[Federal Register Volume 68, Number 213 (Tuesday, November 4, 2003)]
[Rules and Regulations]
[Pages 62370-62373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27467]



[[Page 62370]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

28 CFR Part 81

[Docket No. CRM 100I; AG Order No. 2692-2003]
RIN 1105-AA65


Designation of Agencies To Receive and Investigate Reports 
Required Under the Protection of Children From Sexual Predators Act, as 
Amended

AGENCY: Department of Justice.

ACTION: Interim final rule.

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

SUMMARY: This Interim final rule finalizes a portion of a proposed rule 
published on May 26, 1999, 64 FR 28422, and fulfills the Attorney 
General's responsibilities under the child pornography reporting 
provisions of the Protection of Children from Sexual Predators Act of 
1998, as amended. This Interim final rule requires the National Center 
for Missing and Exploited Children to forward the report of apparent 
child pornography to the law enforcement agencies designated in the 
1999 proposed rule (the Federal Bureau of Investigation and the Bureau 
of Immigration and Customs Enforcement,\1\ and also designates the 
United States Postal Inspection Service and the United States Secret 
Service as recipients of the report.
---------------------------------------------------------------------------

    \1\ The Bureau of Immigration and Customs Enforcement was 
formerly known as the United States Customs Service and was referred 
to in the 1999 proposed rule as such.
---------------------------------------------------------------------------

    Other matters discussed in the 1999 proposed rule, such as the 
contents of the report, the means for making the report to Federal 
agencies, monitoring, and definitions, will be addressed at a later 
time through a subsequent final rule.

DATES: Effective date: This Interim final rule is effective December 4, 
2003.
    Comment date: Written comments must be submitted on or before 
January 5, 2004.

ADDRESSES: Please submit written comments to Andrew G. Oosterbaan, 
Chief, Child Exploitation and Obscenity Section, Criminal Division, 
Department of Justice, 1400 New York Ave., NW., Suite 600, Washington, 
DC, 20530, telephone (202) 514-5780. To ensure proper handling, please 
reference CRM 100 on your correspondence. Comments may also be 
submitted electronically to the Criminal Division at 
[email protected]. When submitting comments electronically, please 
include CRM 100 in the subject heading. Comments are available for 
public inspection at this location by calling (202) 514-5780 to arrange 
for an appointment.

FOR FURTHER INFORMATION CONTACT: Andrew G. Oosterbaan, Chief, Child 
Exploitation and Obscenity Section, Criminal Division, Department of 
Justice, 1400 New York Ave., NW., Suite 600, Washington, DC, 20530, 
telephone (202) 514-5780.

SUPPLEMENTARY INFORMATION:

Entities Affected by This Regulation

    The child pornography reporting provisions of the Protection of 
Children from Sexual Predators Act (PCSPA) were enacted as section 604 
of the Act, Pub. L. 105-314, 112 Stat. 2974, codified at 42 U.S.C. 
13032 (1999 Supp.) and 18 U.S.C. 2702(b)(6). As set forth at 42 U.S.C. 
13032, the PCSPA originally required providers of electronic 
communication services or remote computing services to the public 
through a facility or means of interstate or foreign commerce 
(``providers'') who obtain knowledge of the apparent production, 
distribution, or possession of child pornography \2\ to make a report 
of such facts or circumstances to a law enforcement agency or agencies 
designated by the Attorney General. As set forth infra, the statute was 
subsequently amended to require providers to report directly to the 
National Center for Missing and Exploited Children (NCMEC), which then 
forwards reports to designated law enforcement agencies. Thus, in view 
of the previously-existing statutory reporting requirements imposed on 
providers, this regulation affects only the law enforcement agencies 
designated herein and NCMEC (to the extent that it is directed to share 
reports with designated law enforcement agencies).
---------------------------------------------------------------------------

    \2\ See sections 2251, 2251A, 2252, 2252A, and 2260 of title 18, 
United States Code.
---------------------------------------------------------------------------

Rulemaking History

    The Department of Justice published a proposed rule on May 26, 
1999, 64 FR 28422 (the ``1999 proposed rule''), proposing to carry out 
the Attorney General's responsibilities under the child pornography 
reporting provisions of the PCSPA.
    Under the 1999 proposed rule, reports of child pornography made 
pursuant to 42 U.S.C. 13032 were to be submitted by providers directly 
to the Federal Bureau of Investigation (FBI) and the United States 
Customs Service (USCS) (the investigative arm of the Customs Service is 
now in the Bureau of Immigration and Customs Enforcement (BICE) at the 
Department of Homeland Security), which then had jurisdiction to 
investigate reports of child pornography on electronic communication 
services or remote computing services. The 1999 proposed rule also 
outlined the contents of the report and the means for making the 
report, indicated that providers had no duty to monitor customers or 
content,\3\ referred providers to the Electronic Communications Privacy 
Act, and included definitions.
---------------------------------------------------------------------------

    \3\ The statute already notes this fact. See 42 U.S.C. 13032(e) 
(``Nothing in this section may be construed to require a provider of 
electronic communication services or remote computing services to 
engage in the monitoring of any user, subscriber, or customer of 
that provider, or the content of any communication of any such 
person.'').
---------------------------------------------------------------------------

    The 1999 proposed rule included a request for comments by July 26, 
1999. The Department received three comments concerning two aspects of 
the proposed rule.
    On November 29, 1999, as part of the Consolidated Appropriations 
Act, 2000, Pub. L. 106-113, 113 Stat. 1501, Congress amended 42 U.S.C. 
13032 to require providers to report incidents of suspected child 
pornography to the ``Cyber Tipline'' at NCMEC, which is required to 
forward that report to a law enforcement agency or agencies designated 
by the Attorney General.
    On April 30, 2003, as part of the Prosecutorial Remedies and Other 
Tools to End the Exploitation of Children Today Act of 2003, Pub. L. 
108-21, 117 Stat. 650 (the ``PROTECT Act''), Congress amended 42 U.S.C. 
13032 to allow NCMEC to forward provider reports to State and local law 
enforcement agencies where State law has been violated and to expand 
the duties of the United States Secret Service (``Secret Service'') to 
include providing forensic and investigative assistance to NCMEC in 
support of any investigation involving missing or exploited children.

Comparison of This Interim Final Rule With the 1999 Proposed Rule

    Because the 1999 amendment to 42 U.S.C. 13032 changed the recipient 
of the reports, this Interim final rule (``Interim final rule'') 
reflects that amendment.
    This Interim final rule requires the providers to report instances 
of apparent child pornography to the ``Cyber Tipline'' at NCMEC (http://www.CyberTipline.com). The Interim final rule requires NCMEC to 
forward the report of apparent child pornography to the law enforcement 
agencies designated in the 1999 proposed rule (the FBI and the USCS 
(now BICE)), and also designates the United States Postal Inspection 
Service (Postal Inspection Service) and the

[[Page 62371]]

Secret Service as recipients of the report.
    The Interim final rule reflects only a portion of the 1999 proposed 
rule. For example, the Interim final rule does not elaborate on the 
contents of the report, the means for making the report to Federal 
agencies (now moot due to the 1999 amendment to the statute), a 
discussion of monitoring (already explicitly covered by 42 U.S.C. 
13032). Nor does the Interim final rule contain any reference to the 
Electronic Communications Privacy Act, or definitions. These issues 
will be addressed at a later time through a subsequent final rule.

Discussion of Comments on the 1999 Proposed Rule

National Center for Missing and Exploited Children as Designated Agency

    NCMEC and the Internet Alliance commented that the Department 
should designate NCMEC as the conduit agency through which Federal law 
enforcement would receive reports under the PCSPA. NCMEC stated that 
its ``Cyber Tipline,'' which already receives reports of illegal 
Internet activity from citizens and the online industry, would be the 
appropriate repository of PCSPA reports. According to NCMEC, Federal 
law enforcement agencies have concurrent access to the ``Cyber 
Tipline'' and would be able to review PCSPA reports immediately.
    The 1999 amendment to 42 U.S.C. 13032 requires that all reports be 
sent to NCMEC, and the Interim final rule is consistent with that 
amendment. Providers will first telephone NCMEC (800-THE-LOST) to 
obtain an identification number and a password to be used for all 
future reports. The provider will then be able to log on to a section 
of the ``Cyber Tipline'' that is designed for reporting by providers 
(http://www.CyberTipline.com). When the provider logs on to the ``Cyber 
Tipline,'' it will be required to complete a reporting form requesting 
information about the apparent child pornography.
    The Interim final rule directs NCMEC to fulfill its obligation to 
forward the reports received through its ``Cyber Tipline'' by providing 
them to designated law enforcement agencies. The 1999 proposed rule 
designated the FBI and BICE (then the U.S. Customs Service) as 
recipients of the reports. In addition, this Interim final rule 
designates the Postal Inspection Service and the Secret Service as 
recipients of reports. The purpose for expanding the number of law 
enforcement agencies designated to receive the reports from NCMEC is to 
increase the amount of law enforcement resources available to combat 
child pornography on the Internet. Both the Postal Inspection Service 
and the Secret Service have substantial experience investigating child 
pornography cases. The need for greater resources is evidenced by two 
recent changes made by the PROTECT Act. One change authorizes the 
Secret Service to provide forensic and investigative assistance to 
NCMEC. See PROTECT Act Sec.  322, codified at 18 U.S.C. 3056. The other 
allows NCMEC to forward reports to state and local law enforcement 
agencies where state law is violated. See PROTECT Act Sec.  508, 
codified at 42 U.S.C. 13032.

Clarification on Reference to the Electronic Communications Privacy Act 
of 1986

    The Commercial Internet eXchange (CIX) commented that Sec.  84.14, 
``Contents of the Report,'' suggested by implication that the provider 
was required to search its records for the identity of subscribers who 
are suspected of violating the child pornography laws. CIX argued that 
such an independent disclosure would be in violation of the Electronic 
Communications Privacy Act of 1986. It further argued that such 
disclosure would contravene Congressional statements during 
consideration of the bill that the statute does not require disclosure 
of the name of the subscriber that was retrieved from the provider's 
files. CIX suggested that Sec.  84.14(a) be amended to include the 
phrase ``if they are not obtained from the provider's files'' after the 
section's suggestion that the report could include ``the identity of 
persons or screen names of persons transmitting or receiving child 
pornography.''
    The Interim final rule does not contain Sec.  84.14 of the 1999 
proposed rule, the substance of which will be promulgated separately at 
a later date. At that time, the CIX comment will be addressed.

Administrative Procedure Act

    This Interim final rule adopts, in part, the provisions of the 1999 
proposed rule, and also makes several changes in response to 
intervening legislation. Because the changes made in the Interim final 
rule are a logical outgrowth of the 1999 proposed rule, it is not 
necessary to provide an additional period of notice and comment. See, 
e.g., Association of Battery Recyclers, Inc. v. EPA, 208 F.3d 1047, 
1958-59 (D.C. Cir. 2000) (stipulating that a final rule need not be 
exactly the same as the proposed rule as long as it is a logical 
outgrowth of the proposed rule). This Interim final rule is a logical 
outgrowth of the proposed rule because ``reports of child pornography 
made pursuant to 42 U.S.C. 13032 are to be submitted to the Federal 
agencies that currently have jurisdiction to investigate reports of 
child pornography on electronic communication services or remote 
computing services.'' See 64 FR 28422, 28423 (1999 proposed rule). This 
Interim final rule does precisely that--it designates those Federal law 
enforcement agencies, expanded from two to four, that have jurisdiction 
to investigate child pornography that should now receive such reports. 
In addition, this Interim final rule responds to a specific comment to 
the 1999 proposed rule that NCMEC ought to be the conduit for such 
reports between the providers and designated Federal law enforcement 
agencies. In the Interim final rule, NCMEC is now the conduit. The 
scope and purpose of the two rules are similar: The providers were 
required under the 1999 proposed rule to report suspected child 
pornography, and that reporting requirement remains unchanged; merely 
the recipients of the report are different. The recipients of the 
providers' reports have been reduced from two possible agencies (the 
FBI or then-USCS) to one organization, NCMEC. Additional notice and 
public comment would not elicit criticisms that are relevant to the 
designation of two additional Federal agencies to receive reports 
through NCMEC, as those designations are within the Attorney General's 
discretion and, in the case of the Secret Service, reflect a statutory 
change to the mission of that agency.
    Moreover, additional notice and public commentary are unnecessary. 
Since 1999, the providers have been required by 42 U.S.C. 13032 to make 
reports to NCMEC, and the Interim final rule will have no effect on 
their ongoing reporting obligations. Adding the Postal Inspection 
Service and the Secret Service as agencies to which NCMEC must forward 
reports will not impose any additional burden on the providers. 
Therefore, notice and public commentary are unnecessary, and the 
Department of Justice has good cause to promulgate this regulation as 
an Interim final rule without additional notice and comment, see 5 
U.S.C. 553(b)(3)(B), although the Department is soliciting post-
promulgation public comment on this Interim final rule.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this

[[Page 62372]]

regulation and by approving it certifies that this regulation will not 
have a significant economic impact upon a substantial number of small 
entities. The statute already requires providers of electronic 
communication services or remote computing services to the public to 
report incidents of child pornography to NCMEC. See 42 U.S.C. 13032 
(2002). The Interim final rule sets forth the mechanism put in place by 
NCMEC to receive such reports. Specifically, the Interim final rule 
directs providers to notify NCMEC through the ``Cyber Tipline.'' The 
provider will initially call NCMEC (800-THE-LOST) to receive an 
identification number and password that will enable it to log on to the 
``Cyber Tipline'' to report all instances of apparent child 
pornography. The ``Cyber Tipline'' will have a specialized electronic 
reporting form requesting information from the provider about the 
suspected violation of child pornography laws. In this manner, the 
Interim final rule complies with the reporting statute, while limiting 
the service provider's costs as much as possible. The addition of the 
Postal Inspection Service and Secret Service as agencies to which NCMEC 
must forward reports will have no impact on providers.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, or innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets. All providers, whether large or small, are already 
required by law to submit reports related to child pornography to 
NCMEC. This rule designates the Federal agencies to which NCMEC, in 
turn, will forward such reports. The additional designation of the 
Postal Inspection Service and the Secret Service as agencies to which 
NCMEC must forward reports will have no impact on the providers, 
whether they are small or large.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Sec.  1(b), Principles of Regulation. The 
Department of Justice has determined that this rule is a ``significant 
regulatory action'' under Sec.  3(f) of Executive Order 12866, 
Regulatory Planning and Review, and accordingly, this rule has been 
reviewed by the Office of Management and Budget (OMB).
    The Department of Justice has assessed the costs and benefits of 
this rule and has determined that the benefits of this rule justify its 
costs. As noted, the costs of compliance for a provider of electronic 
communications services or remote computing services to the public will 
continue to be limited to the cost of one telephone call to obtain a 
password for the ``Cyber Tipline'' and the cost of completing online 
reports of child pornography, which is already required by statute. See 
42 U.S.C. 13032 (2002). Permitting NCMEC to forward reports to two 
additional law enforcement agencies will not impose any additional 
costs on providers. The costs to NCMEC of making reports available to 
two additional agencies is negligible, as representatives of those 
agencies will be housed in NCMEC's offices and the reports will be 
available on-line.
    By contrast, the benefits of this new Interim final rule will be 
appreciable. The availability of child pornography on the Internet is a 
growing problem in our Nation that perpetuates the molestation and 
exploitation of children. The addition of the Postal Inspection Service 
and Secret Service as recipients of reports will substantially enhance 
the scope of law enforcement investigative abilities with respect to 
reports of child pornography on the Internet, particularly where use of 
the United States mail is implicated in the distribution of child 
pornography.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

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

List of Subjects in 28 CFR Part 81

    Child abuse, Child pornography, Electronic communication services, 
Federal buildings and facilities, Remote computing services.

0
By virtue of the authority vested in me as Attorney General, including 
28 U.S.C. 509 and 510, 5 U.S.C. 301, 42 U.S.C. 13032, PL 105-314, 112 
Stat. 2974, and PL 106-113, 113 Stat. 1501, part 81 of title 28, Code 
of Federal Regulations, is amended as follows:

PART 81--CHILD ABUSE AND CHILD PORNOGRAPHY REPORTING DESIGNATIONS 
AND PROCEDURES

0
1. The heading for part 81 is revised as set forth above.

0
2. The authority citation for part 81 is revised to read as follows:

    Authority: 28 U.S.C. 509, 510; 42 U.S.C. 13031, 13032.


0
3. Sections 81.1 through 81.5 are designated as subpart A and a new 
subpart heading is added to read as follows:

Subpart A--Child Abuse Reporting Designations and Procedures


Sec.  81.1  [Amended]

0
4. Section 81.1 is amended by removing the words ``this part'' and 
inserting in their place ``this subpart A''.

PART 81--[AMENDED]

0
5. Part 81 is amended by adding at the end thereof the following new 
subpart B to read as follows:
Subpart B--Child Pornography Reporting Designations and Procedures
Sec.
81.11 Purpose.
81.12 Submission of reports to the ``Cyber Tipline'' at the National 
Center for Missing and Exploited Children.
81.13 Submission of reports by the National Center for Missing and 
Exploited Children to designated agencies; designation of agencies.

Subpart B--Child Pornography Reporting Designations and Procedures


Sec.  81.11  Purpose.

    The regulations in this subpart B designate the agencies that are 
authorized to receive and investigate

[[Page 62373]]

reports of child pornography that are forwarded from the National 
Center for Missing and Exploited Children under the provisions of 42 
U.S.C. 13032.


Sec.  81.12  Submission of reports to the ``Cyber Tipline'' at the 
National Center for Missing and Exploited Children.

    (a) When a provider of electronic communications services or remote 
computing services to the public (``provider'') obtains knowledge of 
facts or circumstances concerning an apparent violation of Federal 
child pornography statutes designated by 42 U.S.C. 13032(b)(1), it 
shall, as soon as reasonably possible, report all such facts or 
circumstances to the ``Cyber Tipline'' at the National Center for 
Missing and Exploited Children Web site (http://www.CyberTipline.com), 
which contains a reporting form for use by providers.
    (b) A provider should initially call the National Center for 
Missing and Exploited Children to receive an identification number and 
a password that will enable it to log on to the section of the ``Cyber 
Tipline'' that is designed for provider reporting.


Sec.  81.13  Submission of reports by the National Center for Missing 
and Exploited Children to designated agencies; designation of agencies.

    When the National Center for Missing and Exploited Children 
receives a report from a provider concerning an apparent violation of 
Federal child pornography statutes specified in 42 U.S.C. 13032(b)(1), 
it shall immediately forward that report, to the Federal Bureau of 
Investigation, the Bureau of Immigration and Customs Enforcement, the 
United States Postal Inspection Service, and the United States Secret 
Service, designated pursuant to 42 U.S.C. 13032(b)(2).

    Dated: October 27, 2003.
John Ashcroft,
Attorney General.
[FR Doc. 03-27467 Filed 11-3-03; 8:45 am]
BILLING CODE 4410-14-P