7/12/07
Federal Register / Vol. 72, No. 133 / Thursday, July 12, 2007 / Proposed Rules
DEPARTMENT OF JUSTICE
28 CFR Part 75
[Docket No. CRM 104; AG Order No. 2888-
2007]
RIN 1105-AB18
Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct
AGENCY: Department of Justice. ACTION: Proposed rule.
SUMMARY: This rule proposes to amend
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: Written comments must be
received by September 10, 2007.
ADDRESSES: Written comments may be
submitted to: Andrew Oosterbaan,
Chief, Child Exploitation and Obscenity
Section, Criminal Division, United
States Department of Justice,
Washington, DC 20530; Attn: ¡¥¡¥Docket
No. CRM 104.¡¦¡¦
Comments may be submitted
electronically to: Admin.ceos@usdoj.gov
or to www.regulations.gov by using the
electronic comment form provided on
that site. Comments submitted
electronically must include Docket No.
CRM 104 in the subject box. You may
also view an electronic version of this
rule at the www.regulations.gov site.
Facsimile comments may be
submitted to: (202) 514-1793. This is
not a toll-free number. Comments
submitted by facsimile must include
Docket No. CRM 104 on the cover sheet.
FOR FURTHER INFORMATION CONTACT: Andrew Oosterbaan, Chief, Child
Exploitation and Obscenity Section,
Criminal Division, United States
Department of Justice, Washington, DC
20530; (202) 514-5780. This is not a
toll-free number.
SUPPLEMENTARY INFORMATION: 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 actual 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
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38034 Federal Register / Vol. 72, No. 133 / Thursday, July 12, 2007 / Proposed Rules
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 for 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 70 FR 29607 (May 24,
2005).
On July 27, 2006, President George W.
Bush signed into law the Adam Walsh
Child Safety and Protection Act, Public
Law 109-248 (¡¥¡¥the Act¡¦¡¦). As described
in more detail below, the Act made a
number of changes to section 2257. This
proposed rule amends the regulations in
part 75 to comport with these statutory
changes.
Need for the Rule
In publishing the May 24, 2005,
regulations, the Department explained
the urgency of protecting children
against sexual exploitation and,
consequently, the need for more specific
and clear regulations detailing the
records and inspection process for
sexually explicit materials to ensure the
accurate identity and age of performers.
The identity of every performer is
critical to determining and ensuring that
no performer is a minor. The key
congressional concern, evidenced by the
child exploitation statutory scheme, is
that all such performers verifiably not
be minors, i.e., not be younger than 18.
See 18 U.S.C. 2256(1), 2257(b)(1).
Congress has recognized that minors
warrant special concern in this area.
Children are incapable of giving
voluntary and knowing consent to
perform, or to enter into contracts to
perform, in visual depictions of sexually
explicit conduct. In addition, children
often are involuntarily forced to engage
in sexually explicit conduct. For these
reasons, visual depictions of sexually
explicit conduct that involve persons
under the age of 18 constitute child
pornography. See id. 2256(8).
The current regulations and this
revised proposed rule provide greater
details for the record-keeping and
inspection process in order to ensure
that minors are not exploited in visual
depictions of actual sexually explicit
conduct. Neither the current regulations
nor this revised proposed rule restrict in
any way the content of the depictions
themselves. Instead, the rules clarify the
identity verification, record-keeping,
and labeling requirements pertaining to
the depictions.
By requiring producers to ascertain
the age of performers in their
depictions, and maintain records
evidencing such compliance, the statute
helps to ensure that producers will not
exploit minors, either through
carelessness, recklessness, or deliberate
indifference. As for those who
intentionally produce material depicting
minors engaged in sexually explicit
conduct, the statute and regulations
either require them to maintain records
of their crimes or provide an additional
basis for prosecuting such individuals
besides the applicable child-
exploitation statutes. In addition, by
confirming that the statute and
regulations apply to ¡¥¡¥secondary
producers,¡¦¡¦ the revised proposed rule
will make it more difficult for the
purveyors of such material to access the
market. As the U.S. Court of Appeals for
the DC Circuit explained in partially
upholding the constitutionality of an
earlier version of the regulations, one of
the reasons for the regulations is ¡¥¡¥to
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.¡¦¡¦ American
Library Ass¡¦n v. Reno, 33 F.3d 78, 86
(DC Cir. 1994).
The proposed revision of the existing
regulations also reflect several
significant changes to section 2257
made by the Act.
First, 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 a 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 Child
Safety and Protection Act, Public Law
109-248, section 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 the ¡¥¡¥lascivious exhibition
of the genitals or pubic area of a
person.¡¦¡¦
The proposed rule reflects this change
by adding to the definitional section of
the regulations at ¡± 75.1(n). Although
proposed part 75 applies to the
¡¥¡¥lascivious exhibition of the genitals or
pubic area of a person,¡¦¡¦ it does 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 as
lascivious exhibition of the genitals or
pubic area (hereinafter, ¡¥¡¥lascivious
exhibition¡¦¡¦), 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. Knox,
32 F.3d 733 (3d Cir. 1994); United
States v. Grimes, 244 F. 3d 375 (5th Cir.
2001); United States v. Wolf, 890 F.2d
241 (10th Cir. 1989).
It should be 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
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Federal Register / Vol. 72, No. 133 / Thursday, July 12, 2007 / Proposed Rules 38035
depictions that would constitute the extent it applies to lascivious statement describing the location of the
lascivious exhibition for purposes of
section 2257 and part 75, as well, even
though those sections apply to any
performers regardless of age.
The applicability of part 75 to
lascivious exhibition is prospective
from the effective date of the Act. The
rule therefore applies only to depictions
whose original production date is on or
after July 27, 2006. That is, records are
not 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, this means 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.
Along with adding the requirement
that producers of lascivious exhibition
maintain records under section 2257,
the Act created a new section of the
Federal criminal code, 18 U.S.C. 2257A.
See Adam Walsh Child Safety and
Protection Act, Public Law 109-248,
section 503. Section 2257A requires that
producers of visual depictions of
simulated sexually explicit conduct
maintain records documenting that
performers in those depictions not be
minors. It thus brings the record-
keeping requirements in line with the
definition of sexually explicit conduct
in section 2256(2)(A), which includes
both actual and simulated conduct. See
18 U.S.C. 2256(2)(A). The Department is
preparing a separate rule to implement
this section.
In section 503, the Act also created an
exemption from the record-keeping
requirements of section 2257, to the
extent it applies to lascivious
exhibition, and of section 2257A. One
part of this exemption states that section
2257 (to the extent it applies to
lascivious exhibition) and section
2257A do not apply to matter that is (i)
Intended for commercial distribution,
(ii) is created as a part of a commercial
enterprise by a person who certifies to
the Attorney General that he regularly
and in the normal course of business
collects and maintains individually
identifiable name and age information
regarding all performers for purposes
such as Federal and State tax, labor, and
other laws, and (iii) is not produced,
marketed, or otherwise made available
in circumstances such that an ordinary
person would conclude that it is child
pornography. See 18 U.S.C.
2257A(h)(1)(A). The other part of this
exemption states that section 2257 (to
exhibition) and section 2257A do not
apply to matter that is produced by
someone subject to the Federal
Communications Commission¡¦s
authority to enforce federal bans on the
broadcast of obscene, indecent, or
profane programming, and is created as
a part of a commercial enterprise by a
person who certifies to the Attorney
General that he regularly and in the
normal course of business collects and
maintains individually identifiable
name and age information regarding all
performers, for purposes such as Federal
and State tax, labor, and other laws. See
id. 2257A(h)(1)(B). The rule to
implement section 2257A will also
implement this exemption and the
associated certification regime, which,
as noted, will also apply to matter and
producers covered by this proposed
rule.
Second, the 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 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 is
reflected in the proposed rule at
¡±¡± 75.1(e)(3), 75.6(a), and 75.8(d). The
change materially affects the
regulations¡¦ 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 Record-Keeping
Requirements Compliance Statement.¡¦¡¦¡¦
Because of the change in the statute, the
proposed rule eliminates this portion of
the current regulations. The proposed
rule requires, per the statute, that 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 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), as amended.
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 replaced 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 * * *.
In enacting this 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
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38036 Federal Register / Vol. 72, No. 133 / Thursday, July 12, 2007 / Proposed Rules
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¡¦
agreement with the Department of Justice¡¦s
view that it already had the authority to
regulate secondary procedures 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 D.C. Circuit
decision upholding Congress¡¦ 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¡¦
agreement with the regulatory approach
adopted by the Department of Justice in
enforcing the statute.
Congressional Record, 109th Cong., 2d
Sess., July 25, 2006, at H5725.
Congress thus rejected the
interpretation adopted by the court in
Sundance Assocs., Inc. 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 (DC Cir. 1994). In upholding
the constitutionality of the secondary-
producer requirements, the DC 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 current law, the
proposed rule retains 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 is that the
proposed 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 Act. While the law would permit the
Department to apply the statute and
regulations to actions that occurred
prior to that date, the Department has
determined that the rule shall 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 proposed rule clarifies several other
issues. First, it clarifies 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¡Xsuch as
drivers¡¦ license number or passport
number¡Xmay not be redacted, so that
its validity may be confirmed. Second,
the proposed rule clarifies 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 in the depiction
and associate each and every performer
with the records needed to confirm his
or her age.
Third, the proposed rule clarifies that,
with regard to the government-issued
photo identification required for
records, a foreign-government-issued
picture identification card 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¡Xi.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 in the United States, no
matter whether a 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
documentation under the provisions of
part 75 in effect on the original
production date.
Finally, although it is not necessary to
change the text of the regulations for
this purpose, the Department hereby
clarifies 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.
Regulatory Procedures
Regulatory Flexibility Act
The Department has drafted this
proposed rule in accordance with the
Regulatory Flexibility Act, 5 U.S.C. 601-
612. The Department drafted the rule to
minimize its effect on small businesses
while meeting its intended objectives.
Based upon the preliminary information
available to the Department through
past investigations and enforcement
actions involving the affected industry,
the Department is unable to state with
certainty that this rule, if promulgated
as a final rule, will not have any effect
on small businesses of the type
described in 5 U.S.C. 601(3).
Accordingly, the Department has
prepared a preliminary Regulatory
Flexibility Act analysis in accordance
with 5 U.S.C. 604, as follows:
A. Need for and Objectives of This Rule
The identity of every performer is
critical to determining and assuring that
no performer is a minor. The key
congressional concern, evidenced by the
child exploitation statutory scheme, is
that all such performers verifiably not
be minors, i.e., not younger than 18
years of age. See 18 U.S.C. 2256(1),
2257 (b)(1). As discussed above,
Congress has recognized that minors
warrant special concern in this area.
Children themselves are incapable of
giving voluntary and knowing consent
to perform or to enter into contracts to
perform. In addition, children often are
involuntarily forced to engage in
sexually explicit conduct. For these
reasons, visual depictions of sexually
explicit conduct that involve persons
under the age of 18 constitute unlawful
child pornography. See 18 U.S.C.
2256 (8).
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This proposed rule amends certain depictions. The costs to the industry comments received during the comment
provisions of the existing regulations to
conform to the Act, as described above.
B. Description and Estimates of the
Number of Small Entities Affected by
This Rule
A ¡¥¡¥small business¡¦¡¦ is defined by the
Regulatory Flexibility Act (¡¥¡¥RFA¡¦¡¦) to be
the same as a ¡¥¡¥small business concern¡¦¡¦
under the Small Business Act (¡¥¡¥SBA¡¦¡¦),
15 U.S.C. 632. Under the SBA, a ¡¥¡¥small-
business concern¡¦¡¦ is one that: (1) Is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) meets any additional criteria
established by the SBA. See 5 U.S.C.
601 (3) (incorporating by reference the
definition of ¡¥¡¥small business concern¡¦¡¦
in 15 U.S.C. 632).
Based upon the information available
to the Department through past
investigations and enforcement actions
involving the affected industry, there
are likely to be a number of small
businesses that are producers of visual
depictions of sexually explicit conduct
as defined in the statute, as amended by
the Act.
Pursuant to the RFA, the Department
requests affected small businesses to
estimate what these regulations will cost
as a percentage of their total revenues in
order to enable the Department to
ensure that small businesses are not
unduly burdened.
The proposed rule has no effect on
State or local governmental agencies.
C. Specific Requirements Imposed That
Would Affect Private Companies
The proposed rule modifies existing
requirements for private companies
with regard to visual depictions of
sexually explicit conduct to ensure that
minors are not used in such depictions.
One of these requirements that would
specifically affect private companies is
Congress¡¦s expansion of the coverage of
the definition of ¡¥¡¥sexually explicit
conduct¡¦¡¦ to cover lascivious exhibition.
Executive Order 12866
This proposed rule has been drafted
and reviewed in accordance with
Executive Order 12866, section 1(b),
Principles of Regulation. The
Department has determined that this
rule is a ¡¥¡¥significant regulatory action¡¦¡¦
under Executive Order 12866, section
3 (f). Accordingly this rule has been
reviewed by the Office of Management
and Budget.
The benefit of the rule is that children
will be better protected from
exploitation in the production of visual
depictions of sexually explicit conduct
by ensuring that only those who are at
least 18 years of age perform in such
include slightly higher record-keeping
costs. The Department encourages all
affected commercial entities to provide
specific estimates, wherever possible, of
the economic costs that this rule will
impose on them.
Executive Order 13132
This rule will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with Executive Order 13132,
it is determined that this rule does not
have sufficient federalism implications
to warrant the preparation of a
Federalism Assessment.
Executive Order 12988
This rule meets the applicable
standards set forth in ¡± 3(a) and 3(b)(2)
of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the
expenditure by State, local and tribal
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1501 et seq.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule as
defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996, codified at 5
U.S.C. 804. This rule will not result in
an annual effect on the economy of
$100,000,000 or more; a major increase
in costs or prices; or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of United States-based
companies to compete with foreign-
based companies in domestic and
export markets.
Paperwork Reduction Act
This proposed rule modifies existing
requirements to conform to newly
enacted legislation. It contains a revised
information collection that satisfies the
requirements of existing regulations to
clarify the means of maintaining and
organizing the required documents. This
information collection will be submitted
to the Office of Management and Budget
for regular approval and comments from
the public, in accordance with the
Paperwork Reduction Act of 1995. Any
period should address one or more of
the following four points: (1) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information will have
practical utility; (2) the accuracy of the
agency¡¦s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used; (3)
how to enhance the quality, utility, and
clarity of the information to be
collected; and (4) how to minimize the
burden of the collection of information
on those who are to respond, including
through the use of appropriate
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology; e.g., permitting electronic
submission of responses.
The Department of Justice has no way
of estimating the annual cost burden
because of the multitude of variables
within the control of producers of
depictions of actual sexually explicit
conduct. In publishing the proposed
rule for the current part 75, the
Department estimated that there were
100,000 Web sites and 200 producers of
DVDs, videos, and other images
containing visual depictions of actually
explicit conduct (as defined by the
language of section 2257 at that time),
constituting 2000 businesses. The
Department invited comments on these
estimates but received none. The
Department estimates currently that
there are 500,000 Web sites and at least
200 producers of DVDs, videos, and
other images containing visual
depictions of actually explicit conduct
(as defined by the revised section 2257),
constituting 5000 businesses. Again, the
Department invites comments on these
numbers. The Department also invites
comments on the total number of visual
depictions that will be subject to the
proposed rule and the cost of
compliance of the rule for each visual
depiction.
All comments and suggestions, or
questions regarding additional
information, should be directed to
Andrew Oosterbaan, Chief, Child
Exploitation and Obscenity Section,
Criminal Division, United States
Department of Justice, Washington, DC
20530; (202) 514-5780. This is not a
toll-free number. Comments should also
be sent to: Lynn Bryant, Clearance
Officer, United States Department of
Justice, Policy and Planning Staff,
Justice Management Division, Patrick
Henry Building, 601 D Street, NW.,
Washington, DC 20530.
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38038 Federal Register / Vol. 72, No. 133 / Thursday, July 12, 2007 / Proposed Rules
List of Subjects in 28 CFR Part 75
Crime, Infants and children,
Reporting and recordkeeping
requirements.
Accordingly, for the reasons set forth
in the preamble, part 75 of chapter I of
title 28 of the Code of Federal
Regulations is proposed to be amended
as follows:
PART 75¡XCHILD PROTECTION
RESTORATION AND PENALTIES
ENHANCEMENT ACT OF 1990 AND
PROTECT ACT; RECORDKEEPING
AND RECORD INSPECTION
PROVISIONS
1. The authority citation for part 75
continues to read as follows:
Authority: 18 U.S.C. 2257.
2. Amend ¡± 75.1 by revising
paragraphs (b), (c)(4), and (e), and
adding new paragraphs (m) and (n), to
read as follows:
¡± 75.1 Definitions.
* * * * *
(b) Picture identification card means a
document issued by the United States,
a State government or a political
subdivision thereof, or a United States
territory, that bears the photograph and
the name of the individual identified,
and provides sufficient specific
information that the issuing authority
can confirm its validity, such as a
passport, Permanent Resident Card
(commonly known as a ¡¥¡¥Green Card¡¦¡¦),
or other employment authorization
document issued by the United States,
a driver¡¦s license issued by a State or the
District of Columbia, or another form of
identification issued by a State or the
District of Columbia; or, a foreign
government-issued equivalent of any of
the documents listed above when the
person who is the subject of the picture
identification card is a non-U.S. citizen
located outside the United States at the
time of original production and the
producer maintaining the required
records, whether a U.S. citizen or non-
U.S. citizen, is located outside the
United States on the original production
date.
(c) * * *
(4) Producer does not include persons
whose activities relating to the visual
depiction of actual sexually explicit
conduct are limited to the following:
(i) Photo 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 pargraphs (c)(1)
and (2) of this section, that does not
involve the hiring, contracting for,
managing, or otherwise arranging for the
participation of the depicted performers;
(iv) The provision of a
telecommunications service, or of an
Internet access service or Internet
information location tool (as those terms
are defined in section 231 of the
Communications Act of 1934 (47 U.S.C.
231)); or
(v) 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, except that deletion of
a particular communication or material
made by another person in a manner
consistent with section 230(c) of the
Communications Act of 1934 (47 U.S.C.
230 (c)) shall not constitute such
selection or alteration of the content of
the communication; and
* * * * *
(e) Copy, when used:
(1) In reference to an identification
document or a picture identification
card, means a photocopy, photograph,
or digitally scanned reproduction;
(2) In reference to a visual depiction
of sexually explicit conduct, means a
duplicate of the depiction itself (e.g., the
film, the image on a Web site, the image
taken by a webcam, the photo in a
magazine);
(3) In reference to an image on a
webpage for purposes of ¡±¡± 75.6(a) and
75.8 (d), means every page of a Web site
on which the image appears.
* * * * *
(m) Date of original production or
original production date means the date
the primary producer actually filmed,
videotaped, or photographed, or created
a digitally or computer-manipulated
image, digital image, or picture, of the
visual depiction of an actual human
being engaged in actual sexually explicit
conduct.
(n) Sexually explicit conduct has the
meaning set forth in 18 U.S.C.
2256 (2) (A).
3. Amend ¡± 75.2 by revising paragraph
(a)(1), adding two new sentences to the
end of paragraph (b), revising paragraph
(c), and adding a new paragraph (g), to
read as follows:
¡± 75.2 Maintenance of records.
(a) * * *
(1) The legal name and date of birth
of each performer, obtained by the
producer¡¦s examination of a picture
identification card prior to production
of the depiction. For any performer
portrayed in such a depiction made after
July 3, 1995, the records shall also
include a legible hard copy of the
identification document examined and,
if that document does not contain a
recent and recognizable picture of the
performer, a legible hard copy of a
picture identification card. For any
performer portrayed in such a depiction
after June 23, 2005, the records shall
include a copy of the depiction and,
where the depiction is published on an
Internet computer site or service, a copy
of any URL associated with the
depiction. If no URL is associated with
the depiction, the records shall include
another uniquely identifying reference
associated with the location of the
depiction on the Internet. For any
performer in a depiction performed live
on the Internet, the records shall
include a copy of the depiction with
running-time sufficient to identify the
performer in the depiction and to
associate the performer with the records
needed to confirm his or her age.
* * * * *
(b) * * * The copies of the records
may be redacted to eliminate non-
essential information, 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
the name and age may not be redacted.
(c) The information contained in the
records required to be created and
maintained by this part need be current
only as of the date of original
production of the visual depiction to
which the records are associated. If the
producer subsequently produces an
additional book, magazine, film,
videotape, digitally- or computer-
manipulated image, digital image, or
picture, or other matter (including but
not limited to Internet computer site or
services) that contains one or more
visual depictions of an actual human
being engaged in actual sexually explicit
conduct made by a performer for whom
he maintains records as required by this
part, the producer may add the
additional title or identifying number
and the names of the performer to the
existing records maintained pursuant to
¡± 75.2(a)(2). Producers of visual
depictions made after July 3, 1995, and
before June 23, 2005, may rely on
picture identification cards that were
valid forms of required identification
documentation under the provisions of
part 75 in effect during that time period.
* * * * *
(g) Records are not required to be
maintained by either a primary
producer or by a secondary producer for
a visual depiction of sexually explicit
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Federal Register / Vol. 72, No. 133 / Thursday, July 12, 2007 / Proposed Rules
38039
conduct that consists only of lascivious
exhibition of the genitals or pubic area
of a person, and contains no other
sexually explicit conduct, whose
original production date was prior to
July 27, 2006.
4. Amend ¡± 75.6 by adding a new
sentence at the end of paragraph (a) and
revising paragraph (b)(2), to read as
follows:
¡± 75.6 Statement describing location of
books and records.
(a) * * * In this paragraph, the term
¡¥copy¡¦ includes every page of a Web site
on which a visual depiction of an actual
human being engaged in actual sexually
explicit conduct appears.
(b) * * *
(2) The date of original production of
the matter; and,
* * * * *
5. Amend ¡± 75.8 by revising paragraph
(d) to read as follows:
¡± 75.8 Location of the statement.
* * * * *
(d) A computer site or service or Web
address containing a digitally- or
computer-manipulated image, digital
image, or picture, shall contain the
required statement on every page of a
Web site on which a visual depiction of
an actual human being engaged in
actual sexually explicit conduct
appears.
* * * * *
Dated: July 5, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7-13500 Filed 7-11-07; 8:45 am]
BILLING CODE 4410-14-P
DEPARTMENT OF DEFENSE
Department of the Air Force
32 CFR Part 903
[Docket No. USAF-2007-0001]
RIN: 0701-AA72
Air Force Academy Preparatory School
AGENCY: DoD, USAF.
ACTION: Proposed rule.
SUMMARY: This proposed rule tells how
to apply for the Air Force Academy
Preparatory School. It also explains the
procedures for selection, disenrollment,
and assignment. This rule has been
updated to identify USAFA¡¦s revised
mission statement and the authority,
add responsibilities, new selection
criteria, and updates of associated Air
Force Instructions.
DATES: Interested parties should submit
written comments on or before
September 10, 2007.
ADDRESSES: You may submit comments, identified by docket number and or RIN
number and title, by any of the
following methods:
„F Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
„F Mail: Federal Docket Management
System Office, 1160 Defense Pentagon,
Washington, DC 20301-1160.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
Federal Register document. The general
policy for comments and other
submissions from members of the public
is to make these submissions available
for public viewing on the Internet at
http://www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
FOR FURTHER INFORMATION CONTACT: Mr. Scotty Ashley at (703) 695-3594,
scotty.Ashley@pentagon.af.mil.
SUPPLEMENTARY INFORMATION:
Executive Order 12866, ¡¥¡¥Regulatory
Planning and Review¡¦¡¦
It has been determined that 32 CFR
part 903 is not a significant regulatory
action. This rule does not:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs, or the rights and
obligations of the recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President¡¦s priorities, or the principles
set forth in this Executive Order.
Unfunded Mandates Reform Act (Sec.
202, Pub. L. 104-4)
It has been certified the 32 CFR part
903 does not contain a Federal Mandate
that may result in the expenditure by
State, local and tribal governments, in
aggregate, or by the private sector, of
$100 million or more in any one year.
Public Law 96-354, ¡¥¡¥Regulatory
Flexibility Act¡¦¡¦ (5 U.S.C. 601)
It has been determined that this rule
is not subject to the Regulatory
Flexibility Act (5 U.S.C. 601) because it
would not, if promulgated, have a
significant economic impact on a
substantial number of small entities.
This rule * * *.
Public Law 95-511, ¡¥¡¥Paperwork
Reduction Act¡¦¡¦ (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part
903 does not impose any reporting or
recordkeeping requirements under the
Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35).
Federalism (Executive Order 13132)
It has been certified that 32 CFR part
903 does not have federalism
implications, as set forth in Executive
Order 13132. This rule does not have
substantial direct effects on:
(1) The States;
(2) The relationship between the
National Government and the States; or
(3) The distribution of power and
responsibilities among the various
levels of government.
List of Subjects in 32 CFR Part 903
Military academy, Military personnel.
Therefore, for the reasons set forth in
the preamble, 32 CFR part 903 is
proposed to be revised to read as
follows:
