[Federal Register: June 25, 2004 (Volume 69, Number 122)]
[Proposed Rules]
[Page 35547-35553]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jn04-23]
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DEPARTMENT OF JUSTICE
28 CFR Part 75
[Docket No. CRM 103; AG Order No. 2723-2004]
RIN 1105-AB05
Inspection of Records Relating to Depiction of Sexually Explicit
Performances
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: This proposed rule amends the record-keeping and inspection
requirements of 28 CFR part 75 to bring the regulations up to date with
current law, to improve understanding of the regulatory system, and to
make the inspection process effective for the purposes of the Child
Protection and Obscenity Enforcement Act of 1988, as amended, relating
to the sexual exploitation and other abuse of children.
DATES: Written comments must be received on or before August 24, 2004.
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 103.''
Comments may be submitted electronically to: Admin.ceos@usdoj.gov
or to http://www.regulations.gov by using the electronic comment form provided
on that site. Comments submitted electronically must include Docket No.
CRM 103 in the subject box. You may also view an electronic version of
this rule at the http://www.regulations.gov site.
Facsimile comments may be submitted to: (202) 514-1793. This is not
a toll-free number. Comments
[[Page 35548]]
submitted by facsimile must include Docket No. CRM 103 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:
1. Background
Congress evidenced its concern for the exploitation of children by
pornographers in the Child Protection and Obscenity Enforcement Act of
1988, one key provision of which requires producers of sexually
explicit matter to maintain certain records concerning the performers
to assist in monitoring the industry. See 18 U.S.C. 2257. The statute
requires the producers of such matter 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 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 ten years for subsequent offenses. See 18 U.S.C. 2257(i).
These provisions supplement the federal statutory provisions
criminalizing the production and distribution of materials visually
depicting minors engaged in sexually explicit conduct. See 18 U.S.C.
2251, 2252.
The record-keeping requirements apply to ``[w]hoever produces'' the
material in question. 18 U.S.C. 2257(a). The statute defines
``produces'' as ``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)(3).
The Attorney General, under 18 U.S.C. 2257(g), issued regulations
implementing the record-keeping requirements on April 24, 1992. See 57
FR 15017 (1992); 28 CFR part 75. In addition to the record-keeping
requirements specifically discussed in section 2257, the regulations
require producers to retain copies of the performers' identification
documents, to cross-index the records by ``[a]ll name(s) of each
performer, including any alias, maiden name, nickname, stage name or
professional name of the performer; and according to the title, number,
or other similar identifier of each book, magazine, periodical, film,
videotape, or other matter,'' and to maintain the records for a
specified period of time. 28 CFR 75.2(a)(1), 75.3, 75.4.
Most recently, in 2003, Congress made extensive amendments to the
child exploitation statutory scheme based on detailed legislative
findings, which the Department adopts as grounds for proposing this
rule. See Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today (PROTECT) Act of 2003, Public Law 108-
21,117 Stat. 650 (April 30, 2003) (hereinafter the ``2003
Amendments''). The Department agrees with each of these findings, and
proposes to amend the regulations in 28 CFR part 75 on the basis of
these specific findings. As explained more fully below, the rules
implement a more detailed inspection system to ensure that children are
not used as performers in sexually explicit depictions.
2. Need for the Rule
Recent federal statutory enactments and judicial interpretations
have highlighted 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 assure the accurate identity and age of
performers.
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, was that all such
performers be verifiably not minors, i.e. not younger than 18. 28
U.S.C. 2256(1), 2257(b)(1). Minors--children--warrant a special concern
by Congress for several reasons, as discussed more specifically in
relation to the inspection process. Children 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.
This proposed rule merely provides greater details for the record-
keeping and inspection process in order to ensure that minors are not
used as performers in sexually explicit depictions. The rule does not
restrict in any way the content of the underlying depictions; it simply
clarifies the labeling on, and record-keeping requirements pertaining
to, that underlying depiction. Compliance with the record-keeping
requirements of this part has no bearing on the legality or illegality
of the underlying sexually explicit material.
Moreover, the growth of Internet facilities in the past five years,
and the proliferation of pornography on Internet computer sites or
services, requires that the regulations be updated. In the proposed
rule, a number of definitions are revised to adapt the rule to the
modern modes of communication.
3. Analysis of the Proposed Rule
Identification. The proposed rule would modify the acceptable types
of identification in 28 CFR 75.1(b) by narrowing the categories of
documents required to verify the individual's identity. For example, a
selective service card is removed from the list of such documents
because it does not have a photograph and is not a part of a system of
records that can be independently accessed to verify the legitimacy of
the identification card. At the same time, a requirement is proposed to
be added that the identification card used to verify identification by
the producer must be independently accessible by government entities in
order to ensure its legitimacy. Thus, driver's licenses--which are
routinely accessed through the States' departments that manage such
licensing and motor vehicle registration--are a prime form of
identification. Similarly, United States passports provide positive
identification to the producer and may be accessed by law enforcement
agencies through the Department of State for verification. However,
less reliable forms of identification, such as college identification
cards, which often have no security features and are subject to easy
counterfeiting, have been removed from the list of acceptable
identification. The point of this proposed rule change is to increase
the reliability of the documents used to determine identity and age of
performers to better protect minors from exploitation.
Internet Definitions. To bring the regulations up to date with the
2003 Amendments, the definition of a producer has been modified in
proposed 28 CFR 75.1. Persons who manage the content of computer sites
or services are considered secondary producers. An Internet service
provider (ISP) is not a producer under this definition; ISPs
[[Page 35549]]
merely provide individuals with access to the Internet. See 47 U.S.C.
231(b). The terms used and defined in these regulations are intended to
provide common-language guidance and usage and are not meant to exclude
technologies or uses of these terms as otherwise employed in practice
or defined in other regulations or federal statutes (such as 47 U.S.C.
230, 231).
Records. Proposed 28 CFR 75.2 contains a new paragraph (d)
providing for a forward application of the provision of the rule to
require that any record that is created for a performer after the
effective date of the final rule must include updating of related
records to reflect the current standards. This requirement is not a
retroactive application, but a requirement that any future change in
the records must ensure that all records relating to that performer are
complete. The proposed rule will establish an implementation timeframe
that is the minimum effective date rule required under the
Administrative Procedure Act. See 5 U.S.C. 553(d). Accordingly,
producers will be required to comply with the regulations 30 days after
publication of a final rule.
A new paragraph (e) would specifically provide that the records
required by this part must be segregated from all other records. As
these specific records are subject to inspection under 28 CFR 75.5, the
Department wishes to make clear that the inspection is substantively
limited and that other records and items are not subject to such
inspection. Accordingly, the Department proposes to require that the
records subject to inspection be specifically segregated from all other
records to assure that the inspections are limited.
The majority of new depictions are now created for the Internet.
The content of the Internet is constantly changing, and these proposed
rules recognize this fact. These rules also can be applied to more
permanent media. Web pages appear to have an average life of only 100
days, and Web addresses disappear and change to such an extent that a
permanent record of the depiction and its temporary locations (URL) are
required. See R. Weiss, On the Web, Research Work Proves Ephemeral,
Wash. Post, p. A8 (Nov. 24, 2003), accessed at http://www.washingtonpost.com/wp-dyn/articles/A8730-2003Nov23.html
(last
accessed on Nov. 25, 2003). Accordingly, proposed 28 CFR 75.2(a)(1)
would require computer site or service producers to maintain a ``hard''
physical or electronic copy of the actual depiction with the
identification and age files, along with and linked to all accession
information, such as each URL used for that depiction. This ensures
that all of the data about all of the people in the depictions can be
accessed to ensure that none of the people in the depictions are
minors.
Proposed Sec. 75.5, which governs the inspection process, is
completely rewritten and updated. The Department considers the identity
and age of the performers to be a critical health and safety issue, and
Congress has made clear its intent that minors shall not be performers
in covered depictions. As discussed above, the age of the performer is
directly linked to whether the producer has produced unlawful child
pornography, and the identification and inspection of identification
records to determine that performers are of legitimate age is the core
underlying purpose of the records and inspection process. Because of
the significant potential for child exploitation in the context of
pornography production, the Department proposes in revised Sec. 75.5
to adapt regulations of the Occupational Health and Safety
Administration, 29 CFR 1903.1 et seq., to the specific purpose of
protecting minors from such exploitation.
The regulations and inspections are narrowly tailored to ensure
that the process comports with constitutional standards. Although
protections of the Fourth Amendment extend to commercial properties,
and to administrative inspections, Congress has specifically required
that certain records be kept to assure the health and welfare of
performers, i.e., that the performers are not children. These specific
records are required to be created and maintained by law, and
inspection is limited to those required records. The Department
believes that the government unquestionably has a substantial interest
in avoiding the sexual exploitation of minors. Congress' findings of
fact in enacting legislative changes to the child exploitation
statutory scheme in 2003 in the PROTECT Act bear this out.
As Justice White noted in Ferber v. New York, 458 U.S. 747, 757
(1982), ``[t]he prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance.'' Noting
the specific findings of the New York legislature in banning the sale
of material depicting sexual conduct of children, the Court concluded:
``We shall not second-guess this legislative judgment * * * [V]irtually
all of the States and the United States have passed legislation
proscribing the production of or otherwise combating `child
pornography.' The legislative judgment * * * is that the use of
children as subjects of pornographic materials is harmful to the
physiological, emotional, and mental health of the child. That
judgment, we think, easily passes muster under the First Amendment.''
Id. at 758 (footnote omitted).
Finally, the regulations set out in great detail the specifications
that inform producers of sexually explicit depictions of precisely what
records are required to be kept, the manner in which the records must
be kept, to whom and how the statement of location of such records must
be made, and the limited inspection that may be imposed upon those
mandatory records.
Proposed 28 CFR 75.6(d) makes clear the requirements for
presentation of the notice regarding the locations of covered records.
Although the Department did not, in the past, believe that it was
necessary to be specific about the manner of display of the required
notice, some producers, particularly in the film and Internet media,
have attempted to minimize the required notice to such an extent that
it has been unreadable, either for lack of size, acuity, contrast, or
duration. Accordingly, to provide the industry with clear guidance, and
to ensure that the required notice is displayed in such a manner as to
be readable, this provision sets out specific requirements for the
display. The Department specifically invites comments on how best to
make these requirements clearer and applicable to all modes of
presentation.
Regulatory Procedures
Regulatory Flexibility Act
The Department of Justice has drafted this regulation in accordance
with the Regulatory Flexibility Act, 5 U.S.C. 601-612. The Department
of Justice drafted this rule to minimize its impact 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
an initial Regulatory Flexibility Act analysis in accordance with 5
U.S.C. 603, as follows:
[[Page 35550]]
A. Need for and Objectives of This Proposed Rule
This proposed rule, the need for the proposed rule, and the
objectives of the proposed rule are described in the SUPPLEMENTARY
INFORMATION.
B. Description and Estimates of the Number of Small Entities Affected
by This Proposed 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. See 5 U.S.C. 601(3)
(incorporating by reference the definition of ``small business
concern'' in 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.
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 producers of sexually explicit
depictions who hire or pay for performers and who, accordingly, would
come under the ambit of the proposed rule. However, none of the changes
proposed by this rule affect the number of producers that would be
covered. The proposed rule clarifies the meaning of an existing
definition and how that definition covers electronic sexually explicit
depictions, but does not expand that definition.
Pursuant to the RFA, the Department encourages all affected
commercial entities to provide specific estimates, wherever possible,
of the economic costs that this rule will impose on them and the
benefits that it will bring to them and to the public. The Department
asks 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 regulation has no effect on State or local
governmental agencies.
C. Specific Requirements Imposed That Would Impact Private Companies
The proposed rule provides clearer requirements for private
companies to maintain records of performers of sexually explicit
depictions to ensure that minors are not used in such sexually explicit
depictions. The proposed rule requires that these records be properly
indexed and cross-referenced. The Department specifically seeks
information from affected producers on the costs of the record-keeping,
indexing, and cross-referencing requirements.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department of Justice 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 proposed regulation is that children will be
better protected from exploitation in the production of sexually
explicit depictions by requiring producers to document that only those
who are 18 years of age perform in such sexually explicit depictions.
The costs to the industry include slightly higher record-keeping costs
and the potential for obligation of some amount of time assisting
inspectors in the process of inspecting the required records. The
Department has determined that these benefits and costs are difficult
to quantify precisely, but that the benefits are significant, the costs
are minimal, and the benefits clearly outweigh the costs.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1501 et seq.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. See 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 on 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 clarify the
record-keeping requirements pursuant to Congressional enactments and
the development of the Internet.
This rule contains a new information collection that modifies the
current 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
(OMB) for regular approval and comments will be solicited from the
public, in accordance with the Paperwork Reduction Act of 1995. The
title of the information collection is ``18 U.S.C. 2257 Record keeping
Requirements for Inspection Records Relating to Depiction of Sexually
Explicit Performances''. Any comments received during the comment
period should address one or more of the following four points: (1)
Evaluate 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) evaluate 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) enhance the quality, utility, and clarity of
the information to be collected; and (4) 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.
During the first 60 days of this same review period, a regular
review of this information collection is also being undertaken. All
comments and suggestions, or questions regarding additional
information, to include obtaining a copy of the proposed information
collection instrument with instructions, should be directed to: Andrew
Oosterbaan, Chief, Child Exploitation and Obscenity Section,
[[Page 35551]]
Criminal Division, United States Department of Justice, Washington, DC
20530. Comments should also be sent to: Brenda Dyer, Deputy Clearance
Officer, United States Department of Justice, Policy and Planning
Staff, Justice Management Division, Patrick Henry Building, 601 D
Street, NW., Rm. 1600, Washington, DC 20530.
The Criminal Division of the United States Department of Justice
cannot estimate the annual burden of collecting the requisite
information. The Department of Justice has no way of estimating the
annual record-keeping hours burden because of the multitude of
variables within the control of producers of depictions of actual
sexually explicit conduct. Inasmuch as these records may be maintained
on simple spreadsheet or data management software, within the
discretion of the producers of depictions of actual sexually explicit
conduct, and only file copies of associated identification are
required, the Department cannot estimate the annualized hour burden.
Industry comment has been invited in the proposed rule.
List of Subjects in 28 CFR Part 75
Crime, Infants and children, Reporting and recordkeeping
requirements.
Accordingly, the Department of Justice proposes to amend chapter 1
of title 28 of the Code of Federal Regulations as follows:
1. Part 75 of title 28 CFR is revised to read as follows:
PART 75--CHILD PROTECTION RESTORATION AND PENALTIES ENHANCEMENT ACT
OF 1990 AND PROTECT ACT; RECORD-KEEPING AND RECORD INSPECTION
PROVISIONS
Sec.
75.1 Definitions.
75.2 Maintenance of records.
75.3 Categorization of records.
75.4 Location of records.
75.5 Inspection of records.
75.6 Statement describing location of books and records.
75.7 Exemption statement.
75.8 Location of the statement.
Authority: 18 U.S.C. 2257.
Sec. 75.1 Definitions.
(a) Terms used in this part shall have the meanings set forth in 18
U.S.C. 2257, and as provided in this section. The terms used and
defined in this part are intended to provide common-language guidance
and usage and are not meant to exclude technologies or uses of these
terms as otherwise employed in practice or defined in other regulations
or federal statutes (e.g., 47 U.S.C. 230, 231).
(b) Picture identification card means a document issued by the
United States, a State government or a political subdivision thereof,
or a United States territory that bears the photograph and the name of
the individual identified, and provides sufficient specific information
that it can be accessed from the issuing authority, e.g., a passport
issued by the United States or a foreign country, driver's license
issued by a State or the District of Columbia, or identification card
issued by a State or the District of Columbia.
(c) Producer means any person, including any individual,
corporation, or other organization, who is a primary producer or a
secondary producer.
(1) A primary producer is any person who actually films,
videotapes, photographs, or creates a computer-generated image, digital
image, or picture of, or digitizes an image of, a visual depiction of
actual sexually explicit conduct.
(2) A secondary producer is any person who produces, assembles,
manufactures, publishes, duplicates, reproduces, or reissues a book,
magazine, periodical, film, videotape, a computer-generated image,
digital image, or picture, or other matter intended for commercial
distribution that contains a visual depiction of actual sexually
explicit conduct, or who inserts on a computer site or service a
digital image of, or otherwise manages the content of a computer site
or service that contains a visual depiction of, actual sexually
explicit conduct, including any person who enters into a contract,
agreement, or conspiracy to do any of the foregoing.
(3) The same person may be both a primary and a secondary producer.
(4) Producer does not include persons whose activities relating to
the visual depiction of actual sexually explicit conduct are limited to
the following:
(i) Photo processing;
(ii) Mere distribution;
(iii) Any activity, other than those activities identified in
paragraphs (c)(1) and (2) of this section, that does not involve the
hiring, contracting for, managing, or otherwise arranging for the
participation of the depicted performers;
(iv) A provider of Web-hosting services who does not manage the
content of the computer site or service; or
(v) A provider of an electronic communication service or remote
computing service who does not manage the content of the computer site
or service.
(5) A producer includes any subsidiary or parent organization, and
any subsidiary of any parent organization, notwithstanding any
limitations on liability that would otherwise be applicable.
(d) Sell, distribute, redistribute, and re-release refer to
commercial distribution of a book, magazine, periodical, film,
videotape, computer-generated image, digital image, picture, or other
matter that contains a visual depiction of actual sexually explicit
conduct, but does not refer to noncommercial or educational
distribution of such matter, including transfers conducted by bona fide
lending libraries, museums, schools, or educational organizations.
(e) Copy, when used in reference to an identification document or a
picture identification card, means a photocopy or a photograph.
(f) Internet means collectively the myriad of computer and
telecommunications facilities, including equipment and operating
software, that constitute the interconnected world-wide network of
networks that employ the Transmission Control Protocol/Internet
Protocol, or any predecessor or successor protocols to such protocol,
to communicate information of all kinds by wire or radio.
(g) Computer site or service means a computer server-based file
repository or file distribution service that is accessible over the
Internet, World Wide Web, Usenet, or any other interactive computer
service (as defined in 47 U.S.C. 230(f)(2)). Computer site or service
includes, without limitation, sites or services using hypertext markup
language, hypertext transfer protocol, file transfer protocol,
electronic mail transmission protocols, similar data transmission
protocols, or any successor protocols, including but not limited to
computer sites or services on the World Wide Web.
(h) URL means uniform resource locator.
(i) Electronic communications service has the meaning set forth in
18 U.S.C. 2510(15).
(j) Remote computing service has the meaning set forth in 18 U.S.C.
2711(2).
(k) Manage content means to make editorial or managerial decisions
concerning the content of a computer site or service.
(l) Interactive computer service has the meaning set forth in 47
U.S.C. 230(f)(2).
Sec. 75.2 Maintenance of records.
(a) Any producer of any book, magazine, periodical, film,
videotape, computer-generated image, digital
[[Page 35552]]
image, picture, or other matter that contains one or more visual
depictions of actual sexually explicit conduct made after November 1,
1990, shall, for each performer portrayed in such visual depiction,
create and maintain records containing the following:
(1) The legal name and date of birth of each performer, obtained by
the producer's examination of an identification document, as defined by
18 U.S.C. 1028(d)(3). For any performer portrayed in such a depiction
made after May 26, 1992, the records shall also include a legible copy
of the identification document examined and, if that document does not
contain a recent and recognizable picture of the performer, a legible
copy of a picture identification card. For any performer portrayed in
such a depiction after [insert date 30 days after publication of the
final rule in the Federal Register], the records shall include:
(i) A copy of the depiction, and
(ii) Where the depiction is published on an Internet Computer site
or service, a copy of any URL associated with the depiction.
(2) Any name, other than each performer's legal name, ever used by
the performer, including the performer's maiden name, alias, nickname,
stage name, or professional name. For any performer portrayed in such a
depiction made after May 26, 1992, such names shall be indexed by the
title or identifying number of the book, magazine, film, videotape,
computer-generated image, digital image, picture, URL, or other matter.
(3) Records required to be created and maintained under this part
shall be organized alphabetically, or numerically where appropriate, by
the legal name of the performer (by last or family name, then first or
given name), and shall be indexed or cross-referenced to each alias or
other name used and to each title or identifying number of the book,
magazine, film, videotape, computer-generated image, digital image,
picture, URL, or other matter.
(b) A producer who is a secondary producer as defined in Sec.
75.1(c) may satisfy the requirements of this part to create and
maintain records by accepting from the primary producer, as defined in
Sec. 75.1(c), copies of the records described in paragraph (a) of this
section. Such a secondary producer shall also keep records of the name
and address of the primary producer from whom he received copies of the
records.
(c) The information contained in the records required to be created
and maintained by this part need be current only as of the time the
primary producer actually films, videotapes, or photographs, or creates
a computer-generated image, digital image, or picture, of the visual
depiction of actual sexually explicit conduct. If the producer
subsequently produces an additional book, magazine, film, videotape,
computer-generated 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 actual sexually explicit
conduct made by a performer for whom he maintains records as required
by this part, the producer may add the additional title or identifying
number and the names of the performer to the existing records
maintained pursuant to Sec. 75.2(a)(2).
(d) For any record created or amended after [insert date 30 days
after publication of the final rule in the Federal Register], all such
records shall be organized alphabetically, or numerically where
appropriate, by the legal name of the performer (by last or family
name, then first or given name), and shall be indexed or cross-
referenced to each alias or other name used and to each title or
identifying number of the book, magazine, film, videotape, computer-
generated image, digital image, picture, or other matter (including but
not limited to Internet computer site or services). If the producer
subsequently produces an additional book, magazine, film, videotape,
computer-generated 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 actual sexually explicit
conduct made by a performer for whom he maintains records as required
by this part, the producer shall add the additional title or
identifying number and the names of the performer to the existing
records and such records shall thereafter be maintained in accordance
with this paragraph.
(e) Records required to be maintained under this part shall be
segregated from all other records, shall not contain any other records,
and shall not be contained within any other records.
Sec. 75.3 Categorization of records.
Records required to be maintained under this part shall be
categorized alphabetically, or numerically where appropriate, and
retrievable to: All name(s) of each performer, including any alias,
maiden name, nickname, stage name, or professional name of the
performer; and according to the title, number, or other similar
identifier of each book, magazine, periodical, film, videotape,
computer-generated image, digital image, picture, or other matter. Only
one copy of each picture of a performer's picture identification card
and identification document must be kept as long as each copy is
categorized and retrievable according to any name, real or assumed,
used by such performer, and according to any title or other identifier
of the matter.
Sec. 75.4 Location of records.
Any producer required by this part to maintain records shall make
such records available at the producer's place of business. Each record
shall be maintained for seven years from the date of creation or last
amendment or addition. If the producer ceases to carry on the business,
the records shall be maintained for five years thereafter. If the
producer produces the book, magazine, periodical, film, videotape,
computer-generated image, digital image, picture, or other matter
(including but not limited to Internet computer site or services) as
part of his control of or through his employment with an organization,
records shall be made available at the organization's place of
business. If the organization is dissolved, the individual who was
responsible for maintaining the records on behalf of the organization,
as described in Sec. 75.6(b), shall continue to maintain the records
for a period of five years after dissolution.
Sec. 75.5 Inspection of records.
(a) Authority to inspect. Investigators designated by the Attorney
General (hereinafter ``investigators'') are authorized to enter without
delay and at reasonable times (as defined in subsection (c)(1)) any
establishment of a producer where records under Sec. 75.2 are
maintained to inspect, within reasonable limits and in a reasonable
manner, for the purpose of determining compliance with the record-
keeping requirements of 18 U.S.C. 2257.
(b) Advance notice of inspections. Advance notice of record
inspections shall not be given.
(c) Conduct of inspections.
(1) Inspections shall take place during normal business hours and
at such places as specified in Sec. 75.4. For the purpose of this
part, ``normal business hours'' are from 8 a.m. to 6 p.m., local time,
and any other time during which the producer is actually conducting
business relating to producing depiction of actual sexually explicit
conduct.
(2) Upon commencing an inspection, the investigator shall:
(i) Present his or her credentials to the owner, operator, or agent
in charge of the establishment;
(ii) Explain the nature and purpose of the inspection, including
the limited
[[Page 35553]]
nature of the records inspection, and the records required to be kept
by the Act and this part; and
(iii) Indicate the scope of the specific inspection and the records
that he or she wishes to inspect.
(3) The inspections shall be conducted so as not to unreasonably
disrupt the operations of the producer's establishment.
(4) At the conclusion of an inspection, the investigator may
informally advise the producer of any apparent violations disclosed by
the inspection. The producer may bring to the attention of the
investigator any pertinent information regarding the records inspected
or any other relevant matter.
(d) Frequency of inspections. A producer may be inspected once
during any four-month period, unless there is a reasonable suspicion to
believe that a violation of this part has occurred, in which case an
additional inspection or inspections may be conducted before the four-
month period has expired.
(e) Copies of records. An investigator may photocopy, at no expense
to the producer, during the inspection, any record that is subject to
inspection.
(f) Other law enforcement authority. These regulations do not
restrict the otherwise lawful investigative prerogatives of an
investigator while conducting an inspection.
(g) Seizure of evidence. Notwithstanding any provision of this part
or any other regulation, a law enforcement officer may seize any
evidence of the commission of any felony while conducting an
inspection.
Sec. 75.6 Statement describing location of books and records.
(a) Any producer of any book, magazine, periodical, film,
videotape, computer-generated image, digital image, picture, or other
matter that contains one or more visual depictions of actual sexually
explicit conduct made after November 1, 1990, and produced,
manufactured, published, duplicated, reproduced, or reissued on or
after May 26, 1992, shall cause to be affixed to every copy of the
matter a statement describing the location of the records required by
this part. A producer may cause such statement to be affixed, for
example, by instructing the manufacturer of the book, magazine,
periodical, film, videotape, computer-generated image, digital image,
picture, or other matter to affix the statement.
(b) Every statement shall contain:
(1) The title of the book, magazine, periodical, film, or
videotape, computer-generated image, digital image, picture, or other
matter (unless the title is prominently set out elsewhere in the book,
magazine, periodical, film, or videotape, computer-generated image,
digital image, picture, or other matter) or, if there is no title, an
identifying number or similar identifier that differentiates this
matter from other matters that the producer has produced;
(2) The date of production, manufacture, publication, duplication,
reproduction, or reissuance of the matter; and,
(3) A street address at which the records required by this part may
be made available. The street address may be an address specified by
the primary producer or, if the secondary producer satisfies the
requirements of Sec. 75.2(b), the address of the secondary producer. A
post office box address does not satisfy this requirement.
(c) If the producer is an organization, the statement shall also
contain the name, title, and business address of the individual
employed by such organization who is responsible for maintaining the
records required by this part.
(d) The information contained in the statement must be accurate as
of the date on which the book, magazine, periodical, film, videotape,
computer-generated image, digital image, picture, or other matter is
sold, distributed, redistributed, or rereleased.
(e) For the purposes of this section, the required statement shall
be displayed in the same typeface as the names of the performers,
director, producer, or owner, whichever is larger, and shall be no
smaller in size than the largest of the names of the performers,
director, producer, or owner, and in no case in less than 11pt type, in
black on a white, untinted background. For any electronic or other
display of the notice that is limited in time, the notice must be
displayed for a sufficient duration and of a sufficient size to be
capable of being read by the average viewer.
Sec. 75.7 Exemption statement.
(a) Any producer of any book, magazine, periodical, film,
videotape, computer-generated image, digital image, picture, or other
matter may cause to be affixed to every copy of the matter a statement
attesting that the matter is not covered by the record-keeping
requirements of 18 U.S.C. 2257(a)-(c) and of this part if:
(1) The matter contains only visual depictions of actual sexually
explicit conduct made before November 1, 1990, or is produced,
manufactured, published, duplicated, reproduced, or reissued before May
26, 1992;
(2) The matter contains only visual depictions of simulated
sexually explicit conduct; or,
(3) The matter contains only some combination of the visual
depictions described in paragraphs (a)(1) and (a)(2) of this section.
(b) If the primary producer and the secondary producer are
different entities, the primary producer may certify to the secondary
producer that the visual depictions in the matter satisfy the standards
under paragraphs (a)(1) through (a)(3) of this section. The secondary
producer may then cause to be affixed to every copy of the matter a
statement attesting that the matter is not covered by the record-
keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part.
Sec. 75.8 Location of the statement.
(a) All books, magazines, and periodicals shall contain the
statement required in Sec. 75.6 or suggested in Sec. 75.7 either on
the first page that appears after the front cover or on the page on
which copyright information appears.
(b) In any film or videotape that contains end credits for the
production, direction, distribution, or other activity in connection
with the film or videotape, the statement referred to in Sec. 75.6 or
Sec. 75.7 shall be presented at the end of the end titles or final
credits and shall be displayed for a sufficient duration to be capable
of being read by the average viewer.
(c) Any other film or videotape shall contain the required
statement within one minute from the start of the film or videotape,
and before the opening scene, and shall display the statement for a
sufficient duration to be read by the average viewer.
(d) A computer site or service or Web address containing a
computer-generated image, digital image, or picture, shall contain the
required statement on its homepage or principal URL.
(e) For all other categories not otherwise mentioned in this
section, the statement is to be prominently displayed consistent with
the manner of display required for the aforementioned categories.
Dated: June 14, 2004.
John Ashcroft,
Attorney General.
[FR Doc. 04-13792 Filed 6-24-04; 8:45 am]
BILLING CODE 4410-14-P