[Federal Register Volume 69, Number 122 (Friday, June 25, 2004)]
[Proposed Rules]
[Pages 35547-35553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13792]


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

DEPARTMENT OF JUSTICE

28 CFR Part 75

[Docket No. CRM 103; AG Order No. 2723-2004]
RIN 1105-AB05


Inspection of Records Relating to Depiction of Sexually Explicit 
Performances

AGENCY: Department of Justice.

ACTION: Proposed rule.

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

SUMMARY: This proposed rule amends the record-keeping and inspection 
requirements of 28 CFR part 75 to bring the regulations up to date with 
current law, to improve understanding of the regulatory system, and to 
make the inspection process effective for the purposes of the Child 
Protection and Obscenity Enforcement Act of 1988, as amended, relating 
to the sexual exploitation and other abuse of children.

DATES: Written comments must be received on or before August 24, 2004.

ADDRESSES: Written comments may be submitted to: Andrew Oosterbaan, 
Chief, Child Exploitation and Obscenity Section, Criminal Division, 
United States Department of Justice, Washington, DC 20530; Attn: 
``Docket No. CRM 103.''
    Comments may be submitted electronically to: [email protected] 
or to www.regulations.gov by using the electronic comment form provided 
on that site. Comments submitted electronically must include Docket No. 
CRM 103 in the subject box. You may also view an electronic version of 
this rule at the www.regulations.gov site.
    Facsimile comments may be submitted to: (202) 514-1793. This is not 
a toll-free number. Comments

[[Page 35548]]

submitted by facsimile must include Docket No. CRM 103 on the cover 
sheet.

FOR FURTHER INFORMATION CONTACT: Andrew Oosterbaan, Chief, Child 
Exploitation and Obscenity Section, Criminal Division, United States 
Department of Justice, Washington, DC 20530; (202) 514-5780. This is 
not a toll-free number.

SUPPLEMENTARY INFORMATION:

1. Background

    Congress evidenced its concern for the exploitation of children by 
pornographers in the Child Protection and Obscenity Enforcement Act of 
1988, one key provision of which requires producers of sexually 
explicit matter to maintain certain records concerning the performers 
to assist in monitoring the industry. See 18 U.S.C. 2257. The statute 
requires the producers of such matter to ``ascertain, by examination of 
an identification document containing such information, the performer's 
name and date of birth,'' to ``ascertain any name, other than the 
performer's present and correct name, ever used by the performer 
including maiden name, alias, nickname, stage, or professional name,'' 
and to record this information. 18 U.S.C. 2257(b). Violations of these 
record-keeping requirements are criminal offenses punishable by 
imprisonment for not more than five years for a first offense and not 
more than ten years for subsequent offenses. See 18 U.S.C. 2257(i). 
These provisions supplement the federal statutory provisions 
criminalizing the production and distribution of materials visually 
depicting minors engaged in sexually explicit conduct. See 18 U.S.C. 
2251, 2252.
    The record-keeping requirements apply to ``[w]hoever produces'' the 
material in question. 18 U.S.C. 2257(a). The statute defines 
``produces'' as ``to produce, manufacture, or publish any book, 
magazine, periodical, film, video tape, computer generated image, 
digital image, or picture, or other similar matter and includes the 
duplication, reproduction, or reissuing of any such matter, but does 
not include mere distribution or any other activity which does not 
involve hiring, contracting for[,] managing, or otherwise arranging for 
the participation of the performers depicted.'' 18 U.S.C. 2257(h)(3).
    The Attorney General, under 18 U.S.C. 2257(g), issued regulations 
implementing the record-keeping requirements on April 24, 1992. See 57 
FR 15017 (1992); 28 CFR part 75. In addition to the record-keeping 
requirements specifically discussed in section 2257, the regulations 
require producers to retain copies of the performers' identification 
documents, to cross-index the records by ``[a]ll name(s) of each 
performer, including any alias, maiden name, nickname, stage name or 
professional name of the performer; and according to the title, number, 
or other similar identifier of each book, magazine, periodical, film, 
videotape, or other matter,'' and to maintain the records for a 
specified period of time. 28 CFR 75.2(a)(1), 75.3, 75.4.
    Most recently, in 2003, Congress made extensive amendments to the 
child exploitation statutory scheme based on detailed legislative 
findings, which the Department adopts as grounds for proposing this 
rule. See Prosecutorial Remedies and Other Tools to End the 
Exploitation of Children Today (PROTECT) Act of 2003, Public Law 108-
21,117 Stat. 650 (April 30, 2003) (hereinafter the ``2003 
Amendments''). The Department agrees with each of these findings, and 
proposes to amend the regulations in 28 CFR part 75 on the basis of 
these specific findings. As explained more fully below, the rules 
implement a more detailed inspection system to ensure that children are 
not used as performers in sexually explicit depictions.

2. Need for the Rule

    Recent federal statutory enactments and judicial interpretations 
have highlighted the urgency of protecting children against sexual 
exploitation and, consequently, the need for more specific and clear 
regulations detailing the records and inspection process for sexually 
explicit materials to assure the accurate identity and age of 
performers.
    The identity of every performer is critical to determining and 
assuring that no performer is a minor. The key Congressional concern, 
evidenced by the child exploitation statutory scheme, was that all such 
performers be verifiably not minors, i.e. not younger than 18. 28 
U.S.C. 2256(1), 2257(b)(1). Minors--children--warrant a special concern 
by Congress for several reasons, as discussed more specifically in 
relation to the inspection process. Children are incapable of giving 
voluntary and knowing consent to perform or to enter into contracts to 
perform. In addition, children often are involuntarily forced to engage 
in sexually explicit conduct. For these reasons, visual depictions of 
sexually explicit conduct that involve persons under the age of 18 
constitute unlawful child pornography.
    This proposed rule merely provides greater details for the record-
keeping and inspection process in order to ensure that minors are not 
used as performers in sexually explicit depictions. The rule does not 
restrict in any way the content of the underlying depictions; it simply 
clarifies the labeling on, and record-keeping requirements pertaining 
to, that underlying depiction. Compliance with the record-keeping 
requirements of this part has no bearing on the legality or illegality 
of the underlying sexually explicit material.
    Moreover, the growth of Internet facilities in the past five years, 
and the proliferation of pornography on Internet computer sites or 
services, requires that the regulations be updated. In the proposed 
rule, a number of definitions are revised to adapt the rule to the 
modern modes of communication.

3. Analysis of the Proposed Rule

    Identification. The proposed rule would modify the acceptable types 
of identification in 28 CFR 75.1(b) by narrowing the categories of 
documents required to verify the individual's identity. For example, a 
selective service card is removed from the list of such documents 
because it does not have a photograph and is not a part of a system of 
records that can be independently accessed to verify the legitimacy of 
the identification card. At the same time, a requirement is proposed to 
be added that the identification card used to verify identification by 
the producer must be independently accessible by government entities in 
order to ensure its legitimacy. Thus, driver's licenses--which are 
routinely accessed through the States' departments that manage such 
licensing and motor vehicle registration--are a prime form of 
identification. Similarly, United States passports provide positive 
identification to the producer and may be accessed by law enforcement 
agencies through the Department of State for verification. However, 
less reliable forms of identification, such as college identification 
cards, which often have no security features and are subject to easy 
counterfeiting, have been removed from the list of acceptable 
identification. The point of this proposed rule change is to increase 
the reliability of the documents used to determine identity and age of 
performers to better protect minors from exploitation.
    Internet Definitions. To bring the regulations up to date with the 
2003 Amendments, the definition of a producer has been modified in 
proposed 28 CFR 75.1. Persons who manage the content of computer sites 
or services are considered secondary producers. An Internet service 
provider (ISP) is not a producer under this definition; ISPs

[[Page 35549]]

merely provide individuals with access to the Internet. See 47 U.S.C. 
231(b). The terms used and defined in these regulations are intended to 
provide common-language guidance and usage and are not meant to exclude 
technologies or uses of these terms as otherwise employed in practice 
or defined in other regulations or federal statutes (such as 47 U.S.C. 
230, 231).
    Records. Proposed 28 CFR 75.2 contains a new paragraph (d) 
providing for a forward application of the provision of the rule to 
require that any record that is created for a performer after the 
effective date of the final rule must include updating of related 
records to reflect the current standards. This requirement is not a 
retroactive application, but a requirement that any future change in 
the records must ensure that all records relating to that performer are 
complete. The proposed rule will establish an implementation timeframe 
that is the minimum effective date rule required under the 
Administrative Procedure Act. See 5 U.S.C. 553(d). Accordingly, 
producers will be required to comply with the regulations 30 days after 
publication of a final rule.
    A new paragraph (e) would specifically provide that the records 
required by this part must be segregated from all other records. As 
these specific records are subject to inspection under 28 CFR 75.5, the 
Department wishes to make clear that the inspection is substantively 
limited and that other records and items are not subject to such 
inspection. Accordingly, the Department proposes to require that the 
records subject to inspection be specifically segregated from all other 
records to assure that the inspections are limited.
    The majority of new depictions are now created for the Internet. 
The content of the Internet is constantly changing, and these proposed 
rules recognize this fact. These rules also can be applied to more 
permanent media. Web pages appear to have an average life of only 100 
days, and Web addresses disappear and change to such an extent that a 
permanent record of the depiction and its temporary locations (URL) are 
required. See R. Weiss, On the Web, Research Work Proves Ephemeral, 
Wash. Post, p. A8 (Nov. 24, 2003), accessed at http://www.washingtonpost.com/wp-dyn/articles/A8730-2003Nov23.html (last 
accessed on Nov. 25, 2003). Accordingly, proposed 28 CFR 75.2(a)(1) 
would require computer site or service producers to maintain a ``hard'' 
physical or electronic copy of the actual depiction with the 
identification and age files, along with and linked to all accession 
information, such as each URL used for that depiction. This ensures 
that all of the data about all of the people in the depictions can be 
accessed to ensure that none of the people in the depictions are 
minors.
    Proposed Sec.  75.5, which governs the inspection process, is 
completely rewritten and updated. The Department considers the identity 
and age of the performers to be a critical health and safety issue, and 
Congress has made clear its intent that minors shall not be performers 
in covered depictions. As discussed above, the age of the performer is 
directly linked to whether the producer has produced unlawful child 
pornography, and the identification and inspection of identification 
records to determine that performers are of legitimate age is the core 
underlying purpose of the records and inspection process. Because of 
the significant potential for child exploitation in the context of 
pornography production, the Department proposes in revised Sec.  75.5 
to adapt regulations of the Occupational Health and Safety 
Administration, 29 CFR 1903.1 et seq., to the specific purpose of 
protecting minors from such exploitation.
    The regulations and inspections are narrowly tailored to ensure 
that the process comports with constitutional standards. Although 
protections of the Fourth Amendment extend to commercial properties, 
and to administrative inspections, Congress has specifically required 
that certain records be kept to assure the health and welfare of 
performers, i.e., that the performers are not children. These specific 
records are required to be created and maintained by law, and 
inspection is limited to those required records. The Department 
believes that the government unquestionably has a substantial interest 
in avoiding the sexual exploitation of minors. Congress' findings of 
fact in enacting legislative changes to the child exploitation 
statutory scheme in 2003 in the PROTECT Act bear this out.
    As Justice White noted in Ferber v. New York, 458 U.S. 747, 757 
(1982), ``[t]he prevention of sexual exploitation and abuse of children 
constitutes a government objective of surpassing importance.'' Noting 
the specific findings of the New York legislature in banning the sale 
of material depicting sexual conduct of children, the Court concluded: 
``We shall not second-guess this legislative judgment * * * [V]irtually 
all of the States and the United States have passed legislation 
proscribing the production of or otherwise combating `child 
pornography.' The legislative judgment * * * is that the use of 
children as subjects of pornographic materials is harmful to the 
physiological, emotional, and mental health of the child. That 
judgment, we think, easily passes muster under the First Amendment.'' 
Id. at 758 (footnote omitted).
    Finally, the regulations set out in great detail the specifications 
that inform producers of sexually explicit depictions of precisely what 
records are required to be kept, the manner in which the records must 
be kept, to whom and how the statement of location of such records must 
be made, and the limited inspection that may be imposed upon those 
mandatory records.
    Proposed 28 CFR 75.6(d) makes clear the requirements for 
presentation of the notice regarding the locations of covered records. 
Although the Department did not, in the past, believe that it was 
necessary to be specific about the manner of display of the required 
notice, some producers, particularly in the film and Internet media, 
have attempted to minimize the required notice to such an extent that 
it has been unreadable, either for lack of size, acuity, contrast, or 
duration. Accordingly, to provide the industry with clear guidance, and 
to ensure that the required notice is displayed in such a manner as to 
be readable, this provision sets out specific requirements for the 
display. The Department specifically invites comments on how best to 
make these requirements clearer and applicable to all modes of 
presentation.

Regulatory Procedures

Regulatory Flexibility Act

    The Department of Justice has drafted this regulation in accordance 
with the Regulatory Flexibility Act, 5 U.S.C. 601-612. The Department 
of Justice drafted this rule to minimize its impact on small businesses 
while meeting its intended objectives. Based upon the preliminary 
information available to the Department through past investigations and 
enforcement actions involving the affected industry, the Department is 
unable to state with certainty that this rule, if promulgated as a 
final rule, will not have any effect on small businesses of the type 
described in 5 U.S.C. 601(3). Accordingly, the Department has prepared 
an initial Regulatory Flexibility Act analysis in accordance with 5 
U.S.C. 603, as follows:

[[Page 35550]]

A. Need for and Objectives of This Proposed Rule
    This proposed rule, the need for the proposed rule, and the 
objectives of the proposed rule are described in the SUPPLEMENTARY 
INFORMATION.
B. Description and Estimates of the Number of Small Entities Affected 
by This Proposed Rule
    A ``small business'' is defined by the Regulatory Flexibility Act 
(RFA) to be the same as a ``small business concern'' under the Small 
Business Act (``SBA''), 15 U.S.C. 632. See 5 U.S.C. 601(3) 
(incorporating by reference the definition of ``small business 
concern'' in 15 U.S.C. 632). Under the SBA, a ``small business 
concern'' is one that: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) meets any additional 
criteria established by the SBA.
    Based upon the information available to the Department through past 
investigations and enforcement actions involving the affected industry, 
there are likely to be a number of producers of sexually explicit 
depictions who hire or pay for performers and who, accordingly, would 
come under the ambit of the proposed rule. However, none of the changes 
proposed by this rule affect the number of producers that would be 
covered. The proposed rule clarifies the meaning of an existing 
definition and how that definition covers electronic sexually explicit 
depictions, but does not expand that definition.
    Pursuant to the RFA, the Department encourages all affected 
commercial entities to provide specific estimates, wherever possible, 
of the economic costs that this rule will impose on them and the 
benefits that it will bring to them and to the public. The Department 
asks affected small businesses to estimate what these regulations will 
cost as a percentage of their total revenues in order to enable the 
Department to ensure that small businesses are not unduly burdened.
    The proposed regulation has no effect on State or local 
governmental agencies.
C. Specific Requirements Imposed That Would Impact Private Companies
    The proposed rule provides clearer requirements for private 
companies to maintain records of performers of sexually explicit 
depictions to ensure that minors are not used in such sexually explicit 
depictions. The proposed rule requires that these records be properly 
indexed and cross-referenced. The Department specifically seeks 
information from affected producers on the costs of the record-keeping, 
indexing, and cross-referencing requirements.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department of Justice has determined that this rule is a ``significant 
regulatory action'' under Executive Order 12866, section 3(f). 
Accordingly, this rule has been reviewed by the Office of Management 
and Budget.
    The benefit of the proposed regulation is that children will be 
better protected from exploitation in the production of sexually 
explicit depictions by requiring producers to document that only those 
who are 18 years of age perform in such sexually explicit depictions. 
The costs to the industry include slightly higher record-keeping costs 
and the potential for obligation of some amount of time assisting 
inspectors in the process of inspecting the required records. The 
Department has determined that these benefits and costs are difficult 
to quantify precisely, but that the benefits are significant, the costs 
are minimal, and the benefits clearly outweigh the costs.

Executive Order 13132

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

Executive Order 12988

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

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

Paperwork Reduction Act

    This proposed rule modifies existing requirements to clarify the 
record-keeping requirements pursuant to Congressional enactments and 
the development of the Internet.
    This rule contains a new information collection that modifies the 
current requirements of existing regulations to clarify the means of 
maintaining and organizing the required documents. This information 
collection will be submitted to the Office of Management and Budget 
(OMB) for regular approval and comments will be solicited from the 
public, in accordance with the Paperwork Reduction Act of 1995. The 
title of the information collection is ``18 U.S.C. 2257 Record keeping 
Requirements for Inspection Records Relating to Depiction of Sexually 
Explicit Performances''. Any comments received during the comment 
period should address one or more of the following four points: (1) 
Evaluate whether the proposed collection of information is necessary 
for the proper performance of the functions of the agency, including 
whether the information will have practical utility; (2) evaluate the 
accuracy of the agency's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used; (3) enhance the quality, utility, and clarity of 
the information to be collected; and (4) minimize the burden of the 
collection of information on those who are to respond, including 
through the use of appropriate automated, electronic, mechanical, or 
other technological collection techniques or other forms of information 
technology, e.g., permitting electronic submission of responses.
    During the first 60 days of this same review period, a regular 
review of this information collection is also being undertaken. All 
comments and suggestions, or questions regarding additional 
information, to include obtaining a copy of the proposed information 
collection instrument with instructions, should be directed to: Andrew 
Oosterbaan, Chief, Child Exploitation and Obscenity Section,

[[Page 35551]]

Criminal Division, United States Department of Justice, Washington, DC 
20530. Comments should also be sent to: Brenda Dyer, Deputy Clearance 
Officer, United States Department of Justice, Policy and Planning 
Staff, Justice Management Division, Patrick Henry Building, 601 D 
Street, NW., Rm. 1600, Washington, DC 20530.
    The Criminal Division of the United States Department of Justice 
cannot estimate the annual burden of collecting the requisite 
information. The Department of Justice has no way of estimating the 
annual record-keeping hours burden because of the multitude of 
variables within the control of producers of depictions of actual 
sexually explicit conduct. Inasmuch as these records may be maintained 
on simple spreadsheet or data management software, within the 
discretion of the producers of depictions of actual sexually explicit 
conduct, and only file copies of associated identification are 
required, the Department cannot estimate the annualized hour burden. 
Industry comment has been invited in the proposed rule.

List of Subjects in 28 CFR Part 75

    Crime, Infants and children, Reporting and recordkeeping 
requirements.
    Accordingly, the Department of Justice proposes to amend chapter 1 
of title 28 of the Code of Federal Regulations as follows:
    1. Part 75 of title 28 CFR is revised to read as follows:

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

Sec.
75.1 Definitions.
75.2 Maintenance of records.
75.3 Categorization of records.
75.4 Location of records.
75.5 Inspection of records.
75.6 Statement describing location of books and records.
75.7 Exemption statement.
75.8 Location of the statement.

    Authority: 18 U.S.C. 2257.


Sec.  75.1  Definitions.

    (a) Terms used in this part shall have the meanings set forth in 18 
U.S.C. 2257, and as provided in this section. The terms used and 
defined in this part are intended to provide common-language guidance 
and usage and are not meant to exclude technologies or uses of these 
terms as otherwise employed in practice or defined in other regulations 
or federal statutes (e.g., 47 U.S.C. 230, 231).
    (b) Picture identification card means a document issued by the 
United States, a State government or a political subdivision thereof, 
or a United States territory that bears the photograph and the name of 
the individual identified, and provides sufficient specific information 
that it can be accessed from the issuing authority, e.g., a passport 
issued by the United States or a foreign country, driver's license 
issued by a State or the District of Columbia, or identification card 
issued by a State or the District of Columbia.
    (c) Producer means any person, including any individual, 
corporation, or other organization, who is a primary producer or a 
secondary producer.
    (1) A primary producer is any person who actually films, 
videotapes, photographs, or creates a computer-generated image, digital 
image, or picture of, or digitizes an image of, a visual depiction of 
actual sexually explicit conduct.
    (2) A secondary producer is any person who produces, assembles, 
manufactures, publishes, duplicates, reproduces, or reissues a book, 
magazine, periodical, film, videotape, a computer-generated image, 
digital image, or picture, or other matter intended for commercial 
distribution that contains a visual depiction of actual sexually 
explicit conduct, or who inserts on a computer site or service a 
digital image of, or otherwise manages the content of a computer site 
or service that contains a visual depiction of, actual sexually 
explicit conduct, including any person who enters into a contract, 
agreement, or conspiracy to do any of the foregoing.
    (3) The same person may be both a primary and a secondary producer.
    (4) Producer does not include persons whose activities relating to 
the visual depiction of actual sexually explicit conduct are limited to 
the following:
    (i) Photo processing;
    (ii) Mere distribution;
    (iii) Any activity, other than those activities identified in 
paragraphs (c)(1) and (2) of this section, that does not involve the 
hiring, contracting for, managing, or otherwise arranging for the 
participation of the depicted performers;
    (iv) A provider of Web-hosting services who does not manage the 
content of the computer site or service; or
    (v) A provider of an electronic communication service or remote 
computing service who does not manage the content of the computer site 
or service.
    (5) A producer includes any subsidiary or parent organization, and 
any subsidiary of any parent organization, notwithstanding any 
limitations on liability that would otherwise be applicable.
    (d) Sell, distribute, redistribute, and re-release refer to 
commercial distribution of a book, magazine, periodical, film, 
videotape, computer-generated image, digital image, picture, or other 
matter that contains a visual depiction of actual sexually explicit 
conduct, but does not refer to noncommercial or educational 
distribution of such matter, including transfers conducted by bona fide 
lending libraries, museums, schools, or educational organizations.
    (e) Copy, when used in reference to an identification document or a 
picture identification card, means a photocopy or a photograph.
    (f) Internet means collectively the myriad of computer and 
telecommunications facilities, including equipment and operating 
software, that constitute the interconnected world-wide network of 
networks that employ the Transmission Control Protocol/Internet 
Protocol, or any predecessor or successor protocols to such protocol, 
to communicate information of all kinds by wire or radio.
    (g) Computer site or service means a computer server-based file 
repository or file distribution service that is accessible over the 
Internet, World Wide Web, Usenet, or any other interactive computer 
service (as defined in 47 U.S.C. 230(f)(2)). Computer site or service 
includes, without limitation, sites or services using hypertext markup 
language, hypertext transfer protocol, file transfer protocol, 
electronic mail transmission protocols, similar data transmission 
protocols, or any successor protocols, including but not limited to 
computer sites or services on the World Wide Web.
    (h) URL means uniform resource locator.
    (i) Electronic communications service has the meaning set forth in 
18 U.S.C. 2510(15).
    (j) Remote computing service has the meaning set forth in 18 U.S.C. 
2711(2).
    (k) Manage content means to make editorial or managerial decisions 
concerning the content of a computer site or service.
    (l) Interactive computer service has the meaning set forth in 47 
U.S.C. 230(f)(2).


Sec.  75.2  Maintenance of records.

    (a) Any producer of any book, magazine, periodical, film, 
videotape, computer-generated image, digital

[[Page 35552]]

image, picture, or other matter that contains one or more visual 
depictions of actual sexually explicit conduct made after November 1, 
1990, shall, for each performer portrayed in such visual depiction, 
create and maintain records containing the following:
    (1) The legal name and date of birth of each performer, obtained by 
the producer's examination of an identification document, as defined by 
18 U.S.C. 1028(d)(3). For any performer portrayed in such a depiction 
made after May 26, 1992, the records shall also include a legible copy 
of the identification document examined and, if that document does not 
contain a recent and recognizable picture of the performer, a legible 
copy of a picture identification card. For any performer portrayed in 
such a depiction after [insert date 30 days after publication of the 
final rule in the Federal Register], the records shall include:
    (i) A copy of the depiction, and
    (ii) Where the depiction is published on an Internet Computer site 
or service, a copy of any URL associated with the depiction.
    (2) Any name, other than each performer's legal name, ever used by 
the performer, including the performer's maiden name, alias, nickname, 
stage name, or professional name. For any performer portrayed in such a 
depiction made after May 26, 1992, such names shall be indexed by the 
title or identifying number of the book, magazine, film, videotape, 
computer-generated image, digital image, picture, URL, or other matter.
    (3) Records required to be created and maintained under this part 
shall be organized alphabetically, or numerically where appropriate, by 
the legal name of the performer (by last or family name, then first or 
given name), and shall be indexed or cross-referenced to each alias or 
other name used and to each title or identifying number of the book, 
magazine, film, videotape, computer-generated image, digital image, 
picture, URL, or other matter.
    (b) A producer who is a secondary producer as defined in Sec.  
75.1(c) may satisfy the requirements of this part to create and 
maintain records by accepting from the primary producer, as defined in 
Sec.  75.1(c), copies of the records described in paragraph (a) of this 
section. Such a secondary producer shall also keep records of the name 
and address of the primary producer from whom he received copies of the 
records.
    (c) The information contained in the records required to be created 
and maintained by this part need be current only as of the time the 
primary producer actually films, videotapes, or photographs, or creates 
a computer-generated image, digital image, or picture, of the visual 
depiction of actual sexually explicit conduct. If the producer 
subsequently produces an additional book, magazine, film, videotape, 
computer-generated image, digital image, or picture, or other matter 
(including but not limited to Internet computer site or services) that 
contains one or more visual depictions of actual sexually explicit 
conduct made by a performer for whom he maintains records as required 
by this part, the producer may add the additional title or identifying 
number and the names of the performer to the existing records 
maintained pursuant to Sec.  75.2(a)(2).
    (d) For any record created or amended after [insert date 30 days 
after publication of the final rule in the Federal Register], all such 
records shall be organized alphabetically, or numerically where 
appropriate, by the legal name of the performer (by last or family 
name, then first or given name), and shall be indexed or cross-
referenced to each alias or other name used and to each title or 
identifying number of the book, magazine, film, videotape, computer-
generated image, digital image, picture, or other matter (including but 
not limited to Internet computer site or services). If the producer 
subsequently produces an additional book, magazine, film, videotape, 
computer-generated image, digital image, or picture, or other matter 
(including but not limited to Internet computer site or services) that 
contains one or more visual depictions of actual sexually explicit 
conduct made by a performer for whom he maintains records as required 
by this part, the producer shall add the additional title or 
identifying number and the names of the performer to the existing 
records and such records shall thereafter be maintained in accordance 
with this paragraph.
    (e) Records required to be maintained under this part shall be 
segregated from all other records, shall not contain any other records, 
and shall not be contained within any other records.


Sec.  75.3  Categorization of records.

    Records required to be maintained under this part shall be 
categorized alphabetically, or numerically where appropriate, and 
retrievable to: All name(s) of each performer, including any alias, 
maiden name, nickname, stage name, or professional name of the 
performer; and according to the title, number, or other similar 
identifier of each book, magazine, periodical, film, videotape, 
computer-generated image, digital image, picture, or other matter. Only 
one copy of each picture of a performer's picture identification card 
and identification document must be kept as long as each copy is 
categorized and retrievable according to any name, real or assumed, 
used by such performer, and according to any title or other identifier 
of the matter.


Sec.  75.4  Location of records.

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


Sec.  75.5  Inspection of records.

    (a) Authority to inspect. Investigators designated by the Attorney 
General (hereinafter ``investigators'') are authorized to enter without 
delay and at reasonable times (as defined in subsection (c)(1)) any 
establishment of a producer where records under Sec.  75.2 are 
maintained to inspect, within reasonable limits and in a reasonable 
manner, for the purpose of determining compliance with the record-
keeping requirements of 18 U.S.C. 2257.
    (b) Advance notice of inspections. Advance notice of record 
inspections shall not be given.
    (c) Conduct of inspections.
    (1) Inspections shall take place during normal business hours and 
at such places as specified in Sec.  75.4. For the purpose of this 
part, ``normal business hours'' are from 8 a.m. to 6 p.m., local time, 
and any other time during which the producer is actually conducting 
business relating to producing depiction of actual sexually explicit 
conduct.
    (2) Upon commencing an inspection, the investigator shall:
    (i) Present his or her credentials to the owner, operator, or agent 
in charge of the establishment;
    (ii) Explain the nature and purpose of the inspection, including 
the limited

[[Page 35553]]

nature of the records inspection, and the records required to be kept 
by the Act and this part; and
    (iii) Indicate the scope of the specific inspection and the records 
that he or she wishes to inspect.
    (3) The inspections shall be conducted so as not to unreasonably 
disrupt the operations of the producer's establishment.
    (4) At the conclusion of an inspection, the investigator may 
informally advise the producer of any apparent violations disclosed by 
the inspection. The producer may bring to the attention of the 
investigator any pertinent information regarding the records inspected 
or any other relevant matter.
    (d) Frequency of inspections. A producer may be inspected once 
during any four-month period, unless there is a reasonable suspicion to 
believe that a violation of this part has occurred, in which case an 
additional inspection or inspections may be conducted before the four-
month period has expired.
    (e) Copies of records. An investigator may photocopy, at no expense 
to the producer, during the inspection, any record that is subject to 
inspection.
    (f) Other law enforcement authority. These regulations do not 
restrict the otherwise lawful investigative prerogatives of an 
investigator while conducting an inspection.
    (g) Seizure of evidence. Notwithstanding any provision of this part 
or any other regulation, a law enforcement officer may seize any 
evidence of the commission of any felony while conducting an 
inspection.


Sec.  75.6  Statement describing location of books and records.

    (a) Any producer of any book, magazine, periodical, film, 
videotape, computer-generated image, digital image, picture, or other 
matter that contains one or more visual depictions of actual sexually 
explicit conduct made after November 1, 1990, and produced, 
manufactured, published, duplicated, reproduced, or reissued on or 
after May 26, 1992, shall cause to be affixed to every copy of the 
matter a statement describing the location of the records required by 
this part. A producer may cause such statement to be affixed, for 
example, by instructing the manufacturer of the book, magazine, 
periodical, film, videotape, computer-generated image, digital image, 
picture, or other matter to affix the statement.
    (b) Every statement shall contain:
    (1) The title of the book, magazine, periodical, film, or 
videotape, computer-generated image, digital image, picture, or other 
matter (unless the title is prominently set out elsewhere in the book, 
magazine, periodical, film, or videotape, computer-generated image, 
digital image, picture, or other matter) or, if there is no title, an 
identifying number or similar identifier that differentiates this 
matter from other matters that the producer has produced;
    (2) The date of production, manufacture, publication, duplication, 
reproduction, or reissuance of the matter; and,
    (3) A street address at which the records required by this part may 
be made available. The street address may be an address specified by 
the primary producer or, if the secondary producer satisfies the 
requirements of Sec.  75.2(b), the address of the secondary producer. A 
post office box address does not satisfy this requirement.
    (c) If the producer is an organization, the statement shall also 
contain the name, title, and business address of the individual 
employed by such organization who is responsible for maintaining the 
records required by this part.
    (d) The information contained in the statement must be accurate as 
of the date on which the book, magazine, periodical, film, videotape, 
computer-generated image, digital image, picture, or other matter is 
sold, distributed, redistributed, or rereleased.
    (e) For the purposes of this section, the required statement shall 
be displayed in the same typeface as the names of the performers, 
director, producer, or owner, whichever is larger, and shall be no 
smaller in size than the largest of the names of the performers, 
director, producer, or owner, and in no case in less than 11pt type, in 
black on a white, untinted background. For any electronic or other 
display of the notice that is limited in time, the notice must be 
displayed for a sufficient duration and of a sufficient size to be 
capable of being read by the average viewer.


Sec.  75.7  Exemption statement.

    (a) Any producer of any book, magazine, periodical, film, 
videotape, computer-generated image, digital image, picture, or other 
matter may cause to be affixed to every copy of the matter a statement 
attesting that the matter is not covered by the record-keeping 
requirements of 18 U.S.C. 2257(a)-(c) and of this part if:
    (1) The matter contains only visual depictions of actual sexually 
explicit conduct made before November 1, 1990, or is produced, 
manufactured, published, duplicated, reproduced, or reissued before May 
26, 1992;
    (2) The matter contains only visual depictions of simulated 
sexually explicit conduct; or,
    (3) The matter contains only some combination of the visual 
depictions described in paragraphs (a)(1) and (a)(2) of this section.
    (b) If the primary producer and the secondary producer are 
different entities, the primary producer may certify to the secondary 
producer that the visual depictions in the matter satisfy the standards 
under paragraphs (a)(1) through (a)(3) of this section. The secondary 
producer may then cause to be affixed to every copy of the matter a 
statement attesting that the matter is not covered by the record-
keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part.


Sec.  75.8  Location of the statement.

    (a) All books, magazines, and periodicals shall contain the 
statement required in Sec.  75.6 or suggested in Sec.  75.7 either on 
the first page that appears after the front cover or on the page on 
which copyright information appears.
    (b) In any film or videotape that contains end credits for the 
production, direction, distribution, or other activity in connection 
with the film or videotape, the statement referred to in Sec.  75.6 or 
Sec.  75.7 shall be presented at the end of the end titles or final 
credits and shall be displayed for a sufficient duration to be capable 
of being read by the average viewer.
    (c) Any other film or videotape shall contain the required 
statement within one minute from the start of the film or videotape, 
and before the opening scene, and shall display the statement for a 
sufficient duration to be read by the average viewer.
    (d) A computer site or service or Web address containing a 
computer-generated image, digital image, or picture, shall contain the 
required statement on its homepage or principal URL.
    (e) For all other categories not otherwise mentioned in this 
section, the statement is to be prominently displayed consistent with 
the manner of display required for the aforementioned categories.

    Dated: June 14, 2004.
John Ashcroft,
Attorney General.
[FR Doc. 04-13792 Filed 6-24-04; 8:45 am]
BILLING CODE 4410-14-P