Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct; Inspection of Records Relating to Depiction of Simulated Sexually Explicit Performance, 77432-77472 [E8-29677]

Agencies

• Department of Justice

[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Rules and Regulations]
[Pages 77432-77472]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29677]



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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

Federal Register / Vol. 73, No. 244 / Thursday, December 18, 2008 / 
Rules and Regulations

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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

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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

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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 c