# Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct; Inspection of Records Relating to Depiction of Simulated Sexually Explicit Performance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-29677 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 18, 2008 - **Citation:** 73 FR 77432 ## Text DEPARTMENT OF JUSTICE 28 CFR Part 75 [Docket No. CRM 104; CRM 105; AG Order No. 3025-2008__] RIN 1105-AB18; RIN 1105-AB19 Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct; Inspection of Records Relating to Depiction of Simulated Sexually Explicit Performance AGENCY: Department of Justice. ACTION: Final rule. SUMMARY: This rule finalizes two proposed rules and amends the record-keeping, labeling, and inspection requirements to account for changes in the underlying statute made by Congress in enacting the Adam Walsh Child Protection and Safety Act of 2006. DATES: This rule is effective January 20, 2009. Compliance date: The requirements of this rule apply to producers of visual depictions of the lascivious exhibition of the genitals or pubic area of a person and producers of simulated sexually explicit conduct as of March 18, 2009. 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: The Child Protection and Obscenity Enforcement Act of 1988, Public Law 100-690, codified at 18 U.S.C. 2257, imposes certain name- and age-verification, record-keeping, and labeling requirements on producers of visual depictions of actual human beings engaged in sexually explicit conduct. Specifically, section 2257 requires producers of such material 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 and maintain this information. 18 U.S.C. 2257(b). Violations of these record-keeping requirements are criminal offenses punishable by imprisonment of not more than five years for a first offense and not more than 10 years for subsequent offenses. See id. 2257(i). Any matter containing such visual depictions must be labeled with a statement indicating where the records are located, and those records are subject to inspection by the government. See id. 2257(c), (e). These provisions supplement the federal statutory provisions criminalizing the production and distribution of materials visually depicting minors engaged in sexually explicit conduct. See id. 2251, 2252. The regulations in 28 CFR part 75 implement section 2257. On May 24, 2005, the Department of Justice (“the Department”) published a final rule that updated those regulations to account for changes in technology, particularly the Internet, and to implement the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, Public Law 108-21. See Inspection of Records Relating to Depiction of Sexually Explicit Performances, 70 FR 29607 (May 24, 2005) (CRM 103; RIN 1105-AB05). On July 27, 2006, President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act, Public Law 109-248 (“the Adam Walsh Act” or “the Act”). As described in more detail below, the Act made a number of changes to section 2257 and added section 2257A to title 18, imposing similar record-keeping requirements on producers of visual depictions of simulated sexually explicit conduct. Furthermore, the Act created a certification regime for producers of such conduct and for producers of depictions of one type of actual sexually explicit conduct to exempt them from the detailed regulatory requirements. This final rule amends the regulations in part 75 to comport with these statutory changes. As described in more detail below, the Department published two separate proposed rules, one to implement the revision to section 2257 and the other to implement the requirements of section 2257A with regard to simulated sexually explicit conduct and its certification regime. This rule finalizes both proposed rules in one rulemaking in order to simplify and coordinate implementation of the Adam Walsh Act. Most importantly, this approach ensures that the requirements of revised section 2257 go into effect in coordination with the effectiveness of the certification regime applicable to it. The final rule also makes numerous changes to the proposed rules that will simplify the regulatory process and lessen the burden on businesses covered by the Act. Background Protecting children from sexual exploitation is one of government's most important responsibilities. Children are incapable of giving voluntary and knowing consent to perform in pornography. Furthermore, children often are forced to engage in sexually explicit conduct for the purpose of producing pornography. For these reasons, visual depictions of sexually explicit conduct that involve persons under the age of 18 constitute child pornography under federal law. See 18 U.S.C. 2256(8). Producers of such depictions are subject to appropriately severe penalties. See id. 2251. Establishing the identity of every performer in a depiction of sexually explicit conduct is critical to ensuring that no performer is a minor and that, hence, the depiction is not child pornography. Section 2257 has facilitated identification and age-verification efforts by requiring producers to ascertain the identity and age of performers in their depictions and to maintain records evidencing such compliance. Producers are less likely as a result of these requirements to exploit children and to create child pornography through carelessness, recklessness, or deliberate indifference. As for those who intentionally produce material depicting minors engaged in sexually explicit conduct, the statute and regulations provide an additional basis for prosecuting such individuals besides the applicable child-exploitation statutes. In addition, the statute and the regulations “deprive child pornographers of access to commercial markets by requiring secondary producers to inspect (and keep a record of) the primary producers' proof that the persons depicted were adults at the time they were photographed or videotaped.” Am. Library Ass'n v. Reno , 33 F.3d 78, 86 (D.C. Cir. 1994). In the Adam Walsh Act, Congress filled two gaps in section 2257 by amending it to cover lascivious exhibition of the genitals or pubic area (“lascivious exhibition”) and by enacting section 2257A to cover simulated sexually explicit conduct, while at the same time creating an exception from these new record-keeping requirements in certain circumstances. With regard to lascivious exhibition, the Act corrected an anomaly in the definition of “sexually explicit conduct” to which section 2257's requirements apply. Prior to the enactment of the Act, section 2257 referenced the definition of “sexually explicit conduct” for purposes of Chapter 110 of the U.S. Code in section 2256(2)(A) and listed four of the five categories of conduct included in that section. Section 2257 did not include “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. 2256(2)(A)(v). The Act revised section 2257 to include that category along with the others. See Adam Walsh Act, Public Law 109-248 § 502(a)(4). Because part 75 defines “sexually explicit conduct” by referencing that term in section 2256(2)(A), part 75 will apply to depictions of “lascivious exhibition.” With regard to simulated sexually explicit conduct, it is crucial to note that Chapter 110 of title 18 of the U.S. Code (“Sexual Exploitation and Other Abuse of Children”) already 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). Numerous States' child-exploitation statutes refer to both simulated and actual sexual conduct. See Alaska Stat. § 11.41.455; Ariz. Rev. Stat. § 13-3551; Ark. Code Ann. § 5-27-302; Cal. Penal Code § 311.11; Colo. Rev. Stat. § 18-6-403; Conn. Gen. Stat. § 53a-193; Fla. Stat. § 827.071; Ga. Code Ann. § 16-12-100; Idaho Code Ann. § 18-1507; 720 Ill. Comp. Stat. Ann. 5/11-20.1; Kan. Stat. Ann. § 21-3516; Ky. Rev. Stat. Ann. § 531.300; La. Rev. Stat. Ann. § 14:81.1; Mass. Ann. Laws ch. 272 § 29C; Mich. Comp. Laws Serv. § 750.145c; Minn. Stat. § 617.246; Miss. Code Ann. § 97-5-33; Mo. Rev. Stat. § 573.010; Mont. Code Ann. § 45-5-625; Nev. Rev. Stat. § 200.725; N.H. Rev. Stat. Ann. § 649-A:2; N.M. Stat. Ann. § 30-6A-3; N.Y. Penal § 263.00; N.D. Cent. Code § 12.1-27.2-01; Okla. Stat. tit. 21 § 1024.1; Or. Rev. Stat. § 163.665; S.D. Codified Laws § 22-24A-2 to -3; Tenn. Code Ann. § 39-17-1003; Tex. Penal Code Ann. § 43.25; Utah Code Ann. § 76-5a-2; Va. Code Ann. § 18.2-390; Wash. Rev. Code § 9.68A.011; W. Va. Code § 61-8C-1; Wis. Stat. § 948.01; Wyo. Stat. Ann. § 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. Sections 2257 and 2257A thus operate in tandem to protect children from exploitation in visual depictions of sexually explicit conduct. Part 75 implementing those statutes 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 (D.C. Cir. 1994); Free Speech Coalition v. Gonzales , 406 F. Supp. 2d 1196 (D. Colo. 2005) (“ Free Speech I ”) (upholding certain aspects of part 75, although preliminarily enjoining others); Free Speech Coalition v. Gonzales , 483 F. Supp. 2d 1069 (D. Colo. 2007) (“ Free Speech II ”); but see also Connection Distrib. Co. v. Gonzales , 2006 WL 1305089, 2006 U.S. Dist. LEXIS 29506 (N.D. Ohio, May 10, 2006) (upholding the constitutionality of part 75), rev'd and remanded sub nom. Connection Distrib. Co. v. Keisler , 505 F.3d 545 (6th Cir. 2007) (striking down section 2257, but not directly addressing the constitutionality of part 75), vacated and rehearing en banc granted sub nom. Connection Distrib. Co. v. Mukasey , 2008 U.S. App. LEXIS 9032 (6th Cir. Apr. 10, 2008). 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 Assocs., Inc. v. Reno , 139 F.3d 804, 808 (10th Cir. 1998) (quotation marks omitted; alteration in original), Congress subsequently amended the statute, see Adam Walsh Act, Public Law 109-248 section 502(a)(4), and adopted the Attorney General's interpretation of section 2257. Cf. Free Speech Coalition II , 483 F. Supp. 2d at 1075 (suggesting that the enactment of section 502 of the Act moots the plaintiff's ultra vires challenge to part 75). The Proposed Rules Revisions to Section 2257 The Department issued a proposed rule to implement the revisions to section 2257 on July 12, 2007. See Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct, 72 FR 38033 (July 12, 2007) (CRM 104; RIN 1105-AB18). The proposed rule reflected the change to the definition of “actual sexually explicit conduct” to include lascivious exhibition by adding to the definitional section of the regulations at § 75.1(n). Although proposed part 75 applied to the “lascivious exhibition of the genitals or pubic area of a person,” it did not define this term beyond the language of section 2256(2)(A). Case law provides guidance as to the types of depictions that federal courts have considered to be lascivious exhibition of the genitals or pubic area, and the Department will rely on such precedent in the context of section 2257 investigations and prosecutions. The leading case is United States v. Dost , 636 F. Supp. 828 (S.D. Cal. 1986), aff'd sub nom. United States v. Weigand , 812 F.2d 1239 (9th Cir. 1987), which provides a list of factors for determining whether a visual depiction constitutes lascivious exhibition: (1) Whether the focal point of the visual depiction is on the child's genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Dost, 636 F. Supp. at 832. Several courts of appeals have relied upon the Dost factors. See, e.g., United States v. Grimes , 244 F.3d 375 (5th Cir. 2001); United States v. Knox , 32 F.3d 733 (3d Cir. 1994); United States v. Wolf , 890 F.2d 241 (10th Cir. 1989). The July 2007 proposed rule noted that, although these factors have been used to determine whether visual depictions of children constituted lascivious exhibition for purposes of criminal prosecution for violations of sections 2251, 2252, and 2252A of title 18, only the third factor is necessarily dependent on the age of the person depicted. The other factors provide guidance as to the types of depictions that would constitute lascivious exhibition for purposes of section 2257 and part 75, as well, even though those sections apply to any performers regardless of age. The July 2007 proposed rule noted that the applicability of part 75 was to be prospective from the effective date of the Adam Walsh Act. It therefore contemplated that the rule applied only to depictions whose original production date was on or after July 27, 2006. That is, under the proposed rule, records would not be required to be maintained either by a primary producer or by a secondary producer for a visual depiction of lascivious exhibition, the original production date of which was prior to July 27, 2006. In the case of a secondary producer, the proposed rule stated that even if the secondary producer “produces” (as defined in the regulation) such a depiction on or after July 27, 2006, he need not maintain records if the original production date of the depiction is prior to that date. Second, the Adam Walsh Act revised the exclusions in the statute for the operations of Internet companies. Specifically, the Act amended section 2257 by excluding from the definition of “produces” the “provision of a telecommunications service, or of an Internet access service or Internet information location tool * * * or the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication.” These exclusions are based on the definitions in section 231 of the Communications Act of 1934, 47 U.S.C. 231. Third, the Adam Walsh Act made several changes in the terminology of the statute. In subsection 2257(e)(1), it added at the end the following: “In this paragraph, the term ‘copy' includes every page of a Web site on which matter described in subsection (a) appears.” That change was reflected in the proposed rule at §§ 75.1(e)(3), 75.6(a), and 75.8(d). The change materially affects the regulation's labeling requirement as applied to Web sites. Section 75.8(d) of the current regulations permits a producer of a computer site of service or Web site to affix the label stating where the records required under the regulations are located “on its homepage, any known major entry points, or principal URL (including the principal URL of a subdomain), or in a separate window that opens upon the viewer's clicking a hypertext link that states, ‘18 U.S.C. 2257 RecordKeeping Requirements Compliance Statement.’ ” Because of the change in the statute, the proposed rule eliminated that portion of the current regulations. The proposed rule required, per the statute, that the statement describing the location of the records required by this part be affixed to every page of a Web site (controlled by the producer) on which visual depictions of sexually explicit conduct appear. Finally, the Adam Walsh Act confirmed that the statute applies to secondary producers as currently (and previously) defined in the regulations. Specifically, the Act defines any of the following activities as “produces” for purposes of section 2257: (i) Actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being; (ii) Digitizing an image[ ] of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or (iii) Inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content[ ] of a computer site or service that contains a visual depiction of, sexually explicit conduct * * * 18 U.S.C. 2257(h)(2)(A). It excludes from the definition of “produces,” however, the following activities, in pertinent part: (i) Photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication. (ii) Distribution; (iii) Any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers * * * Id. 2257(h)(2)(B), as amended. This language replaces the previous definition of “produces” in the statute, which stated, in pertinent part, as follows: [T]he term “produces” means 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) (2000 ed. & Supp. V) (former version). In enacting the revised language, Congress upheld the Department's consistently held position that the rule's requirements for secondary producers have been in effect since the rule's original publication. As explained by the sponsor of the Act in the House of Representatives: Congress previously enacted the PROTECT Act of 2003 against the background of Department of Justice regulations applying section 2257 to both primary and secondary producers. That fact, along with the Act's specific reference to the regulatory definition that existed at the time, reflected Congress's agreement with the Department of Justice's view that it already had the authority to regulate secondary procedures [sic] under the applicable law. A federal court in Colorado, however, recently enjoined the Department from enforcing the statute against secondary producers, relying on an earlier Tenth Circuit precedent holding that Congress had not authorized the Department to regulate secondary producers. These decisions conflicted with an earlier DC Circuit decision upholding Congress's authority to regulate secondary producers. Section 502 of the bill is meant to eliminate any doubt that section 2257 applies both to primary and secondary producers, and to reflect Congress's agreement with the regulatory approach adopted by the Department of Justice in enforcing the statute. 152 Cong. Rec. H5705, H5725 (2006) (statement of Rep. Pence). Congress thus rejected the interpretation adopted by the court in Sundance Associates v. Reno , 139 F.3d 804 (10th Cir. 1998), in favor of the DC Circuit's decision upholding the application of the statute to secondary producers. Am. Library Ass'n v. Reno , 33 F.3d 78 (D.C. Cir. 1994). In upholding the constitutionality of the secondary-producer requirements, the D.C. Circuit both recognized the importance of these requirements and effectively rejected the argument that Congress lacked the authority to regulate secondary producers. In accordance with the current law, the proposed rule retained July 3, 1995, as the effective date of the rule's requirements for secondary producers. (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 one exception was that the proposed rule would not have penalized secondary producers for failing to maintain required records in connection with those acts of production that occurred prior to the effective date of the Act. While the law would permit the Department to apply the statute and regulations to actions that occurred prior to that date, the Department determined that the proposed rule would not apply in such circumstances to avoid any conceivable ex post facto concern. In addition to implementing the changes in the statute described above, the July 2007 proposed rule clarified several other issues. First, it clarified that primary producers may redact non-essential information from copies of records provided to secondary producers, including addresses, phone numbers, social security numbers, and other information not necessary to confirm the name and age of the performer. However, the identification number of the picture identification card presented to confirm name and age—such as drivers' license number or passport number—may not be redacted, so that its validity may be confirmed. Second, the proposed rule clarified that producers of visual depictions performed live on the Internet need not maintain a copy of the full running-time of every such depiction. Rather, they may maintain a copy that contains running-time sufficient to identify each and every performer with the records needed to confirm his or her age. Third, the proposed rule clarified that, with regard to the government-issued photo identification required for records, a foreign-government-issued picture identification is acceptable if the performer providing it is a foreign citizen and the producer maintaining the records produces the visual depiction of the performer in a foreign country, no matter whether the producer is a U.S. or foreign citizen. That is, a U.S. producer who produces a depiction of sexually explicit conduct while located in a foreign country may rely on a foreign-government-issued picture identification card of a performer in that depiction who is a foreign citizen. All other requirements of the regulations continue to apply mutatis mutandis—i.e., the producer must examine and maintain a legible copy of the foreign-government-issued picture identification card in his records. Furthermore, a foreign-government-issued picture identification card is not sufficient to comply with the regulations for U.S. citizens, even when abroad. That is, if a U.S. producer travels to a foreign country to produce a depiction of sexually explicit conduct, all U.S. citizens performing in the depiction must have a U.S.-government-issued picture identification card, even though a foreign citizen performing in the same depiction may provide a foreign-government-issued picture identification card. And, as is the case in the current regulation, only a U.S.-government-issued picture identification card complies with the regulations relating to productions in the United States, no matter whether the performer is a U.S. or foreign citizen. The regulation also states that producers of visual depictions 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 under the provisions of part 75 in effect on the original production date. Finally, although it was not necessary to change the text of the regulations for this purpose, the Department clarified at the time that it issued the proposed rule that a producer need not keep a copy of a URL hosting a depiction that the producer produced but over which he exercises no control. Section 2257A As noted above, on June 6, 2008, the Department published a proposed rule making additional amendments to part 75 to implement section 2257A. See Inspection of Records Relating to Depiction of Simulated Sexually Explicit Performances, 73 FR 32262 (June 6, 2008) (CRM. 105; RIN 1105-AB19). The June 2008 proposed rule contained two key elements—a definition of “simulated sexually explicit conduct” and the details of the certification regime. As to the 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 believed that a definition of the term “simulated sexually explicit conduct” was necessary. A definition would 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 started its analysis of the proper definition of the term for regulatory purposes with the term's plain meaning. The word “simulated” is typically defined 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 read 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.” The June 2008 proposed rule's definition was 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, section 2(a), 92 Stat. 7, 8 (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: (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 section 311.4(d)(1); 14 V.I. Code section 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. section 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, section 31; N.H. Rev. Stat. Ann. section 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. section 13-3551(10); Miss. Code Ann. section 97-5-31(f); Mont. Code Ann. section 45-5-625(5)(c). (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. § 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 § 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. § 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 the 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.” The second key element of the proposed rule was the crafting of the certification regime. 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 of 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. In the June 2008 proposed rule, the Department crafted a certification regime that would have implemented 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. The proposed rule would have required producers to include the following information in certifications: (1) The legal basis for the exemption and basic evidence in support; (2) a statement that they collect and maintain the requisite individually identifiable information concerning their employees; (3) a list of the producer's materials depicting simulated sexually explicit conduct or lascivious exhibition that show non-employee performers; (4) a list of the producer's materials depicting simulated sexually explicit conduct or lascivious exhibition produced since the last certification; (5) with respect to foreign-produced material, a statement that the foreign producer of that material either collects and maintains the requisite records or itself has made a certification, or, with respect to material depicting sexually explicit conduct only, a statement that the producer took reasonable steps to confirm that the performers depicted in that material are not minors; (6) if applicable, a list of the foreign-produced material depicting simulated sexually explicit conduct that the producer took reasonable steps to confirm did not depict minors; and (7) if applicable, a statement that the primary producer of material secondarily produced by the certifying producer either collects and maintains the requisite records or itself has made a certification. The proposed rule would also have required that the certification be submitted every two years. Changes From the Proposed Rules This final rule makes a number of changes in the proposed rules in response to commenters' concerns. The Department believes that the changes, while still enabling the Department to enforce the statutes, will considerably lessen the burdens on the regulated industries. Most significantly, as described in more detail below in response to specific comments, the Department has done the following: • Consolidated the publication of the final versions of the two proposed rules into one final rule; • Ensured that the regulatory requirements applicable to depictions of actual sexually explicit conduct consisting of lascivious exhibition apply starting on the date of availability of the statutorily provided safe harbor; • Permitted the use of third-party custodians of records; • Permitted records to be maintained digitally; • Clarified the definition of “simulated sexually explicit conduct”; • Clarified the exemption from the record-keeping requirements for those engaged in distribution; • Clarified that, for purposes of the requirement that every page of a Web page contain the disclosure statement, a hyperlink or “mouseover” is permitted; • Eliminated the requirement that statements on the location of records contain a date of production (or any other date), although added a requirement that primary producers create a record of the date of production; • Clarified the application of the requirements regarding location of the statement to DVDs; and • Eliminated the detailed information required by the certification regime, and replaced it with a significantly simpler certification. Comments on the Proposed Rules The following section reviews comments to the proposed rules and how, if at all, the Department has changed the final rule in response to them. Comments on both proposed rules are included in this section, organized according to the subsections of the rule. Definitions The proposed rule outlined several changes to definitions of terms that are contained in 28 CFR 75.1. The Department received a number of comments regarding the proposed definitions. Picture Identification Card The proposed rule requires in § 75.1(b) that a producer of actual sexually explicit conduct check a picture identification card issued by a United States or State government entity for a performer who is an American citizen, whether the production occurs in the United States or abroad. Under the proposed rule, a producer abroad may rely on foreign government identification cards for foreign performers, but must maintain a copy of that identification, and a producer may not rely on a foreign identification card for a foreign citizen when production occurs in the United States, but must check a United States identification card in that circumstance. The Department received three comments on this proposal, all of which voiced opposition. One comment noted that a producer cannot hire a foreign adult performer to work in the United States who lacks American documents, but that if the producer took her across the border, then she could work with foreign documents, a situation the commenter suggested would not help children. The commenter also states that because the proposed rule lacked a good faith exception, a producer operating outside the United States would need to make sure that a performer using foreign documents was not in fact an American citizen. Moreover, the commenter claims that the goal of avoiding errors in immigration status that the proposed rule would therefore achieve did not help children. The Department declines to adopt this comment. Protecting American citizens is a top priority of the Department, and given the more stringent standards for issuing government identification documents in recent years, the Department believes that children will be best protected by a requirement that American identification documents be provided before an American is hired to engage in sexually explicit conduct. It further believes that conduct within American borders should necessitate that the producer check for American issued identification documents even if the performer is a foreign citizen, so that all producers in this country check the age and identification of all performers. It is true that the rules will differ if the production occurs in foreign countries with foreign performers. Given the Department's resources and concerns regarding comity, the Department continues to believe that the proposed rule best addresses this issue. One comment expressed the belief that the Department should not always require that a producer obtain a copy of a picture identification card before creating an actual sexually explicit depiction. It hypothesizes the existence of a recording of a sexual act by a Congressman in a public place. It argues that a news organization could not air this recording under the proposed rule in the absence of the checking of a picture identification card, even though the Congressman by constitutional operation must be at least 25 years old. The Department declines to adopt this comment. Regardless of the apparent age or identity of an individual, the rule appropriately requires that identification be checked to determine that the performer is of legal age. The individual pictured in this hypothetical may only appear to be a Congressman, for instance. Moreover, an entity regulated by the FCC, which the comment presupposes for airing such a depiction, may well be able to utilize the exemption provisions of section 2257A. The Department has also clarified that a picture identification card must include the performer's date of birth. Such a requirement was implicit in the proposed rule in that picture identification documents issued by government agencies, such as a passport or driver's license, normally contain the individual's date of birth. The final rule makes this requirement explicit. Producer The Department received thousands of comments that appear to be part of an orchestrated campaign that opposes the requirement in the proposed rule that adult social-networking sites obtain and maintain personal information concerning their users, including obtaining and maintaining users' photo identification, as well the ability of the Department to inspect such records and invade user privacy without safeguarding the information once observed. They state that it is not feasible to have adult networking sites for thousands of users under the rule, and they note that users of such sites already certify that they are over 18. The Department does not adopt these comments. First, most social networking sites would appear not to be covered by the statute and the rule under the definition of “produces” in section 2257(h)(2)(B)(v) and § 75.1(c)(4)(v), respectively. The statutory definition excludes from “produces”: “the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication.” See also 28 CFR 75.1(c)(4)(v) (excluding “[a] provider of an electronic communication service or remote computing service who does not, and reasonably cannot, manage the sexually explicit content of the computer site or service”). Therefore, the Department does not accept that such sites cannot operate under the proposed rule, or that such sites must maintain information concerning their users, much less that the Department must be able to inspect such data. However, one who posts sexually explicit activity on “adult” networking sites may well be a primary or secondary producer. Users of social networking sites may therefore be subject to the proposed rule, depending on their conduct. That such users may certify without penalty or effective monitoring that they are over 18 is irrelevant to compliance with the proposed rule, since they may not in fact be above 18. Moreover, depictions such users put on the sites may feature not only themselves but other people who have not even made the unverifiable certification required by a social networking site. One comment states that the Department must clarify the distinction between secondary producers and distributors. The comment notes that the Act amended the statutory definition of “produces” to broaden the distribution exclusion from “mere distribution” to “distribution.” See 18 U.S.C. 2257(h)(2)(B)(ii). The comment states that this means “distribution” is not meant to be narrowly construed, and that the Department should thus state that “unless an entity that disseminates a depiction of sexually explicit conduct is responsible for creating or materially altering its content, or for its physical construction, the entity is engaged in ‘distribution' and is exempt from the statute and rules.” The comment goes on to note that “non-material alteration” should include removing or pixilating depictions of sexually explicit conduct. The Department adopts this comment in part. The Department cannot adopt the comment in toto because doing so would conflict with the statute in that sections 2257(h)(2)(A)(ii) and (iii) include several activities under the definition of “produces,” such as digitizing an image, inserting an image on a computer site or service, or managing the sexually explicit content of a computer site or service, that would fall under the comment's proposed definition of “distribution.” The Department, however, states in the final rule that, unless activities are described in section 2257(h)(2)(A), an entity whose activities are limited to the dissemination of a depiction of sexually explicit conduct without having created it or altered its content is excluded from the definition of “producer.” The Department cannot adopt the suggestion as to “non-material alteration” of depictions for two reasons: First, pixilating an image would appear to constitute “creating a digitally- or computer-manipulated image of an actual human being,” and thus would fall under the definition of “produces” in section 2257(h)(2)(A)(i); second, to the extent images are posted on Web sites, alteration (and subsequent posting on a Web site) of an image would appear to constitute “inserting * * * [such image] on a computer site * * * or otherwise managing the sexually explicit content” of such a site. While the comment correctly states that the proposed exclusion is analogous to the exclusion for transmission, which permits a transmitter to delete material that it considers “obscene * * * or otherwise objectionable” without being considered to have selected or altered the content of the communication, see 18 U.S.C. 2257(h)(2)(B)(v) (citing 47 U.S.C. 230(c)), Congress did not provide similar language modifying the exclusion for distribution of the image, and thus the Department is limited by the statutory text. In addition, as described in more detail below, in certain circumstances a pixilated depiction can still constitute lascivious exhibition. United States v. Knox , 32 F.3d 733 (3d Cir. 1994). A categorical exemption for persons who pixilated or otherwise obscured depictions would risk creating a loophole for the production of material that is in fact covered by the definition of sexually explicit conduct. Several commenters ask the Department to exclude news and documentary programming from the definition of “producer.” The comments claim that producers of that programming use footage provided by others under the fair use doctrine. The comments posit that if a producer includes news and documentary producers, then such producers either will lose the ability to obtain footage depicting any adult sexual conduct, or will be forced to make payments to the original producer notwithstanding the fair use doctrine. The Department declines to adopt this comment. The First Amendment does not permit even a bona fide reporter to trade in child pornography in order to create a work of journalism, see United States v. Matthews , 209 F.3d 338 (4th Cir. 2000), not to mention the possibility that someone might purport to be a news or documentary producer to evade the statute. Accordingly, it is consistent with the law for the final rule to cover journalistic and similar works. One comment inquires whether a secondary producer is required by the proposed rule's change to § 75.2(a)(1) to “examin[e] * * * a picture identification card prior to production of the depiction,” or whether this obligation is limited to the primary producer. The commenter asks that the Department allow an entity that obtains a domestic or foreign-made film or program for American distribution but has no role in the production of that film or program to be considered a “distributor” rather than a “secondary producer” of such material, and therefore to be exempt from the requirements. The comment would allow secondary producers to disseminate a work in the United States even when a primary producer failed to obtain the required records prior to the date of original production. The Department declines to adopt this comment. The comment would effectively turn all secondary producers into distributors, exempting them from section 2257's requirements, contrary to the Act's making section 2257 applicable to that activity. A significant goal of the legislation was to eliminate commercial markets for non-commercially produced child pornography. Although the rule does not require secondary producers to check identification themselves, secondary producers should be aware that they incur a significant risk if they do not avail themselves of the identification documents that primary producers have created. Secondary producers who do not check records run the risk that they are distributing child pornography if the performers depicted in fact were not of legal age. Furthermore, to the extent that such foreign-produced material includes only lascivious exhibition, a U.S. secondary producer could avail itself of the provisions of the certification. One comment notes the proposed rule's elimination of “mere” from the term “mere distribution” that is contained in the current regulation and requests that the Department add “or gratuitous transfer” after the word “distribution” in the definition of “producer” in § 75.1(c)(4)(ii). The comment suggests that adding “or gratuitous transfer” would avoid a potential problem in the meaning of the word “distribution” when read in connection with the term's restriction to commercial contexts in § 75.1(d) of the current regulations. The comment believes that the latter provision correctly suggests that the regulations' record-keeping requirements are restricted to commercial production operations. And it requests that the Department to elaborate whether or which transfers should require disclosure statements. The Department declines to adopt this comment. The definitions in the proposed rule are (with minor grammatical changes to conform to the structure of the regulation) exactly those in the statute, and the Department sees no need for further clarification, particularly with respect to a particular term that itself would have to be defined. One comment asks the Department to remove the term “assembles” from the definition of “producer” in § 75.1(c)(2). The Department declines to adopt this comment. As noted above, the definitions in the regulations are those contained in the statute, and the statutory definition of “produces” includes “assembling * * * a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct.” 18 U.S.C. 2257(h)(2)(A)(ii). One comment notes that many depictions will have more than one primary producer, as a depiction can be photographed, then digitized, or be generated by computer from a depiction of an actual person. Various entities could be involved in creating a particular depiction. Each entity or person who performed even one of these tasks would be a primary producer. Moreover, since only secondary producers can rely on copies of documents, the comment requests that the Department provide that only one primary producer should be designated and required to maintain records. Another comment states that the rules are unclear concerning how many or which producers must be named if there is more than one primary or secondary producer. It notes that parents and subsidiaries may not have the same address. The Department adopts this comment in part by stating that the final rule provides that where a primary producer is a corporate entity, only one primary producer associated with that entity will exist. For purposes of efficiency in inspection, where the corporate parent entity is the primary producer, that is the entity that should be named in the disclosure statement as the keeper of the records. The Department adopts these comments in part. In response to a similar comment, the final rule published in 2005 stated, “The Department does not believe that logic, practicability of record-keeping or inspections, or the statue dictates that there be one and only one primary producer for any individual sexually explicit depiction. Any of the persons defined as primary producer has easy access to the performers and their identification documents and should therefore each have responsibility individually and separately of maintaining the records of those documents.” However, upon reconsideration, the Department has decided to clarify that if multiple individuals are all employed by the same entity, the entity constitutes the “primary producer” for purposes of record-keeping, not the individuals. Similarly, one comment notes that a single reproduction can create numerous secondary producers. Under § 75.1(c)(2), a preexisting photograph can be digitized by one person, inserted on a computer site by another, which is managed by a third, and if each of these is employed by a corporation, then there are now seven secondary producers arising out of a single reproduction, each of whom must now seek and obtain from the primary producer information concerning every depicted performer. The commenter considers this scenario to be unlikely, threatening availability of the depiction. As with the similar comment regarding multiple primary producers, the Department adopts this comment in part. The Department has clarified that if multiple individuals are all employed by the same entity, the entity constitutes the “secondary producer” for purposes of record-keeping, not the individuals. However, there may be multiple secondary producers who are separate entities engaged in separate commercial enterprises—e.g., one company purchases a depiction from the primary producers and publishes it on a Web site and another purchases and publishes the same depiction in a magazine several years later—and who must each maintain the records associated with the depiction. One comment questions whether § 75.1(c)(4)(v), which allows a Web site such as YouTube to post depictions without having to keep records, allows someone to display a YouTube video on their own Web site and still fall within the exemption because YouTube would not have the records itself and the person downloading from YouTube would not have access to the records. As described in the comment, it would appear that the individual who downloads a depiction of actual sexually explicit material from a another site onto a site that he or she controls is a producer because he or she has “reproduc[ed]” or “insert[ed] on a computer site or service a digital image of, or otherwise manage[ed] the sexually explicit content of a computer site or service that contains a visual depiction of an actual human being engaged in actual sexually explicit conduct” within the meaning of the definition of “secondary producer” in § 75.1(c)(2). Whether or not the source for the person is a site such as YouTube, which may not be required to maintain records as a secondary producer, since the original individual producer who posts a depiction on that site is required to affix a disclosure notice to each page of the sexually explicit depiction, a secondary producer who downloads that depiction onto another site should be able to obtain the requisite information for compliance with its own record-keeping and disclosure requirements. Date of Original Production The proposed rule defined “date of original production” to mean the date that the primary producer actually created the image of actual sexually explicit conduct. One comment requests that the Department define this term in this fashion for primary producers, but, in the case of secondary producers, that the date of original production should also be permitted, at the discretion of the secondary producer, to be the date of the secondary producer's relevant conduct. The Department adopts this comment. Obtaining the date of the original production from the primary producer should not pose a problem for a secondary producer, since the secondary producer obtains the records of the production from the producer. As explained more fully below, the Department in the final rule has eliminated the requirement that the statement of location of records required by § 75.6 contain a date of original production (or any other date, as in the regulation currently in force). Hence, a secondary producer is not responsible for including that information in a statement that it affixes to material it secondarily produces. However, primary producers, as explained below, will henceforth be required to create and maintain a record of the date of original production, such record being transferred to the secondary producer along with all other records required by part 75. To the extent that this is a new requirement for both primary and secondary producers that did not exist previous to the proposed rule, the Department clarifies that it applies only prospectively from the date of the publication of this final rule. Also, in response to a comment, the Department has clarified that if a depiction is made over the course of multiple dates, the date of original production consists of the earliest of those dates. There is no requirement in the rule that any depicted performer be 18 on the date of original production so long as that performer is 18 as of the date that a depiction of that individual is created. Producers who keep records demonstrating that performers are 18 as of the date of original production conform to the requirements of the rule. The final rule has been changed to reflect that in the case of a performer who was under 18 at the time that production began, but became of legal age before he or she was depicted, an alternative date of original production with respect to that performer is the first date that that performer was actually filmed for the production at issue. The Department has also clarified the meaning of “ date of original production ” with respect to matter that is a secondarily produced compilation of one or more separate, primarily produced depictions. The final rule provides that with respect to such a compilation, the date of original production of the matter is the earliest date after July 3, 1995, on which any individual depiction therein was produced. In the event a performer in any of the individual depictions was under 18 on that date, the alternative date of original production with respect to that performer is the first date that any scene depicting that performer was actually recorded. Employed by One comment states that the Department erred in defining “employed” in the 2257A proposed rule because the Department cannot make the term broader than it is normally understood by simply defining it broadly. The comment goes on to state that “[w]e do not think that it is a rare case at all that a producer creates images covered by sections 2257 or 2257A which depict non-employees—as properly understood—in sexual roles. But defining `employe[e]' more broadly than usual defeats the obvious sense of the safe harbor provision which Congress has promulgated.” The Department declines to adopt this comment. The definition of “employed” used in the proposed rule is consistent with the commonly understood definition, which does not necessarily require that an employee be paid by an employer. One common definition of “employ” is “to use or engage the services of,” while another is “to provide with a job that pays wages or a salary.” Merriam-Webster Collegiate Dictionary 408 (11th ed. 2003). Although the commenter seeks to characterize the Department's definition of the term as somehow broader than normal, the Department's definition is wholly consistent with the dictionary definition of the term in that it covers not only a producer providing a person with a job that pays wages but also a producer using or engaging the services of a person. The Department thus does not believe that the proposed rule's definition of “employed” is inconsistent with the text of the statute. Sexually Explicit Conduct Many comments argue that the Dost factors are vague and not readily transferable to an adult, notwithstanding the Department's statements concerning the proposed rule. These comments asserted that inquiring whether setting, pose, and visual depictions are appropriate, natural, or suggestive for a child are nonsensical for adults because such conduct is not improper for adults. One comment maintained that the Dost factors represent in this context an inappropriate burden shift from presumed constitutional expression to a presumption of child pornography, and another suggested that an image not otherwise lascivious could be inappropriately found to be lascivious based on its proximity to adult lascivious images. The Department does not adopt these comments. The Department does not consider application of the Dost test to adults to be nonsensical. The point of the factors is to determine whether a particular depiction is of actual sexually explicit conduct for purposes of determining whether compliance with various legal requirements is necessary. The age of the person depicted is irrelevant to whether the image depicts actual sexually explicit conduct, except for one Dost factor that is age-dependent and which the proposed rule identified as not being relevant to the depiction's status as actual sexually explicit conduct. If the acts depicted would fall within any of the remaining Dost factors if they were performed by a minor, one who produces actual sexually explicit conduct must take the requisite steps necessary to ensure that the individual performing these acts is of legal age. The proposed rule creates no presumption of or against the existence of child pornography. The rule's applicability depends on the image as it is without reliance on any presumptions. The Dost factors themselves do not erect any presumption. Nor is the lasciviousness determination made with regard to anything but the depiction that is produced. One comment, relying on a Court of Appeals decision that accepted the relevance of the Dost factors, United States v. Knox , 32 F.3d 733 (3d Cir. 1994), maintains that their applicability here would mean that millions of images on Myspace or Youtube or Facebook may require section 2257 compliance even though they do not involve nudity or sexual activity. The comment states that the rule must define exhibition of the genitals to consist only of nude exhibition. Otherwise, it maintains, every photo of male water polo players or other competitive swimmers would be potentially subject to section 2257 record-keeping, as would other depictions of persons in tight clothing suggestive of genitalia. The Department does not adopt this comment. The comment takes an overly broad reading of the law of child pornography and applies that reading to produce a nonsensical result. The Knox case does not stand for the proposition claimed by the comment. It is not the case that pictures of boys' water polo teams constitute child pornography. The images at issue in Knox were lasciviously displayed. Although the genitals were clothed in that case, they were covered by thin, opaque clothing with an obvious purpose to draw attention to them, were displayed by models who spread or extended their legs to make the pubic and genital region entirely visible to the viewer, and were displayed by models who danced or gyrated in a way indicative of adult sexual relations. 32 F.3d at 746-47. None of these attributes remotely applies to standard swim team photographs or underwear or other mainstream advertising. Therefore, very few images posted on Myspace or Youtube of clothed individuals would require section 2257 compliance, and the description in this rule of the kinds of images that do so provides clear guidance to the narrow situations in which clothed images would trigger section 2257 compliance. One comment suggests, as an alternative to the Dost factors, that the rule define “lascivious exhibition of the genitals” to mean images that display an individual's naked genital area. The Department declines to adopt this comment. As discussion of the depictions at issue in the Knox case shows, there are instances when covered genitals can amount to child pornography. When such images are created, if the performers are under 18, what is being produced is child pornography. The obligations of the proposed rule must apply to producers who create depictions that could constitute lascivious exhibition, so as to reduce the possibility of child exploitation. One comment asks whether the depiction of scantily clad women in a strip club or bedroom would be subject to the regulations and criminal penalties. The comment maintains that the need to pose such a question means that producers would not know what materials trigger the record-keeping requirements, which would cause a chilling effect. The comment claims that creators of widely shown films and television programs who make a mistake in this respect risk prosecution. The Department does not adopt this comment. The proposed rule rejected a categorical approach that would state whether every possible depiction was one that fell within a definition. Rather, it adopted the Dost factors, which rely on context as well as content. A depiction of scantily clad women in a strip club or bedroom can appear in limitless permutations, and the Department cannot state that all or none would constitute lascivious exhibition of the genitals without consideration of the Dost factors. Those factors provide the context that producers and the Department will rely on to determine whether an image depicts actual sexually explicit conduct so as to minimize any chilling effect. Film and television producers are particularly unlikely to risk prosecution for displaying scantily clad performers because of the certification option. One comment suggested that because of the vagueness of the Dost test, a producer may not know that he must obtain identification before production. If the producer does not do so, the comment asks what options are then available to the secondary producer who determines that the Dost test applies. The comment maintains that as a result, some producers may not be able to acquire and disseminate a wide range of movies and television programs, especially foreign productions. The Department does not adopt this comment. Prosecutions for production of child pornography have been upheld by many courts applying the Dost test to determine whether a depiction is one that lasciviously exhibits the genitals. See, e.g., United States v. Horn , 187 F.3d 781 (8th Cir. 1999); United States v. Villard , 885 F.2d 117, 122 (3d Cir. 1989). That they have done so contradicts the argument that the test amounts to unconstitutional vagueness in defining “lascivious exhibition.” A secondary producer who is concerned that a primary producer may have violated the requirements of the statute and the regulation has the options of requesting that the primary producer revisit the issue and examine picture identification cards and compile age records. Furthermore, secondary producers of qualifying material may be able to avail themselves of the certification in section 2257A and its implementing regulation. One comment disputed the Act's extension of section 2257 to cover lascivious exhibition as closing a previous loophole in that statute. The comment asserts that the prior version reflected a desire to limit the law to depictions that involve actual sexually explicit activity and avoid overbreadth through inapplicability of its provisions to fully clothed adults. The Department does not adopt this comment. The characterization of the Act is not an operative part of the regulation that requires a response. One comment requests that the Department distinguish between actual and simulated masturbation in defining actual sexually explicit conduct. The Department declines to adopt this comment. To the extent that this is merely a subset of a larger question as to the distinction between “actual” and “simulated” conduct, the meaning of “actual” conduct with respect to all the conduct covered by the statute and the regulation is clear on its face. To the extent that “simulated” was not clear on its face, this final rule regulation contains a definition. One comment requests that the Department define “sadistic or masochistic abuse” because some people believe that safe and consensual bondage is not abuse, and requests that the Department distinguish between actual and simulated sadistic or masochistic abuse. The Department declines to adopt this comment. That term is not a subject of this rulemaking. Moreover, actual sexually explicit conduct depends on the content of what is being displayed, not on whether the content is subjectively considered to be abusive. If belief as to abuse were to control, a producer who determined that nothing was abusive would be able to avoid compliance with the regulations in their entirety, creating massive opportunity for child exploitation. One comment contends that the definition of “sexual” varies among communities and that the final rule should contain more guidance as to the meaning of the term. It asks whether nude photos of a single person's erect penis is sexual, or whether a hand over the pubic area is sexual. The Department declines to adopt this comment. It believes that the definition of actual sexually explicit conduct contained in the final rule is clear. The Department does not believe that a producer would have any difficulty in determining whether hypothetical depictions of the kind posed by the commenter would constitute actual sexually explicit conduct within the meaning of the rule. Simulated Sexually Explicit Conduct In the proposed rule to implement section 2257A, the Department started its analysis of the proper definition of the term for regulatory purposes with the term's plain meaning. The term “simulated” is generally defined as “made to look genuine.” Merriam-Webster's Collegiate Dictionary 1162 (11th ed. 2003). The Department believed 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 read 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.” Three comments state that the final rule should incorporate the definition of “simulated sexual intercourse” provided by the Supreme Court in United States v. Williams , 128 S. Ct. 1830, 1840-41 (2008). One comment further recommends that the definition should explicitly incorporate by reference the definition in Williams . That definition reads, in pertinent part: “simulated” sexual intercourse is not sexual intercourse that is merely suggested, but rather sexual intercourse that is explicitly portrayed, even though (through camera tricks or otherwise) it may not actually have occurred. The portrayal must cause a reasonable viewer to believe that the actors actually engaged in that conduct on camera. Id. While the Williams definition refers to “simulated sexual intercourse,” not “simulated sexually explicit conduct,” the Department understands the comments to recommend that the final rule use the Williams definition as appropriately amended to refer to “simulated sexually explicit conduct,” not “simulated sexual intercourse.” The Department believes that the Williams definition conceptually is not dissimilar to that outlined in the proposed rule, and adopts both comments. The final rule thus incorporates a revised definition of “simulated sexually explicit conduct.” One comment recommends that the proposed rule's definition of “sexually explicit conduct” should refer to 18 U.S.C. 2256(2)(B), not 18 U.S.C. 2256(2)(A). The comment states that the narrower definition at section 2256(2)(B), which would require depictions to be graphic or lascivious, would be more consistent with the state laws the Department rejected in determining how to define “simulated sexually explicit conduct.” The Department declines to adopt this comment. The definition at section 2256(2)(B) is limited, by its own terms, to images described in section 2256(8)(B)—images that are “a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct.” In other words, section 2256(2)(B) has no relevance to a regulation that concerns actual persons as opposed to virtual persons. All Performers, Including Minor Performers One comment states that the proposed rule is unclear as to whether the record-keeping requirements apply to all performers in a depiction, or to primary performers, and recommends that the Department should clarify that these requirements apply only to primary performers and not to any background performers in the depiction. The Department declines to adopt this comment. The commenter did not attempt to define “primary” or “background” in this context, and the Department has difficulty in doing so. As a practical matter, in many cases it would be difficult to determine whether a performer in a visual depiction of lascivious exhibition or simulated sexually explicit conduct is a “primary” or a “background” performer. For example, in a lascivious exhibition depiction of a person on a bed, a person depicted in that same image as standing nearby, wearing lingerie, and watching the person on the bed could well be a “primary” performer—however that term were to be defined—depending on the level of interaction between that person and the person depicted on the bed. On the other hand, conceivably a fully clothed person could be considered a “background” performer even if located on the same bed, again depending on the level of interaction between the performers. Similar confusion would apply in the context of depictions of simulated sexually explicit conduct. In order to avoid such confusion, the Department believes that it is appropriate to require, as stated in the proposed rule, that all performers in depictions of lascivious exhibition or simulated sexually explicit conduct be covered. Maintenance of Records Date of Original Production One comment characterizes the proposed rule as faulty because it does not specifically require that a record be made of the date of original production, although the proposed rule will require that this date be stated in the disclosure statement. The Department adopts the comment's view that it was an oversight that the proposed rule did not require that a record otherwise be made of the date of production. As noted above, the Department, after careful consideration, has amended the record-keeping requirement to include that a primary producer record the date of original production at the time it examines the picture identification card of the first performer in the depiction. Again, to the extent that this is a new requirement for primary producers, the Department clarifies that it applies only prospectively from the date of the publication of this final rule. Several comments note that in § 75.2(a)(1) of the proposed rule, producers are required to create and maintain records of the name and date of birth of each performer obtained by the producer's examination of a picture identification card prior to the date of production of the depiction. They point out that the Act made no change to section 2257(b), which is the source of this requirement. The comments ask the Department to state that only the “examination” of the picture identification card that must take place prior to the production of sexually explicit images, and not necessarily the creation of a record based on the examination of the picture identification that must occur before production. The Department declines to adopt these comments. As noted above, the Department believes that in order to fully implement the purpose of the statute, the record must be made at the time of examination of the document and has clarified that in this final rule. Furthermore, the Department requires in the final rule that a primary producer make a record of the date of original production. This record will then flow to secondary producers and enable them to affix the date to the disclosure statement. However, in order to simplify the requirement, the Department has clarified that if a depiction is made over the course of multiple dates, the date of original production consists of the single and earliest of those dates. One comment states that the original production date is not often available, particularly because it was never a requirement of section 2257. The comment cautions that were the final rule to require keeping this information, hosts of most Web sites will be immediately out of compliance. Another comment notes that the Department stated in its proposed rule that secondary producers need comply only with the rules for material that was produced after the Act's 2006 effective date, and § 75.2(c) states that producers of visual depictions made after 1995 and before 2005 may rely on identification that was valid under the record-keeping and labeling regulations that were in force on the date of original production. As noted above, the Department adopts the comment seeking prospective application of the record-keeping requirements documenting that identification was checked prior to the occurrence of production. The comment noting that producers may rely on identification rules and record-keeping requirements that applied on the date of original production of the depiction is correct, and demonstrates that Web site owners will not have to conform their existing records to the new requirements, contrary to the statement contained in the comment noted above. Two comments request that the record-keeping requirements with respect to viewing identification documents prior to production apply only to primary producers. According to the comments, only primary producers have an opportunity to examine picture identification cards prior to the production. At most, the comments ask, secondary producers should be required to examine what they receive from the primary producer that relates to depictions from the primary producer. One of the comments believes that without such an alternative, there will be an effective prohibition on disseminating numerous widely disseminated productions. And even then, it claims, foreign films would not have such documentation because even if a secondary producer could obtain and inspect the required records retroactively, it may be unable to do so because of difficulties in locating performers or because of data protection laws. The Department adopts these comments in part. It rejects some of the concerns as reflecting a misunderstanding of the requirements of the final rule. A secondary producer is not required under the rule to check identification documents. That is a responsibility only of the primary producer. A secondary producer may risk child pornography offenses, however, if he does not take steps to assure himself that the performer is actually of legal age. Nonetheless, the secondary producer is required by the final rule only to retain records. Those records enable the Department to identify who the primary producer was for any depiction and to verify that the depicted performers were of legal age. The Department believes that to avoid a commercial market in child pornography through the witting or unwitting actions of secondary producers, secondary producers must keep records that each depiction occurred only after the primary producer checked valid identification documents. Were secondary producers to be exempted from this requirement, a real risk of commercial marketing of illegal product would develop. The comments are mistaken in postulating that the final rule imposes a duty on a secondary producer to locate foreign performers after the fact. What the secondary producer must do, even for foreign productions, is to ensure that it has copies of the records that show that the primary producer checked the legal age of performers prior to the date of original production. Requirement of Hard Copies The proposed rule amends § 75.2(a) concerning requirements for maintenance of records. The proposed rule requires that the copy of the identification documents be retained in hard copy form. The Department received four comments regarding the proposed rule's requirements for maintaining copies of identification card records in hard copy form. Two comments state that nothing in the Act or proposed rule requires that records be kept in hard copy format. It contends that there is no justification with contemporary technology for requiring hard copies. The comment also notes that the proposed rule represents a departure from § 75.2(f), which permits records to be kept in digital form if they include scanned copies of identification documents. Another comment reiterates that point, and adds that electronic copies would permit the passage of records along the chain of distribution as the rules contemplate. Otherwise, records could be divided when shared, which could create losses or errors and put the producer in danger of violating rules by having incomplete or improperly maintained records. This comment asks that the Department return § 75.(2)(a)(1) to its current form by deleting the word “hard,” or consider the new requirement for a hard copy of the picture identification document to be satisfied by scanning the identification card or a hard copy of it, and/or by electronic versions that can be printed out to create hard copies at the time of inspection. The Department adopts these comments. Nothing in section 2257 requires that records be kept in hard copy format, and, indeed, existing § 75.2(f) permits copies of identification documents to be scanned and stored electronically if they can be authenticated by a custodian. The proposed rule did not seek to amend § 75.2(f). The proposed rule's changes to § 75.2(a) that mandate the retention of all copies of identification documents and pictures in hard copy format would create a conflict with the terms of § 75.2(f). The final rule, therefore, amends proposed § 75.2(a)(1) to add “or digitally scanned or other electronic copy of a hard copy.” Note, however, that in the event a regulated entity or individual decides to retain records in electronic format, nothing in the Act or the regulations provides that technical difficulties would excuse failure to make the records available at reasonable times for inspection. One comment notes that in the proposed rule the Department stated that a producer need not keep a copy of a URL hosting a depiction that the producer produced “but over which he exercises no control.” The commenter asks that the Department modify this statement to read “but over which he exercises no corporate control” or other such language that clarifies that the producer is not responsible for Web sites not owned by the producer. The Department declines to adopt this comment. Were the Department to state that the producer is not responsible for Web sites the producer does not own, the final rule would not apply to a producer who influenced or directed what happened to the depiction, even if he did not own the Web site. If a producer exercises control over a depiction, whether as an individual or as a corporate entity, and regardless of whether the producer owns the Web site on which the depiction is displayed, then the producer must retain the copy of the URL hosting a depiction that the producer produced. The only exception to this requirement, as noted above, is where an individual who would be a primary producer under the final rule's definition is an employee of a corporate primary producer. Under such circumstances, that individual will not be considered a primary producer. Redaction One comment states that the viewer of the identification document need not know the Social Security number or exact birth date of a performer. The Department does not adopt this comment. The proposed rule quite clearly allows a producer to redact the performer's Social Security number. An exact birth date sometimes may be redacted so long as the year is not obscured. However, if a performer is 18 on the date of original production, the month or even the day of the month must not be redacted if a question would exist whether he was of legal age at the time of the original production. Compliance Date In accordance with current law, the final 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).) In response to a comment stating that the proposed rule created potential confusion by omitting language from the 2007 proposed rule implementing the Adam Walsh Act's changes to section 2257, the Department clarifies, as stated in the preamble to the 2007 proposed rule, see 72 FR at 38036, that the one exception is that this final rule would not penalize secondary producers for failing to maintain required records in connection with those acts of production that occurred prior to the effective date of the Adam Walsh Act. The proposed rule also stated 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 stated that the effective date concerning depictions of simulated sexually explicit conduct will be 90 days after it is published in the Federal Register as a final rule. Two comments address the disparity between the statutory effective date of section 2257's coverage of depictions of lascivious exhibition (July 27, 2006) and the statutory effective date of section 2257A (90 days after publication of this final rule implementing section 2257A), which includes the safe harbor provision exempting producers who certify from section 2257's provisions concerning depictions of lascivious exhibition. One comment recommends that the Department make the safe harbor provision retroactive to the July 27, 2006, effective date of section 2257 concerning depictions of lascivious exhibition. The other comment states that the Department should make the effective date of part 75 with respect to depictions of lascivious exhibition the same date as the statutory effective date of section 2257A. This comment further states that setting the same effective date for rules regulating depictions of lascivious exhibition and simulated sexually explicit conduct would “avoid[ ] potentially fatal vagueness problems under the First Amendment.” Under either suggestion, the effective date of the safe harbor provision and the regulatory requirements concerning depictions of lascivious exhibition would be the same. The Department adopts these comments in part. The final rule provides that the regulatory requirements applicable to depictions of lascivious exhibition apply starting 90 days after the publication of this final rule. Two comments argue that the proposed rule creates First Amendment vagueness and ex post facto problems because individuals did not create records as of the effective date of the proposed rule which they did not think would be necessary. The Department does not accept the comment that the proposed rule created any First Amendment vagueness problem, see American Library Ass'n, supra, but does accept the comment insofar as the proposed rule would operate retroactively and, as stated above, modifies the compliance date accordingly. Two comments state that to avoid retroactivity, the final rule should not apply to material that is actually sexually explicit only because it displays lascivious exhibition of the genitals and that was acquired by a secondary producer prior to the compliance date of the regulation. One of these comments requests the Department, if it adopts a different standard, to define “acts of production,” so that a secondary producer would know based on an acquisition date or other standard what content required record-keeping and what did not. The Department declines to adopt this comment. Although the Department is sympathetic to the concerns expressed in the comment, and wishes to avoid retroactivity, it does not agree that the date that a secondary producer obtained the image displaying lascivious exhibition of the genitals should determine whether the regulation applies. There is no requirement in the existing or proposed rules that secondary producers document the date they obtained particular depictions. Were the Department to adopt the comment, unscrupulous secondary producers could claim that they acquired any depiction created before the final rule's compliance date prior to that date. Secondary producers who wished to demonstrate in good faith that their collections contained depictions that were obtained only after the compliance date of the final rule would be obliged to mark every such depiction currently in their possession to prove that they possessed it as of that date. Moreover, the Department would have no way of proving that the producer acquired the depiction prior to the compliance date of the final rule. The Department seeks to ensure that prohibited depictions were not created on or after the compliance date as herein modified. This concern derives from the statutory language, which turns on the date of production. The date that the secondary producer acquired the image is of no relevance. A secondary producer will be able to comply with the final regulation on an exclusively prospective basis by determining that appropriate procedures were followed for such depictions that were originally produced after the compliance date of the final rule. Another comment requests that, even if the Department were to adopt a prospective compliance date, the final rule not apply to images (as opposed to depictions) created before the compliance date, i.e., a digitization of a previously existing depiction. The comment points out that a digital image made after the compliance date could be based on an initial depiction that could be older. The producer of the digital image could not use that earlier depiction, even if it were eighty years old, because it could not reconstruct the records. Therefore, the comment concludes that the final rule should be limited to images first created before the compliance date. The comment also states that the Department must accept that it cannot address preexisting content. The Department declines to adopt this comment. The Department does agree that because the final rule will apply prospectively, it cannot address preexisting depictions that constitute actual sexually explicit material only because they display lascivious exhibition of the genitals. However, the Department can address digitized or other modified versions of preexisting content where the modifications occur after the final rule's compliance date. In light of the changed compliance date of the rule, any preexisting depiction of lascivious exhibition of the genitals that is not now digitized can be digitized before the rule takes effect. That will avoid the problem stated by the comment. Any secondary producer after that date who digitizes a depiction without obtaining records showing that the depiction was in accordance with the final rule will either need to obtain another digitized version of the depiction that does so or track down the primary producer of either the original or another digitized version of the depiction to create the records. One comment notes that the statutory language on this point is broader than the language of the proposed rule. The statute says that section 2257 does not apply to “any depiction of actual sexually explicit conduct” involving lascivious exhibition of the genitals that was produced “in whole or in part” prior to the compliance date. The comment states that the final rule should track that language. The Department declines to adopt this comment. The comment implies that under the statutory language, any depiction of lascivious exhibition of the genitals that was produced after the compliance date of the final rule is not covered by section 2257 if any other part of the image was produced before the compliance date. The Department does not so read the statute. There are five situations in which the statutory language discussed could apply, and the Department believes that it is important to set forth the applicability of the statutory language to each. First, prior to the compliance date of the final rule, a depiction could have been created of lascivious exhibition of the genitals and no other form of actual sexually explicit conduct as that term is defined after the compliance date of the final rule. Prior to the final rule, this was not a depiction of actual sexually explicit conduct. If the depiction were modified or another depiction connected to it that did not contain lascivious exhibition or another form of actual sexually explicit conduct, then the final rule would not apply because the lascivious exhibition of the genitals was produced before the compliance date of the final rule. Second, a depiction produced before the compliance date could have contained neither actual sexually explicit conduct as that term was then defined nor lascivious exhibition of the genitals. If a producer then altered or added to the depiction, or to a connected depiction, a depiction of lascivious exhibition of the genitals after the compliance date, this comment implies, the depiction would be one of lascivious exhibition of the genitals that was “in part” created after the compliance date of the final rule, and the final rule would not apply. The Department disagrees. No depiction of lascivious exhibition of the genitals was contained in this image before the compliance date of the regulation. All such material appeared only after the compliance date of the regulation, and, therefore, such material is covered by the final rule. Third, a depiction of actual sexually explicit material as it was then defined, but which did not depict lascivious exhibition of the genitals, could have been produced before the compliance date of the final rule. After that date, a producer might then add lascivious exhibition of the genitals to the depiction itself or to a connected depiction. According to the implication of the comment, section 2257 could not apply to the depiction that contains lascivious exhibition of the genitals because it was produced in part prior to the compliance date of the final rule. In fact, the image was already covered by the statute because it displayed actual sexually explicit content as that term was defined prior to the compliance date of the final rule. Nothing in the Act made material that was previously subject to section 2257 lose that status. No depiction of actual sexually explicit conduct involving lascivious depiction of the genitals was produced in whole or in part prior to the compliance date. Notwithstanding that the depiction of lascivious exhibition was added after the compliance date, the depiction nonetheless is subject to section 2257. Otherwise, any depiction of actual child pornography could be taken out of the scope of section 2257 by modifying or connecting to such an image a depiction of lascivious exhibition of the genitals that was produced prior to the compliance date of the final rule. A statute passed to enhance prosecution of child pornography cannot reasonably be read so as to prevent the prosecution of all child pornography offenses through such a simple subterfuge. Fourth, a depiction could have been produced prior to the compliance date of the final rule that depicted lascivious exhibition of the genitals and no other form of actual sexually explicit conduct. Suppose that after the compliance date of the final rule, another depiction of lascivious exhibition of the genitals were then added, whether or not it also displayed any other example of actual sexually explicit conduct. The implication of the comment is that the depiction contains lascivious exhibition of the genitals that was produced “in part” before the compliance date of the final rule, and therefore is beyond the reach of the final rule. Under this theory, even if the after-added actual sexually explicit conduct were in fact child pornography, section 2257 could not apply because the earlier image contained a depiction of lascivious exhibition of the genitals that was produced prior to the compliance date of the regulation. The Department disagrees. It will treat each such image separately. The depiction of lascivious exhibition of the genitals that was produced before the compliance date of the final rule will not be governed by the final rule although some of the image was produced after its compliance date. This is the case because part of the depiction was produced before the compliance date. The connected depiction of actual sexual sexually explicit conduct in this example was produced after the compliance date of the rule, and must conform to its strictures. Fifth, a depiction could have been produced before the compliance date of the rule that contained both lascivious exhibition of the genitals and actual sexually explicit conduct as it was defined before passage of the Adam Walsh Act. Then, following the compliance date of the final rule, the depiction could have had appended to it any form of actual sexually explicit conduct, including actual child pornography. Under the implication of the comment, the depiction would contain, in part, lascivious exhibition of the genitals that was produced before the compliance date of the Act, and, therefore, none of the material would be subject to the final rule. Under this approach, even the material that was actual sexually explicit conduct under its pre-Act definition would no longer be covered by section 2257. The Department disagrees. There is no indication that Congress intended to accomplish that result. Under this approach, every example of child pornography—even those that have been subject to section 2257—could never yield a prosecution if it were appended to a depiction of lascivious exhibition of the genitals that was produced before the compliance date of the final rule. No such result is required. In this circumstance, each depiction would be treated separately. The part of the depiction that involved only lascivious exhibition of the genitals and was produced prior to the compliance date of the final rule would not be subject to the final rule. The other parts of the depiction would be subject to the final rule, either because they were examples of actual sexually explicit conduct as that term was defined before the compliance date of the final rule or they were produced after the compliance date of the final rule and met the definition of the term as it existed upon that compliance date. Inspections Although the proposed rule made no changes to the inspection requirements contained in § 75.5, the Department received a number of comments on the existing regulations. One comment proposes that the amount of time for which business premises be open for inspections should not be 20 hours per week as per § 75.5(c). The comment says that there is a need to address inspection timing where a producer has an entirely separate full-time job elsewhere. Two comments, including this one, contend that this problem would be eliminated by using third-party record-keepers. Four comments state that small businesses in this field work out of their homes, and cannot staff their operation for 20 hours per week while performing outside employment. These comments also expressed concern about inspections occurring in their homes. The same question was raised in the context of the rulemaking on the prior version of the regulations, and the Department declined to accept the comment. See Inspection of Records Relating to Depiction of Sexually Explicit Performances, 70 FR 29607, 29614 (May 24, 2005). At the time, the Department believed that permitting third-party custodianship would unnecessary complicate the inspection process and undermine its effectiveness. Upon reconsideration, the Department adopts this comment in part. The Department now believes that it can still accomplish the purposes of the statute—in particular, effective inspections—even allowing for third-party custodianship of the records. Hence, although it will not modify § 75.5(c), the Department will permit records required under part 75 to be held by third parties. By allowing third-party custodians to maintain the records, the burden on small businesses is reduced, including any fears arising from posting home addresses, where many of these small businesses are reported to operate, and any concerns of record-keeping inspections of those same premises. In the text of the regulation, such a third party is referred to a “non-employee custodian of records” to distinguish it from the producer and any person he may directly employ to maintain the records. In addition to this change, in response to one comment, the Department has eliminated the requirement that the name of an individual be listed on the disclosure statement and has permitted only the title to be listed. One comment states that section 2257 allows the Attorney General to inspect records, and that, therefore, the obligation of the producer is to make records available only to “the Attorney General.” Section 75.5(a) allows inspectors other than the Attorney General, and the comment claims that the statute does not permit such individuals to inspect. The comment further notes that the rule should identify the class of persons who are investigators, lest the custodian be uncertain concerning which people he should allow to inspect the premises. The comment maintains that there is a need for the Department to demonstrate to those subject to inspections that the inspection authority will not be abused. The Department declines to adopt this comment. Under general principles of delegation, the Attorney General may delegate to subordinate officials the performance of the Attorney General's duties. The commenter's fear that under the language of the proposed rule, unaccountable or unknown individuals could conduct the record searches is therefore unwarranted. The Department received thousands of similar comments that note that § 75.5(b) provides for inspections without advance notice and request that it should instead require such notice. Some commenters say producers will not destroy any records if given notice because they would then face liability for a missing record. If notice is used to put into order records that have not been organized, then the comment believes that no legitimate purpose of the record-keeping requirement would be harmed by providing notice. The commenters further ask the Department to specify the consequences at the premises if no one is present when the investigator arrives, such as whether the inspector will knock down the door. Two other comments request that the Department eliminate no-notice inspections. The Department declines to adopt these comments. As it stated previously: Advanced notice would provide the opportunity to falsify records in order to pass inspection. Lack of specific case-by-case notice prior to inspection will promote compliance with the statute and encourage producers to maintain the records in proper order at all times, as is contemplated by the statute. The rule will specify that inspections are to occur during the producer's normal business hours. The inspection process clearly does not contemplate warrantless forced entry solely because no one is present when the investigator arrives. 70 FR at 29619. The Department received thousands of similar comments that argue that non-routine inspections should always require probable cause and a search warrant. The Department declines to adopt these comments. These inspections are administrative in nature, and, under well-established legal principles, no search warrant is required. See id. One comment states that a single owner of a home-based Web site would be captive in his own home for 20 hours per week. The Department responds to this comment by noting that it is permitting required records under Part 75 to be held by third parties. One comment maintains that the “reasonable times” provision of § 75.5(c)(1) could mean that an inspection could be made at 2:30 a.m. if a live Webstream or production work is being conducted then, and that such an inspection would interrupt production. Moreover, according to the comment, production could be done during the day in Europe while it is 2:30 a.m. in the United States, even though it would not yet be clear which images will be published and there will not have been time to cross-reference. The comment argues that if there is probable cause to believe that an underage performer is actually working in an off-hours production, the courts can issue warrants without the need for any late-night records inspection at all. The Department declines to adopt this comment. The “reasonable times” provision will be applied according to its plain meaning. Moreover, the comment misunderstands the nature of the statutory requirement which the rule implements. The goal of the record-keeping regime is not to intervene to stop crimes involving underage performers that have already occurred. Rather, the point of the record-keeping is to prevent victimization in the future. The inspection requirement is designed to ensure that the prophylactic identification- and age-verification measures are complied with. One comment concerning the four-month interval for inspections states that although some large entities or a custodian arrangement may warrant inspections as often as every four months, the many small production operations with small numbers and static images do not. It claims that inspections of such entities that occurred with such frequency would simply mean that inspectors would review the same images, which it contends is an invitation to harassment. The Department responds to this comment by noting that while inspections may take place as often as every four months, they are not required to occur so frequently. Moreover, the regulation requires that inspections “be conducted so as not to unreasonably disrupt the operations of the establishment.” One comment notes that § 75.5(c)(4) specifies what the investigator may say at the end of an inspection, and what the producer is permitted to say. The comment expresses that the regulations should also include a statement that the authority to search does not include the authority to require that any questions be answered. The comment also maintains that the regulation should say that everyone on the premises is free to leave before or during a records inspection. If everyone is not free to leave, the comment believes that the rule should say so and include the constitutional safeguards appropriate for custodial investigation situations. The Department declines to adopt this comment. Administrative inspections are not custodial investigations that would require advisories concerning the right to counsel or to avoid self-incrimination. One comment states that the Department should consider “legislation” forbidding anyone other than a custodian or a Department investigator from moving, disturbing, or interfering with the required records in any way. It contends that the integrity of the records, including their cross-referencing, otherwise could be disturbed. The comment also asks that this notice clarify that the seizure or theft of some or all of the records does not require the cessation of any ongoing or planned “expression.” If the seizure did have this effect, according to the comment, then the records would have to be returned within 24 hours so that “expression” could promptly resume. The Department declines to adopt this comment. The Department has no evidence that unauthorized individuals have interfered with records or that there is a serious risk of such interference occurring in the future. (The Department also notes that it lacks the authority to enact laws, and that its authority is limited to executing laws, including through the publication of implementing regulations such as this one.) One comment posits that searches under section 2257 have not identified any underage performers, so their purpose cannot be to catch and prosecute people who arrange for such performances. It claims that no producer knowingly uses underage performers, and that section 2257 is an after-the-fact tool, not one that advances prevention. The Department does not adopt this comment. It does not agree that no producer knowingly uses underage performers. On the contrary, the Department's successful prosecution of child pornography cases every year proves that some producers do knowingly or recklessly use underage performers. Further, as discussed above, the Department believes that section 2257 is in fact preventive because it ensures that before any production occurs, the producer undertakes steps to ensure that the performers are of legal age. Finally, the purpose of the regulation in large part is to prevent unknowing use of underage performers. Location of Records Statement of Location of Books and Records The proposed rule changes the requirement under § 75.6(a) that producers place on every “copy” of a depiction of sexually explicit conduct a statement that indicates the location of books and records. Under the current regulation, that statement could be contained in a label or a hyperlink. The proposed rule would require that the definition of “copy” mean that the producer must attach a “statement describing the location of records * * * [that is to] be affixed to every page of a Web site (controlled by the producer) on which visual depictions of sexually explicit conduct appear.” One comment argues that an exemption statement is not required if a depiction is produced by foreign producers who did not intend at the time of production for the depiction to enter the United States market. The Department does not adopt this comment. Determining when the producers of the foreign production intended to distribute the depiction in the United States would be essentially impossible, leaving producers free to claim that they had no such intention on the date of original production. If the depiction is made available in the United States, then the disclosure statement is required, regardless of the intent at the time of production. Eleven comments claim that the proposed rule's change to including the statement on every page could lead to harassment of Web page operators who operate their sexually explicit businesses out of their homes, potentially resulting in physical injury, stalking, burglary, or identity theft. They say that placing a link on the Web page constitutes affixing the copy to a Web page but avoids harassment risk because the exposure of the custodian's name will be limited to people who are seriously seeking the records information. Two commenters raise their concerns that sharing this information with secondary producers could result in the same harms and ask that secondary producers not keep this information. Nine comments raise similar harms as potentially occurring to performers if the location of the records were placed on every page. One comment expresses concern that the primary producer's sharing with others of the addresses and other contact information could make it liable for how the information might be used by others, including crimes against the performers. Two comments request that the secondary producer's home address not appear on the disclosure statement, while another comment recommends that the secondary producer's street address be included but not the street address of the primary producer, which would keep the secondary producer's statements of locations of records from being unmanageably long due to the inclusion of other producers' locations. One comment states that the proposed rule will greatly increase exposure of identification of producers, chill protected speech, and serve the rule's purpose no better than a link would. One comment reported that Web sites based on static pages would have to manually update every page if changes must be made to the compliance notice, such as the publication date, business address, producer name, and custodian name. Each update would cause the potential for error, and each honest mistake could result in prosecution. Although dynamic sites could more easily update the compliance notice, extra processing by the Web site server would be necessary, which is costly. There would be a considerable extra load on the server for individual page compliance, according to the comment, and dynamic pages will face technical challenges if operators of such Web sites are to comply. The Department adopts these comments in part. The Act requires that the location of the records must appear on each “copy” of a depiction of sexually explicit conduct, meaning every Web page for Internet sites. The Department believes that its final rule allowing producers to place records in the care of third-party custodians will obviate any harms to performers that might otherwise occur due to disclosure of the address where the records are kept. It also will amend the final rule to permit the posting of a link or “mouseover” on each Web page to satisfy the requirement that every page of a Web site provide the location where the required records are stored. Five comments say that a hyperlink text to a full statement that can be updated as needed would fulfill the purpose of the proposed rule. The hyperlink would appear on each page. One of these comments notes that the Act requires that a notice appear on every page on which a depiction appears, but that notice could still appear in a dedicated link. It claims that although the Act required that the notice appear on every page, the Act did not alter the manner in which the notice is presented. One comment says that the Web site could use an appropriately labeled link that opens to several pages of disclosure statements or an elaborate table of disclosure statements. Producers could use a series of links to keep individual disclosure statements close to the galleries to which they relate. One comment believes that one notice linked to every page of a site provides everything the Department needs to enforce the statute by identifying the responsible record and the place where the records are located. Four comments claim that the requirement that a notice appear on every page would ruin the aesthetics of the Web site. Attention of viewers is measured in seconds, according to these comments, and clutter will harm gaining attention. One comment thought that a solution to the aesthetics problem would be to avoid having the disclosure statement appear on the face of the image, so as not to increase the size of the image files or to harm the integrity of the image itself. If the disclosure statement appeared in a comment field within the digital file, at a defined location, then both the producer and the Department would know where it could be found, the comment concluded. The Department adopts these comments in part. Without accepting as valid every fear that the comments raise, the Department does believe that the language in the proposed rule, and even its comments at 72 FR at 38035, allow it to require a less-burdensome disclosure statement than commenters anticipated by eliminating language in the current regulation that permitted a home page statement or hyperlink on that page. Although the current regulations that allow such a statement to be placed only on the home page cannot be squared with the statutory changes, the Department does believe that the Act would permit the required statement that appears on each page to be a hyperlink that contained all the statutorily required record-keeping compliance information. By adopting this change, the Department believes that it will respond to essentially every concern that a comment raised regarding privacy, threats, aesthetics, or computer technology. Seven comments state that moving the disclosure statement from the main page to every page is unnecessary and a nuisance. One comment says that each printed page is necessary for records and books, but an explanation is needed for applying this mandate to electronic media. Another comment thought that the disclosure statement could be affixed to a magazine or other printed matter in the same fashion as a shoplifting tag, not printed on the copy itself [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE8-29677. Public record. Not legal advice.