Recent federal statutory enactments and judicial interpretations 
have highlighted the urgency of protecting children against sexual 
exploitation and, consequently, the need for more specific and clear 
regulations detailing the records and inspection process for sexually 
explicit materials to assure the accurate identity and age of 
performers.
    The identity of every performer is critical to determining and 
assuring that no performer is a minor. The key Congressional concern, 
evidenced by the child exploitation statutory scheme, was that all such 
performers be verifiably not minors, i.e. not younger than 18. 28 
U.S.C. 2256(1), 2257(b)(1). Minors--children--warrant a special concern 
by Congress for several reasons as discussed more specifically in 
relation to the inspection process. Children 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 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. 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 rule, a 
number of definitions are revised to facilitate the application of the 
rule to the modern modes of communication.

Response to Public Comments on the Proposed Rule

    The Department of Justice published the proposed rule on June 25, 
2004, and comments were due to the Department on or before August 24, 
2004. The following discussion responds to comments received from the 
public and explains why the Department either adopted changes or 
declined to adopt changes to the proposed rule in response to the 
comments. Many commenters commented on identical issues, and as a 
result, the number of comments exceeds the number of issues addressed 
below. Commenters addressed issues that can be separated into five 
general categories: General Legal Issues; Vagueness/Overbreadth Issues; 
Burdensomeness; Privacy Concerns; and Miscellaneous Issues.