(a) In general. Industry groups or other persons may apply to the Commission for approval of self-regulatory program guidelines (“safe harbor programs”). The application shall be filed with the Commission's Office of the Secretary. The Commission will publish in the Federal Register a document seeking public comment on the application. The Commission shall issue a written determination within 180 days of the filing of the application.
(b) Criteria for approval of self-regulatory program guidelines. Proposed safe harbor programs must demonstrate that they meet the following performance standards:
(1) Program requirements that ensure operators subject to the self-regulatory program guidelines (“subject operators”) provide substantially the same or greater protections for children as those contained in §§312.2 through 312.8, and 312.10.
(2) An effective, mandatory mechanism for the independent assessment of subject operators' compliance with the self-regulatory program guidelines. At a minimum, this mechanism must include a comprehensive review by the safe harbor program, to be conducted not less than annually, of each subject operator's information policies, practices, and representations. The assessment mechanism required under this paragraph can be provided by an independent enforcement program, such as a seal program.
(3) Disciplinary actions for subject operators' non-compliance with self-regulatory program guidelines. This performance standard may be satisfied by:
(i) Mandatory, public reporting of any action taken against subject operators by the industry group issuing the self-regulatory guidelines;
(ii) Consumer redress;
(iii) Voluntary payments to the United States Treasury in connection with an industry-directed program for violators of the self-regulatory guidelines;
(iv) Referral to the Commission of operators who engage in a pattern or practice of violating the self-regulatory guidelines; or
(v) Any other equally effective action.
(c) Request for Commission approval of self-regulatory program guidelines. A proposed safe harbor program's request for approval shall be accompanied by the following:
(1) A detailed explanation of the applicant's business model, and the technological capabilities and mechanisms that will be used for initial and continuing assessment of subject operators' fitness for membership in the safe harbor program;
(2) A copy of the full text of the guidelines for which approval is sought and any accompanying commentary;
(3) A comparison of each provision of §§312.2 through 312.8, and 312.10 with the corresponding provisions of the guidelines; and
(4) A statement explaining:
(i) How the self-regulatory program guidelines, including the applicable assessment mechanisms, meet the requirements of this part; and
(ii) How the assessment mechanisms and compliance consequences required under paragraphs (b)(2) and (b)(3) provide effective enforcement of the requirements of this part.
(d) Reporting and recordkeeping requirements. Approved safe harbor programs shall:
(1) By July 1, 2014, and annually thereafter, submit a report to the Commission containing, at a minimum, an aggregated summary of the results of the independent assessments conducted under paragraph (b)(2) of this section, a description of any disciplinary action taken against any subject operator under paragraph (b)(3) of this section, and a description of any approvals of member operators' use of a parental consent mechanism, pursuant to §312.5(b)(3);
(2) Promptly respond to Commission requests for additional information; and
(3) Maintain for a period not less than three years, and upon request make available to the Commission for inspection and copying:
(i) Consumer complaints alleging violations of the guidelines by subject operators;
(ii) Records of disciplinary actions taken against subject operators; and
(iii) Results of the independent assessments of subject operators' compliance required under paragraph (b)(2) of this section.
(e) Post-approval modifications to self-regulatory program guidelines. Approved safe harbor programs must submit proposed changes to their guidelines for review and approval by the Commission in the manner required for initial approval of guidelines under paragraph (c)(2) of this section. The statement required under paragraph (c)(4) of this section must describe how the proposed changes affect existing provisions of the guidelines.
(f) Revocation of approval of self-regulatory program guidelines. The Commission reserves the right to revoke any approval granted under this section if at any time it determines that the approved self-regulatory program guidelines or their implementation do not meet the requirements of this part. Safe harbor programs that were approved prior to the publication of the Final Rule amendments must, by March 1, 2013, submit proposed modifications to their guidelines that would bring them into compliance with such amendments, or their approval shall be revoked.
(g) Operators' participation in a safe harbor program. An operator will be deemed to be in compliance with the requirements of §§312.2 through 312.8, and 312.10 if that operator complies with Commission-approved safe harbor program guidelines. In considering whether to initiate an investigation or bring an enforcement action against a subject operator for violations of this part, the Commission will take into account the history of the subject operator's participation in the safe harbor program, whether the subject operator has taken action to remedy such non-compliance, and whether the operator's non-compliance resulted in any one of the disciplinary actions set forth in paragraph (b)(3).