312.10—Safe harbors.
(a) In general.
An operator will be deemed to be in compliance with the requirements of this part if that operator complies with self-regulatory guidelines, issued by representatives of the marketing or online industries, or by other persons, that, after notice and comment, are approved by the Commission.
(b) Criteria for approval of self-regulatory guidelines.
To be approved by the Commission, guidelines must include the following:
(1)
A requirement that operators subject to the guidelines (“subject operators”) implement substantially similar requirements that provide the same or greater protections for children as those contained in §§ 312.2 through 312.9;
(2)
An effective, mandatory mechanism for the independent assessment of subject operators' compliance with the guidelines. This performance standard may be satisfied by:
(i)
Periodic reviews of subject operators' information practices conducted on a random basis either by the industry group promulgating the guidelines or by an independent entity;
(ii)
Periodic reviews of all subject operators' information practices, conducted either by the industry group promulgating the guidelines or by an independent entity;
(iii)
Seeding of subject operators' databases, if accompanied by either paragraphs (b)(2)(i) or (b)(2)(ii) of this section; or
(3)
Effective incentives for subject operators' compliance with the guidelines. This performance standard may be satisfied by:
(i)
Mandatory, public reporting of disciplinary action taken against subject operators by the industry group promulgating the guidelines;
(iii)
Voluntary payments to the United States Treasury in connection with an industry-directed program for violators of the guidelines;
(iv)
Referral to the Commission of operators who engage in a pattern or practice of violating the guidelines; or
(4)
The assessment mechanism required under paragraph (b)(2) of this section can be provided by an independent enforcement program, such as a seal program. In considering whether to initiate an investigation or to bring an enforcement action for violations of this part, and in considering appropriate remedies for such violations, the Commission will take into account whether an operator has been subject to self-regulatory guidelines approved under this section and whether the operator has taken remedial action pursuant to such guidelines, including but not limited to actions set forth in paragraphs (b)(3)(i) through (iii) of this section.
(c) Request for Commission approval of self-regulatory guidelines.
(1)
To obtain Commission approval of self-regulatory guidelines, industry groups or other persons must file a request for such approval. A request shall be accompanied by the following:
(i)
A copy of the full text of the guidelines for which approval is sought and any accompanying commentary;
(ii)
A comparison of each provision of §§ 312.3 through 312.8 with the corresponding provisions of the guidelines; and
(A)
How the guidelines, including the applicable assessment mechanism, meet the requirements of this part; and
(B)
How the assessment mechanism and compliance incentives required under paragraphs (b)(2) and (3) of this section provide effective enforcement of the requirements of this part.
(2)
The Commission shall act upon a request under this section within 180 days of the filing of such request and shall set forth its conclusions in writing.
(3)
Industry groups or other persons whose guidelines have been approved by the Commission must submit proposed changes in those guidelines for review and approval by the Commission in the manner required for initial approval of guidelines under paragraph (c)(1). The statement required under paragraph (c)(1)(iii) must describe how the proposed changes affect existing provisions of the guidelines.
(d) Records.
Industry groups or other persons who seek safe harbor treatment by compliance with guidelines that have been approved under this part shall maintain for a period not less than three years and upon request make available to the Commission for inspection and copying:
(3)
Results of the independent assessments of subject operators' compliance required under paragraph (b)(2) of this section.
(e) Revocation of approval.
The Commission reserves the right to revoke any approval granted under this section if at any time it determines that the approved self-regulatory guidelines and their implementation do not, in fact, meet the requirements of this part.