[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR312.10]

[Page 386-388]
 
                     TITLE 16--COMMERCIAL PRACTICES
 
                   CHAPTER I--FEDERAL TRADE COMMISSION
 
PART 312_CHILDREN'S ONLINE PRIVACY PROTECTION RULE--Table of Contents
 
Sec. 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

[[Page 387]]

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 Sec. Sec. 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
    (iv) Any other equally effective independent assessment mechanism; 
and
    (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;
    (ii) Consumer redress;
    (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
    (v) Any other equally effective incentive.
    (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 Sec. Sec. 312.3 through 
312.8 with the corresponding provisions of the guidelines; and
    (iii) A statement explaining:
    (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:
    (1) Consumer complaints alleging violations of the guidelines by 
subject operators;
    (2) Records of disciplinary actions taken against subject operators; 
and

[[Page 388]]

    (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.