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rule does not need to include details such as these.
    One commenter commented that it is unclear whether a producer that 
provides content to a secondary producer must maintain a list of its 
URLs. According to the commenter, keeping such a list would be 
impossible, given the number of URLs and the fact that many URLs are 
generated dynamically, making the requirement technologically 
impossible. Further, claimed the commenter, if a URL is required to be 
indexed with an identification record, one URL (the site entrance) 
should be sufficient. In addition, the commenter commented, URLs 
outside the direct control of the content provider should not be 
covered under the regulations, and secondary producers should be 
permitted to simply list the producer's 2257 statement on the home 
page.
    The Department declines to adopt this comment. The Department 
understands that it would not be possible to track or maintain records 
of dynamically generated URLs. The existing regulations require 
producers to maintain the names of the performers ``indexed by the 
title or identifying number of the book, magazine, film, videotape, or 
other matter.'' See 28 CFR 75.2(a)(2). The rule updates this 
requirement expressly to include Internet depictions by requiring that 
this indexing also include any static URLs associated with depictions 
of that performer and to maintain a copy of the depiction with the 
static URL associated with the depiction. Existing regulations require 
any producer to affix a statement describing the location of the 
records, and permit producers to provide the address of the primary 
producer, or, for secondary producers satisfying the requirements of 
Sec.  75.2(b), the address of the secondary producer. See 28 CFR 75.6, 
75.6(b); see also 28 CFR 75.2(b) (permitting secondary producers to 
maintain records by accepting copies of records from a primary 
producer). This rule merely updates this requirement to expressly cover 
Internet depictions.

Regulatory Procedures

Regulatory Flexibility Act

    The Department of Justice has drafted this regulation in accordance 
with the Regulatory Flexibility Act, 5 U.S.C. 601-612. The Department 
of Justice drafted this rule to minimize its impact on small businesses 
while meeting its intended objectives. Based upon the preliminary 
information available to the Department through past investigations and 
enforcement actions involving the affected industry, the Department is 
unable to state with certainty that this rule, if promulgated as a 
final rule, will not have any effect on small businesses of the type 
described in 5 U.S.C. Sec.  601(3). Accordingly, the Department has 
prepared a final Regulatory Flexibility Act analysis in accordance with 
5 U.S.C. 604, as follows:

A. Need for and Objectives of This Rule

    Recent federal statutory enactments and judicial interpretations 
have highlighted the urgency of protecting children against sexual 
exploitation and, consequently, the need for more specific and clear 
regulations detailing the records and inspection process for sexually 
explicit materials to assure the accurate identity and age of 
performers.
    The identity of every performer is critical to determining and 
assuring that no performer is a minor. The key Congressional concern, 
evidenced by the child exploitation statutory scheme, was that all such 
performers be verifiably not minors, i.e. not younger than 18. 18 
U.S.C. 2256(1), 2257(b)(1). Minors--children--warrant a special concern 
by Congress for several reasons as discussed more specifically in 
relation to the inspection process. Children 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.
    This rule merely provides greater details for the record-keeping 
and inspection process in order to ensure that minors are not used as 
performers in sexually explicit depictions. The rule does not restrict 
in any way the content of the underlying depictions other than by 
clarifying the labeling on, and record-keeping requirements pertaining 
to, that underlying depiction. Cf., e.g., 27 CFR 16.21 (alcoholic 
beverage health warning statement; mandatory label information). 
However, compliance with the record-keeping requirements of this part 
has no bearing on the legality or illegality of the underlying sexually 
explicit material.
    Moreover, the growth of Internet facilities in the past five years, 
and the proliferation of pornography on Internet computer sites or 
services, requires that the regulations be updated. In the final rule, 
a number of definitions are revised to accomplish the application of 
the rule to the modern modes of communication.