[Federal Register Volume 73, Number 110 (Friday, June 6, 2008)]
[Proposed Rules]
[Pages 32262-32273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12635]
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DEPARTMENT OF JUSTICE
28 CFR Part 75
[Docket No. CRM 105; AG Order No. 2966-2008]
RIN 1105-AB19
Inspection of Records Relating to Depiction of Simulated Sexually
Explicit Performances
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend record-keeping, labeling, and
inspection requirements to implement provisions of the Adam Walsh Child
Protection and Safety Act of 2006 that require producers of depictions
of simulated sexually explicit conduct to maintain records documenting
that performers in those depictions are at least 18 years of age. The
rule also implements provisions of the Adam Walsh Act that create a
certification regime for the exemption of producers, in certain
circumstances, from those requirements and from similar requirements
for producers of visual depictions of the lascivious exhibition of the
genitals or pubic area of a person.
DATES: Written comments must be received by August 5, 2008.
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 105.''
Comments may be submitted electronically to www.regulations.gov by
using the electronic comment form provided on that site. Comments
submitted electronically must include ``Docket No. CRM 105'' 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 submitted by facsimile must include
``Docket No. CRM 105'' 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:
Public Comments
Please note that because the Department of Justice is now fully
operational using the www.regulations.gov site, the Child Exploitation
and Obscenity Section, Criminal Division has deactivated the e-mail
address for electronic comments that it published in rulemakings before
the Department started using www.regulations.gov. In order to ensure
that electronic comments are received by the Department, commenters
submitting electronic comments must use the electronic comment form
provided on the www.regulations.gov site.
Please also note that all comments received are considered part of
the public record and made available for public inspection online at
www.regulations.gov. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You also must
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify in that
paragraph what information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must identify prominently any confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment might not be posted
on www.regulations.gov.
Personal identifying information identified and located as set
forth above will be placed in the agency's public docket file, but not
posted online. Confidential business information identified and located
as set forth above will not be placed in the public docket file. If you
wish to inspect the agency's public docket file in person by
appointment, please see the ``For Additional Information'' paragraph.
Discussion
On July 27, 2006, President George W. Bush signed into law the Adam
Walsh Child Protection and Safety Act of 2006, Public Law 109-248
(``the Act''). As described in more detail below, section
[[Page 32263]]
503(a) of the Act provides that producers of visual depictions of
simulated sexually explicit conduct ``shall create and maintain
individually identifiable records pertaining to every performer
portrayed in such a visual depiction.'' 18 U.S.C. 2257A(a).
The Act requires producers of visual depictions of simulated
sexually explicit conduct to:
(1) Ascertain, by examination of an identification document
containing such information, the performer's name and date of birth,
and require the performer to provide such other indicia of his or
her identity as may be prescribed by regulations;
(2) 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
(3) Record * * * the information required by paragraphs (1) and
(2) of this subsection and such other identifying information as may
be prescribed by regulation.
Id. 2257A(b).
Furthermore, the Act requires that producers of material covered by
the statute ``shall maintain the records * * * at their business
premises, or at such other place as the Attorney General may by
regulation prescribe and shall make such records available to the
Attorney General for inspection at all reasonable times.'' Id.
2257A(c). Producers also must ``cause to be affixed to'' matter
containing the visual depictions covered by section 2257A ``a statement
describing where the records required by this section with respect to
all performers depicted in that copy of the matter may be located,''
Id. 2257A(e)(1), and the Act makes it illegal, inter alia, ``for any
person knowingly to sell or otherwise transfer, or offer for sale or
transfer'' any such matter ``which does not have affixed thereto * * *
a statement describing where the records required by this section may
be located,'' id. 2257A(f)(4).
Violation of these requirements is a misdemeanor, subject to
imprisonment for not more than one year, a criminal fine, or both. See
id. 2257A(i)(1).
The Act also created an exemption from the record-keeping
requirements of section 2257A. One part of this exemption states that
section 2257A does not apply to matter that (1) is intended for
commercial distribution, (2) is created as a part of a commercial
enterprise by a person who certifies to the Attorney General that he
regularly and in the normal course of business collects and maintains
individually identifiable name and age information regarding all
performers for purposes such as Federal and State tax, labor, and other
laws, and (3) is not produced, marketed, or otherwise made available in
circumstances such that an ordinary person would conclude that it is
child pornography. See id. 2257A(h)(1)(A). The other part of this
exemption states that section 2257A does not apply to matter that (1)
is produced by someone subject to the authority and regulation of the
Federal Communications Commission enforcing federal bans on the
broadcast of obscene, indecent, or profane programming, and (2) is
created as a part of a commercial enterprise by a person who certifies
to the Attorney General that he regularly and in the normal course of
business collects and maintains individually identifiable name and age
information regarding all performers, for purposes such as federal and
state tax, labor, and other laws. See id. 2257A(h)(1)(B).
The Act also permits such a certification for producers of visual
depictions of the lascivious exhibition of the genitals or pubic area
of a person (hereinafter ``lascivious exhibition'') for which record-
keeping, inspection, and labeling requirements apply under 18 U.S.C.
2257. See id. 2257A(h)(1)(A), (B). Section 2257 requires that producers
of depictions of actual sexually explicit conduct maintain identity and
age records for performers in those depictions, and the Act amended
section 2257, inter alia, to cover lascivious exhibition. See id.
2257(h)(1) (as amended by section 502(a)(4) of the Act).
Background
In enacting section 2257 in 1988, Congress imposed record-keeping
requirements related to visual depictions of actual sexually explicit
conduct. Section 2257 has been critical to protecting children from
exploitation as performers in visual depictions of sexually explicit
conduct. Children are incapable of giving voluntary and knowing consent
to perform in such depictions. The consequences to children depicted in
them are devastating and can follow them for years or even their entire
lives. Furthermore, viewers of such depictions themselves may sexually
abuse children, and pedophiles use such depictions to feed their
predilections and to groom potential victims. Performers in such
depictions therefore must not be minors.
In the Act, Congress filled two gaps left by the original statute
by amending section 2257 to cover lascivious exhibition and by enacting
section 2257A to cover simulated sexually explicit conduct, while at
the same time creating an exemption from these new record-keeping
requirements in certain circumstances. (The language of section 2257A
is based largely on the language in section 2257, but only the former
contains the exemption and certification regime described above.) The
record-keeping, inspection, and labeling requirements in sections 2257
and 2257A are designed to ensure that no minor will be exploited
through depictions of actual or simulated sexually explicit conduct,
whether produced deliberately or negligently.
Chapter 110 of title 18 (``Sexual Exploitation and Other Abuse of
Children'') covers both actual and simulated sexually explicit conduct.
Specifically, it defines ``sexually explicit conduct'' as:
(A) * * * actual or simulated--(i) sexual intercourse, including
genital-genital, oral-genital, anal-genital, or oral-anal, whether
between persons of the same or opposite sex; (ii) bestiality; (iii)
masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious
exhibition of the genitals or pubic area of any person; (B) For
purposes of subsection 8(B) of this section [part of the definition
of ``child pornography''], ``sexually explicit conduct'' means--(i)
graphic sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex, or lascivious simulated sexual intercourse where the
genitals, breast, or pubic area of any person is exhibited; (ii)
graphic or lascivious simulated; (I) bestiality; (II) masturbation;
or (III) sadistic or masochistic abuse; or (iii) graphic or
simulated lascivious exhibition of the genitals or pubic area of any
person.
18 U.S.C. 2256(2) (emphases added).
The terms ``simulated'' and ``actual'' also appear together in
numerous States' child-exploitation statutes. See Alaska Stat. Sec.
11.41.455; Ariz. Rev. Stat. Sec. 13-3551; Ariz. Rev. Stat. Sec. 13-
3553; Ark. Code Ann. Sec. 5-27-302; Cal. Penal Code Sec. 311.11;
Colo. Rev. Stat. Sec. 18-6-403; Conn. Gen. Stat. Sec. 53a-193; Fla.
Stat. Sec. 827.071; Ga. Code Ann. Sec. 16-12-100; Idaho Code Ann.
Sec. 18-1507; 720 Ill. Comp. Stat. Ann. 5/11-20.1; Kan. Stat. Ann.
Sec. 21-3516; Ky. Rev. Stat. Ann. Sec. 531.300; La. Rev. Stat. Ann.
Sec. 14:81.1; Mass. Ann. Laws ch. 272 Sec. 29C; Mich. Comp. Laws
Serv. Sec. 750.145c; Minn. Stat. Sec. 617.246; Miss. Code Ann. Sec.
97-5-33; Mo. Rev. Stat. Sec. 573.010; Mont. Code Ann. Sec. 45-5-625;
Nev. Rev. Stat. Sec. 200.725; N.H. Rev. Stat. Ann. Sec. 649-A:2; N.M.
Stat. Ann. Sec. 30-6A-3; N.Y. Penal L. Sec. 263.00; N.D. Cent. Code
Sec. 12.1-27.2-01; Okla. Stat. tit. 21 Sec. 1024.1; Or. Rev. Stat.
Sec. 163.665; R.I. Gen. Laws Sec. 11-9-1.3; S.D. Codified Laws Sec.
22-24A-2; S.D. Codified Laws Sec. 22-24A-3; Tenn. Code Ann. Sec. 39-
17-1003; Tex. Penal Code Ann. Sec. 43.25; Utah Code Ann. Sec. 76-5a-
2; Utah Code Ann. Sec. 76-5a-3; Va. Code Ann. Sec. 18.2-
[[Page 32264]]
390; Wash. Rev. Code Sec. 9.68A.011; W. Va. Code Sec. 61-8C-1; Wis.
Stat. Sec. 948.01; Wyo. Stat. Ann. Sec. 6-4-303. Accordingly,
``simulated'' in the context of sexually explicit conduct is neither a
novel nor an uncommon term.
These statutes recognize that a child may be harmed both physically
and psychologically in the production of visual depictions of simulated
sexually explicit conduct, even if no sexually explicit conduct
actually takes place. Furthermore, producers of visual depictions of
actual sexually explicit conduct often substitute a visual depiction of
simulated sexually explicit conduct (so-called ``soft-core''
pornography) in place of the actual sexually explicit conduct; then the
soft-core pornography is often distributed more widely than the
unedited version of the same production. In such cases, the protection
of children from exploitation in the production of a visual depiction
of actual sexually explicit conduct necessitates that producers of
visual depictions of simulated sexually explicit conduct also be
required to maintain records and label their products.
The Proposed Rule
Section 2257's requirements are implemented in 28 CFR part 75. On
July 12, 2007, the Department of Justice (``the Department'') published
a proposed rule amending part 75 to implement those provisions of the
Act that amended section 2257. See Revised Regulations for Records
Relating to Visual Depictions of Sexually Explicit Conduct [CRM Docket
No. 104; RIN 1105-AB18], 72 FR 38033 (Jul. 12, 2007).
This proposed rule would make additional amendments to part 75 to
implement section 2257A. As explained above, sections 2257 and 2257A
operate in tandem to protect children from exploitation in visual
depictions of sexually explicit conduct. Part 75 has undergone
significant public comment and several courts have found it to be a
constitutional exercise of governmental authority. See Am. Library
Ass'n v. Reno, 33 F.3d 78 (DC Cir. 1994); Free Speech Coalition v.
Gonzales, 406 F. Supp. 2d 1196 (D. Colo. 2005) (``Free Speech I'');
Free Speech Coalition v. Gonzales, 483 F. Supp. 2d 1069 (D. Colo. 2007)
(``Free Speech II''); Connection Distrib. Co. v. Gonzales, 2006 WL
1305089, 2006 U.S. Dist. LEXIS 29506 (N.D. Ohio, May 10, 2006).
Although one court invalidated part 75 as ultra vires to the extent it
regulated those whose activity ``does not involve hiring, contracting
for managing, or otherwise arranging for the participation of the
performers depicted,'' see Sundance Assoc., Inc. v. Reno, 139 F.3d 804,
806 (10th Cir. 1998) (quoting 18 U.S.C. 2257(h)(3) (1998)), Congress
subsequently amended the statute (see section 502(a)(4) of the Act) and
adopted the Attorney General's interpretation of section 2257. Cf. Free
Speech Coalition II, 483 F. Supp. 2d at 1076 (suggesting the enactment
of section 502 of the Act moots the plaintiff's ultra vires challenge
to part 75).
Because part 75 has been tested and upheld in the courts, and given
the similarities between sections 2257 and 2257A, the Department has
chosen to apply the existing requirements for visual depictions of
actual sexually explicit conduct (under section 2257) to visual
depictions of simulated sexually explicit conduct (under section 2257A)
with regard to the records at issue, the time, place and manner of
inspection of those records, and the labeling of matter containing such
visual depictions. The proposed rule therefore proposes to change
references in the Department's part 75 regulations (as proposed in CRM
Docket No. 104; RIN 1105-AB18) from ``actual sexually explicit
conduct'' to ``actual or simulated sexually explicit conduct,'' where
appropriate, and to make other minor textual changes as necessary to
regulate simulated sexually explicit conduct.
This proposed rule also makes two additional changes to part 75 to
implement section 2257A: it defines ``simulated sexually explicit
conduct'' and it implements a certification regime for producers of
actual sexually explicit conduct constituting lascivious exhibition and
for producers of simulated sexually explicit conduct.
Definition of ``simulated sexually explicit conduct''
As noted above, ``sexually explicit conduct'' is defined in section
2256(2)(A) with reference to certain physical acts and with reference
to both ``actual'' and ``simulated'' performance of those acts. No
definition of ``actual'' or ``simulated'' is contained in section 2256
or anywhere else in chapter 110. When first published in 1990, amended
in 2005, and proposed to be amended in 2007, part 75 did not adopt a
definition of ``actual,'' because the Department believed that in the
context of the acts described, the meaning of the term was sufficiently
precise for regulatory purposes. Public comments on the previous
versions of part 75 did not address the definition of ``actual,'' nor
has the meaning of that term arisen in litigation regarding the
regulations.
With the extension of part 75 to cover simulated conduct, however,
and with the statutory provision for a certification regime for
simulated conduct, the Department believes that a definition of the
term ``simulated sexually explicit conduct'' is necessary. A definition
will make clear to the public what types of conduct come within the
ambit of the regulation, as distinct from conduct not covered at all,
and what types of conduct will be eligible for the certification
regime.
The Department starts its analysis of the proper definition of the
term for regulatory purposes with the term's plain meaning. The
dictionary defines ``simulated'' as ``made to look genuine.'' Merriam-
Webster's Collegiate Dictionary 1162 (11th ed. 2003).
The Department believes that an objective standard--that is, one
defined in terms of a reasonable person viewing the depiction--is
appropriate to add to this basic definition. The proposed rule's
definition of ``simulated sexually explicit conduct'' thus reads as
follows: ``[S]imulated sexually explicit conduct means conduct engaged
in by performers in a visual depiction that is intended to appear as if
the performers are engaged in actual sexually explicit conduct and does
so appear to a reasonable viewer.''
No federal court has interpreted the definition of ``simulated'' in
the context of chapter 110. The definition above, however, is based on
the plain meaning of the term and is supported by extrinsic sources of
meaning. Chapter 110 was created by the Protection of Children Against
Sexual Exploitation Act of 1977, which defined ``sexually explicit
conduct'' to include both ``actual or simulated'' acts. See Protection
of Children Against Sexual Exploitation Act of 1977, Public Law 95-225,
Sec. 2(a), 92 Stat. 7 (1978). That statute did not define
``simulated,'' however, and the legislative history of the act does not
indicate that Congress considered defining that term. See S. Rep. No.
438, 95th Cong., 1st Sess. (1977); H.R. Report No. 696, 95th Cong., 1st
Sess. (1977). When Congress amended chapter 110 in 1984, it considered
defining ``simulated'' but ultimately did not do so, thereby leaving
the definition of that term to the discretion of the Attorney General.
As noted above, most states have laws similar to the federal
statute criminalizing production, distribution, and possession of
simulated sexually explicit conduct involving a minor. A number of
those states' statutes, in contrast to section 2257A, define
``simulated,'' and therefore may inform the federal definition of that
term in part 75. State definitions of ``simulated'' generally fall into
three categories:
[[Page 32265]]
(1) Definitions based on giving the appearance of actual sexually
explicit conduct. For example: ``An act is simulated when it gives the
appearance of being sexual conduct.'' Cal. Penal Code Sec.
311.4(d)(1); 14 V.I. Code Sec. 1027(b). ```Simulated sexually explicit
conduct' means a feigned or pretended act of sexually explicit conduct
which duplicates, within the perception of an average person, the
appearance of an actual act of sexually explicit conduct.'' Utah Code
Ann. Sec. 76-5a-2(9). ``Sexual intercourse is simulated when it
depicts explicit sexual intercourse which gives the appearance of the
consummation of sexual intercourse, normal or perverted.''
Mass. Ann. Laws ch. 272, Sec. 31; N.H. Rev. Stat. Ann. Sec. 649-
A:2(III).
(2) Definitions based on depiction of genitals that gives the
impression of actual sexually explicit conduct, such as: ```Simulated'
means any depicting of the genitals or rectal areas that gives the
appearance of sexual conduct or incipient sexual conduct.'' Ariz. Rev.
Stat. Sec. 13-3551(10); Miss. Code Ann. Sec. 97-5-31(f); Mont. Code
Ann. Sec. 45-5-620(2).
(3) Definitions based on (a) the depiction of uncovered portions of
the body and (b) that gives the impression of actual sexually explicit
conduct, such as: ```Simulated' means the explicit depiction of
[sexual] conduct * * *which creates the appearance of such conduct and
which exhibits any uncovered portion of the breasts, genitals, or
buttocks.'' Fla. Stat. Sec. 827.071(1)(i). ```Simulated' means the
explicit depiction of sexual conduct that creates the appearance of
actual sexual conduct and during which a person engaging in the conduct
exhibits any uncovered portion of the breasts, genitals, or buttocks.''
Tex. Penal Code Sec. 43.25(a)(6). ```Simulated' means the explicit
depiction of any [sexual] conduct * * * which creates the appearance of
such conduct and which exhibits any uncovered portion of the breasts,
genitals or buttocks.'' N.Y. Penal L. Sec. 263.00(6).
The definitions categorized above as ``based on giving the
appearance of actual sexually explicit conduct'' are closest to that
proposed by the Department in this proposed rule. The other two
definitions, which require the actual depiction of nudity, are overly
restrictive in that a child may be exploited in the production of a
visual depiction of simulated sexually explicit conduct even if no
nudity is present in the final version of the visual depiction. The
producer of the depiction may arrange the camera or the body positions
to avoid depicting uncovered genitals, breasts, or buttocks yet still
cause harm to the child by having him or her otherwise realistically
appear to be engaging in sexually explicit conduct.
It is also important to note that ``simulated'' in this context
does not mean ``virtual.'' For purposes of chapter 110, including
sections 2256, 2257, and 2257A, and for purposes of part 75,
``simulated sexual explicit conduct'' means conduct engaged in by real
human beings, not conduct engaged in by computer-generated images that
only appear to be real human beings. Although Congress did attempt to
criminalize production, distribution, and possession of ``virtual''
child pornography on the basis that it contributed to the market in
child pornography involving real children, the Supreme Court held that
the child-protection rationale for the criminalization of child
pornography under Ferber did not apply to images in which no real
children were harmed. See Ashcroft v. Free Speech Coalition, 535 U.S.
234, 250-51 (2002). Section 2257A does not cover such ``virtual'' child
pornography, but rather ``simulated'' sexually explicit conduct, the
production of which, as noted above, can exploit a real child. The
Court's decision in Ashcroft is thus not relevant to sections 2257 or
2257A, or part 75, which for clarity's sake consistently refers to
sexually explicit conduct engaged in by an ``actual human being.''
Exemption From Statutory Requirements for Visual Depictions of
Lascivious Exhibition or Simulated Sexually Explicit Conduct in Certain
Circumstances and an Associated Certification Regime
As outlined above, Congress in the Act filled two gaps left by the
original section 2257 by amending section 2257 to cover lascivious
exhibition and by enacting section 2257A to cover simulated sexually
explicit conduct. In enacting section 2257A, Congress determined it
would be appropriate, in certain circumstances, to exempt producers of
visual depictions of lascivious exhibition (for which records must be
kept under section 2257, as amended by the Act) and producers of visual
depictions of simulated sexually explicit conduct (for which records
must be kept under section 2257A) from statutory requirements otherwise
applicable to such visual depictions. See 18 U.S.C. 2257A(h).
The safe harbor provision in the statute in essence permits certain
producers of visual depictions of lascivious exhibition or simulated
sexually explicit conduct to certify that in the normal course of
business they collect and maintain records to confirm that performers
in those depictions are not minors, while not necessarily collected and
maintained in the format required by part 75. Where a producer makes
the required certification, matter containing such visual depictions is
not subject to the labeling requirements of the statute.
The Department has crafted a certification regime (described in
detail below) that implements the safe harbor in such a way as to
permit such producers, in accordance with the statute, to be subject to
lesser record-keeping burdens than those in part 75, while still
protecting children from sexual exploitation.
Who May Certify
Any entity that meets the statutory requirements for eligibility,
which are incorporated verbatim in the proposed rule, may certify that
it meets the requirements of section 2257A(h). In addition, an entity
may certify for sub-entities that it owns or controls if the names of
the sub-entities are listed in such certification and are cross-
referenced to the matter for which the sub-entity served as the
producer.
Both United States and foreign entities may certify. In the case of
a certification by a foreign entity, the foreign entity, which may be
unlikely to collect and maintain information in accordance with United
States federal and state tax and other laws, may certify that it
maintains the required information in accordance with their foreign
equivalents. The Department considers the statute's broad description
of laws and other documentation that satisfy the certification to
provide authority for this treatment of foreign entities.
The certification must be signed by the chief executive officer of
the entity making the certification, or in the event an entity does not
have a chief executive officer, the senior manager responsible for
overseeing the entity's activities.
The certification regime in the proposed rule is similar for
producers of lascivious exhibition and producers of simulated sexually
explicit conduct but differs in some material respects, as described
below.
Time Period for Certification
The certification must be filed every two years. The Department
could have chosen a shorter period for certification, a longer period,
or a permanent certification. The Department believes, however, that
two years is a reasonable period to ensure that certifications remain
up to date without imposing
[[Page 32266]]
overly onerous burdens on regulated entities.
In order to establish certifications on the record as soon as
possible, the Department will require an initial certification due 180
days after the publication of this proposed rule as a final rule. This
schedule will provide sufficient time for entities to determine if they
wish to certify in compliance with the regulatory requirements. All
subsequent certifications will be due on the same date at two-year
intervals. The initial certification and all subsequent certifications
must be filed within a period of five business days concluding on the
due date (i.e., if the due date were on a Friday, and there were no
federal holiday during that week, the certification would have to be
filed on Monday, Tuesday, Wednesday, Thursday, or Friday of that week).
The Department must have confidence that the certification covers all
depictions subject to record-keeping requirements for the previous
period. Initial certifications of producers who begin production after
the publication of this proposed rule but before the expiration of the
180-day period preceding its publication as a final rule will be due
within a period of five business days concluding on the last day of the
180-day period. Initial certifications of producers who begin
production after the expiration of the 180-day period, but before the
expiration of the two-year period following the 180-day period, are due
within 60 days of the start of production (unless the start of
production occurs within 60 days of the expiration of the two-year
period, in which case the certifications are due on the expiration date
of the two-year period). In any case where a due date or last day of a
time period falls on a Saturday, Sunday, or federal holiday, the due
date or last day of a time period is considered to run until the next
day that is not a Saturday, Sunday, or federal holiday.
Enforcement of the Certification
All of the statements in the certification are subject to
investigation and a false certification will violate section 2257A and
potentially other criminal statutes.
Form and Content of the Certification
The certification regime in the proposed rule requires that a
producer provide a letter to the Attorney General that:
(1) Sets out the statutory basis under which it and any sub-
entities, if applicable, are permitted to avail themselves of the safe
harbor;
(2) Certifies that regularly and in the normal course of business,
the producer and any sub-entities, if applicable, collect and maintain
individually identifiable information regarding all performers employed
by the producer who appear in visual depictions of simulated sexually
explicit conduct or of lascivious exhibition;
(3) Lists the titles, names, or other identifying information of
visual depictions (or matter containing them) that include non-employee
performers;
(4) Lists the titles, names, or other identifying information of
visual depictions (or matter containing them) produced since the last
certification;
(5) Certifies that any foreign producers of visual depictions
acquired by the certifying entity either maintain the records required
by section 2257A or have themselves provided certifications to the
Attorney General, and the producers making the certifications have
copies of those records or certifications; or, for visual depictions of
simulated sexually explicit conduct only, have taken reasonable steps
to confirm that the performers are not minors;
(6) Lists the titles, names, or other identifying information of
the foreign-produced visual depictions (or matter containing them) that
include performers for whom no information is available but for whom
the U.S. entity has taken reasonable steps to confirm that the
performers are not minors;
(7) Certifies that U.S. primary producers of visual depictions
acquired by the certifying entity either maintain the records required
by section 2257A or certify themselves under the statute's safe harbor,
and that the producer making the certification has copies of those
records or certification(s). See 28 CFR 75.1(c)(1) (defining a primary
producer as ``any person who actually films, videotapes, photographs,
or creates'' a visual depiction of sexually explicit conduct).
Statutory Basis for the Certification
The first requirement listed above is straightforward--the entity
providing the certification must state why it is entitled to certify
under the terms of the statute. This will include citation to the
specific subsections of the statute under which it is making the
certification and to basic evidence justifying that citation.
Specifically, the letter should either cite 18 U.S.C. 2257A(h)(1)(A)
and 28 CFR 75.9 and state that the visual depictions listed in the
letter are ``intended for commercial distribution,'' ``created as a
part of a commercial enterprise'' that meets the requirements of 18
U.S.C. 2257A(h)(1)(A)(ii), and are ``not produced, marketed or made
available * * * in circumstances such tha[t] an ordinary person would
conclude that * * * [they] contain a visual depiction that is child
pornography as defined in section 2256(8)'' or cite 18 U.S.C.
2257A(h)(1)(B) and 28 CFR 75.9 and state that the visual depictions
listed in the letter are ``subject to regulation by the Federal
Communications Commission acting in its capacity to enforce 18 U.S.C.
1464 regarding the broadcast of obscene, indecent or profane
programming'' and are ``created as a part of a commercial enterprise''
that meets the requirements of 18 U.S.C. 2257A(h)(1)(B)(ii).
Certification of Collection and Maintenance of Records
The second requirement is the certification under either subsection
2257A(h)(1)(A)(ii) or (B)(ii). Under either subsection, the certifier
must demonstrate its compliance with the following five enumerated
elements: the entity (1) ``regularly and in the normal course of
business collects and maintains'' (2) ``individually identifiable
information'' (3) ``regarding all performers, including minor
performers employed by [the entity]'' (4) ``pursuant to Federal and
State tax, labor, and other laws, labor agreements, or otherwise
pursuant to industry standards'' (5) ``where such information includes
the name, address, and date of birth of the performer.'' The Department
will consider any entity's procedures that include these basic elements
to be in compliance with the certification.
To the extent that these terms are not self-explanatory, the
proposed rule defines them as follows:
``Regularly and in the normal course of business collects and
maintains'' means any business practice(s) that ensure that the
producer confirms the identity and age of employees who perform in
visual depictions of sexually explicit conduct.
``Individually identifiable information'' means that information
about the name, address, and date of birth is capable of being
retrieved for any employee who appears in a specified visual depiction.
``All performers, including minor performers'' means all performers
who appear, no matter how briefly, in a visual depiction of lascivious
exhibition or simulated sexually explicit conduct. The term ``minor''
in the statute could be interpreted to mean performers under the age of
18, which is the way the term ``minor'' is used elsewhere in chapter
110. Such an interpretation in this context, however, would be
redundant, as the purpose of the record-keeping
[[Page 32267]]
requirements is to ensure record-keeping for ``all performers,'' the
first term in the phrase. Hence, the Department interprets the term to
refer to performers who appear for only a limited period of time in the
context of the overall visual depiction. ``All performers, including
minor performers'' does not mean all performers in any matter that may
contain a discrete (or several discrete) visual depictions of
lascivious exhibition or simulated sexually explicit conduct. Rather,
it means only those performers in the discrete visual depiction(s).
That is, an entity that produces a two-hour-long movie containing a
single visual depiction of lascivious exhibition or simulated sexually
explicit conduct lasting five minutes need only collect and maintain
records on the performers in that five-minute visual depiction.
``Employed by'' means performers who receive pay for performing in
the visual depictions or are otherwise in an employer-employee
relationship with the producer of the visual depiction as evidenced by
oral or written agreements. This definition is important, because by
use of the term ``employed by,'' the statute appears to permit a
producer to make the certification even if there are performers who
appear in its visual depictions for whom it does not regularly and in
the normal course of business collect and maintain individually
identifiable information. It is possible, for example, that persons
with whom the producer has no employer-employee relationship may appear
in the background of a visual depiction or may engage in sexually
explicit conduct in the background of a depiction of non-sexually
explicit conduct. Because of the language of the statute, a producer in
that circumstance may still certify and remove itself from the coverage
of the entire record-keeping requirements of the section, even without
collecting and maintaining individually identifiable information for
the non-employee performers. The language of the statute permits no
other construction of the certification regime.
As a result of this language, however, there is a risk that a
performer who is a minor could appear in a depiction produced by an
entity that has made a certification and not be detected because the
minor was not ``employed by'' the certifying entity. In addition, there
is a risk that a producer may seek to evade the record-keeping
requirements by certifying that he maintains records on all employees
and then producing his visual depictions with performers--such as his
own children--whom he claims are not his employees.
In the first case, the Department recognizes that a producer might
not collect and maintain regularly and in the normal course of business
individually identifiable information on non-employees. At the same
time, the Department believes that the scenario described above--that
is, the production of visual depictions of lascivious exhibition or of
simulated sexually explicit conduct in which bona fide non-employees
perform--will be very rare.
The Department is more concerned about the possibility of evasion,
as in the second scenario described above. For that reason, the
Department has included a slightly broader definition of ``employed
by'' than simply financial remuneration. The definition would include
anyone who, even if not for pay, intentionally performs or is required
to perform in a visual depiction of sexually explicit conduct intended
for commercial distribution that is produced by someone meeting the
definition of a primary or secondary producer. See 28 CFR 75.1(c)(2)
(generally defining a ``secondary producer'' as ``any person who
produces, assembles, manufactures, publishes, duplicates, reproduces,
or reissues'' a visual depiction of sexually explicit conduct).
The Department considers it unnecessary to define the phrase
``pursuant to Federal and State tax, labor, and other laws, labor
agreements, or otherwise pursuant to industry standards.'' As guidance
to employers, however, the Department will consider any document that
contains a verified name, address, and date of birth of a performer to
satisfy this requirement.
The Department considers the phrase ``where such information
includes the name, address, and date of birth of the performer'' to be
self-explanatory.
List of the Titles, Names, or Other Identifying Information of Visual
Depictions That Include Non-Employee Performers
As an extra precaution against evasion, the third requirement is a
list of all visual depictions or matter containing visual depictions in
which non-employees have engaged in sexually explicit conduct. This
provides the Department with notice and a record that such visual
depictions by the producers exist and, if necessary, enables the
Department to investigate the bona fides of the certifying entity. At
the same time, the list is not so burdensome as to vitiate the purpose
of the certification regime in the first instance, namely, reducing the
burdensomeness of the record-keeping requirements. Rather than
maintaining age verification records, copies of each performance, etc.,
the certifying entities need only provide a list of their productions
that include depictions of lascivious exhibition or simulated sexually
explicit conduct by non-employee performers.
List of the Titles, Names, or Other Identifying Information of Visual
Depictions Produced Since the Last Certification
The fourth requirement is necessary to provide the Department with
both a notice and a record regarding which depictions or matters are
subject to the certification. The Department considered simply allowing
entities to make a blanket assertion that they maintain the required
records on all employees who perform in all matter they produce. The
Department determined, however, that depiction-specific information
will enable investigators more easily to determine whether a visual
depiction is covered by the section 2257A certification regime. The
list submitted by a certifying entity must include the titles, names,
or other identifying information of visual depictions acquired by the
certifying entity from foreign or U.S. primary producers.
Certification for Entities Acquiring Foreign-Produced Matter
The fifth requirement is a subsidiary certification for entities
acquiring matter subject to the record-keeping requirements from
foreign producers. The Department understands that many producers in
the United States acquire films and other matter that may contain
visual depictions of lascivious exhibition or simulated sexually
explicit conduct from producers abroad. In order to produce that matter
for the U.S. market and comply with the law, the U.S. entity acquiring
the matter must certify either that the foreign producer in the first
instance maintained the records required by the statute and that the
U.S. entity has copies of those records, or that the foreign entity has
certified on its own that it (the foreign producer) maintains foreign-
equivalent records in the normal course of business, and that the U.S.
entity has a copy of that certification. The Department believes it is
appropriate for the exemption to apply based on certifications that
foreign producers maintain foreign-equivalent records because foreign
countries generally have tax and employment laws requiring
identification of employees that are
[[Page 32268]]
substantially similar to requirements under U.S. law.
There may be cases where a U.S. entity acquires foreign-produced
matter and cannot certify the information above. In such a case, the
U.S. entity would not be able to produce the matter in the United
States. Denying the market in the United States access to a large
amount of foreign-produced matter, however, could be construed as a
burden on American citizens' First Amendment right to free expression.
At the same time, the Department cannot risk permitting either foreign
children to be exploited in the visual depictions produced for the U.S.
market or evasion of the statute by unscrupulous U.S. producers.
Therefore, U.S. entities making the certification may certify that
to the extent that they have acquired visual depictions or matter
containing visual depictions of simulated sexually explicit conduct
from foreign entities and to the extent that the primary foreign
producer does not either maintain the records required by the statute
or provide a certification to the Attorney General itself, the entity
making the certification has made reasonable efforts to ensure that no
performer in any such foreign visual depiction is a minor.
The same process will not be available for visual depictions of
lascivious exhibition acquired from foreign entities. The risks of
exploitation of children in such visual depictions and the risk of
evasion of the record-keeping requirements are too great to permit the
accommodation for visual depictions of simulated sexually explicit
conduct outlined above. The Department is concerned that providing a
method for weaker enforcement of section 2257 with regard to lascivious
exhibition would undermine the existing section 2257 requirements. The
Department notes, however, that Congress clearly considered non-
compliance with record-keeping requirements concerning visual
depictions of simulated sexually explicit conduct (under section 2257A)
to be a less serious crime than non-compliance with analogous
requirements for visual depictions of actual sexually explicit conduct
(under section 2257), as exemplified by the misdemeanor penalty for
violation of the former section versus the felony penalty for violation
of the latter section.
List of All Foreign-Acquired Matter for Which Records of Performers Are
Not Available
The sixth requirement is that the entity making the certification
must include a list of the visual depictions or matter including those
visual depictions for which no records exist but for which the
certifying entity has made reasonable efforts to ensure that no
performer in any visual depiction is a minor. As with the case of non-
employee performers, this list will provide the Department with notice
and a record that such visual depictions exist and if necessary, enable
investigation of such matter. At the same time, the requirement of the
list and a certification of reasonable efforts by the secondary
producer in the United States will provide significant protection
without unduly infringing on constitutional rights. The risk of evasion
is mitigated by the severe criminal penalties for production of child
pornography that would apply to any matter covered by the record-
keeping requirements.
Certification of Record-Keeping by Primary Producers
The seventh requirement is that, as with foreign primary producers,
an entity acquiring visual depictions must certify either that the
primary producer in the first instance maintained the records required
by the statute and that the certifying entity has copies of those
records, or that the primary producer has certified separately that it
(the primary producer) has made a certification and that the acquiring
entity has a copy of that certification.
Effective Dates
In accordance with current law, the proposed rule retains July 3,
1995, as the effective date of the rule's requirements for secondary
producers related to depictions of actual sexually explicit conduct.
(The current regulations, published in 2005, adopted July 3, 1995, as
the effective date of enforcement of section 2257 based on the court's
order in American Library Association v. Reno, No. 91-0394 (SS) (D.D.C.
July 28, 1995)) The proposed rule also states that producers of visual
depictions of actual sexually explicit conduct made after July 3, 1995,
the effective date of the regulations published in 1992, and before
June 23, 2005, the effective date of the current regulations published
in 2005, may rely on picture identification cards issued by private
entities such as schools or private employers that were valid forms of
required identification documentation under the provisions of part 75
in effect on the original production date. Finally, the proposed rule's
effective date concerning depictions of simulated sexually explicit
conduct will be 90 days after its publication in the Federal Register
as a final rule.
Regulatory Procedures
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-612
(``RFA''), the Department of Justice has drafted this proposed 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 a final RFA analysis
in accordance with 5 U.S.C. 604, as follows:
A. Need for and Objectives of This Rule
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 of actual or simulated sexually explicit conduct verifiably
not be minors, i.e. , not younger than 18 years of age. See 18 U.S.C.
2256(1), 2257(b)(1), 2257A(b)(1). Congress has recognized that minors
warrant special concern in this area. Children themselves are incapable
of giving voluntary and knowing consent to perform or to enter into
contracts to perform such conduct. In addition, children often are
forced to engage involuntarily in sexually explicit conduct. For these
reasons, visual depictions of actual and simulated sexually explicit
conduct that involve persons under the age of 18 constitute unlawful
child pornography. See 18 U.S.C. 2256(8).
This proposed rule amends certain provisions of the existing
regulations and adds other provisions to these regulations to conform
to the Act, as described above.
B. Description and Estimates of the Number of Small Entities Affected
by This Rule
The RFA defines a ``small business'' as equivalent to a ``small
business concern'' under the Small Business Act (``SBA''). See 5 U.S.C.
601(3)
[[Page 32269]]
(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. See 15 U.S.C. 632(a).
Based upon the information available to the Department, there are
likely to be a significant number of small businesses that are
producers of visual depictions of simulated sexually explicit conduct.
Pursuant to the RFA, the Department requests 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 rule has no effect on State or local governmental
agencies.
C. Specific Requirements Imposed That Would Impact Private Companies
The proposed rule imposes requirements on private companies with
respect to visual depictions of simulated sexually explicit conduct to
ensure that minors are not used in such depictions. Specifically, the
rule imposes certain name- and age-verification and record-keeping
requirements on producers of visual depictions of simulated sexually
explicit conduct concerning the performers portrayed in those
depictions. The proposed rule, however, provides an exemption from
these requirements applicable in certain circumstances.
Executive Order 12866
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, Sec. 1(b), Principles of Regulation. The
Department has determined that this rule is a ``significant regulatory
action'' under Executive Order 12866, Sec. 3(f). Accordingly, this
rule has been reviewed by the Office of Management and Budget.
The benefit of the rule is that children will be protected from
exploitation in the production of visual depictions of simulated
sexually explicit conduct by ensuring that only those who are at least
18 years of age perform in such depictions. The costs to the industry
include what the Department believes to be slightly higher record-
keeping costs. The Department encourages all affected commercial
entities to provide specific estimates, wherever possible, of the
economic costs that this rule will impose on them.
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
Executive Order 12988 Sec. 3(a), (b)(2).
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
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States-based companies to compete
with foreign-based companies in domestic and export markets.
Paperwork Reduction Act
This proposed rule expands the scope of existing requirements to
conform to newly enacted legislation. It also implements the newly
enacted legislation's exemption from these expanded requirements
applicable in certain cases. It contains a revised collection of
information that clarifies the means of maintaining and organizing the
required documents.
The Department has submitted the following information-collection
request to the Office of Management and Budget (``OMB'') for review and
clearance in accordance with the Paperwork Reduction Act of 1995. The
proposed collection of information is published to obtain comments from
the public.
Any comments received during the comment period should address one
or more of the following four points: (1) 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) 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) how to enhance
the quality, utility, and clarity of the information to be collected;
and (4) how to 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.
Overview of this collection of information:
(1) Type of collection of information: Revision of a currently
approved collection.
(2) Title: Inspection of Records Relating to Depictions of
Simulated Sexually Explicit Performances.
(3) Agency form number, if any: None.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract:
Primary: Business or other for-profit entities.
Other: None.
Abstract: This rule proposes to amend the record-keeping, labeling,
and inspection requirements of 28 CFR part 75 to account for the
enactment of the Adam Walsh Child Protection and Safety Act of 2006.
(5) An estimate of the total number of respondents, the amount of
time estimated for an average respondent to respond, and the total
public burden (in hours) associated with the collection:
The Department is unable to estimate with any precision the number
of entities producing visual depictions of simulated sexually explicit
conduct. Because the issue of the number of entities producing visual
depictions of simulated sexually explicit conduct is a new issue that
has arisen precisely because of section 2257A, there does not appear to
be much available information concerning the number of entities
producing such material. As a partial indication, according to the U.S.
Census Bureau, in 2002 there were 11,163 establishments engaged in
motion picture and video production in the United States. Based on a
rough assumption that 10% were engaged in
[[Page 32270]]
the production of visual depictions of simulated sexually explicit
conduct, the Department estimates that approximately 1116 motion
picture and video producing establishments would be covered. (The
Department does not certify this estimate and invites comment on the
assumptions upon which it is based.) The underlying statute provides an
exemption from these requirements applicable in certain circumstances,
and it requires producers to submit certifications to qualify for this
exemption. The Department has no information concerning the number of
otherwise covered entities that would qualify for this statutory
exemption, nor is it able to estimate this number. For entities that
qualify for the statutory exemption, however, the Department estimates
that it would take less than 20 hours per year at an estimated cost of
less than $25.00 per hour to prepare the biennial certification
required for the statutory exemption. The Department's burden hour
estimate for preparing the biennial certification required for the
statutory exemption recognizes that the certification must take the
form of a letter indicating that the producer regularly and in the
normal course of business collects and maintains individually
identifiable information regarding all performers employed by that
person, and shall include a list of the titles, names, or other
identifying information of visual depictions of simulated sexually
explicit conduct or lascivious exhibition produced since the last
certification, as well as a list of the titles, names, or other
identifying information of visual depictions of simulated sexually
explicit conduct or lascivious exhibition that include non-employee
performers. The Department assumes that the certification's main burden
would be to require producers to maintain a list of the visual
depictions produced during the certification period, and that the
majority of the work to prepare the certification would be performed by
administrative staff. Based on the Department's assumption that 90% of
such entities would qualify for the exemption, the total annual cost
for the entities qualifying for the statutory exemption would be
approximately $21,500 per year. Again, the Department does not certify
the accuracy of these numbers and invites comment on the assumptions
outlined above.
Based on the Department's assumption that 3,000,000 visual
depictions of simulated sexually explicit conduct are created each year
and that it requires 6 minutes to complete the record-keeping
requirement for each depiction, the record-keeping requirements would
impose a burden of 300,000 hours. Based on the Department's assumption
that producers of 90% of these depictions would qualify for the
statutory exemption from these requirements, the requirements would
only impose a burden of 30,000 hours. Assuming further that the record
keeping requirements will cost $6.00 per hour to complete and $0.05 for
each image of a verifiable form of identification, the total annual
cost for the 10% of entities not qualifying for the statutory exemption
would be $181,500. Again, the Department does not certify the accuracy
of these numbers and invites comment on the assumptions outlined above.
The Department notes that steps taken to minimize the burden of
these requirements on small entities include the statutory exemption
requiring only that such entities prepare the certification necessary
for the exemption.
All comments and suggestions, or questions regarding additional
information, should be directed to 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. Comments should also be sent to: Lynn Bryant,
Clearance Officer, United States Department of Justice, Policy and
Planning Staff, Justice Management Division, Patrick Henry Building,
601 D Street, NW, Washington, DC 20530.
List of Subjects in 28 CFR Part 75
Crime, Infants and children, Reporting and recordkeeping
requirements.
Accordingly, for the reasons set forth in the preamble, part 75 of
chapter I of title 28 of the Code of Federal Regulations is proposed to
be amended as follows:
PART 75--CHILD PROTECTION RESTORATION AND PENALTIES ENHANCEMENT ACT
OF 1990; PROTECT ACT; ADAM WALSH CHILD PROTECTION AND SAFETY ACT OF
2006; RECORD-KEEPING AND RECORD INSPECTION PROVISIONS
1. The authority citation for part 75 is revised to read as
follows:
Authority: 18 U.S.C. 2257, 2257A.
2. The title of part 75 is revised to read as set forth above.
3. Amend Sec. 75.1 by revising paragraphs (c)(1), (c)(2), (c)(4)
introductory text, and (d), and further amend as proposed on July 12,
2007, at 72 FR 38038 by revising paragraph (m) and adding paragraphs
(o), (p), (q), (r), and (s), to read as follows:
Sec. 75.1 Definitions.
* * * * *
(c) * * *
(1) Primary producer is any person who actually films, videotapes,
photographs, or creates a digitally or computer-manipulated image, a
digital image, or picture, or digitizes an image, of a visual depiction
of an actual human being engaged in actual or simulated sexually
explicit conduct.
(2) 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 or simulated 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 or simulated sexually explicit conduct, including any person who
enters into a contract, agreement, or conspiracy to do any of the
foregoing.
* * * * *
(4) Producer does not include persons whose activities relating to
the visual depiction of actual or simulated sexually explicit conduct
are limited to the following:
* * * * *
(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 or simulated 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.
* * * * *
(m) Date of original production or original production date means
the date the primary producer actually filmed, videotaped, or
photographed, or created a digitally or computer-manipulated image,
digital image, or picture, of the visual depiction of an actual human
being engaged in actual or simulated sexually explicit conduct.
* * * * *
[[Page 32271]]
(o) Simulated sexually explicit conduct means conduct engaged in by
performers in a visual depiction that is intended to appear to be
actual sexually explicit conduct and does so appear to a reasonable
viewer.
(p) Regularly and in the normal course of business collects and
maintains means any business practice that ensures that the producer
confirms the identity and age of employees who perform in visual
depictions of sexually explicit conduct.
(q) Individually identifiable information means that information
about the names, addresses, and dates of birth of employees is capable
of being retrieved on the basis of a name of an employee who appears in
a specified visual depiction.
(r) All performers, including minor performers means all performers
who appear in a visual depiction of lascivious exhibition of the
genitals or pubic area or simulated sexually explicit conduct, no
matter for how short a period of time.
(s) Employed by means, in reference to a performer, one who
receives pay for performing in a visual depiction or is otherwise in an
employer-employee relationship with the producer of the visual
depiction as evidenced by oral or written agreements.
4. Amend Sec. 75.2 by revising the introductory text of paragraph
(a) and paragraphs (a)(1), (a)(2), (c) and (d), to read as follows:
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, or of an actual human being engaged in simulated sexually
explicit conduct made after [DATE 90 DAYS AFTER PUBLICATION IN THE
FEDERAL REGISTER OF THE FINAL RULE], 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 a picture identification card prior to
production of the depiction. For any performer portrayed in a depiction
of an actual human being engaged in actual sexually explicit conduct
made after July 3, 1995, or of an actual human being engaged in
simulated sexually explicit conduct made after [DATE 90 DAYS AFTER
PUBLICATION IN THE FEDERAL REGISTER OF THE FINAL RULE], the records
shall also include a legible hard copy of the identification document
examined and, if that document does not contain a recent and
recognizable picture of the performer, a legible hard copy of a picture
identification card. For any performer portrayed in a depiction of an
actual human being engaged in actual sexually explicit conduct made
after June 23, 2005, or of an actual human being engaged in simulated
sexually explicit conduct made after [DATE 90 DAYS AFTER PUBLICATION IN
THE FEDERAL REGISTER OF THE FINAL RULE], the records shall include a
copy of the depiction and, where the depiction is published on an
Internet computer site or service, a copy of any URL associated with
the depiction. If no URL is associated with the depiction, the records
shall include another uniquely identifying reference associated with
the location of the depiction on the Internet. For any performer in a
depiction performed live on the Internet, the records shall include a
copy of the depiction with running-time sufficient to identify the
performer in the depiction and to associate the performer with the
records needed to confirm his or her age.
(2) Any name, other than the 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 a
visual depiction of an actual human being engaged in actual sexually
explicit conduct made after July 3, 1995, or of an actual human being
engaged in simulated sexually explicit conduct made after [DATE 90 DAYS
AFTER PUBLICATION IN THE FEDERAL REGISTER OF THE FINAL RULE], 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.
* * * * *
(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 or
simulated 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 an Internet computer site or service)
that contains one or more visual depictions of an actual human being
engaged in actual or simulated 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
paragraph (a)(2) of this section.
(d) For any record of a performer in a visual depiction of actual
sexually explicit conduct created or amended after June 23, 2005, or of
a performer in a visual depiction of simulated sexually explicit
conduct made after [DATE 90 DAYS AFTER PUBLICATION IN THE FEDERAL
REGISTER OF THE FINAL RULE], 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 an Internet
computer site or service). If the producer subsequently produces an
additional book, magazine, film, videotape, digitally or computer-
manipulated image, digital image, picture, or other matter (including
but not limited to an Internet computer site or service) that contains
one or more visual depictions of an actual human being engaged in
actual or simulated 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 name(s) of the
performer to the existing records and such records shall thereafter be
maintained in accordance with this paragraph.
* * * * *
5. Amend Sec. 75.6 by revising paragraph (a) to read as follows:
[[Page 32272]]
Sec. 75.6 Statement describing location of books and records.
(a) Any producer of any book, magazine, periodical, film,
videotape, digitally or computer-manipulated image, digital image,
picture, or other matter (including but not limited to an Internet
computer site or service) 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 after July 3, 1995, or in simulated
sexually explicit conduct made after [DATE 90 DAYS AFTER PUBLICATION IN
THE FEDERAL REGISTER OF THE FINAL RULE], 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. In this paragraph, the term ``copy'' includes every page of
a Web site on which appears a visual depiction of an actual human being
engaged in actual or simulated sexually explicit conduct.
* * * * *
6. Revise Sec. 75.7 to read as follows:
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) or 18 U.S.C.
2257A(a)-(c), as applicable, and of this part if:
(1) The matter contains only visual depictions of actual sexually
explicit conduct made before July 3, 1995, or was produced,
manufactured, published, duplicated, reproduced, or reissued before
July 3, 1995;
(2) The matter contains only visual depictions of simulated
sexually explicit conduct made before [DATE 90 DAYS AFTER PUBLICATION
IN THE FEDERAL REGISTER OF THE FINAL RULE];
(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 then 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) or 18 U.S.C. 2257A(a)-
(c), as applicable, and of this part.
7. Amend Sec. 75.8 by revising paragraph (d) to read as follows:
Sec. 75.8 Location of the statement.
* * * * *
(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 every page of a Web site on
which appears a visual depiction of an actual human being engaged in
actual or simulated sexually explicit conduct.
* * * * *
8. Amend part 75 by adding Sec. 75.9 to read as follows:
Sec. 75.9 Certification of records.
(a) In general. The provisions of Sec. Sec. 75.2 through 75.8
shall not apply to a visual depiction of actual sexually explicit
conduct constituting lascivious exhibition of the genitals or pubic
area of a person or to a visual depiction of simulated sexually
explicit conduct if all of the following requirements are met:
(1) The visual depiction is intended for commercial distribution;
(2) The visual depiction is created as a part of a commercial
enterprise;
(3) Either--
(i) The visual depiction is not produced, marketed, or made
available in circumstances such that an ordinary person would conclude
that the matter contains a visual depiction that is child pornography
as defined in 18 U.S.C. 2256(8), or
(ii) The visual depiction is subject to regulation by the Federal
Communications Commission acting in its capacity to enforce 18 U.S.C.
1464 regarding the broadcast of obscene, indecent, or profane
programming; and
(4) The producer of the visual depiction certifies to the Attorney
General that he regularly and in the normal course of business collects
and maintains individually identifiable information regarding all
performers, including minor performers, whom he employs pursuant to
Federal and State tax, labor, and other laws, labor agreements, or
otherwise pursuant to industry standards, where such information
includes the names, addresses, and dates of birth of the performers.
(b) Form of certification. The certification shall take the form of
a letter addressed to the Attorney General and signed by the chief
executive officer of the entity making the certification or, in the
event the entity does not have a chief executive officer, the senior
manager responsible for overseeing the entity's activities.
(c) Content of certification. The certification shall contain the
following:
(1) A statement setting out the basis under 18 U.S.C. 2257A and
part 75.9 under which the certifying entity and any sub-entities, if
applicable, are permitted to avail themselves of the safe harbor, and
basic evidence justifying that basis.
(2) The following statement: ``I hereby certify that [name of
entity] [and all sub-entities listed in this letter] regularly and in
the normal course of business collect and maintain individually
identifiable information regarding all performers employed by [name of
entity] who appear in visual depictions of simulated sexually explicit
conduct or of lascivious exhibition of the genitals or pubic area'';
(3) A list of the titles, names, or other identifying information
of visual depictions of simulated sexually explicit conduct or
lascivious exhibition of the genitals or pubic area (or matter
containing them) that include non-employee performers;
(4) A list of the titles, names, or other identifying information
of visual depictions of simulated sexually explicit conduct or
lascivious exhibition of the genitals or pubic area (or matter
containing them) produced since the last certification;
(5) If applicable because the visual depictions at issue were
produced outside the United States, the statement that: ``I hereby
certify that the foreign producers of the visual depictions listed
above either collect and maintain the records required by sections 2257
and 2257A of title 18 of the U.S. Code, or have certified to the
Attorney General that they collect and maintain individually
identifiable information regarding all performers, including minor
performers, whom they employ pursuant to tax, labor, and other laws,
labor agreements, or otherwise pursuant to industry standards, where
such information includes the names, addresses, and dates of birth of
the performers, in accordance with 28 CFR part 75; and [name of entity]
has copies of those records or certifications.'' For visual depictions
of simulated sexually explicit conduct only, the producer may provide
the following statement instead:
[[Page 32273]]
``I hereby certify that [name of entity] has taken reasonable steps to
confirm that the performers in the visual depictions listed below are
not minors.''
(6) If applicable, a list of the titles, names, or other
identifying information of the foreign-produced visual depictions (or
matter containing them) of simulated sexually explicit conduct for whom
records of the performers appearing in them are not available but for
whom the certifying entity has taken reasonable steps to confirm that
the performers in them are not minors.
(7) If applicable, the statement that: ``I hereby certify that the
primary producers of visual depictions secondarily produced by [name of
entity] and listed above either collect and maintain the records
required by sections 2257 and 2257A of title 18 of the U.S. Code or
have certified to the Attorney General that they regularly and in the
normal course of business collect and maintain individually
identifiable information regarding all performers, including minor
performers, whom they employ, pursuant to Federal and State tax, labor,
and other laws, labor agreements, or otherwise pursuant to industry
standards, where such information includes the names, addresses, and
dates of birth of the performers, in accordance with 28 CFR part 75;
and [name of entity] has copies of those records or certifications.''
(d) Entities covered by each certification. A single certification
may cover all or some subset of all entities owned by the entity making
the certification. However, the names of the sub-entities covered must
be listed in such certification and must be cross-referenced to the
matter for which the sub-entities served as the producers.
(e) Frequency of certification. An initial certification is due
[DATE 180 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER OF THE FINAL
RULE]. Subsequent certifications are due every two years from that
date. The initial certification and all subsequent certifications must
be filed within a period of five business days concluding on the due
date (i.e. , if the due date were on a Friday, and there were no
federal holiday during that week, the certification would have to be
filed on Monday, Tuesday, Wednesday, Thursday, or Friday of that week).
Initial certifications of producers who begin production after [DATE OF
PUBLICATION IN THE FEDERAL REGISTER OF THE FINAL RULE] but before [DATE
180 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER OF THE FINAL RULE]
are due on [DATE 180 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER OF
THE FINAL RULE] and must be filed within a period of five business days
concluding on the due date. Initial certifications of producers who
begin production after [DATE 180 DAYS AFTER PUBLICATION IN THE FEDERAL
REGISTER OF THE FINAL RULE] but before [DATE TWO YEARS AFTER 180 DAYS
AFTER PUBLICATION IN THE FEDERAL REGISTER OF THE FINAL RULE] are due
within 60 days of the start of production (unless the start of
production occurs within 60 days of [DATE TWO YEARS AFTER 180 DAYS
AFTER PUBLICATION IN THE FEDERAL REGISTER OF THE FINAL RULE], in which
case the certifications are due on [DATE TWO YEARS AFTER 180 DAYS AFTER
PUBLICATION IN THE FEDERAL REGISTER OF THE FINAL RULE]) and must be
filed within a period of five business days concluding on the due date.
In any case where a due date or last day of a time period falls on a
Saturday, Sunday, or federal holiday, the due date or last day of a
time period is considered to run until the next day that is not a
Saturday, Sunday, or Federal holiday.
Dated: May 30, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-12635 Filed 6-5-08; 8:45 am]
BILLING CODE 4410-14-P