The Attorney General's Changes to the Section 2257 Regulations:

A Comparison of the prior regulations, the June, 2004 proposed regulations, and the promulgated, final Regulations effective June 23, 2005, together with official Commentary by the Department of Justice set forth in association with the various provisions in the proposal and final Regulations to which such official Commentary relates.

A simpler Table without DOJ Commentary may be consulted elsewhere on this site.

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Prior Regulations Regulations Proposed, June 2004

Text in Blue reflects change from existing
.
DOJ Comments on June, 2004 Proposed Regulations Final Regulations Effective June 23, 2005

Text in Blue reflects change from existing.

Text in Brown reflects both a change from Existing regulations and a significant change from June, 2004 proposed reguations.
DOJ Comments on Final Regulations

Sec. 75.1 Definitions.

(a) Terms used in this part shall have the meanings set forth in 18 U.S.C. 2257.

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).
. Sec. 75.1 Definitions.

(a) Terms used in this part shall have the meanings set forth in 18 U.S.C. 2257, and as provided in this section. The terms used and defined in these regulations are intended to provide common-language guidance and usage and are not meant to exclude technologies or uses of these terms as otherwise employed in practice or defined in other regulations or federal statutes (i.e., 47 U.S.C. 230, 231).


(a)One commenter commented that the term technologies is improperly used in Sec. 75.1(a), which states that the proposed rule's definitions of terms ``are not meant to exclude technologies or uses of these terms as otherwise employed in practice or defined in other regulations or federal statutes * * *.'' The Department declines to amend the proposed rule in response to this comment. The Department believes the commenter may have misunderstood the sentence. As Sec. 75.1(a) explains, the definitions in the rule are not used in their technical senses and do not, therefore, exclude any particular type of technology, or technologies, currently existing or invented in the future on the basis of the language used in the Part.
(b) Picture identification card shall mean a document issued by a government entity or by a private entity, such as a school or a private employer, that bears the photograph and the name of the individual identified. A picture identification card may be a passport, driver's license, work identification card, school identification card, selective service card, or identification card issued by a state. (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. (b) 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. 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
(b) Picture identification card means a document issued by the United States, a State government or a political subdivision thereof, or a United States territory, that bears the photograph and the name of the individual identified, and provides sufficient specific information that it can be accessed from the issuing authority, such as a passport, Permanent Resident Card (commonly known as a ``Green Card''), or other employment authorization document issued by the United States, a driver's license issued by a State or the District of Columbia, or another form of identification issued by a State or the District of Columbia; or, a foreign government-issued equivalent of any of the documents listed above when both the person who is the subject of the picture identification card and the producer maintaining the required records are located outside the United States. (b) Two commenters commented that the definition of picture identification card is vague, in particular because it does not include documents issued by a foreign government but does include as an example a foreign passport. In response to these comments, the Department has clarified that the definition includes a foreign government-issued passport or any other document issued by a foreign government or a political subdivision thereof only when both the person who is the subject of the picture identification card and the producer maintaining the required records are located outside the United States. The definition also clarifies that it includes a U.S. government-issued Permanent Resident Card (commonly known as a ``Green Card'') or other U.S. government-issued Employment Authorization Document.

One commenter commented that the list of acceptable forms of performer identification in the proposed rule is unduly restrictive and argued that college and employer identification cards should be acceptable. The Department declines to adopt this comment. The regulation properly requires a government-issued identification document because other forms of identification are too susceptible to forgery to accomplish the purposes of the Part.

(c) Producer means any person, including any individual, corporation, or other organization, who is a primary producer or a secondary producer. (c) Producer means any person, including any individual, corporation, or other organization, who is a primary producer or a secondary producer. (c) 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; ISPsmerely provide individuals with access to the Internet. (c) Producer means any person, including any individual, corporation, or other organization, who is a primary producer or a secondary producer. (c) Five commenters commented that the definitions of producer and secondary producer would encompass on-line distributors of pornography who digitize the covers of videos, DVDs, and magazines but are not involved in the actual production of the material. One of these commenters also claimed that the definition of producer should be changed to allow on-line distributors to rely upon records provided to them by the immediately preceding secondary producer, in accordance with the Department's representation to the court in American Library Ass'n v. Reno. The Department declines to adopt these comments. The definition of producer is of necessity broad enough to encompass those who digitize images--even for distribution purposes--because in so doing, a new sexually explicit depiction is created. The Department has determined that it is not possible to change the definition in such a way as to exclude distributors while not also creating an unacceptable loophole in the coverage of the regulation. This definition does not alter the Department's representation to the court in American Library Ass'n v. Reno, and it remains true that a secondary producer not in privity with the primary producer may rely upon records provided to it by the immediately preceding secondary producer. However, on-line distributors who digitize depictions on the covers of videos, DVDs, magazines, and other material such that new depictions are created and displayed on the Internet are covered by the definition of producer and must maintain the required records.

One commenter commented that the definition of producer is too broad, such that one depiction may have multiple primary producers, including, e.g., the photographer and a different individual who digitizes the image. The commenter argued that the definition should be written so that each depiction has only one primary producer. The Department declines to adopt this comment. 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 producers 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.
(1) A primary producer is any person who actually films, videotapes, or photographs a visual depiction of actual sexually explicit conduct. (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. . (1) A primary producer is any person who actually films, videotapes, photographs, or creates a digitally- or computer- manipulated image, a digital image, or picture of, or digitizes an image of, a visual depiction of an actual human being engaged in actual sexually explicit conduct. (1) Citing the Tenth Circuit's holding in Sundance Assoc., Inc. v Reno, 139 F.3d 804 (10th Cir.1998), several commenters commented that the rule's application to secondary producers exceeds the Department's statutory authority. Furthermore, the commenters claimed that application of the rule to secondary producers as defined by the rule would have an unconstitutionally burdensome and chilling effect, andfour commenters noted that small businesses would be particularly burdened with regard to maintaining segregated records, copies of depictions, and cross-indexed records. In Sundance, the court held that the statutory definition of producer did not distinguish between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity ``does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted.'' 18 U.S.C. 2257(h)(3). In contrast, the D.C. Circuit in American Library Ass'n v. Reno implicitly accepted that the distinction between primary and secondary producers was valid. The D.C. Circuit there held that the requirement that secondary producers maintain records was not a constitutionally impermissible burden on protected speech, particularly since secondary producers can comply by maintaining copies of the records of the primary producers, an option permitted by this rule. In so holding, the court implicitly considered the distinction between primary and secondary producers to be legitimate. Consistent with the D.C. Circuit's holding, which the Department believes reflects the correct view of the law, the Department declines to adopt these comments. For the same reason, the Department declines to adopt the comment of four commenters that the exclusions to the definition of producer in Sec. 75.1(c)(4)(iii) eliminate the reference to primary and secondary producers contained in Sec. 75.1(c)(1)-(2).

One commenter commented that the definition of a primary producer as anyone who ``digitizes an image'' could be read to include anyone who scans or digitizes a photograph or negative. The commenter suggested that someone who performs that activity should be exempted from the record-keeping requirements in the same way that photo processors are exempt under Sec. 75.1(c)(4)(i). The Department adopts this comment and has clarified in the final rule that someone who solely digitizes a pre-existing photograph or negative as part of a commercial enterprise and has no other commercial interest in the production, reproduction, sale, distribution, or other transfer of the sexually explicit depiction is exempt from the requirements of Sec. 75. As reflected in the phrase ``has no other commercial interest in the production, reproduction, sale, distribution, or other transfer of the sexually explicit depiction,'' this definition is intended to apply to businesses that are analogous to photo processors in their lack of commercial interest in the sexually explicit material, and who are separate and distinct from the on-line distributors of pornography who digitize the covers of videos, DVDs, etc., who are included in the definition of secondary producer, as discussed above.
(2) A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or other matter intended for commercial distribution that contains 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. . (2) A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, digitally- or computer- manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the
sexually explicit content of a computer site or service that contains a visual depiction of
an actual human being engaged in actual sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing.

(2) two commenters commented that the expanded definition of producer to include any person who creates a computer- generated image is contrary to the ruling in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), which permits restrictions only on those who produce depictions of actual persons. The commenters claimed, too, that the provision is contradictory in that it covers computer-generated images while limiting its coverage to ``depiction[s] of actual sexually explicit conduct.'' 28 CFR 75.1(c)(1)-(2). Thus, the commenters argued, all statutory references to computer-generated images and depictions not involving possible child abuse to actual children in their creation should be removed. The Department notes that the Supreme Court in Ashcroft v. Free Speech Coalition determined that virtual child pornography could not be constitutionally prohibited under that statute, which did not require that the material be either obscene or the product of sexual abuse. The ruling does not, however, restrict the government's ability to ensure that performers in sexually explicit depictions are not in fact children. evertheless, the Department has made a slight change to the final rule in response to these comments by clarifying that the rule applies to those who digitally manipulate images of actual human beings but not to those who generate computer images that do not depict actual human beings (e.g., cartoons).

One commenter commented that the inclusion in the definition of secondary producer of anyone who ``enters into a contract, agreement, or conspiracy'' to produce a sexually explicit depiction was irrational because such a person was not likely to have had a relationship with the performer and may not have had knowledge of the content of the depiction. The Department declines to adopt this comment. The statute contemplates such relationships as being covered by its requirements.

(3) The same person may be both a primary and a secondary producer. (3) The same person may be both a primary and a secondary producer. . (3) The same person may be both a primary and a secondary producer. Three commenters also commented that the definition of secondary producers as those who ``manage content'' on a computer site could be construed to include those who operate posting services such as Usenet, bulletin boards, and other similar services. According to those commenters, someone who removes illegal material such as child pornography could thereby submit themselves to the requirements of Part 75, while if that person did not remove such material, the person would be liable to prosecution for hosting child pornography. The Department declines to adopt this comment. Operators of such sites are obligated by law to remove child pornography from their sites and to report the attempt to post such pornography to law enforcement. Compliance with that legal obligation could not be construed as converting the operator into a producer of pornography for purposes of section 2257 and this regulation.
(4) Producer does not include persons whose activities relating to the visual depiction of actual sexually explicit conduct are limited to the following: (4) Producer does not include persons whose activities relating to the visual depiction of actual sexually explicit conduct are limited to the following: . (4) Producer does not include persons whose activities relating to the visual depiction of actual sexually explicit conduct are limited to the following: (4) Two commenters commented that the proposed rule did not exempt printers, film processors, and video duplicators from the definition of producer, as required by American Library Ass'n v. Reno. The Department adopts this comment, and the final rule provides such an exemption.
(i) Photo processing; (i) Photo processing; . (i) Photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplicators; .
(ii) Distribution; or (ii) Mere distribution; . (ii) Mere distribution; (ii) Two commenters commented that the definition of producer in the proposed rule was too broad and would encompass a convenience store that sold sexually explicit magazines or a movie theater that screened R-rated movies. The Department declines to adopt this comment. As the rule makes clear, mere distributors of sexually explicit material are excluded from the definition of producers and under no plausible construction of the definition would a movie theater be covered merely by screening films produced by others.
(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. (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; . (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 . (iv) A provider of web-hosting services who does not, and
reasonably cannot
, manage the sexually explicit content of the computer site or service; or

(iv) Twenty-four commenters commented that the exclusion of providers of web-hosting services who do not manage the content of the site or service is vague and may be under-inclusive because some services manage or control certain website content, e.g., advertisements, but not the sexually explicit content. According to the commenters, it is similarly unclear whether editing content only for copyright infringement purposes would constitute control of content. The Department adopts this comment. The exclusion of providers of web-hosting services who reasonably cannot manage the content of the site will be clarified to exclude providers of web-hosting services who reasonably cannot manage the sexually explicit content of the site (for either technical or contractual reasons).

One commenter commented that the exception under Sec. 75.1(c)(4)(iv-v) for Web hosting, electronic communication, and remote computing services should be extended to 18 U.S.C. 2257(f)(4). Providers of Web hosting, bulletin boards, or electronic mail services could be found liable for not ascertaining that the appropriate label was affixed to a depiction transferred by one of their users. The Department declines to adopt this comment, which would require an amendment to the statute and is beyond the authority of the Department to change by regulation. Moreover, the Department notes that 18 U.S.C. 2257(f)(4) makes it a crime for a person ``knowingly to sell or otherwise transfer'' any sexually explicit material that does not have a statement affixed describing the location of the records. Thus, knowledge on the part of the transferor is an element of the offense.

. (v) A provider of an electronic communication service or remote computing service who does not manage the content of the computer site or service. . (v) A provider of an electronic communication service or remote computing service who does not, and reasonably cannot, manage the sexually explicit content of the computer site or service. One commenter commented that Internet Presence Providers (IPPs) should receive the same exemption from the rule as Internet Service Providers (ISPs). The Department understands that IPPs are similar to ISPs in that they both act as hosts for web pages that are created and owned by other persons. It appears, however, that IPPs can also take on other responsibilities, including managing the operations of web sites themselves. The Department has amended the proposed rule to exclude web-hosting services to the extent that their employees are not, and cannot reasonably be, engaged in managing the sexually explicit content of the site (for either technical or contractual reasons). The Department does not believe it is appropriate to provide a blanket exemption from the regulation for IPPs because it would enable owners of such web sites to disclaim responsibility for complying with the regulation by asserting that the IPPs are actually engaged in regulated activities while also exempting IPPs in toto, thus leading to a gap in coverage of producers.
. (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. . [(5) Deleted.] (5)Four commenters objected to the inclusion in the definition of producer of parent organizations and subsidiaries of producers, claiming it was beyond the Department's statutory authority, did not specify which entities must comply with the statute, overrode state laws on business associations, and violated the principles of Sundance Assoc., Inc. v. Reno. While not confirming the validity of, or adopting, the specific objections of the commenters, the Department has eliminated the inclusion of parent and subsidiary organizations in the definition of producer.
(d) Sell, distribute, redistribute, and rerelease refer to commercial distribution of a book, magazine, periodical, film, videotape, or other matter that contains a visual depiction of actual sexually explicit conduct, and does not refer to noncommercial distribution of the such matter, including transfers conducted by lending libraries. (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. . (d) Sell, distribute, redistribute, and re-release refer to
commercial distribution of a book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct, but does not refer to noncommercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.
(d)One commenter commented that the rule should define the term transfer, as used in section 2257, in order to, e.g., specify whether the statement is required if a husband mails to his wife a sexually explicit videotape depicting the couple engaged in consensual sexual activity. The Department declines to adopt this comment. The Department believes that the definition of sell, distribute, redistribute, and re-release in Sec. 75.1(d) subumes the statute's use of the term transfer, which is not used in the proposed or final rule in a way requiring definition. In addition, the definition in Sec. 75.1(d) makes clear that only commercial transfers are covered and the hypothetical transfer that the commenter posits would by the plain meaning of the rule never be covered.

One commenter commented that the definition of sell, distribute, redistribute, and re-release in Sec. 75.1(d) is redundant because it restricts the terms to their commercial meaning but then notes that the terms do not apply to noncommercial or educational distribution. In addition, the commenter comments, it provides examples of the type of education institutions whose distributions would not be covered. According to the commenter, this list is also redundant. The Department declines to adopt this comment. The definition's plain language is not redundant; rather, it is as specific as possible regarding what is commercial and what is noncommercial. In addition, the examples clearly constitute a non-exhaustive list of institutions and clarify the meaning of the term noncommercial.
(e) Copy, when used in reference to an identification document or a picture identification card, means a photocopy or a photograph (e) Copy, when used in reference to an identification document or a picture identification card, means a photocopy or a photograph. . (e) Copy, when used:

(1) In reference to an identification document or a picture identification card, means a photocopy, photograph, or digitally scanned reproduction, and

(2) When used in reference to a sexually explicit depiction means the sexually explicit image itself (e.g., a film, an image posted on a web page, an image taken by a webcam, a photo in a magazine, etc.).
.
. (f) Internet means collectively the myriad of computer and telecommunications facilities, including equipment and operating software, that constitute the interconnected worldwide 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. . (f) Internet means collectively the myriad of computer and
telecommunications facilities, including equipment and operating software, which constitute the interconnected world-wide network of networks that employ the Transmission Control Protocol/Internet Protocol, or any predecessor or successor protocols to such protocol, to communicate information of all kinds by wire or radio.
(f)The same commenter objected to the proposed rule's use of the phrase ``myriad of'' in the definition of the term Internet in Sec. 75.1(f). The Department declines to adopt this comment. According to Merriam-Webster's Collegiate Dictionary (11th ed., 2003), ``Recent criticism of the use of myriad as a noun, both in the plural form myriads and in the phrase myriad of, seems to reflect a mistaken belief that the word was originally and is still properly only an adjective * * *. The noun myriad has appeared in the works of such writers as Milton (plural myriads) and Thoreau (a myriad of), and it continues to occur frequently in reputable English. There is no reason to avoid it.'' Merriam-Webster's Collegiate Dictionary 821 (11th ed., 2003).
. (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. . (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. . (h) URL means uniform resource locator. .
. (i) Electronic communications service has the meaning set forth in 18 U.S.C. 2510(15). . (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). . (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. . (k) Manage content means to make editorial or managerial decisions concerning the sexually explicit content of a computer site or service, but does not mean those who manage solely advertising, compliance with copyright law, or other forms of non-sexually explicit content. .
. (l) Interactive computer service has the meaning set forth in 47 U.S.C. 230(f)(2). . (l) Interactive computer service has the meaning set forth in 47 U.S.C. 230(f)(2). .
.Section 75.2 - Maintenance of Records
Sec. 75.2 Maintenance of records.

(a) Any producer of any book, magazine, periodical, film, videotape, 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:
75.2 Maintenance of 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, shall, for each performer portrayed in such visual depiction, create and maintain records containing the following:
. Sec. 75.2 Maintenance of records.

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



(a)One commenter commented that section 2257 was restricted to
producers of sexually explicit material that was produced with materials that had traveled in interstate or foreign commerce or was intended to be shipped, or was in fact shipped, in interstate or foreign commerce, while the proposed rule applied to ``[a]ny producer'' of any sexually explicit depiction with no such limitation. The Department agrees that the regulation needs to contain the same federal jurisdictional nexus as the statute. The Department has therefore accordingly amended the proposed rule so that the final rule contains a limitation such that it applies only to producers of material that was produced with materials that had traveled in interstate or foreign commerce or was intended to be shipped, or was in fact shipped, in interstate or foreign commerce.

Three commenters commented that the record-shifting requirements
under Sec. Sec. 75.2(a) and (b) are impermissibly burdensome.
According to the commenters, primary producers would resist turning over records that contain trade secrets, such as the identities of performers. The Department declines to adopt these comments. The D.C. Circuit Court clearly held in American Library Ass'n v. Reno that the record-keeping requirements were not unconstitutionally burdensome. Any primary producer who fails to release the records to a secondary producer is simply in violation of the regulations and may not use the excuse that the records contain alleged trade secrets to avoid compliance.

One commenter commented that the proposed rule appeared to require hard copies of records and suggested that digital copies be permitted in order to simplify storage and indexing. The Department adopts this
comment. Records may be maintained in either ``hard'' (paper) form or digital form, provided that they include scanned forms of
identification and that there is a custodian of records who can
authenticate each digital record. The regulation has been revised to
clarify this point.

(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). 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. (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: (1) 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.. Accordingly, 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.
(1) The legal name and date of birth of each performer, obtained by the producer's examination of a picture identification card. For any performer portrayed in such a depiction made after July 3, 1995, the records shall also include a legible copy of the identification document examined and, if that document does not contain a recent and
recognizable picture of the performer, a legible copy of a picture identification card. For any performer portrayed in such a depiction after June 23, 2005, the records shall include

(1)Thirty-six commenters commented that even if the effective date were changed to July 3, 1995, the regulation would be overly burdensome on secondary producers because producers would be required to obtain records for thousands--even hundreds of thousands--of sexually explicit depictions dating back a number of years. These commenters claimed that secondary producers would likely be unable to locate many of those records from primary producers who may have moved, shut down, or otherwise disappeared. According to the commenters, those secondary producers who could not locate such records would be forced to remove the sexually explicit depictions, which would be a limit on constitutionally protected material.

The Department declines to adopt these comments. Producers were on notice that records had to be kept at least by primary producers for depictions manufactured after July 3, 1995. In addition, commenters were similarly on notice that the D.C. Circuit, in American Library Ass'n v. Reno, had upheld the requirement that secondary producers maintain records. The Department is not responsible if secondary producers chose to rely on the Tenth Circuit's holding in Sundance and not to maintain records while ignoring the D.C. Circuit's holding in American Library Ass'n v. Reno. A prudent secondary producer would have continued to secure copies of the records from primary producers after July 3, 1995. If those records, which are statutorily required, are not currently available, then the commenters are correct that they will be required to comply with the requirements of all applicable laws, including section 2257(f). They are incorrect, however, to claim that this would result in an impermissible burden on free speech. As the D.C. Circuit held, the government has a compelling state interest in protecting children from sexual exploitation. If the producers (primary and secondary) of sexually explicit depictions cannot document that children were not used for the production of the sexually explicit depictions, then they must take whatever appropriate actions are warranted to comply with the child exploitation, obscenity, and record- keeping statutes. The First Amendment is not offended by making it unlawful knowingly to fail or refuse to comply with the record-keeping or labeling provisions of this valid statute.

Sixty-two commenters commented that revealing personal information of performers, for example, in the form of their addresses on drivers' licenses used as identification documents in compliance with this regulation, is an invasion of performers' privacy and could lead to identity theft or violent crimes. Forty commenters commented that including the names and addresses of businesses where the records at issue are located would similarly lead to crimes against those businesses. The Department declines to adopt these comments. While the Department is certainly concerned about possible crimes against performers and businesses that employ them, the necessity of maintaining these records to ensure that children are not exploited outweighs these concerns. Furthermore, specifically regarding personal information about performers required to be provided to primary producers, the Department notes that the information required is no different from that required by other forms of employee or business records, such as social security numbers and dates of birth required for tax reporting purposes, emergency contact numbers in case of health problems, or addresses used to transmit paychecks. Regarding information about producers, such as their physical location, that those producers must include in their statements, the Department notes that producers are already required, under the current Part 75 regulations, to include that information. Finally, regarding personal information about performers that must be transmitted to secondary producers, the Department again notes, first, that such information is already required by the current Part 75 regulations, and, second, that none of the commenters presented any evidence that a hypothetically possible crime, such as the stalking of a performer, was in any way tied to the dissemination of the information about a performer provided to a producer in compliance with Part 75.

. (i) A copy of the depiction, and . (i) A copy of the depiction, and (i) In addition, thirty-three commenters commented that it is unclear whether the term copy in the rule refers to only digital images, computer-generated images, and web cam images, or whether there must be a copy of the image that was in the magazine and film in the records, as well. The Department has amended the rule to clarify that there must be copy of any and every depiction, whether digital, computer-generated, print in a magazine, or on film. Maintaining copies of each depiction is critical to making the inspection process meaningful, whether those copies be in digital, paper, or videotape format. Reviewing identification records in a vacuum would be meaningless without being able to cross-reference the depictions, and having the depictions on hand is necessary to determine whether in fact age-verification files are being maintained for each performer in a given depiction.

Thirty-two commenters commented that the requirement that a copy of each depiction be maintained would be unduly burdensome, leading to vast stocks of magazines and videotapes, and even storage of computer images would be unmanageable and prohibitive for small businesses. Thirty-five commenters also commented that the requirement to keep copies of each image is impossible to comply with due to the vast amount of data involved in storing digital images, especially, e.g., producers of live streaming video. The Department declines to adopt these comments. Maintaining one copy of each publication, production, or depiction is critical to making the inspection process meaningful. Commercial publishers and producers can reasonably be expected to comply. Furthermore, modern computer and disk storage capacities make digital archiving and back-up relatively inexpensive and space-efficient. Finally, reviewing identification records in a vacuum would be meaningless without being able to cross-reference the depictions, and having the depictions on hand is necessary to determine whether in fact age-verification files are being maintained for each performer in a given depiction. In addition, without the depictions, inspectors could not confirm that each book, magazine, periodical, film, videotape or other matter has affixed to it a statement describing the location of the records, as required by the existing regulations. Exceptions cannot be made for producers of digital depictions, and indeed, it is likely less onerous to store digital images than paper images. Children are just as easily exploited in live streaming video as in any other visual medium. Therefore, an exception cannot be made for producers of live streaming video.
. (ii) Where the depiction is published on an Internet Computer site or service, a copy of any URL associated with the depiction. . (ii) Where the depiction is published on an Internet computer site or service, a copy of any URL associated with the depiction or, if no URL is associated with the depiction, another uniquely identifying reference associated with the location of the depiction on the Internet (ii) Thirty-two commenters commented that the definitions of URL and URL associated with the depiction are vague. According to the commenters, it is not clear what constitutes a copy of a Web page, which may be constantly changing, for purposes of maintaining a copy of the depiction. The commenters claim that some sites may use technologies that may not even use a URL for downloading a picture (e.g., peer-to-peer systems, telephonic bulletin boards, and other technologies). Furthermore, they claim, requiring the use of certain technologies to comply with the statute presents a situation in which unconstitutional restrictions are placed upon the manner and media in which content is presented. The Department declines to adopt this comment with regard to the concern that web pages are constantly changing. It is for this very reason that the proposed rule required producers to maintain copies of every iteration of a web page in order to create a record of which performers were featured over the course of time. The Department adopts this comment insofar as it notes that some sites do not utilize URLs for downloading, and will modify the rule to require records of the URL or, if no URL is associated with the depiction, another uniquely identifying reference associated with the location of the depiction on the Internet.
. (2) Any name, other than each performer’s legal name, ever used by the performer, including the performer’s maiden name, alias, nickname, stage name, or professional name. For any performer portrayed in such a depiction made after 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. . (2) Any name, other than each performer's legal name, ever used by the performer, including the performer's maiden name, alias, nickname, stage name, or professional name. For any performer portrayed in such a depiction made after July 3, 1995, such names shall be indexed by the title or identifying number of the book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, picture, URL, or other matter. Producers may rely in good faith on representations by performers regarding accuracy of the names, other than legal names, used by performers. .(2)Citing American Library Ass'n v. Reno, three commenters claimed
that the proposed rule's requirement to ascertain performers' aliases
appeared to impose an obligation on the producer to verify all aliases,
whereas, according to them, American Library Ass'n v. Reno requires only that the producer obtain the aliases from performers themselves.

One commenter commented that it is unclear whether a producer that provides content to a secondary producer must maintain a list of its URLs. According to the commenter, keeping such a list would be impossible, given the number of URLs and the fact that many URLs are generated dynamically, making the requirement technologically
impossible. Further, claimed the commenter, if a URL is required to be indexed with an identification record, one URL (the site entrance)
should be sufficient. In addition, the commenter commented, URLs outside the direct control of the content provider should not be covered under the regulations, and secondary producers should be permitted to simply list the producer's 2257 statement on the home page.

The Department declines to adopt this comment. The Department understands that it would not be possible to track or maintain records of dynamically generated URLs. The existing regulations require producers to maintain the names of the performers ``indexed by the title or identifying number of the book, magazine, film, videotape, or other matter.'' See 28 CFR 75.2(a)(2). The rule updates this requirement expressly to include Internet depictions by requiring that this indexing also include any static URLs associated with depictions of that performer and to maintain a copy of the depiction with the static URL associated with the depiction. Existing regulations require any producer to affix a statement describing the location of the records, and permit producers to provide the address of the primary producer, or, for secondary producers satisfying the requirements of Sec. 75.2(b), the address of the secondary producer. See 28 CFR 75.6, 75.6(b); see also 28 CFR 75.2(b) (permitting secondary producers to maintain records by accepting copies of records from a primary producer). This rule merely updates this requirement to expressly cover
Internet depictions.

. (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. . (3) Records required to be created and maintained under this part shall be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last or family name, then first or given name), and shall be indexed or cross-referenced to each alias or other name used and to each title or identifying number of the book, magazine, film, videotape, digitally- or computer-manipulated image,
digital image, picture, URL, or other matter.

(3)Thirty-five commenters commented that the indexing and cross-indexing requirements are unduly burdensome and argued that the records should be indexed only by the performer's legal name, the name used in the depiction, or the title of the depiction. The Department declines to adopt these comments. As the D.C. Circuit held in American Library Ass'n v. Reno, the indexing and cross-indexing requirements were not unduly burdensome. Word-processing, bookkeeping, and database software commonly in use by businesses and even for home computers can accomplish the indexing and cross-indexing required by the rule. The Department continues to believe that investigators must be able to access records through cross-indexing in order to ensure completeness and to enable investigation on the basis of less-than-full information.
(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. (b) A producer who is a secondary producer as defined in 75.1(c) may satisfy the requirements of this part to create and maintain records by accepting from the primary producer, as defined in 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. . (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.
(b)Two commenters commented that secondary producers should not be required to maintain records at all because they are not proximate enough to the production of the depictions to secure the requisite information, and their retention of records would not further the purpose of the statute. One commenter commented that secondary producers should only be required toretain on file the contact information for the primary producers' custodians of records. The Department declines to adopt these comments. As publishers of sexually explicit material, secondary producers are equally responsible for protecting minors from exploitation as the primary producers who photograph sexually explicit acts. Most importantly, secondary producers are equally covered by the terms of section 2257. In addition, the D.C. Circuit in American Library Ass'n v. Reno, held that such a requirement was not unconstitutionally burdensome.

Another commenter proposed that secondary producers be required to store sanitized (i.e., without personal information such as home address) hard or digital copies of performers' identification documents along with a notarized affidavit from the primary producer stating the location of the complete records. The Department declines to adopt this comment. Although the Department understands the commenter's desire to protect private information about performers from being too widely
disseminated, it believes that the suggested plan would be overly burdensome on primary producers and add an unnecessary layer of
complexity to the record-keeping process. Primary producers would be required first to sanitize the identification documents and then to draft, sign, and pay for a notarized affidavit. It is simpler and less
burdensome simply to have primary producers transfer a copy of the records to secondary producers.

One commenter objected to the proposed rule's lack of prior announcement of inspections. Advance notice, the commenter stated, would allow producers to put records in proper order and ensure that someone would be on the premises when investigators visited. The rule should specify what happens in cases in which no one is present when the investigator arrives. The Department declines to adopt this comment. Advanced notice would provide the opportunity to falsify records in order to pass inspection. Lack of specific case-by-case notice prior to inspection will promote compliance with the statute and
encourage producers to maintain the records in proper order at all times, as is contemplated by the statute. The rule will specify that inspections are to occur during the producer's normal business hours.
The inspection process clearly does not contemplate warrantless forced entry solely because no one is present when the investigator arrives.

(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 the visual depiction of actual sexually explicit conduct. If the producer subsequently produces an additional book, magazine, film, videotape or other matter 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 and/or identifying number and the names of the performer to the existing records maintained pursuant to Sec. 75.2(a)(2). (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 75.2(a)(2). .

(c) The information contained in the records required to be created and maintained by this part need be current only as of the time the primary producer actually films, videotapes, or photographs, or creates a digitally or computer-manipulated image, digital image, or picture, of the visual depiction of an actual human being engaged in actual sexually explicit conduct. If the producer subsequently produces an additional book, magazine, film, videotape, digitally- or computer- manipulated image, digital image, or picture, or other matter (including but not limited to Internet computer site or services) that contains one or more visual depictions of an actual human being engaged in actual sexually explicit conduct made by a performer for whom he maintains records as required by this part, the producer may add the additional title or identifying number and the names of the performer to the existing records maintained pursuant to Sec. 75.2(a)(2).

(c) Three commentators claimed that the proposed rule's requirement that information in the label be accurate as of the date on which material is sold violates American Library Ass'n v. Reno, which required accuracy on the date the material was produced or reproduced.

The Department, having reviewed American Library Ass'n v. Reno, agrees with the commenters that minor changes should be made to the proposed rule for publication as a final rule in order to comply with 7the D.C. Circuit's decision. The final rule clarifies that the producers may rely on the representations regarding aliases thatperformers make and are not obligated to investigate further. In addition, the final rule requires that information in the label be
accurate as of the date the material is produced or reproduced.

 

. (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. (d) new paragraph 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. (d) For any record created or amended after June 23, 2005, all such records shall be organized alphabetically, or numerically where appropriate, by the legal name of the performer (by last or family name, then first or given name), and shall be indexed or cross- referenced to each alias or other name used and to each title or identifying number of the book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to Internet computer site or services). If the producer subsequently produces an additional book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to Internet computer site or services) that contains one or more visual depictions of an actual human being engaged in actual sexually explicit conduct made by a performer for whom he maintains records as required by this part, the producer shall add the additional title or identifying number and the names of the performer to the existing records and such records shall thereafter be maintained in accordance with this paragraph. .
. (e) Records required to be maintained under this part shall be segregated from all other records, shall not contain any other records, and shall not be contained within any other records. (e) new paragraph 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. (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. (e)Five commenters commented that the requirement that copies of each image be kept together with the records would interfere with the requirement that records be segregated. According to these commenters, hard copies of depictions cannot, by definition, be held together with electronic copies, and if computer records are kept, it is not possible for a producer to segregate records stored on a computer because they are all found on the same storage device. Further, claimed the commenters, the requirement under Sec. 75.2(e) that records be segregated from other records, not contain other records, or be contained within other records is vague. They claimed that it is unclear whether copies of records may never be in any other company files, which would be an irrational requirement and would open inadvertent misfilings to criminal prosecution.The Department declines to adopt this comment. The requirement that records maintained pursuant to section 2257 be segregated not only streamlines the inspection process but protects producers from unbridled fishing expeditions. Inspectors should not be faced with situations in which they have to sift through myriad filing cabinets to find the records they are seeking, and producers should not be faced with the risks that such exploration might create. Hard copies, electronic copies, or files consisting of both can be segregated in separate storage containers or hard drives (or even in separate directories or folders on a hard drive) in/on which no other records are held.
. . . (f) Records required to be maintained under this part may be kept either in hard copy or in digital form, provided that they include scanned copies of forms of identification and that there is a custodian of the records who can authenticate each digital record. .
.Section 75.3 - Categorization of Records
Sec. 75.3 Categorization of records.

Records required to be maintained under this part shall be categorized 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, 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.
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. 75.3 Categorization of records.

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

.
.Section 75.4 Location of Records
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. The business address shall refer to a street address and not to a post office box number.[Moved.] Such records shall be maintained as long as the producer remains in business. 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 or other matter 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.

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 75.6(b), shall continue to maintain the records for a period of five years after dissolution.

. Sec. 75.4 Location of records.

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



Two commenters commented that the implicit requirement that records be kept at a place of business is unreasonable and argued that the regulation should permit third-party custody of records. The Department declines to adopt this comment. Permitting a third party to possess the records would unnecessarily complicate the compliance and inspection processes by removing the records from the physical location where they were initially collected, sorted, indexed, and compiled. For example, producers could provide false names and addresses to the third party as a means to avoid scrutiny by law enforcement. Historically, producers have used front corporations in order to evade both law enforcement and tax authorities. Permitting third-party custodianship would exacerbate this problem. Custodians could, for example, disclaim any responsibility for the condition or completeness of the records or be unable to provide additional information regarding the status of the records. Permitting such third-party custodians in the final rule would thus require additional regulations to ensure that the third-party custodian could guarantee the accuracy of the records, would act as a legally liable agent of the producer, and would raise other administrative issues as well.

Two commenters commented that the length of retention of records was too long and could multiply to include excessively long periods of time. The commenters also claimed that the periods of time in the proposed rule were contrary to the D.C. Circuit's opinion in American Library Ass'n v. Reno. The Department declines to adopt this comment. The regulation provides for retention of records for seven years from production or last amendment and five years from cessation of production by a business or dissolution of the company. The Department does not believe that these limits are unreasonable. The only way to satisfy the commenters' objection that the periods of time can multiply would be to impose a blanket short period of time no matter what changes to the records were made. Such a change would frustrate the ability to ensure that records were maintained up-to-date and prevent inspectors from examining older records to determine if a violation had been committed. In addition, the time periods, contrary to the claim of the commenters, do not violate American Library Ass'n v. Reno. In that case, the D.C. Circuit held that Sec. 75 could not require records to be maintained for as long as the producer remained in business and allowed a five-year retention period `[p]ending its replacement by a provision more rationally tailored to actual law enforcement needs.'' 33 F.3d at 91. The Department has determined that the seven-year period is reasonable, thus satisfying the court's directive. The production of child pornography statute of limitations was increased in the PROTECT Act from five years to the life of the child, and the increase contained in the regulation seeks to comport with that extended statute of limitations.Finally, the Department wishes to clarify that the statute requires that each time a producer publishes a depiction, he must have records proving that the performers are adults. Thus, if a producer purges his or her records after the retention period but continues to use a picture for publication, the producer would be deemed in violation of the statute for not maintaining records that the person depicted was an adult. Records are required for every iteration of an image in every instance of publication.

.Section 75.5 - Inspection of Records
Sec. 75.5 Inspection of records.

Any producer required by this part to maintain records shall make such records available to the Attorney General or his delegee for inspection at all reasonable times.

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 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.



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.

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

 

Sec. 75.5 Inspection of records.

(a) Authority to inspect. Investigators authorized by the Attorney General (hereinafter ``investigators'') are authorized to enter without delay and at reasonable times any establishment of a producer where records under Sec. 75.2 are maintained to inspect during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, for the purpose of determining compliance with the record-keeping requirements of the Act and any other provision of the Act (hereinafter "investigator'').



(a)Two commenters commented that the proposed rule did not define qualifications for, or process for authorization of, inspectors. The Department declines to adopt this comment. Through 18 U.S.C. 2257 Congress has authorized the Attorney General to inspect records, and the Attorney General may delegate this authority to any agency deemed appropriate by virtue of the Attorney General's delegation authority under 28 U.S.C. 510.
. (b) Advance notice of inspections . Advance notice of record inspections shall not be given. . (b) Advance notice of inspections. Advance notice of record inspections shall not be given. (b)One commenter objected to the proposed rule's lack of prior announcement of inspections. Advance notice, the commenter stated, would allow producers to put records in proper order and ensure that someone would be on the premises when investigators visited. The rule should specify what happens in cases in which no one is present when the investigator arrives. The Department declines to adopt this comment. Advanced notice would provide the opportunity to falsify records in order to pass inspection. Lack of specific case-by-case notice prior to inspection will promote compliance with the statute and encourage producers to maintain the records in proper order at all times, as is contemplated by the statute. The rule will specify that inspections are to occur during the producer's normal business hours. The inspection process clearly does not contemplate warrantless forced entry solely because no one is present when the investigator arrives.
. (c) Conduct of inspections. . (c) Conduct of inspections. (c) One commenter commented that the regulation should specify that a record-keeper may refuse to speak to an investigator or may leave the premises during an investigation, so that no questions arise regarding whether the inspection rises to the level of custodial interrogation. The Department declines to adopt this comment. A record keeper's conduct during an inspection will not be regulated. To the extent that it becomes necessary in any given case, both the government and the individual will have available to them the full panoply of constitutional and legal protections and authorities to allow a court to determine, in the normal course of any prosecution that may arise and on a case-by-case basis, whether a custodial interrogation occurred at the time of inspection, and will bear the consequences of the court's determination.
. (1) Inspections shall take place during normal business hours and at such places as specified in 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. . (1) Inspections shall take place during the producer's normal business hours and at such places as specified in Sec. 75.4. For the purpose of this part, ``normal business hours'' are from 9 a.m. to 5 p.m., local time, Monday through Friday, or any other time during which the producer is actually conducting business relating to producing depiction of actual sexually explicit conduct. To the extent that the producer does not maintain at least 20 normal business hours per week, producers must provide notice to the inspecting agency of the hours during which records will be available for inspection, which in no case may be less than twenty (20) hours per week. (1) Thirty-nine commenters commented that the requirement that records be available for inspection during specified normal business hours and any time business is conducted would be impossible for small businesses to meet, especially those run on a part-time basis or during non-traditional hours. These commenters pointed out that the prior regulations simply provided that the availability be reasonable. The Department adopts this comment. The Department can accept that the producers of the sexually explicit depictions subject to the statute do not necessarily maintain traditional 9 a.m. to 5 p.m. business hours. Accordingly, the rule will be adjusted to permit inspections during the producer's normal business hours. To the extent the producer does not maintain or post regular business hours, producers will be required to provide notice to the inspecting agency of the hours during which their records will be available for inspection, which must total no less than twenty (20) per week, in order to permit reasonable access for inspectors.
. (2) Upon commencing an inspection, the investigator shall:

(i) Present his or her credentials to the owner, operator, or agent in charge of the establishment;

(ii) Explain the nature and purpose of the inspection, including the limited nature of the records inspection, and the records required to be kept by the Act and this part; and

(iii) Indicate the scope of the specific inspection and the records that he or she wishes to inspect.

. (2) Upon commencing an inspection, the investigator shall:


(i) Present his or her credentials to the owner, operator, or agent in charge of the establishment;

(ii) Explain the nature and purpose of the inspection, including the limited nature of the records inspection, and the records required to be kept by the Act and this part; and


(iii) Indicate the scope of the specific inspection and the records that he or she wishes to inspect.

.
. (3) The inspections shall be conducted so as not to unreasonably disrupt the operations of the producer’s establishment. . (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. . (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. . (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. (d) One commenter commented that the provision for inspections every
four months is too frequent and is an invitation for harassment. Some businesses are so small and static that the required records are unlikely to change over a particular four-month period. The Department declines to adopt this comment. The regulations necessarily are designed to provide an adequate inspection interval for the most prolific producers as well as the relatively small-scale producers. The Department has determined that limiting the frequency of inspections to every four months will allow inspectors to keep pace with major producers while at the same time avoid excessive inspections of smaller producers. Moreover, four months denotes the maximum frequency of inspections; inspectors may inspect less frequently at their discretion.
. (e) Copies of records. An investigator may photocopy, at no expense to the producer, during the inspection, any record that is subject to inspection.

. (e) Copies of records. An investigator may copy, at no expense to the producer, during the inspection, any record that is subject to inspection. (e)One commenter commented that the proposed rule did not define how an inspector could copy physical or digital records during an inspection. The Department declines to adopt this comment. The inspectors will avail themselves of a portable photocopier or means to copy digital records (e.g., computer disks) as needed, and the final rule does not need to include details such as these.
. (f) Other law enforcement authority. These regulations do not restrict the otherwise lawful investigative prerogatives of an investigator while conducting an 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. . (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. (g) Several commenters commented that the provision permitting seizure of records is unconstitutionally broad, could lead to prior restraint, and does not define what specific materials may be seized. The Department declines to adopt this comment. The Department notes that the regulatory and inspection scheme outlined in the final rule is a constitutional exercise of government power and, therefore, the presence of a law enforcement officer on the premises of the entity being inspected is authorized. In such a case, evidence of a crime may be seized by a law enforcement officer under the plain-view exception to the Fourth Amendment warrant requirement, and the materials seized do not need to be specifically described in the regulation that authorized the inspection.
.Section 75.6 - Statement Describing Location of Books and Records
Sec. 75.6 Statement describing location of books and records.

Any producer of any book, magazine, periodical, film, videotape, or other matter that contains one or more visual depictions of actual sexual 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, or other matter to affix the statement.

75.6 Statement describing location of
books and records.

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.

.

Sec. 75.6 Statement describing location of books and records.

Any producer of any book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to Internet computer site or services) that contains one or more visual depictions of an actual human being engaged in actual sexually explicit conduct made after July 3, 1995, and produced, manufactured, published, duplicated, reproduced, or reissued on or after July 3, 1995, shall cause to be affixed to every copy of the matter a statement describing the location of the records required by this part. A producer may cause such statement to be affixed, for example, by instructing the manufacturer of the book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter to affix the statement.

 

 

Thirty-three commenters commented that the rule included an improper starting date from which records must be maintained. These commenters claimed that the Department previously stated, in accordance with the court's order in American Library Ass'n v. Reno, Civil Action No. 91-0394 (SSS) (D.D.C. July 28, 1995), that July 3, 1995, was the effective date for enforcement of section 2257. Nevertheless, the commenters said, Sec. Sec. 75.2(a), 75.6, and 75.7(a)(1) of the proposed rule refer to November 1, 1990, and Sec. Sec. 75.2(a)(1) and (2), 75.6, and 75.7(a)(1) refer to May 26, 1992. The commenters argued that the effective dates of the regulation should be changed to be consistent with the Department's representations or, in the alternative, made purely prospective in order to provide producers achance to comply. Further, they argued, no obligations should be imposed concerning images made prior to the effective date.

Based on the Department's decision not to appeal American Library Ass'n v. Reno and its representation regarding the effective date of the regulation to non-parties to American Library Ass'n v. Reno, the Department has amended the proposed rule and in the final rule makes July 3, 1995, the effective date of the regulation and imposes no obligations on producers concerning sexually explicit depictions manufactured prior to that effective date. Also relates to Sections 75.2(a), 75.7(a)(1)

(a) Every statement shall contain:

(1) The title of the book, magazine, periodical, film, or videotape, or other matter (unless the title is prominently set out elsewhere in the book, magazine, periodical, film, or videotape, or other matter) or, if there is no title, an identifying number or similar identifier which differentiates this matter from other matters which the producer has produced;

 

 

 

(2) The date of production, manufacture, publication, duplication, reproduction, or reissuance of the matter; and,

(3) A street address at which the records required by this part may be made available. The street address may be an address specified by the primary producer or, if the secondary producer satisfies the requirements of Sec. 75.2(b), the address of the secondary producer.

(a) 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 75.2(b), the address of the secondary producer. A post office box address does not satisfy this requirement.

.

(a) Every statement shall contain:

(1) The title of the book, magazine, periodical, film, or videotape, digitally- or computer-manipulated image, digital image, picture, or other matter (unless the title is prominently set out elsewhere in the book, magazine, periodical, film, or videotape, digitally- or computer-manipulated image, digital image, picture, or other matter) or, if there is no title, an identifying number or similar identifier that differentiates this matter from other matters which the producer has produced;

(2) The date of production, manufacture, publication, duplication, reproduction, or reissuance of the matter; and,

(3) A street address at which the records required by this part may be made available. The street address may be an address specified by the primary producer or, if the secondary producer satisfies the requirements of Sec. 75.2(b), the address of the secondary producer. A post office box address does not satisfy this requirement.

 

 

 

 

 

 

 

 

 

 

 

(2)The Department rejects, however, two commenters' claims that the Department does not have authority to require a date on the label in the first instance. Although section 2257 does not explicitly require a date on the label, the Attorney General has the statutory authority to issue appropriate regulations to implement the section and has determined that the purposes of the section cannot be accomplished without such a date. There would be no way to determine whether a
performer is underage without knowing the date that the material was produced or reproduced.

Three commenters commented that it is unclear whether the requirement that the statement include date of production, manufacturing, publication, duplication, reproduction, or re-issuance must include all of the listed events or only one. In addition, according to these commenters, the only relevant date for the statute's purposes is the date of creation, i.e., the date the actual live event was depicted. Finally, claimed these commenters, the term date of production is also vague in that it is not clear how a producer should date a film made over several days. The Department declines to adopt this comment. Given the statute's purpose of protecting minors against sexual exploitation, with respect to primary producers, clearly the date of production is the most pertinent because it will reflect the youngest age of the performer involved. Secondary producers should list whichever date or dates are relevant to their conduct. Moreover, this requirement already existed before the proposed rule was published, and therefore, this comment does not pertain to the proposed rule. See 28 CFR 75.6(a)(2) (2003).

(b) 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.

(b) 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.

.

(b) 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.





(c) The information contained in the statement must be accurate as of the date on which the book, magazine, periodical, film, videotape, or other matter is sold, distributed, redistributed, or rereleased. (c) 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. (c) 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. (c) The information contained in the statement must be accurate as of the date on which the book, magazine, periodical, film, videotape, digitally or computer-manipulated image, digital image, picture, or other matter is produced or reproduced. .
. (d) 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. . (d) For the purposes of this section, the required statement shall be displayed in typeface that is no less than 12-point type or no smaller than the second-largest typeface on the material and in a color that clearly contrasts with the background color of the material. For any electronic or other display of the notice that is limited in time, the notice must be displayed for a sufficient duration and of a sufficient size to be capable of being read by the average viewer. (d) Three commenters commented that the requirement that the statement
appear in font size equal in size to the names of the performers, director, producer, or owner, whichever is larger, and no smaller in size than the largest of those names, and in no case in less than 11-point type, in black on a white, untinted background amounts to forced speech, would ruin the aesthetic quality of web pages and other media, and is impractical. Another commenter commented that the requirement that the statement appear in a certain typeface cannot apply to web sites, whose appearance depends on the viewer's computer. In response to these comments, the Department has revised final rule to require that the statement appear in typeface that is no less than 12-point type or no smaller than the second-largest typeface on the website, and in a color that contrasts with the background color. Regarding the claim that such an administrative label constitutes forced speech, the Department notes that the federal government imposes a range of such requirements, such as nutritional labels on food products and safety warnings on a myriad of products.
.Section 75.7 - Exemption Statement
Sec. 75.7 Exemption statement.

(a) Any producer of any book, magazine, periodical, film, videotape, 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.

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 recordkeeping 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. 75.7 Exemption Statement.

(a) Any producer of any book, magazine, periodical, film, videotape, digitally- or computer-manipulated image, digital image, picture, or other matter may cause to be affixed to every copy of the matter a statement attesting that the matter is not covered by the record-keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part if:

(1) The matter contains only visual depictions of actual sexually explicit conduct made before July 3, 1995, or is produced, manufactured, published, duplicated, reproduced, or reissued before July 3, 1995;

(2) The matter contains only visual depictions of simulated
sexually explicit conduct; or,

(3) The matter contains only some combination of the visual depictions described in paragraphs (a)(1) and (a)(2) of this section.

(b) If the primary producer and the secondary producer are different entities, the primary producer may certify to the secondary producer that the visual depictions in the matter satisfy the standards under paragraphs (a)(1) through (a)(3) of this section. The secondary producer may then cause to be affixed to every copy of the matter a statement attesting that the matter is not covered by the record- keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part.

One commenter commented that the exemption statement in the rule is unnecessary and redundant because if no statement is necessary, then the regulation does not apply and any statement of any kind can be required. The Department declines to adopt this comment for three reasons. First, the Department notes that the exemption-statement requirement was included in the previous version of the regulation. Second, the commenter is wrong to state that it is redundant. Since a primary or secondary producer could possess various sexually explicit depictions, some subject to the regulation and some not, it would be necessary for the producer to label both types, rather than only label those that are subject to the rules and give the impression both to the public and to government inspectors that the producer is not in compliance with the regulation. Third, the lack of an exemption statement could lead to a waste of resources by prompting inspections where none were needed because, unbeknownst to the inspector, the producer was exempt from the regulation.


Section 75.8 - Location of the Statement.
Sec. 75.8 Location of the statement.

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.

In any film or videotape which contains end credits for the production, direction, distribution, or other activity in connection with the film or videotape, the statement referred to in Sec. 75.6 or Sec. 75.7 shall be presented at the end of the end titles or final credits and shall be displayed for a sufficient duration to be capable of being read by the average viewer. 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.

75.8 Location of the statement.

(a) All books, magazines, and periodicals shall contain the statement required in 75.6 or suggested in 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 75.6 or 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.

.

Sec. 75.8 Location of the statement.

(a) All books, magazines, and periodicals shall contain the
statement required in Sec. 75.6 or suggested in Sec. 75.7 either on the first page that appears after the front cover or on the page on which copyright information appears.

(b) In any film or videotape which contains end credits for the production, direction, distribution, or other activity in connection with the film or videotape, the statement referred to in Sec. 75.6 or Sec. 75.7 shall be presented at the end of the end titles or final credits and shall be displayed for a sufficient duration to be capable of being read by the average viewer.

(c) Any other film or videotape shall contain the required
statement within one minute from the start of the film or videotape, and before the opening scene, and shall display the statement for a sufficient duration to be read by the average viewer.

(b) One commenter commented that the requirement regarding the placement of the statement in films and videotapes in Sec. 75.8 was unclear as to whether the statement was required in the ``end credits,'' ``end titles,'' or ``final credits'' and what constituted those sections of the film. The commenter also suggested that Sec. 75.8(b) and (c) be combined more easily to describe the placement of the statement. The Department adopts this comment. It has combined Sec. 75.8(b) and (c) and clarified that the statement must appear in the end credits of films and videotapes that have such end credits, which are defined as the section of the film that lists information about the production, direction, distribution, names of performers, or any other matter that is normally understood as constituting ``end credits'' of a commercial film or videotape.

One commenter commented that the regulation should permit the statement to be located on main menu screen of a DVD, rather than requiring the statement to appear in the movie itself. The Department declines to adopt this comment. The statement cannot be severed from the actual depiction because that could lead to confusion on the part of the public as to the applicability of the statement in cases, for example, when there is more than one film on a DVD or when a movie on a DVD is also available in other contexts in which the statement must be appended (e.g., posted on a Web site).

  (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. . (d) A computer site or service or Web address containing a digitally- or computer-manipulated image, digital image, or picture, shall contain the required statement on its homepage, any known major entry points, or principal URL (including the principal URL of a subdomain), or in a separate window that opens upon the viewer's clicking a hypertext link that states, ``18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement.'' (d) One commenter commented that the requirement that the statement appear on the home page of a Web site is vague because many web sites operate with subdomains, making the actual homepage or principal URL difficult to identify. The Department declines to adopt this comment. Subdomains, as the name implies, are URLs that share the top-level domain name's basic URL and have additional identifying address information to provide additional content on a separate Web page. Each subdomain thus has its own homepageand each homepage must feature the statement.

Thirty commenters commented that the proposed rule's requirement that the statement appear on the homepage of a Web site would lead to excessively lengthy statements that could deter viewers from downloading site content. The commenters suggested that web sites should be permitted to provide links that open windows to complex disclosure statements. In response to these comments, the Department has amended the proposed rule such that the final rule permits web sites to contain a hypertext link that states, ``18 U.S.C. 2257 Record- Keeping Requirements Compliance Statement,'' that will open in a separate window that contains the required statement.

One commenter commented that certain types of files--eg., .jpeg and .gif photos-- cannot have a statement appended when uploaded. The Department declines to adopt this comment. The rule makes clear that whenever the Internet depictions are involved, the statement must appear on the web site's homepage, not the image itself.

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. (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. . (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.