*

 The Honorable Wesley E. Brown, Senior District Judge, District of

Kansas, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 23 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUNDANCE ASSOCIATES, INC., a Colorado corporation,

Plaintiff-Appellee,

v.

JANET RENO, Attorney General of the United States, in her

official capacity only; UNITED STATES DEPARTMENT

OF JUSTICE,

Defendants-Appellants.

No. 96-1501

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 95-N-2592)

Arthur M. Schwartz (Michael W. Gross, Cindy D. Schwartz, and Gary M. Kramer,

with him on the brief) of Arthur M. Schwartz, P.C., Denver, Colorado, for

Plaintiff-Appellee.

Anne M. Lobell (Jacob M. Lewis with her on the briefs), United States

Department of Justice, Washington, D.C., for Defendants-Appellants.

Before BALDOCK and BRORBY, Circuit Judges, and BROWN,

*

 District Judge.
1

 The statute requires the producers of such matter 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 this

information. 18 U.S.C. § 2257(b).

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BRORBY, Circuit Judge.

The Attorney General and the United States Department of Justice (“the

government”) appeal the United States District Court for the District of

Colorado’s award of summary judgment for Sundance Associates (“Sundance”),

holding 28 C.F.R. § 75.1(c)(4)(iii) is an invalid implementation of 18 U.S.C.

§ 2257. This court assumes jurisdiction pursuant to 28 U.S.C. § 1291 and

affirms.

Concerned about the exploitation of children by pornographers, Congress

enacted the Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No.

100-690, Title VII, § 7513(a), 102 Stat. 4187, 4485-4503 (significantly amended

by the Child Protection Restoration and Penalties Enhancement Act of 1990, Pub.

L. No. 101-647, Title III, §§ 301(b), 311, 104 Stat. 4808, 4816-17) to require

producers of sexually explicit matter to maintain certain records concerning the

performers1

 that might help law enforcement agencies monitor the industry. See
2

 With the Protection of Children Against Sexual Exploitation Act of 1977,

Pub. L. No. 95-225, § 2(a), 92 Stat. 7 (1978), Congress had already criminalized

the production and distribution of materials visually depicting minors engaged in

sexually explicit conduct. See 18 U.S.C. §§ 2251, 2252.

3

 In addition to the record keeping requirements specifically discussed in

§ 2257, the Attorney General’s regulations require the persons to whom it applies

to retain copies of the performers’ identification documents, to cross-index the

records by “[a]ll names(s) of each performer, including any alias, maiden name,

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18 U.S.C. § 2257. Violations of these record keeping requirements are criminal

offenses punishable by imprisonment for up to two years for first-time offenders

and up to five years for repeat offenders.2 See 18 U.S.C. § 2257(i).

The record keeping requirements apply to “[w]hoever produces” the

material in question. 18 U.S.C. § 2257(a) (emphasis added). The statute defines

“produces” as

to produce, manufacture, or publish any book, magazine, periodical,

film, video tape 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)(3).

Pursuant to her authority to issue regulations to carry out the statutory

requirements, see 18 U.S.C. § 2257(g), the Attorney General issued regulations

implementing the statute on April 24, 1992.3 See 57 Fed. Reg. 15017-022 (1992);
nickname, stage name or professional name of the performer; and according to the

title, number, or other similar identifier of each book, magazine, periodical, film,

videotape, or other matter,” and to maintain the records for as long as the

producer is in business, plus five years. 28 C.F.R. §§ 75.2(a)(1), 75.3, 75.4.

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28 C.F.R. § 75.

The extent to which the record keeping requirements apply to various

persons and businesses is one area the regulations attempt to define. Under the

regulatory language, the requirements apply to “[a]ny producer of any book,

magazine, periodical, film, videotape, or other matter that contains one or more

visual depictions of actual sexually explicit conduct made after November 1,

1990.” 28 C.F.R. § 75.2(a) (emphasis added). The regulation defines “producer”

as:

[A] person, including any individual, corporation, or other

organization, who is a primary producer or a secondary producer.

(1) A primary producer is any person who actually films, videotapes,

or photographs a visual depiction of actual sexually explicit conduct.

(2) A secondary producer is any person who produces, assembles,

manufactures, publishes, duplicates, reproduces, or reissues a book,

magazine, periodical, film, videotape, or other matter intended for

commercial distribution that contains a visual depiction of actual

sexually explicit conduct.

(3) The same person may be both a primary and a secondary

producer.

(4) Producer does not include persons whose activities relating to the
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visual depiction of actual sexually explicit conduct are limited to the

following:

(i) Photo processing;

(ii) Distribution; or

(iii) Any activity, other than those activities identified in

paragraphs (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.

28 C.F.R. § 75.1(c) (emphasis in original). The ultimate question in this case is

whether this definition of “producer” clashes impermissibly with the statutory

definition of “produces.”

Sundance publishes five magazines: Odyssey, Odyssey Express,

Connexion, Looking Glass, and UnReal People. These magazines print personal

or commercial announcements by individuals seeking to contact others with

similar sexual interests. The announcements are typically accompanied by

pictures, most of which are sexually explicit. The pictures are submitted

voluntarily to Sundance by the individuals advertising in the magazines. 

Sundance, therefore, does not participate in the production of the photographs it

publishes in its various magazines.

Facing possible criminal liability as a “secondary producer” under the
4

 The district court also ruled that Sundance had standing to challenge the

validity of 28 C.F.R. § 75.1(c) but lacked standing to challenge the validity of any

other aspects of the regulation or statute because it could not demonstrate “a

realistic danger of sustaining a direct injury” once the court declared

§ 75.1(c)(4)(iii) invalid. Neither of these issues was raised on appeal.

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regulation, Sundance filed a complaint seeking declaratory relief in the district

court. The parties filed cross-motions for summary judgment in the district court.

The court ruled for Sundance, finding 28 C.F.R. § 75.1(c)(4)(iii) to be an

invalid implementation of 18 U.S.C. § 2257.4 Applying Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the district court

found the intent of Congress to be clear from the language of the statute and,

consequently, did not inquire into the legislative history of the Act. Finding

“[t]he plain meaning of this section of the Restoration Act clearly exempts

persons whose activities ‘... 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,’” the court determined the scope of

the regulation’s coverage to be impermissibly broader than that intended by the

statute.

The government raises one issue on appeal: whether the district court erred
5

 This is not the only Circuit to have addressed the validity of 28 C.F.R.

§ 75. Although it did not face the precise question raised in this case, the United

States Court of Appeals for the District of Columbia invalidated the regulation’s

requirement that producers keep records as long as they remain in business, and

the regulation’s record keeping requirement as applied to printers, film

processors, duplicators, and similar persons who simply perform services and

return the product to the producer. American Library Ass’n v. Reno, 33 F.3d 78,

91, 93 (D.C. Cir. 1994) (upholding the constitutionality of the record keeping

requirements as applied to the appellants in that case). To the extent any of those

persons may be considered “secondary producers” (for instance, as assemblers or

manufacturers), this ruling supports Sundance’s argument that the statute was not

meant to apply to everyone who could be considered “to produce, manufacture, or

publish” or “duplicat[e], reproduc[e], or reissu[e].”

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in finding 28 C.F.R. § 75.1(c)(4)(iii) to be an invalid implementation of 18 U.S.C.

§ 2257.5

This court reviews the grant of a motion for summary judgment de novo,

applying the same legal standard used by the district court. See Kaul v. Stephan,

83 F.3d 1208, 1212 (10th Cir. 1996). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “When applying this standard, we examine the

factual record and reasonable inferences therefrom in the light most favorable to

the party opposing summary judgment. If there is no genuine issue of material
-8-

fact in dispute, then we next determine if the substantive law was correctly

applied by the district court.” Kaul, 83 F.3d at 1212 (quoting Wolf v. Prudential

Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995)).

The facts in this case are not in dispute. The only question is whether the

district court was correct in its legal analysis of the statute and regulation. We

review de novo a district court’s interpretation of a statute. See United States v.

Diaz, 989 F.2d 391, 392 (10th Cir. 1993).

When faced with a challenge to the validity of a regulation, we apply the

analytical framework provided by the United States Supreme Court in Chevron. 

As an initial matter, we decide “whether Congress has directly spoken to the

precise question at issue.” Chevron, 467 U.S. at 842. “‘If the statute is clear and

unambiguous “that is the end of the matter, for the court, as well as the agency,

must give effect to the unambiguously expressed intent of Congress.” ... The

traditional deference courts pay to agency interpretation is not to be applied to

alter the clearly expressed intent of Congress.’” K Mart Corp. v. Cartier, Inc.,

486 U.S. 281, 291 (1988) (quoting Board of Governors of Fed. Reserv. Sys. v.

Dimension Fin. Corp., 474 U.S. 361, 368 (1986) (quoting Chevron, 467 U.S. at

842-43)). If, however, the statute does not speak directly to the question at issue
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or is ambiguous, the court, giving considerable weight to the agency’s

interpretation, must decide if the agency’s answer is “a permissible construction

of the statute.” Chevron, 467 U.S. at 843-44.

In this case, we need go no further than the initial analysis. “[T]he text and

reasonable inferences from it give a clear answer against the Government, and

that ... is ‘the end of the matter.’” Brown v. Gardner, 513 U.S. 115, 120 (1994)

(quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (quoting

Chevron, 467 U.S. at 842)). We agree with the district court that “[t]he plain

meaning of [§ 2257((h)(3)] clearly exempts persons whose activities ‘... 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.’”

Under the statutory scheme, the requirements apply to persons or

organizations who “produce, manufacture, or publish” any of the identified

matter, including those involved in “duplication, reproduction, or reissuing” of

the matter, but not including those who merely distribute or whose activity “does

not involve hiring, contracting for[,] managing, or otherwise arranging for the

participation of the performers depicted.” 18 U.S.C. § 2257(h)(3). The plain
6

 Without deciding the issue, another Circuit appeared to read the final

clause in § 2257(h)(3) in a similar manner. American Library Ass’n v. Barr, 956

F.2d 1178, 1186 n.5 (D.C. Cir. 1992). In that case, the court stated the 1990

amendment to the statute, which added the clause in issue, “clarified the

definition of ‘produces’ to exclude ‘mere distribution or any other activity which

does not involve hiring, contracting for[,] managing, or otherwise arranging for

the participation of the performers depicted.’” Id.

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language of the statute establishes a group possibly subject to its requirements

(including those who “produce, manufacture, or publish” and those involved in

“duplication, reproduction, or reissuing”) and then excludes from that group those

who basically have had no contact with the performers (mere distributors and

others not involved in the “hiring, contracting for[,] managing, or otherwise

arranging for the participation of the performers depicted”).6

 Id.

The Attorney General’s regulatory definition of producer follows the

statute in establishing a class of individuals and organizations possibly subject to

the record keeping requirements, but it fails to exclude persons from the class that

the statute requires. The regulation conditions its exclusion of those “not

involve[d in] the hiring, contracting for, managing, or otherwise arranging for the

participation of the depicted performers” to persons who are not a primary or

secondary producer. 28 C.F.R. § 75.1(c)(4)(iii). The statute makes no such

condition. This is not a minor matter, because, as will be explained in detail
-11-

below, the practical effect of the regulatory scheme is that the exclusion cannot be

applied to anyone. “[A]n agency’s interpretation of a statute is not entitled to

deference when it goes beyond the meaning that the statute can bear.” MCI

Telecomm. Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 234 (1994). An

agency’s rulemaking power is not “the power to make law,” it is only the

“‘power to adopt regulations to carry into effect the will of Congress as expressed

by the statute.’” Mabry v. State Bd. of Community Colleges & Occupational

Educ., 813 F.2d 311, 315 (10th Cir.) (quoting Ernst & Ernst v. Hochfelder, 425

U.S. 185, 213-14 (1976) (further quotation marks and citations omitted), cert.

denied, 484 U.S. 849 (1987).

Attempting to justify its regulation, the government urges upon this court a

tortured reading of the statute. The government contends the second part of

§ 2257(h)(3), beginning with “does not include mere distribution,” was actually

intended to broaden the scope of the statute. The government’s approach leads us

down a path toward Alice’s Wonderland, where up is down and down is up and

words mean anything. The words “but does not include ... any other activity

which does not involve hiring, contracting for[,] managing, or otherwise

arranging for the participation of the performers depicted,” the argument goes,

were not intended to “not include” anyone listed above, but were actually
7

 Without explanation, the government asserts “the regulations make clear

that the statute applies to all activities which ‘involve hiring, contracting for[,]

managing, or otherwise arranging for the participation of the performers

depicted[,]’regardless of whether or not the entity is a producer by virtue of being

engaged in activities listed in the first clause.” The regulation does not do this. 

The regulation defines a producer as a primary or secondary producer. The

definitions of primary and secondary producers do not include activities that

involve hiring, contracting for, managing, or otherwise arranging for the

participation of the performers. See 28 C.F.R. § 75.1(c).

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intended by implication only to include more activities in the definition. This is

too much of a stretch. In reviewing statutes, courts do not assume the language is

imprecise, as the government would have us do. See United States v. LaBonte,

___ U.S. ___, 117 S. Ct. 1673, 1677 (1997). Rather, we assume that in drafting

legislation, Congress says what it means. Id. This is not a case of verbal

ambiguity presenting accepted alternative meanings; it is one of an agency

twisting words to reach a result it prefers. Although § 2257(h)(3) was poorly

drafted and should never be used as a model of the English language, its intent is

clear to this court.

One wonders, looking at the regulation, why the government did not follow

the logic of its own argument when implementing the regulation.7 If the second

clause of the statute actually was intended to broaden the definition of produces

to include activities that “involve hiring, contracting for[,] managing, or
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otherwise arranging for the participation of the performers depicted,” it seems

odd that none of those activities are included in the regulatory definition of

producer. The regulation defines a producer as a person who is a primary or

secondary producer, yet the definitions of primary and secondary producer do not

address hiring, contracting for, managing, or otherwise arranging for

participation, as they should according to the government’s arguments. See 28

C.F.R. § 75.1(c)(1)-(3).

Explaining its position, the government states “[t]he structure of the statute,

which identifies ‘mere distribution’ as the activity specifically excluded from the

definition of ‘produces,’ suggests that Congress did not intend to exempt actual

producers from the definition, but only those whose involvement in production is

wholly tangential.” The problem with this position is the statute does not identify

“mere distribution” as the only activity specifically excluded, but also “any other

activity” basically not involving contact with the performers. 18 U.S.C.

§ 2257(h)(3). The government’s explanation simply ignores the obvious import

of the final clause of the statute.

The government also argues the Attorney General properly rejected the

district court’s reading of the statute because if “[S]ection 2257(h)(3) is
8

 This clause may not narrow application of the statute as significantly as

the government suggests. "[A]rranging for the participation of the performers

depicted," may well encompass a broad range of activities, although that will be

for later courts to decide.

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interpreted that way, the clause ‘includ[ing] the duplication, reproduction, or

reissuing of any such matter’ would be read out of the statute, because such

activities would not necessarily involve the hiring, contracting for, or managing

of performers.” This is wrong. The clause would not be read out of the statute

because it is easy to imagine persons duplicating, reproducing, or reissuing

material they originally created who would have had the requisite contact with the

performers, and as a result such persons would be subject to the requirements of

the statute. Just because the exclusionary clause would make the statute

inapplicable to some duplicators, reproducers, and reissuers is no reason to justify

reading it out of the statute — narrowing the field is the very nature of

exclusions.

The government further argues its comprehensive regulatory scheme is

necessary because of the difficulties involved in enforcing the record keeping

requirements only on those producers who hire, contract for, manage, or

otherwise make arrangements for the participation of sexual performers.8 “[S]uch

considerations address themselves to Congress, not to the courts.” MCI
9

 Because the statute expressly forbids the use of the mandated records,

directly or indirectly, “as evidence against any person with respect to any

violation of law,” other than the failure to maintain the records in the first place,

it might only be of limited use in aiding enforcement of child pornography laws. 

18 U.S.C. § 2257(d)(1); see American Library Ass’n v. Reno, 47 F.3d 1215, 1216

(D.C. Cir. 1995) (Tatel, J., dissenting from denial of suggestion for rehearing in

banc).

10 One might question whether the statute is narrowly drawn by mistake or

if it was narrowly drawn on purpose, because of a considered congressional

determination that it could be subject to constitutional attack, as an earlier version

had been. See American Library Ass’n v. Barr, 956 F.2d at 1186-87; American

Library Ass’n v. Thornburgh, 713 F. Supp. 469 (D.D.C. 1989).

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Telecommunications, 512 U.S. at 234 (quoting Armour Packing Co. v. United

States, 209 U.S. 56, 82 (1908)). Of course, this court is sympathetic to the

purported9 goals of this legislation — preventing the sexual exploitation of

children. And although it seems the Attorney General has identified a problem

with its effective enforcement — that it is drawn in such a way as to make it

narrow in application10 — neither the court nor the Attorney General has the

authority to rewrite a poor piece of legislation (if, indeed, that is what it is). That

responsibility lies solely with Congress.

Even if we assumed for purposes of this analysis that the statutory language

was unclear, and proceeded to the second stage of Chevron analysis, we would

have to find the Attorney General’s regulation to be an impermissible
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construction of the statute. The regulation makes the final part of § 2257(h)(3),

beginning with “or any other activity” superfluous. Although we afford deference

to the Attorney General’s interpretation of a statute under her purview, we cannot

overlook an interpretation that flies in the face of the statutory language. See

Bridger Coal Co./Pacific Minerals, Inc. v. Director, Office of Workers'

Compensation Programs, U.S. Dep't of Labor, 927 F.2d 1150, 1153 (10th Cir.

1991) ("We will not construe a statute in a way that renders words or phrases

meaningless, redundant, or superfluous.").

The regulation defines “producer as any “individual, corporation, or other

organization, who is a primary producer or secondary producer.” 28 C.F.R.

§ 75.1(c) (emphasis in original). Obviously then, if individuals, corporations, or

other organizations are not primary or secondary producers, they are not

producers for purposes of the regulation. That means, by definition, producers

must engage in the activities listed in either 28 C.F.R. § 75.1(c)(1) or (2). See 28

C.F.R. § 75.1(c). For the exception to apply, however, one cannot be engaged in

the activities listed in 28 C.F.R. § 75.1(c)(1) or (2). See 28 C.F.R.

§ 75.1(c)(4)(iii). Therefore, the exception is meaningless; it excepts those

persons and organizations to which the regulation does not apply in the first place

and it does not except any of the persons and organizations to which the
11 This raises a question about the Attorney General’s specific exclusion

for photo processing. 28 C.F.R. § 75.1(c)(4)(i). Unlike the other specific

exclusion, distribution, photo processing is not mentioned in the statute. If photo

processing is one of the activities listed in the definition of secondary producer,

for example producing or manufacturing (it clearly does not fall into the category

of primary producer), what makes it different than many other similar activities

for which there is no exclusion? If it does not fall into the category of secondary

producer, then no exclusion is necessary in the first place. Obviously, even the

Attorney General recognized Congress did not intend for everyone falling into the

categories of production, manufacture, publication, duplication, reproduction, and

reissuing to be subject to the record keeping requirements, or the regulation

would not have included a specific exclusion for photo processing.

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regulation does apply.11

We have to assume Congress intended its words “but does not include ...

any other activity which does not involve hiring, contracting for[,] managing, or

otherwise arranging for the participation of the performers depicted” to have

some meaning and effect. See Reiter v. Sonotone Corp., 442 U.S. 330, 339

(1979) ("In construing a statute we are obliged to give effect, if possible, to every

word Congress used."). Because the government’s construction makes these

words mere surplusage, it cannot stand.

The government correctly notes the district court should not have held all

of 28 C.F.R. § 75.1(c)(4)(iii) invalid. The flaw in the subsection of the regulation

arises from the clause “other than those activities identified in paragraphs (c)(1)
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and (2) of this section.” 28 C.F.R. § 75.1(c)(4)(iii) Our decision, therefore,

necessitates only that clause be stricken from § 75.1(c)(4)(iii).

For the foregoing reasons, the district court’s decision is AFFIRMED;

however, we remand to the district court so it may issue a judgment striking from

§ 75.1(c)(4)(iii) only the clause identified above.