[Federal Register Volume 83, Number 191 (Tuesday, October 2, 2018)]
[Notices]
[Pages 49557-49559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21377]


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FEDERAL TRADE COMMISSION


Agency Information Collection Activities; Proposed Collection; 
Comment Request

AGENCY: Federal Trade Commission (``FTC'' or ``Commission'').

ACTION: Notice.

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SUMMARY: The FTC intends to ask the Office of Management and Budget 
(``OMB'') to extend for an additional three years the current Paperwork 
Reduction Act (``PRA'') clearance for information collection 
requirements contained in the Children's Online Privacy Protection Act 
Rule (``COPPA Rule'' or ``Rule''), which will expire on January 31, 
2019.

DATES: Comments must be filed by December 3, 2018.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``COPPA Rule: Paperwork 
Comment, FTC File No. P155408'' on your comment, and file your comment 
online at https://ftcpublic.commentworks.com/ftc/coppapra, by following 
the instructions on the web-based form. If you prefer to file your 
comment on paper, mail your comment to the following address: Federal 
Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, 
Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment 
to the following address: Federal Trade Commission, Office of the 
Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 
5610 (Annex J), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Requests for additional information 
should be addressed to Peder Magee, Attorney, (202) 326-3538, Division 
of Privacy and Identity Protection, Bureau of Consumer Protection, 
Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 
20580.

SUPPLEMENTARY INFORMATION: The COPPA Rule, 16 CFR part 312, requires 
commercial websites to provide notice and obtain parents' consent 
before collecting, using, and/or disclosing personal information from 
children under age 13, with limited exceptions. The COPPA Rule contains 
certain statutorily required notice, consent, and other requirements 
that apply to operators of any commercial website or online service 
directed to children, and operators of any commercial website or online 
service with actual knowledge of collecting personal information from 
children. Covered operators must: provide online notice and direct 
notice to parents of how they collect, use, and disclose children's 
personal information; obtain the prior consent of the child's parent in 
order to engage in such collection, use, and disclosure, with limited 
exceptions; provide reasonable means for the parent to obtain access to 
the information and to direct its deletion; and, establish procedures 
that protect the confidentiality, security, and integrity of personal 
information collected from children.

Burden Statement

1. Estimated Annual Hours Burden: 17,500 Hours

(a) New Entrant Web Operators' Disclosure Burden
    Based on public comments received by the Commission during its 2013 
COPPA Rule amendments rulemaking,\1\ FTC staff estimates that the Rule 
affects approximately 280 new operators per year.\2\ Staff maintains 
its longstanding estimate that new operators of websites and online 
services will require, on average, approximately 60 hours crafting a 
privacy policy, designing mechanisms to provide the required online 
privacy notice and, where applicable, the direct notice to parents.\3\ 
Applied to the estimated number of new operators per year, this yields 
a cumulative yearly total of 16,800 hours (280 new operators x 60 hours 
each).
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    \1\ 78 FR 3971 at 4005 (Jan. 17, 2013).
    \2\ This consists of certain traditional website operators, 
mobile app developers, plug-in developers, and advertising networks.
    \3\ See, e.g., 78 FR at 4006; 76 FR 31334 (May 31, 2011); 73 FR 
35689 (June 24, 2008); 70 FR 21107 (Apr. 22, 2005); 80 FR 57818 
(Sept. 25, 2015); 80 FR 76491 (Dec. 9, 2015).
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(b) Safe Harbor Applicant Reporting Requirements
    Operators can comply with the COPPA Rule by meeting the terms of 
industry self-regulatory guidelines that the Commission approves after 
notice and comment.\4\ While the submission of industry self-regulatory 
guidelines to the agency is voluntary, the COPPA Rule sets out the 
criteria for approval of guidelines and the materials that must be 
submitted as part of a safe harbor application. Staff estimates that it 
would require, on average, 265 hours per new safe harbor program 
applicant to prepare and submit its safe harbor proposal in accordance 
with Section 312.11(c) of the Rule.\5\ In the past, industry sources 
have confirmed that this estimate is reasonable. Given that several 
safe harbor programs are already available to website operators, FTC 
staff believes that it is unlikely that more than one additional safe 
harbor applicant will submit a request within the next three years of 
PRA clearance

[[Page 49558]]

sought. Thus, annualized burden attributable to this requirement would 
be approximately 88 hours per year (265 hours / 3 years) or, roughly, 
100 hours, for the estimated one additional safe harbor applicant.
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    \4\ See Section 312.11(c). Approved self-regulatory guidelines 
can be found on the FTC's website at http://www.ftc.gov/privacy/privacyinitiatives/childrens_shp.html.
    \5\ Staff believes that most of the records submitted with a 
safe harbor request would be those that these entities have kept in 
the ordinary course of business. Under 5 CFR 1320.3(b)(2), OMB 
excludes from the definition of PRA burden the time and financial 
resources needed to comply with agency-imposed recordkeeping, 
disclosure, or reporting requirements that customarily would be 
undertaken independently in the normal course of business.
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(c) Annual Audit and Report for Safe Harbor Programs
    The COPPA Rule requires safe harbor programs to audit their members 
at least annually and to submit annual reports to the Commission on the 
aggregate results of these member audits. The burden for conducting 
member audits and preparing these reports likely will vary for each 
safe harbor program depending on the number of members. Commission 
staff estimates that conducting audits and preparing reports will 
require approximately 100 hours per program per year. Aggregated for 
one new safe harbor (100 hours) and seven existing (700 hours) safe 
harbor programs, this amounts to an estimated cumulative reporting 
burden of 800 hours per year.
(d) Safe Harbor Program Recordkeeping Requirements
    FTC staff believes that most of the records listed in the COPPA 
Rule's safe harbor recordkeeping provisions consist of documentation 
that such parties have kept in the ordinary course of business 
irrespective of the COPPA Rule. As noted above, OMB excludes from the 
definition of PRA burden, among other things, recordkeeping 
requirements that customarily would be undertaken independently in the 
normal course of business. In staff's view, any incremental burden, 
such as that for maintaining the results of independent assessments 
under section 312.11(d), would be marginal.

2. Estimated Annual Labor Costs: $5,768,900

(a) New Entrant Web Operators' Disclosure Burden
    Consistent with its past estimates and based on its 2013 rulemaking 
record, FTC staff assumes that the time spent on compliance for new 
operators covered by the COPPA Rule would be apportioned five to one 
between legal (outside counsel lawyers or similar professionals) and 
technical (e.g., computer programmers, software developers, and 
information security analysts) personnel. Staff therefore estimates 
that outside counsel costs will account for 14,000 of the estimated 
16,800 hours required as estimated in 1(a) above. Regarding outside 
counsel costs, FTC staff believes it reasonable to assume that the 
workload among law firm partners and associates for COPPA compliance 
questions would be distributed among attorneys at varying levels of 
seniority, and be weighted most heavily to junior attorneys. Assuming 
two-thirds of such work is done by junior associates at a rate of 
approximately $300 per hour, and one-third by senior partners at 
approximately $600 per hour, the weighted average of outside counsel 
costs would be about $400 per hour.\6\ Computer programmers responsible 
for posting privacy policies and implementing direct notices and 
parental consent mechanisms would account for the remaining 2,800 
hours. FTC staff estimates an hourly wage of $44 for technical 
assistance, based on Bureau of Labor Statistics (``BLS'') data.\7\ 
Accordingly, associated annual labor costs would be $5,723,200 [(14,000 
hours x $400/hour) + (2,800 hours x $44/hour)] for the estimated 280 
new operators.
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    \6\ These estimates are drawn from the ``Laffey Matrix.'' The 
Laffey Matrix is a fee schedule used by many United States courts 
for determining the reasonable hourly rates in the District of 
Columbia for attorneys' fee awards under federal fee-shifting 
statutes. It is used here as a proxy for market rates for litigation 
counsel in the Washington, DC area. For 2018, rates in table range 
from $302 per hour for most junior associates to $602 per hour for 
most senior partners. See Laffey Matrix, Civil Division of the 
United States Attorney's Office for the District of Columbia, United 
States Attorney's Office, District of Columbia, Laffey Matrix B 
2015-2018, available at https://www.justice.gov/usao-dc/file/796471/download.
    \7\ The estimated mean hourly wages for technical labor support 
($44) is based on an average of the salaries for computer 
programmers, software developers, information security analysts, and 
web developers as reported by the Bureau of Labor statistics. See 
Occupational Employment and Wages--May 2017, Table 1 (National 
employment and wage data from the Occupational Employment Statistics 
survey by occupation, May 2017), available at http://www.bls.gov/news.release/ocwage.nr0.htm (hereinafter, ``BLS Table 1'').
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(b) Safe Harbor Applicant Reporting Requirements
    Previously, industry sources have advised that all of the labor to 
comply with new safe harbor applicant requirements would be 
attributable to the efforts of in-house lawyers. To determine in-house 
legal costs, FTC staff applied an approximate average between the BLS 
reported mean hourly wage for lawyers ($68.22),\8\ and a rough 
approximation of in-house hourly attorney rates ($300) that staff 
believes more generally reflects the costs associated with Commission 
information collection activities, which yields an approximate hourly 
rate of $185. Accordingly, applying the estimated time for these tasks 
(100 hours) for the one new safe harbor applicant estimated in 1(b) 
above to the assumed hourly wage for in-house counsel ($185) yields 
$18,500 in labor costs per year.
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    \8\ See BLS Table 1 (attorneys).
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(c) Annual Audit and Report for Safe Harbor Programs
    Commission staff assumes that compliance officers, at a labor rate 
of $34, will prepare annual reports.\9\ Accordingly, applied to the 800 
hours estimated per year in 1(c) above for all safe harbor programs, 
this amounts to $27,200 in aggregate yearly labor costs.
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    \9\ See BLS Table 1 (compliance officers, $32.69).
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(d) Safe Harbor Program Recordkeeping Requirements
    For the reasons stated in 1(d) above, associated labor costs, for 
PRA purposes, would be marginal.

3. Estimated Annual Non-Labor Costs: $0

    Because websites will already be equipped with the computer 
equipment and software necessary to comply with the Rule's notice 
requirements, the predominant costs incurred by the websites are the 
aforementioned estimated labor costs. Similarly, industry members 
should already have in place the means to retain and store the records 
that must be kept under the Rule's safe harbor recordkeeping 
provisions, because they are likely to have been keeping these records 
independent of the Rule. Capital and start-up costs associated with the 
Rule are minimal.

Request for Comments

    Under the PRA, 44 U.S.C. 3501-3521, federal agencies must obtain 
approval from OMB for each collection of information they conduct or 
sponsor. ``Collection of information'' means agency requests or 
requirements that members of the public submit reports, keep records, 
or provide information to a third party. 44 U.S.C. 3502(3), 5 CFR 
1320.3(c). As required by section 3506(c)(2)(A) of the PRA, the FTC is 
providing this opportunity for public comment before requesting that 
OMB extend the existing PRA clearance for the COPPA Rule (OMB Control 
Number 3084-0117).
    Pursuant to Section 3506(c)(2)(A) of the PRA, the FTC invites 
comments on: (1) Whether the collection of information requirements are 
necessary, including whether the information will be practically 
useful; (2) the accuracy of our burden estimates, including whether the 
methodology and assumptions used are valid; (3) how to improve the 
quality, utility, and clarity

[[Page 49559]]

of the disclosure requirements; and (4) how to minimize the burden of 
providing the required information to consumers.
    You can file a comment online or on paper. For the FTC to consider 
your comment, we must receive it on or before December 3, 2018. Write 
``COPPA Rule: Paperwork Comment, FTC File No. P155408'' on your 
comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission website, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the 
Commission tries to remove individuals' home contact information from 
comments before placing them on the Commission website.
    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online, or to send them to the Commission by courier or 
overnight service. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/coppapra, by following the instructions on the web-based form. When 
this Notice appears at http://www.regulations.gov/#!home, you also may 
file a comment through that website.
    If you file your comment on paper, write ``COPPA Rule: Paperwork 
Comment, FTC File No. P155408'' on your comment and on the envelope, 
and mail it to the following address: Federal Trade Commission, Office 
of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex J), 
Washington, DC 20580, or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Constitution Center, 
400 7th Street SW, 5th Floor, Suite 5610 (Annex J), Washington, DC 
20024. If possible, submit your paper comment to the Commission by 
courier or overnight service.
    Because your comment will be placed on the publicly accessible FTC 
website at https://www.ftc.gov/, you are solely responsible for making 
sure that your comment does not include any sensitive or confidential 
information. In particular, your comment should not include any 
sensitive personal information, such as your or anyone else's Social 
Security number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. You are also 
solely responsible for making sure that your comment does not include 
any sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . is privileged or confidential''--as provided by 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2)--including in particular competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. See FTC Rule 4.9(c). Your comment will be kept 
confidential only if the General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted on the public FTC website--as legally required by FTC Rule 
4.9(b)--we cannot redact or remove your comment from the FTC website, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under FTC Rule 4.9(c), and the General Counsel 
grants that request.
    The FTC Act and other laws that the Commission administers permit 
the collection of public comments to consider and use in this 
proceeding as appropriate. The Commission will consider all timely and 
responsive public comments that it receives on or before December 3, 
2018. For information on the Commission's privacy policy, including 
routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Heather Hippsley,
Deputy General Counsel.
[FR Doc. 2018-21377 Filed 10-1-18; 8:45 am]
 BILLING CODE 6750-01-P