4. Amend Sec.  75.6 by adding a new sentence at the end of 
paragraph (a) and revising paragraph (b)(2), to read as follows:


Sec.  75.6  Statement describing location of books and records.

    (a) * * * 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 sexually explicit conduct appears.
    (b) * * *
    (2) The date of original production of the matter; and,
* * * * *
    5. Amend Sec.  75.8 by revising paragraph (d) to 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 
sexually explicit conduct appears.
* * * * *

    Dated: July 5, 2007.
Alberto R. Gonzales,
Attorney General.
 [FR Doc. E7-13500 Filed 7-11-07; 8:45 am]
BILLING CODE 4410-14-P