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H.R. 1895 (112th): Do Not Track Kids Act of 2011


The text of the bill below is as of May 13, 2011 (Introduced). The bill was not enacted into law.


I

112th CONGRESS

1st Session

H. R. 1895

IN THE HOUSE OF REPRESENTATIVES

May 13, 2011

(for himself and Mr. Barton of Texas) introduced the following bill; which was referred to the Committee on Energy and Commerce

A BILL

To amend the Children’s Online Privacy Protection Act of 1998 to extend, enhance, and revise the provisions relating to collection, use, and disclosure of personal information of children and to establish certain other protections for personal information of children and minors.

1.

Short title

This Act may be cited as the Do Not Track Kids Act of 2011.

2.

Findings

Congress finds the following:

(1)

Since the enactment of the Children’s Online Privacy Protection Act of 1998, the World Wide Web has changed dramatically, with the creation of tens of millions of websites, the proliferation of entirely new media platforms, and the emergence of a diverse ecosystem of services, devices, and applications that enable users to connect wirelessly within an online environment without being tethered to a desktop computer.

(2)

The explosive growth of the Internet ecosystem has unleashed a wide array of opportunities to learn, communicate, participate in civic life, access entertainment, and engage in commerce.

(3)

In addition to these significant benefits, the Internet also presents challenges, particularly with respect to the efforts of entities to track the online activities of children and minors and to collect, use, and disclose personal information about them, including their geolocation, for commercial purposes.

(4)

Children are increasingly spending time online. A Nielsen Online survey conducted in July 2009 found that time spent online for children ages 2 to 11 increased from about 7 hours to more than 11 hours per week, a jump of 63% over five years.

(5)

Children and teens are visiting numerous companies’ websites, and marketers are using multimedia games, online quizzes, and cellular phone applications to create ties to children and teens.

(6)

According to a study by the Wall Street Journal in 2010, websites directed to children and teens were more likely to use cookies and other tracking tools than sites directed to a general audience.

(7)

This study examined 50 popular websites for children and teens in the United States and found that these 50 sites placed 4,123 cookies, beacons, and other tracking tools on the test computer used for the study.

(8)

This is 30 percent greater than the number of such tracking tools that were placed on the test computer in a similar study of the 50 overall most popular websites in the United States, which are generally directed to adults.

(9)

Children and teens have become the focus of behavioral profiling and targeting, raising privacy concerns.

(10)

Eighty-five percent of parents say they are more concerned about online privacy than they were 5 years ago.

(11)

Seventy-two percent of parents say sexual predators are the main reason they are concerned about children revealing personal information online.

(12)

According to the Pew Research Center’s Internet and American Life Project, 31 percent of 12-year-olds in the United States were using social networking sites in 2006, with that figure growing to 38 percent by mid-2009.

(13)

Seventy-five percent of parents do not think social networking sites do a good job of protecting the online privacy of children.

(14)

Ninety-one percent of parents think search engines and social networking sites should not be permitted to share the physical location of children with other companies until parents give authorization.

(15)

Significant majorities, 88 percent of parents and 85 percent of teens, want online companies to require them to opt in before the companies use their personal information for marketing purposes.

(16)

Eighty-eight percent of parents would support a law that requires search engines and social networking sites to get users’ permission before using their personal information.

(17)

A Commonsense Media/Zogby poll found that 94 percent of parents and 94 percent of adults believe individuals should have the ability to request the deletion of all their personal information held by an online search engine, social networking site, or marketing company after a specific period of time.

3.

Online collection, use, and disclosure of personal information of children

(a)

Definitions

Section 1302 of the Children’s Online Privacy Protection Act of 1998 (15 U.S.C. 6501) is amended—

(1)

by amending paragraph (2) to read as follows:

(2)

Operator

The term operator

(A)

means any person who, for commercial purposes, in interstate or foreign commerce, operates or provides a website on the Internet, online service, online application, or mobile application and who collects or maintains personal information from or about users of such website, service, or application, or on whose behalf such information is collected or maintained, including any person offering products or services for sale through such website, service, or application; and

(B)

does not include any nonprofit entity that would otherwise be exempt from coverage under section 5 of the Federal Trade Commission Act (15 U.S.C. 45).

;

(2)

in paragraph (4)—

(A)

by amending subparagraph (A) to read as follows:

(A)

the release of personal information for any purpose, except where such information is provided to a person other than an operator who provides support for the internal operations of the website, online service, online application, or mobile application of the operator and does not disclose or use that information for any other purpose; and

; and

(B)

in subparagraph (B), by striking website or online service and inserting website, online service, online application, or mobile application;

(3)

in paragraph (8)—

(A)

by amending subparagraph (G) to read as follows:

(G)

information concerning a child or the parents of that child (including any unique or substantially unique identifier, such as a customer number) that an operator collects online from the child and combines with an identifier described in subparagraphs (A) through (G).

;

(B)

by redesignating subparagraphs (F) and (G) as subparagraphs (G) and (H), respectively; and

(C)

by inserting after subparagraph (E) the following new subparagraph:

(F)

information (including an Internet protocol address) that permits the identification of the computer of an individual, or any other device used by an individual to access the Internet or an online service, online application, or mobile application;

;

(4)

by striking paragraph (10) and redesignating paragraphs (11) and (12) as paragraphs (10) and (11), respectively; and

(5)

by adding at the end the following new paragraph:

(12)

Online, online service, online application, mobile application, directed to children

The terms online, online service, online application, mobile application, and directed to children shall have the meanings given them by the Commission by regulation. Not later than 1 year after the date of the enactment of the Do Not Track Kids Act of 2011, the Commission shall promulgate, under section 553 of title 5, United States Code, regulations that define such terms broadly enough so that they are not limited to current technology, consistent with the principles articulated by the Commission regarding the definition of the term Internet in its statement of basis and purpose on the final rule under this title promulgated on November 3, 1999 (64 Fed. Reg. 59891). The definition of the term online service in such regulations shall include broadband Internet access service (as defined in the Report and Order of the Federal Communications Commission relating to the matter of preserving the open Internet and broadband industry practices (FCC 10–201, adopted by the Commission on December 21, 2010)).

.

(b)

Online collection, use, and disclosure of personal information of children

Section 1303 of the Children’s Online Privacy Protection Act of 1998 (15 U.S.C. 6502) is amended—

(1)

by striking the heading and inserting the following: Online collection, use, and disclosure of personal information of children;

(2)

in subsection (a)—

(A)

by amending paragraph (1) to read as follows:

(1)

In general

It is unlawful for an operator of a website, online service, online application, or mobile application directed to children, or an operator having actual knowledge that it is collecting personal information from children, to collect personal information from a child in a manner that violates the regulations prescribed under subsection (b).

; and

(B)

in paragraph (2)—

(i)

by striking of such a website or online service; and

(ii)

by striking subsection (b)(1)(B)(iii) and inserting subsection (b)(1)(C)(iii); and

(3)

in subsection (b)—

(A)

by amending paragraph (1) to read as follows:

(1)

In general

Not later than 1 year after the date of the enactment of the Do Not Track Kids Act of 2011, the Commission shall promulgate, under section 553 of title 5, United States Code, regulations to require an operator of a website, online service, online application, or mobile application directed to children, or an operator having actual knowledge that it is collecting personal information from children—

(A)

to provide clear and conspicuous notice in clear and plain language of the types of personal information the operator collects, how the operator uses such information, whether the operator discloses such information, and the procedures or mechanisms the operator uses to ensure that personal information is not collected from children except in accordance with the regulations promulgated under this paragraph;

(B)

to obtain verifiable parental consent for the collection, use, or disclosure of personal information of a child;

(C)

to provide to a parent whose child has provided personal information to the operator, upon request by and proper identification of the parent—

(i)

a description of the specific types of personal information collected from the child by the operator;

(ii)

the opportunity at any time to refuse to permit the further use or maintenance in retrievable form, or future collection, by the operator of personal information collected from the child; and

(iii)

a means that is reasonable under the circumstances for the parent to obtain any personal information collected from the child, if such information is available to the operator at the time the parent makes the request;

(D)

not to condition participation in a game, or use of a website, service, or application, by a child on the provision by the child of more personal information than is reasonably required to participate in the game or use the website, service, or application; and

(E)

to establish and maintain reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children.

;

(B)

in the matter preceding subparagraph (A) of paragraph (2), by striking paragraph (1)(A)(ii) and inserting paragraph (1)(B); and

(C)

by amending paragraph (3) to read as follows:

(3)

Continuation of service

The regulations shall prohibit an operator from discontinuing service provided to a child on the basis of refusal by the parent of the child, under the regulations prescribed under paragraph (1)(C)(ii), to permit the further use or maintenance in retrievable form, or future collection, by the operator of personal information collected from the child, to the extent that the operator is capable of providing such service without such information.

.

(c)

Administration and applicability of Act

Section 1306 of the Children's Online Privacy Protection Act of 1998 (15 U.S.C. 6505) is amended—

(1)

in subsection (b)—

(A)

in paragraph (1), by striking , in the case of and all that follows and inserting the following: by the appropriate Federal banking agency with respect to any insured depository institution (as such terms are defined in section 3 of such Act (12 U.S.C. 1813));; and

(B)

by striking paragraph (2) and redesignating paragraphs (3) through (6) as paragraphs (2) through (5), respectively; and

(2)

by adding at the end the following new subsection:

(f)

Telecommunications carriers and cable operators

(1)

Enforcement by FTC

Notwithstanding section 5(a)(2) of the Federal Trade Commission Act (15 U.S.C. 45(a)(2)), compliance with the requirements imposed under this title shall be enforced by the Commission with respect to any telecommunications carrier (as defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153)).

(2)

Relationship to other law

To the extent that sections 222 and 631 of the Communications Act of 1934 (47 U.S.C. 222; 551) are inconsistent with this title, this title controls.

.

4.

Targeted marketing to children or minors

(a)

Acts prohibited

It is unlawful for an operator of a website, online service, online application, or mobile application directed to children or minors, or an operator having actual knowledge that it is collecting personal information from children or minors, to use, disclose to third parties, or compile personal information collected from children or minors, if the use, disclosure, or compilation is for targeted marketing purposes.

(b)

Regulations

Not later than 1 year after the date of the enactment of this Act, the Commission shall promulgate, under section 553 of title 5, United States Code, regulations to implement this section.

5.

Digital Marketing Bill of Rights for Teens and Fair Information Practices Principles

(a)

Acts prohibited

It is unlawful for an operator of a website, online service, online application, or mobile application directed to minors, or an operator having actual knowledge that it is collecting personal information from minors, to collect personal information from minors unless such operator has adopted and implemented a Digital Marketing Bill of Rights for Teens that—

(1)

is consistent with the Fair Information Practices Principles described in subsection (b); and

(2)

balances the ability of minors to participate fully in the digital media culture with the governmental and industry obligation to ensure that operators of websites, online services, online applications, and mobile applications do not subject minors to unfair and deceptive surveillance, data collection, or behavioral profiling.

(b)

Fair Information Practices Principles

The Fair Information Practices Principles described in this subsection are the following:

(1)

Collection Limitation Principle

There should be limits on the collection of personal information. Any such information should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the subject of the information.

(2)

Data Quality Principle

Personal information should be relevant to the purposes for which the information is to be used and, to the extent necessary for such purposes, should be accurate, complete, and kept up-to-date.

(3)

Purpose Specification Principle

The purposes for which personal information is collected should be specified not later than at the time of the collection of the information. The subsequent use of the information should be limited to the fulfilment of—

(A)

the purposes originally specified; or

(B)

other purposes that are—

(i)

compatible with such originally specified purposes; and

(ii)

specified in a notice to the subject of the information before the information is used for such other purposes.

(4)

Use Limitation Principle

Personal information should not be disclosed, made available, or otherwise used for purposes other than those specified in accordance with the purpose limitation principle described in paragraph (3), except—

(A)

with the consent of the subject of the information; or

(B)

under specific legal authority.

(5)

Security Safeguards Principle

Personal information should be protected by reasonable security safeguards against risks such as loss or unauthorized access, destruction, use, modification, or disclosure.

(6)

Openness Principle

The operator should maintain a general policy of openness about developments, practices, and policies with respect to personal information. The operator should provide each user of the website, online service, online application, or mobile application of the operator with a means of readily ascertaining—

(A)

whether the operator possesses any personal information of such user, the nature of any such information, and the purposes for which the information was obtained and is being retained;

(B)

the identity of the operator; and

(C)

the address of—

(i)

in the case of an operator who is an individual, the principal residence of the operator; or

(ii)

in the case of any other operator, the principal place of business of the operator.

(7)

Individual Participation Principle

An individual should have the right—

(A)

to obtain any personal information of the individual that is in the possession of the operator from the operator, or from a person specified by the operator, within a reasonable time after making a request, at a charge (if any) that is not excessive, in a reasonable manner, and in a form that is readily intelligible to the individual;

(B)

to be given by the operator, or person specified by the operator—

(i)

reasons for any denial of a request under subparagraph (A); and

(ii)

an opportunity to challenge such denial;

(C)

to challenge the accuracy of personal information of the individual that is in the possession of the operator; and

(D)

if the individual establishes the inaccuracy of personal information in a challenge under subparagraph (C), to have the information erased, corrected, completed, or otherwise amended.

(c)

Regulations

Not later than 1 year after the date of the enactment of this Act, the Commission shall promulgate, under section 553 of title 5, United States Code, regulations to implement this section.

6.

Online collection of geolocation information of children and minors

(a)

Acts prohibited

(1)

In general

It is unlawful for an operator of a website, online service, online application, or mobile application directed to children or minors, or an operator having actual knowledge that it is collecting geolocation information from children or minors, to collect geolocation information from a child or minor in a manner that violates the regulations prescribed under subsection (b).

(2)

Disclosure to parent or minor protected

Notwithstanding paragraph (1), neither an operator nor the operator’s agent shall be held to be liable under any Federal or State law for any disclosure made in good faith and following reasonable procedures in responding to a request for disclosure of geolocation information under subparagraph (C)(ii)(III) or (D)(ii)(III) of subsection (b)(1).

(b)

Regulations

(1)

In general

Not later than 1 year after the date of the enactment of this Act, the Commission shall promulgate, under section 553 of title 5, United States Code, regulations that require an operator of a website, online service, online application, or mobile application directed to children or minors, or an operator having actual knowledge that it is collecting geolocation information from children or minors—

(A)

to provide clear and conspicuous notice in clear and plain language of any geolocation information the operator collects, how the operator uses such information, and whether the operator discloses such information;

(B)

to establish procedures or mechanisms to ensure that geolocation information is not collected from children or minors except in accordance with regulations promulgated under this paragraph;

(C)

in the case of collection of geolocation information from a child—

(i)

prior to collecting such information, to obtain verifiable parental consent; and

(ii)

after collecting such information, to provide to the parent of the child, upon request by and proper identification of the parent—

(I)

a description of the geolocation information collected from the child by the operator;

(II)

the opportunity at any time to refuse to permit the further use or maintenance in retrievable form, or future collection, by the operator of geolocation information from the child; and

(III)

a means that is reasonable under the circumstances for the parent to obtain any geolocation information collected from the child, if such information is available to the operator at the time the parent makes the request; and

(D)

in the case of collection of geolocation information from a minor—

(i)

prior to collecting such information, to obtain express authorization from such minor; and

(ii)

after collecting such information, to provide to the minor, upon request—

(I)

a description of the geolocation information collected from the minor by the operator;

(II)

the opportunity at any time to refuse to permit the further use or maintenance in retrievable form, or future collection, by the operator of geolocation information from the minor; and

(III)

a means that is reasonable under the circumstances for the minor to obtain any geolocation information collected from the minor, if such information is available to the operator at the time the minor makes the request.

(2)

When consent or authorization not required

The regulations promulgated under paragraph (1) shall provide that verifiable parental consent under subparagraph (C)(i) of such paragraph or express authorization under subparagraph (D)(i) of such paragraph is not required when the collection of the geolocation information of a child or minor is necessary, to the extent permitted under other provisions of law, to provide information to law enforcement agencies or for an investigation on a matter related to public safety.

(3)

Continuation of service

The regulations promulgated under paragraph (1) shall prohibit an operator from discontinuing service provided to—

(A)

a child on the basis of refusal by the parent of the child, under subparagraph (C)(ii)(II) of such paragraph, to permit the further use or maintenance in retrievable form, or future online collection, of geolocation information from the child by the operator, to the extent that the operator is capable of providing such service without such information; or

(B)

a minor on the basis of refusal by the minor, under subparagraph (D)(ii)(II) of such paragraph, to permit the further use or maintenance in retrievable form, or future online collection, of geolocation information from the minor by the operator, to the extent that the operator is capable of providing such service without such information.

(c)

Inconsistent State law

No State or local government may impose any liability for commercial activities or actions by operators in interstate or foreign commerce in connection with an activity or action described in this section that is inconsistent with the treatment of those activities or actions under this section.

7.

Eraser buttons

(a)

Acts prohibited

It is unlawful for an operator of a website, online service, online application, or mobile application to make publicly available through the website, service, or application content that contains or displays personal information of children or minors in a manner that violates the regulations prescribed under subsection (b).

(b)

Regulations

(1)

In general

Not later than 1 year after the date of the enactment of this Act, the Commission shall promulgate, under section 553 of title 5, United States Code, regulations that require an operator—

(A)

to the extent technologically feasible, to implement mechanisms that permit users of the website, service, or application of the operator to erase or otherwise eliminate content that is publicly available through the website, service, or application and contains or displays personal information of children or minors; and

(B)

to take appropriate steps to make users aware of such mechanisms.

(2)

Exception

The regulations promulgated under paragraph (1) may not require an operator to erase or otherwise eliminate information that the operator is required to maintain under any other provision of Federal or State law.

8.

Enforcement and applicability

(a)

Enforcement by the Commission

(1)

In general

Except as otherwise provided, this Act shall be enforced by the Commission under the Federal Trade Commission Act (15 U.S.C. 41 et seq.).

(2)

Unfair or deceptive acts or practices

Subject to subsection (b), a violation of a regulation prescribed under section 4(b), 5(c), 6(b), or 7(b) shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).

(3)

Actions by the Commission

Subject to subsection (b), the Commission shall prevent any person from violating a rule of the Commission under section 4(b), 5(c), 6(b), or 7(b) in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act. Any person who violates such rule shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act.

(b)

Enforcement by certain other agencies

Notwithstanding subsection (a), compliance with the requirements imposed under this Act shall be enforced as follows:

(1)

Under section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818) by the appropriate Federal banking agency, with respect to an insured depository institution (as such terms are defined in section 3 of such Act (12 U.S.C. 1813)).

(2)

Under the Federal Credit Union Act (12 U.S.C. 1751 et seq.) by the National Credit Union Administration Board, with respect to any Federal credit union.

(3)

Under part A of subtitle VII of title 49, United States Code, by the Secretary of Transportation, with respect to any air carrier or foreign air carrier subject to such part.

(4)

Under the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.) (except as provided in section 406 of such Act (7 U.S.C. 226; 227)) by the Secretary of Agriculture, with respect to any activities subject to such Act.

(5)

Under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) by the Farm Credit Administration, with respect to any Federal land bank, Federal land bank association, Federal intermediate credit bank, or production credit association.

(c)

Enforcement by State attorneys general

(1)

In General

(A)

Civil actions

In any case in which the attorney general of a State has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by the engagement of any person in a practice that violates any regulation of the Commission prescribed under section 4(b), 5(c), 6(b), or 7(b), the State, as parens patriae, may bring a civil action on behalf of the residents of the State in a district court of the United States of appropriate jurisdiction to—

(i)

enjoin that practice;

(ii)

enforce compliance with the regulation;

(iii)

obtain damage, restitution, or other compensation on behalf of residents of the State; or

(iv)

obtain such other relief as the court may consider to be appropriate.

(B)

Notice

(i)

In general

Before filing an action under subparagraph (A), the attorney general of the State involved shall provide to the Commission—

(I)

written notice of that action; and

(II)

a copy of the complaint for that action.

(ii)

Exemption

(I)

In general

Clause (i) shall not apply with respect to the filing of an action by an attorney general of a State under this paragraph, if the attorney general determines that it is not feasible to provide the notice described in that clause before the filing of the action.

(II)

Notification

In an action described in subclause (I), the attorney general of a State shall provide notice and a copy of the complaint to the Commission at the same time as the attorney general files the action.

(2)

Intervention

(A)

In general

On receiving notice under paragraph (1)(B), the Commission shall have the right to intervene in the action that is the subject of the notice.

(B)

Effect of intervention

If the Commission intervenes in an action under paragraph (1), it shall have the right—

(i)

to be heard with respect to any matter that arises in that action; and

(ii)

to file a petition for appeal.

(3)

Construction

For purposes of bringing any civil action under paragraph (1), nothing in this Act shall be construed to prevent an attorney general of a State from exercising the powers conferred on the attorney general by the laws of that State to—

(A)

conduct investigations;

(B)

administer oaths or affirmations; or

(C)

compel the attendance of witnesses or the production of documentary and other evidence.

(4)

Actions by the Commission

In any case in which an action is instituted by or on behalf of the Commission for violation of any regulation prescribed under section 4(b), 5(c), 6(b), or 7(b), no State may, during the pendency of that action, institute an action under paragraph (1) against any defendant named in the complaint in that action for violation of that regulation.

(5)

Venue; Service of Process

(A)

Venue

Any action brought under paragraph (1) may be brought in the district court of the United States that meets applicable requirements relating to venue under section 1391 of title 28, United States Code.

(B)

Service of process

In an action brought under paragraph (1), process may be served in any district in which the defendant—

(i)

is an inhabitant; or

(ii)

may be found.

(d)

Telecommunications carriers and cable operators

(1)

Enforcement by FTC

Notwithstanding section 5(a)(2) of the Federal Trade Commission Act (15 U.S.C. 45(a)(2)), compliance with the requirements imposed under this Act shall be enforced by the Commission with respect to any telecommunications carrier (as defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153)).

(2)

Relationship to other law

To the extent that sections 222 and 631 of the Communications Act of 1934 (47 U.S.C. 222; 551) are inconsistent with this Act, this Act controls.

9.

Definitions

(a)

In general

In this Act:

(1)

Minor

The term minor means an individual over the age of 12 and under the age of 18.

(2)

Targeted marketing

The term targeted marketing means advertising or other efforts to market a product or service that are directed to a specific individual or device—

(A)

based on the personal information of the individual or a unique identifier of the device; and

(B)

as a result of use by the individual, or access by the device, of a website, online service, online application, or mobile application.

(b)

Terms defined by Commission

In this Act, the terms directed to minors and geolocation information shall have the meanings given such terms by the Commission by regulation. Not later than 1 year after the date of the enactment of this Act, the Commission shall promulgate, under section 553 of title 5, United States Code, regulations that define such terms broadly enough so that they are not limited to current technology, consistent with the principles articulated by the Commission regarding the definition of the term Internet in its statement of basis and purpose on the final rule under the Children’s Online Privacy Protection Act of 1998 (15 U.S.C. 6501 et seq.) promulgated on November 3, 1999 (64 Fed. Reg. 59891).

(c)

Other definitions

The definitions set forth in section 1302 of the Children’s Online Privacy Protection Act of 1998 (15 U.S.C. 6501), as amended by section 3(a), shall apply in this Act.

10.

Effective dates

(a)

In general

Except as provided in subsections (b) and (c), this Act and the amendments made by this Act shall take effect on the date that is 1 year after the date of the enactment of this Act.

(b)

Authority To promulgate regulations

The following shall take effect on the date of the enactment of this Act:

(1)

The amendments made by subsections (a)(5) and (b)(3)(A) of section 3.

(2)

Sections 4(b), 5(c), 6(b), 7(b), and 9(b).

(c)

Digital Marketing Bill of Rights for Teens

Section 5, except for subsection (c) of such section, shall take effect on the date that is 180 days after the promulgation of regulations under such subsection.