Notice2024-14983
Revisions to the Fee Schedule for the Data Privacy Framework Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 9, 2024
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
Consistent with the guidelines in OMB Circular A-25, the U.S. Department of Commerce's International Trade Administration (ITA) is revising the fee schedule that was last updated on April 12, 2017. This notice revises the Privacy Shield program fee schedule to reflect the change in the name of the program from the "Privacy Shield" program to the "Data Privacy Framework" program and to amend the fees. This is to support the operation of the EU-U.S. DPF, the UK Extension to the EU-U.S. DPF, and the Swiss-U.S. DPF (collectively, the DPF program).
Full Text
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<title>Federal Register, Volume 89 Issue 131 (Tuesday, July 9, 2024)</title>
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[Federal Register Volume 89, Number 131 (Tuesday, July 9, 2024)]
[Notices]
[Pages 56289-56292]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14983]
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DEPARTMENT OF COMMERCE
International Trade Administration
[Docket No. 240702-0183]
Revisions to the Fee Schedule for the Data Privacy Framework
Program
AGENCY: International Trade Administration, U.S. Department of
Commerce.
ACTION: Notice of revisions; request for public comments.
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SUMMARY: Consistent with the guidelines in OMB Circular A-25, the U.S.
Department of Commerce's International Trade Administration (ITA) is
revising the fee schedule that was last updated on April 12, 2017. This
notice revises the Privacy Shield program fee schedule to reflect the
change in the name of the program from the ``Privacy Shield'' program
to the ``Data Privacy Framework'' program and to amend the fees. This
is to support the operation of the EU-U.S. DPF, the UK Extension to the
EU-U.S. DPF, and the Swiss-U.S. DPF (collectively, the DPF program).
DATES: The revisions to the fee schedule will become effective 30 days
after the final fee schedule is published. Comments must be received by
August 7th, 2024.
ADDRESSES: You may submit comments by either of the following methods:
<bullet> Federal eRulemaking Portal at <a href="http://www.Regulations.gov">www.Regulations.gov</a>. The
identification number is ITA-2024-0001.
<bullet> Postal Mail/Commercial Delivery to Isabella Carlton,
Department of Commerce, International Trade Administration, Room 11018,
1401 Constitution Avenue NW, Washington, DC, and reference ``Revisions
to the Fee Schedule for the Data Privacy Framework Program'' in the
subject line.
Instructions: You must submit comments by one of the above methods
to ensure that the comments are received and considered. Comments sent
by any other method, to any other address or individual, or received
after the end of the comment period, may not be considered. All
comments received are a part of the public record and will generally be
posted to <a href="http://www.regulations.gov">http://www.regulations.gov</a> without change. All Personal
Identifying Information (e.g., name, address, etc.) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
Confidential Business Information or otherwise sensitive or protected
information. ITA will accept anonymous comments (enter ``N/A'' in the
required fields if you wish to remain anonymous). Attachments to
electronic comments will be accepted in Microsoft Word, Excel, or Adobe
PDF file formats only. Supporting documents and any comments we receive
on this docket may be viewed at <a href="http://www.regulations.gov/">http://www.regulations.gov/</a> (<a href="http://www.regulations.gov/">http://www.regulations.gov/</a>) ITA-2024-0001.
More information regarding the DPF program can be found at <a href="https://www.dataprivacyframework.gov/Program-Overview">https://www.dataprivacyframework.gov/Program-Overview</a>.
FOR FURTHER INFORMATION CONTACT: Requests for additional information
regarding the DPF program should be directed to Isabella Carlton,
Department of Commerce, International Trade Administration, Room 11018,
1401 Constitution Avenue NW, Washington, DC, tel. (202) 482-1512 or via
email at <a href="/cdn-cgi/l/email-protection#e7839781c99795888095868aa79395868382c9808891"><span class="__cf_email__" data-cfemail="234753450d53514c4451424e6357514247460d444c55">[email protected]</span></a>. Additional information on ITA fees is
available at <a href="http://trade.gov/fees">trade.gov/fees</a>.
SUPPLEMENTARY INFORMATION:
Background
On July 17, 2023, the U.S. Department of Commerce (DOC) launched
the Data Privacy Framework (DPF) program. The EU-U.S. Data Privacy
Framework (EU-U.S. DPF), UK Extension to the EU-U.S. DPF, and Swiss-
U.S. Data Privacy Framework (Swiss-U.S. DPF) were respectively
developed by the DOC and the European Commission, UK Government, and
Swiss Federal Administration to provide U.S. organizations with
reliable mechanisms for personal data transfers to the United States
from the EU, UK, and Switzerland while ensuring data protection that is
consistent with EU, UK, and Swiss law. The EU-U.S. DPF amends the
privacy principles that
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organizations adhered to under the EU-U.S. Privacy Shield Framework as
the ``EU-U.S. Data Privacy Framework Principles'' (EU-U.S. DPF
Principles), and the Swiss-U.S. DPF amends the privacy principles that
organizations adhered to under the Swiss-U.S. Privacy Shield Framework
as the ``Swiss-U.S. Data Privacy Framework Principles'' (Swiss-U.S. DPF
Principles). For more detailed information on the DPF program, please
see <a href="https://www.dataprivacyframework.gov/Program-Overview">https://www.dataprivacyframework.gov/Program-Overview</a>.
Consistent with the guidelines in OMB Circular A-25, Federal
agencies are responsible for implementing cost recovery program fees.
The role of ITA is to strengthen the competitiveness of U.S. industry,
promote trade and investment, and ensure fair trade through the
rigorous enforcement of U.S. trade laws and agreements. ITA works to
promote privacy policy frameworks to facilitate the trusted flow of
data across borders with strong privacy protections, which in turn
supports international trade.
The U.S., EU, UK, and Switzerland share a commitment to enhancing
privacy protection, the rule of law, and a recognition of the
importance of transatlantic data flows to our respective citizens,
economies, and societies, but have different legal systems and take
different approaches to doing so. Given those differences, the DOC
developed the EU-U.S. DPF, the UK Extension to the EU-U.S. DPF, and the
Swiss-U.S. DPF in consultation with the European Commission, the UK
Government, the Swiss Federal Administration, industry, and other
stakeholders. These arrangements were respectively developed to provide
U.S. organizations reliable mechanisms for personal data transfers to
the U.S. from the EU, UK, and Switzerland that are consistent with EU,
UK, and Swiss law.
The DOC has issued the EU-U.S. DPF Principles and the Swiss-U.S.
DPF Principles, including the respective sets of Supplemental
Principles (collectively, the Principles) and Annex I to the
Principles, as well as the UK Extension to the EU-U.S. DPF under its
statutory authority to foster, promote, and develop international
commerce (15 U.S.C. 1512).
To participate in the EU-U.S. DPF and, as applicable, the UK
Extension to the EU-U.S. DPF, and/or the Swiss-U.S. DPF an organization
must: (1) be subject to the investigatory and enforcement powers of the
Federal Trade Commission (FTC), the Department of Transportation (DOT),
or another statutory body that will effectively ensure compliance with
the Principles; (2) publicly declare its commitment to comply with the
Principles; (3) publicly disclose its privacy policies in line with the
Principles; and (4) fully implement the Principles.
While the decision by an organization to self-certify its
compliance and to participate in the DPF is voluntary; effective
compliance is compulsory: organizations that self-certify to the DOC
and publicly declare their commitment to adhere to the Principles must
comply fully with the Principles. Organizations that only wish to self-
certify their compliance pursuant to the EU-U.S. DPF and/or the Swiss-
U.S. DPF may do so; however, organizations that wish to participate in
the UK Extension to the EU-U.S. DPF must participate in the EU-U.S.
DPF. Such organizations' commitment to comply with the Principles with
regard to transfers of personal data from the EU and, as applicable,
the UK, and/or Switzerland must be reflected in their self-
certification submissions to the DOC, and in their privacy policies. An
organization's failure to comply with the Principles after its self-
certification is enforceable: (1) by the FTC under Section 5 of the
Federal Trade Commission (FTC) Act prohibiting unfair or deceptive acts
in or affecting commerce (15 U.S.C. 45); (2) by the DOT under 49 U.S.C.
41712 prohibiting a carrier or ticket agent from engaging in an unfair
or deceptive practice in air transportation or the sale of air
transportation; or (3) under other laws or regulations prohibiting such
acts.
U.S. organizations considering self-certifying their compliance
pursuant to the EU-U.S. DPF and, as applicable, the UK Extension to the
EU-U.S. DPF, and/or the Swiss-U.S. DPF should review the requirements
in their entirety, including the Principles and associated documents
available in full at <a href="http://www.dataprivacyframework.gov">www.dataprivacyframework.gov</a>.
Revisions to the Fee Schedule
ITA initially implemented a cost recovery program to support the
operation of the EU-U.S. Privacy Shield Framework and the Swiss-U.S.
Privacy Shield Frameworks (collectively, the Privacy Shield program)
and is revising that fee schedule to support the operation of the DPF
program. The cost recovery program will support the administration and
supervision of the DPF program and support services related to the DPF
program, including education and outreach. The revisions to the fee
schedule will become effective 30 days after the final fee schedule is
published.
The Cost Recovery Fee Schedule for the EU-U.S. Privacy Shield
Framework, published September 30, 2016 (81 FR 67293), describes the
fees implemented by ITA to cover the administration and supervision of
the EU-U.S. Privacy Shield Framework. The first amendment to the Cost
Recovery Fee Schedule for the EU-U.S. Privacy Shield Framework,
published April 4, 2017 (82 FR 16375), describes the additional fees
implemented by ITA to cover the administration and supervision of the
Swiss-U.S. Privacy Shield Framework. Under this revision to the fee
schedule, organizations that opt to self-certify only for the EU-U.S.
DPF, only the EU-U.S. DPF and the UK Extension to the EU-U.S. DPF, or
only the Swiss-U.S. DPF will pay a single fee when initially self-
certifying or re-certifying. Organizations that opt to self-certify for
an additional framework will pay an additional 50 percent of that
single fee when self-certifying or re-certifying for the additional
framework, reflecting the efficiency savings in administering the DPF
program for organizations that participate in multiple parts of the DPF
program. As organizations that wish to participate in the UK Extension
to the EU-U.S. DPF must participate in the EU-U.S. DPF, the annual fee
that such organizations are required to pay to ITA to participate in
the EU-U.S. DPF currently covers both the EU-U.S. DPF and the UK
Extension to the EU-U.S. DPF.
These efficiency savings are maximized if organizations self-
certify to multiple parts of the DPF program simultaneously, reducing
the required staff time and resources for reviewing materials.
In addition, organizations that participate in the EU-U.S. DPF and,
as applicable, the UK Extension to the EU-U.S. DPF and/or the Swiss-
U.S. DPF may adjust their annual re-certification due date by re-
certifying early (i.e., before the applicable due date) to the relevant
part(s) of the DPF program.
Although an organization may adjust its annual re-certification due
date by re-certifying early, the re-certification due date would apply
to all parts of the DPF program in which it participates (i.e., re-
certification to the relevant part(s) of the DPF program is
synchronized). For example, if an organization initially self-certified
exclusively to and was placed on the Data Privacy Framework List with
regard to the EU-U.S. DPF, and then several months later self-certified
to and was placed on the Data Privacy Framework List with regard to the
Swiss-U.S. DPF, the organization's next re-certification to both of
those parts of the DPF program would be due by the same date.
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Additionally, a fixed annual fee of $260 will be charged per
applicable framework for organizations that withdraw from the relevant
part(s) of the DPF program, retain personal data that they received in
reliance on their participation in the relevant part(s) of the DPF
program, continue to apply the Principles to such data, and affirm to
ITA on an annual basis their commitment to apply the Principles to such
data. This fee has been set to cover staff costs for reviewing the
``Post-Withdrawal, Annual Affirmation Questionnaire'', which must be
submitted by organizations that have chosen the aforementioned option
when withdrawing from the relevant part(s) of the program, as well as
the necessary website infrastructure to facilitate submission of the
proper documents. Additionally, this fee is set to be less than any
organization would be required to pay for re-certification. The fee
schedule is set forth below:
Revised Annual Fee Schedule for the DPF Program
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A single Both
Organization's annual revenue framework frameworks
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Post-withdrawal, annual affirmation fee. $260 $520
0 to 5 million.......................... 260 390
Over 5 million to 25 million............ 750 1,125
Over 25 million to 500 million.......... 1,600 2,400
Over 500 million to 5 billion........... 4,130 6,195
Over 5 billion.......................... 5,530 8,295
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For purposes of the annual fee schedule described above:
<bullet> ``A single framework'' could refer to any of the
following: only the EU-U.S. DPF; only the EU-U.S. DPF and the UK
Extension to the EU-U.S. DPF; or only the Swiss-U.S. DPF.
<bullet> ``Both frameworks'' could refer to any of the following:
the EU-U.S. DPF, the UK Extension to the EU-U.S. DPF, and the Swiss-
U.S. DPF; or only the EU-U.S. DPF and the Swiss-U.S. DPF.
Organizations will have additional direct costs associated with
participating in the DPF program. For example, organizations must
provide a readily available independent recourse mechanism to hear
individual complaints at no cost to the individual. Furthermore,
organizations are required to make contributions in connection with the
arbitral model, as described in Annex I to the Principles.
Method for Determining Fees
ITA collects, retains, and expends user fees pursuant to delegated
authority under the Mutual Educational and Cultural Exchange Act as
authorized in its annual appropriations acts. The EU-U.S. DPF, the UK
Extension to the EU-U.S. DPF, and the Swiss-U.S. DPF were developed to
facilitate transatlantic commerce by providing U.S. organizations with
reliable mechanisms for personal data transfers to the United States
from the EU/European Economic Area, UK, and Switzerland. The Data
Privacy Framework program operates in a way that provides strong
privacy protection as well as a more effective and efficient service to
participants at a lower cost than other options, including standard
contractual clauses or binding corporate rules.
Fees are set by taking into account the operational costs borne by
ITA to administer and supervise the Data Privacy Framework program. The
DPF program requires a significant commitment of resources and staff.
These costs include broad programmatic costs to run the program as well
as costs specific to EU-U.S. DPF, the UK Extension to the EU-U.S. DPF,
and the Swiss-U.S. DPF. The DPF program includes commitments from ITA
to:
<bullet> Maintain, upgrade, and update a DPF program website,
including maintaining the Data Privacy Framework List (i.e., the
authoritative list of U.S. organizations that have self-certified to
the DOC, as represented by ITA, and declared their commitment to adhere
to the Principles;
<bullet> Verify self-certification requirements submitted by
organizations to participate in the DPF program;
<bullet> Follow up with organizations that have been removed from
the Data Privacy Framework List and ensure, where applicable, that
questionnaires are correctly filed and processed;
<bullet> Search for and address false claims of participation;
<bullet> Conduct periodic compliance reviews and assessments of the
program;
<bullet> Provide information regarding the program to targeted
audiences;
<bullet> Increase cooperation with European data protection
authorities;
<bullet> Facilitate resolution of complaints about non-compliance;
<bullet> Hold periodic meetings with the European Commission, the
UK government, the Swiss government, and other authorities to review
the program; and
<bullet> Provide the EU, UK, and Switzerland with updates on laws
relevant to the DPF program.
In setting these revised DPF program fees, ITA determined that the
services provided offer special benefits to an identifiable recipient
beyond those that accrue to the general public. ITA calculated the
actual cost of providing its services in order to provide a basis for
setting each fee. This actual cost incorporates direct and indirect
costs, including operations and maintenance, overhead, and charges for
the use of capital facilities. ITA also took into account additional
factors, including inflation, adequacy of cost recovery, affordability,
and costs associated with alternative options available to U.S.
organizations for the receipt of personal data from the EU, the UK, and
Switzerland. Furthermore, ITA considered the cost-savings and
efficiencies gained in staff hours through simultaneous review of self-
certifications for the EU-U.S. DPF, the UK Extension to the EU-U.S.
DPF, and the Swiss-U.S. DPF. This analysis balanced these cost savings
with projected expenses, including, but not limited to, website
development, further negotiations with the EU, the UK, and Switzerland,
periodic reviews, certification reviews, and facilitating complaint
resolutions.
ITA will continue to use the established five-tiered fee schedule
(see 82 FR 16375) that promoted participation of small organizations in
the Privacy Shield program, while amending the fees at each tier to
account for increased program administration costs. A multiple-tiered
fee schedule allows ITA to offer organizations with lower revenue a
lower fee. In setting the five tiers, ITA considered, in conjunction
with the factors mentioned above: (1) the Small Business
Administration's guidance on
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identifying small and medium enterprises (SMEs) in various industries
most likely to participate in the DPF program, such as computer
services, software and information services; (2) the likelihood that
small companies would be expected to receive less personal data and
thereby use fewer government resources; and (3) the likelihood that
companies with higher revenue would have more customers whose data they
process, which would use more government resources dedicated to
administering and overseeing the DPF program. For example, if a company
holds more data, it could reasonably produce more questions and
complaints from consumers and European data protection authorities
(DPAs). ITA has committed to facilitating the resolution of individual
complaints and to communicating with the FTC and the DPAs regarding
consumer complaints. Lastly, the fee increases between the tiers are
based in part on projected program costs and estimated participation
levels among companies within each tier.
As noted above, the revisions to the fee schedule recoups the costs
to ITA for operating and maintaining the DPF program. ITA has taken
into account the efficiencies and economies of scale experienced when
organizations participate in multiple Frameworks by providing a 50
percent discount off adding another framework program and requiring
organizations to synchronize their re-certifications. The added cost of
joining an additional framework program reflects the additional
expenses incurred, including, but not limited to, for communications
with DPAs and website infrastructure and development, as well as the
additional costs of cooperating and communicating separately with the
EU, UK, and Swiss representatives and governments.
The fee applied to organizations that withdraw from relevant
part(s) of the DPF program, but that maintain data, is meant to cover
the programmatic costs associated with ITA's processing of such
organizations' annual affirmation of commitment to continue to apply
the Principles to the personal data they received while participating
in the relevant part(s) of the DPF program. The flat fee is based on
the expectation that government resources required to process this
annual affirmation will be similar for all companies, regardless of
size.
Based on the information provided above, ITA believes that the
revised DPF program cost recovery fee schedule is consistent with the
objective of OMB Circular A-25 to ``promote efficient allocation of the
nation's resources by establishing charges for special benefits
provided to the recipient that are at least as great as the cost to the
U.S. Government of providing the special benefits . . .'' (OMB Circular
A-25(5)(b)). ITA is providing the public with the opportunity to
comment on the revisions to the fee schedule. ITA will then review all
comments and publish the final fee schedule 30 days before the final
fee schedule becomes effective. ITA administers and supervises the DPF
program, including maintaining and making publicly available the Data
Privacy Framework List, an authoritative list of U.S. organizations
that have self-certified to the DOC and declared their commitment to
adhere to the Principles pursuant to the EU-U.S. DPF and, as
applicable, the UK Extension to the EU-U.S. DPF, and/or the Swiss-U.S.
DPF.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (PRA), ITA
published proposed information collection as described in the EU-U.S.
DPF, the UK Extension to the EU-U.S. DPF, and the Swiss-U.S. DPF for
public notice and comment (88 FR 19067 and 88 FR 37509). The approved
OMB Control Number for that information collection is 0625-0280
(expires 07/31/2026). That approval allows ITA to collect information
from organizations in the United States, including information
concerning their annual revenue, to enable such organizations to self-
certify to the DOC. Such information collection is critical to ITA's
administration and supervision of the DPF program, including its
maintenance of the authoritative, public list of U.S. organizations
that have self-certified to the DOC and declared their commitment to
adhere to the Principles. The instant revisions to the DPF program cost
recovery fee schedule do not impose any new information collection
request (ICR) requirements or revise the current approved burden hours
and administrative costs associated with the self-certification process
under the approved OMB Control Number.
Dated: July 2, 2024.
Neema Guliani,
Deputy Assistant Secretary for Service, Industry & Analysis,
International Trade Administration, U.S. Department of Commerce.
[FR Doc. 2024-14983 Filed 7-8-24; 8:45 am]
BILLING CODE 3510-DR-P
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