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[Federal Register: September 15, 2003 (Volume 68, Number 178)]
[Proposed Rules]
[Page 54119-54122]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se03-30]
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DEPARTMENT OF STATE
22 CFR Part 98
RIN 1400-AB-69
[Public Notice 4467]
Intercountry Adoption--Preservation of Convention Records
AGENCY: Department of State.
ACTION: Proposed rule.
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SUMMARY: The Department of State (the Department) is proposing new
regulations to implement the records preservation requirements of the
1993 Hague Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption (the Convention) and the Intercountry
Adoption Act of 2000 (the IAA). The IAA requires that the Department
issue rules to govern the preservation of Convention records held by
the Department and the Department of Homeland Security (DHS). These
proposed rules require the Department and DHS to maintain Convention
records for 75 years.
DATES: Written or electronic comments must reach the Department on or
before November 14, 2003.
ADDRESSES: Commenters may send hard copy submissions or comments in
electronic format. Commenters sending only hard copies must send an
original and two copies referencing docket number State/AR-01/98 to:
U.S. Department of State, CA/OCS/PRI, Adoption Regulations Docket Room,
SA-29, 2201 C Street NW., Washington, DC 20520. Hard copy comments may
also be sent by overnight courier services to: U.S. Department of
State, CA/OCS/PRI, Adoption Regulations Docket Room, 2201 C Street NW.,
Washington DC 20520. Do not personally hand deliver comments to the
Department of State.
Comments referencing the docket number State/AR-01/98 may be
submitted electronically to adoptionregs@state.gov. Two hard copies of
the comments submitted electronically must be mailed under separate
cover as well. The electronic comments or the hard copy comments must
be received by the date noted above in the date section of this
proposed rule. Comments must be made in the text of the message or
submitted as a Word file avoiding the use of any form of encryption or
use of special characters. If you submit comments by hard copy rather
than electronically, include a disk with the submission if possible.
Hard copy submissions without an accompanying disk file, however, will
be accepted.
FOR FURTHER INFORMATION CONTACT: For further information on submitting
comments on the regulations, contact Anna Mary Coburn or Edward
Betancourt at 202-647-2826. Hearing- or speech-impaired persons may use
the Telecommunications Devices for the Deaf (TDD) by contacting the
Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION: As noted, comments may be submitted
electronically to: adoptionregs@state.gov. Public comments and
supporting materials are available for viewing at the Adoption
Regulations Docket Room. To review docket materials, members of the
public must make an appointment by calling Delilia Gibson-Martin at
202-647-2826. The public may copy a maximum of 100 pages at no charge.
Additional copies cost $0.25 a page. The Department of State will keep
the official record for this action in paper form. Accordingly, the
official administrative file is the
[[Page 54120]]
paper file maintained at the Adoption Regulations Docket Room, United
States Department of State. The Department of State's responses to
public comments, whether the comments are received in written or
electronic format, will be published in the Federal Register, and no
immediate responses will be provided. General information about
intercountry adoptions is available on the Department of State's Web
site at http://travel.state.gov/adopt.html. Background information
about the development of these regulations is provided at http://www.hagueregs.org
.
I. Legal Authority
The Hague Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. 105-51
(1998); 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)), 32 I.L.M. 1134
(1993); Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954.
II. Preservation of Convention Records
The Convention governs intercountry adoptions between countries
that are parties to the Convention. The IAA provides for U.S.
implementation of the Convention. The Convention's main purpose is to
establish safeguards to ensure that an intercountry adoption takes
place in the best interests of the child. The IAA's purpose is
primarily to ensure that adoptions between the United States and other
countries party to the Convention take place in accordance with the
Convention. Together, the Convention and the IAA seek to protect the
rights of children, birth families, and adoptive parents involved in
adoptions (or prospective adoptions) covered by the Convention. Another
purpose of the IAA is to improve the ability of the Federal government
to assist United States citizens seeking to adopt children from
Convention countries and residents of Convention countries seeking to
adopt children from the United States. More detailed information about
the Convention and the IAA may be found in the Supplementary
Information published in the proposed rules for part 96 of title 22 of
the Code of Federal Regulations (CFR), which are published today as
well in the Federal Register.
Both the Convention and the IAA contain specific provisions
requiring that competent authorities preserve records concerning a
child's intercountry adoption. The purpose of this proposed regulation
is to enable the Department and DHS (the successor agency to the
Immigration and Naturalization Service (INS)) to comply with the
Convention and the IAA requirements for the preservation of Convention
records. (The Secretary of DHS will assume certain functions vested in
the Attorney General and the INS by the IAA relating to the Immigration
and Naturalization Service's responsibilities, pursuant to the Homeland
Security Act of 2002, Public Law 107-296, Nov. 25, 2002, as amended by
section 105 of the Homeland Security Act Amendments of 2003. (See
Consolidated Appropriations Resolution, Public Law 108-7, Feb. 20,
2003)). This Preamble uses terms, such as the Secretary, the Department
of Homeland Security, Case Registry, Convention, Convention country,
adoption record, agency, person, and public body that are defined in
Sec. 96.2 of the proposed regulations for part 96 of title 22 of the
CFR, which as noted are also being published on the same day as this
proposed rule in the Federal Register. This proposed rule defines
Convention records, and carries forward for the convenience of the
public the same definition of Convention contained in the proposed
regulations for part 96.
Article 30 of the Convention generally requires that each
Convention country ensure that information concerning any child whose
adoption is subject to the Convention be preserved. The IAA mandates
that the Department issue regulations to comply with the Convention's
requirement that a child's records be preserved. Specifically, section
401(a) of the IAA requires that the Department, in consultation with
INS (now part of DHS), issue regulations that establish procedures and
requirements for the preservation of Convention records. As required by
the IAA, the Department has consulted with DHS to prepare this
regulation.
The term Convention record is defined in these proposed regulations
as including only records pertaining to adoptions under the Convention
that are generated or received by two Federal agencies--the Department
or DHS. The term Convention record does not include records generated
or received by adoption service providers or State public bodies. The
definition for Convention record in part 98 thus mirrors the IAA
definition for the same term.
The Convention also imposes an obligation for the preservation of
adoption records. The term adoption record, rather than the term
Convention record, is used to cover records generated or received by
agencies or persons or State public bodies. The term adoption record is
defined in Sec. 96.2 of the proposed regulations for part 96 of title
22 of the CFR. The proposed regulations on the preservation of adoption
records--that is, records held by non-Federal entities, including
agencies, persons, and State public bodies--are contained in the
proposed regulations for part 96 of title 22 of the CFR. The retention
of such records is not addressed by this proposed new rule for part 98.
Nor does this proposed regulation address access to adoption records.
State law will continue, entirely unaffected by part 98, to govern
access to adoption records held by agencies, persons, or public bodies
including State courts as provided for by section 401(c) of the IAA.\1\
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\1\ The report of the Senate Committee on Foreign Relations, S.
Rep. No. 106-276 (2000) at page 11 contains a statement with regard
to section 401(c) of the IAA that includes the following:
[T]he Committee does not intend this legislation to affect the
scope of access to adoption records under existing Federal or State
law. Under current law, Federal records that contain information
regarding intercountry adoptions are subject to Federal laws
regarding disclosure and access to information maintained by the
Federal Government (primarily the Privacy Act and the Freedom of
Information Act). Records regarding intercountry adoptions held by
States or in the files of adoption agencies are governed by any
State law that may apply to such records. * * * Under section 401,
Federal records will continue to be governed by applicable Federal
law, while non-Federal records, including records of adoption
proceedings conducted in the United States, will continue to be
governed by applicable State law. No State is required by this
provision to change its laws regarding access to, and disclosure of,
adoption records.
The report of the House Committee on International Relations,
H.R. Rep. No. 106-691(2000) at page 30, contains almost identical
language relating to section 401(c).
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As required by section 401(a) of the IAA, the proposed regulations
in part 98 address the preservation of Convention records generated or
received by the Department and DHS. The proposed regulations are not
required to, and do not, address access by birth parents, adoptive
parents, or adoptees to Convention records. Access to Convention
records retained by the Department or DHS will be controlled by Federal
law governing access to records held by Federal agencies, particularly
by the Freedom of Information of Act (5 U.S.C. 552 (1966)) and the
Privacy Act (5 U.S.C. 552(a) (1974)).
Because the Convention is not yet in force for the United States,
no records currently held by the Federal government pertain to a
Convention adoption. Once the Convention has entered into force for the
United States, there will be Convention records. A Convention record
will include DHS's ``A'' files and may include other records held by
the Department and DHS, including entries in the planned Case Registry.
[[Page 54121]]
The proposed rule adopts a minimum period of 75 years for the
preservation of Convention records. Promulgation of this rule will
further compliance with Article 30(1) of the Convention, which requires
that provision be made for the preservation of information about a
child's origin, including the identity of the child's parents and about
the child's medical history. While such information will primarily be
in the child's adoption record, some may also be in a child's
Convention record. The 75-year period is consistent with the current
record preservation period for records held by the Department and DHS
that are similar to Convention records. The preservation requirement
will extend to Convention records regarding three kinds of adoptions
covered by the Convention:
(1) Adoptions involving a child immigrating to the United States;
(2) Adoptions involving a child emigrating from the United States;
and
(3) Adoptions involving two other countries party to the
Convention.
A minimum period of 75 years was considered adequate to ensure the
availability of Convention records during the lifetime of the adopted
person, when matters for which the records may be needed are likely to
arise. At the same time, the 75-year period should ensure that the
costs and paperwork burden of retaining records are not incurred
unnecessarily by retaining them beyond their likely usefulness.
The 75-year period will begin to run (for all three kinds of
adoptions covered by the Convention) on the date that the first
document or entry specifically related to the adoption is included in
the Convention record. Additional subsequent entries to the record will
thus be subject to a slightly shorter retention period than the first
entry, but the difference is not likely to be significant in a typical
adoption case in which most of the records would be entered within the
first one or two years of the adoption.
This proposed rule will also create and reserve a new part 97 of
title 22 of the CFR. The Department anticipates using part 97 to
establish regulations governing adoptions under the Convention.
III. Regulatory Review
A. Regulatory Flexibility Act/Executive Order 13272: Small Business
The Department of State has reviewed this regulation, in accordance
with the Regulatory Flexibility Act, 5 U.S.C. 601-612, and, pursuant to
5 U.S.C. 605(b), certifies that it will not have a significant economic
impact on a substantial number of small entities. Executive Order 13272
therefore is inapplicable.
B. Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by 5 U.S.C. 804
for purposes of congressional review of agency rulemaking under the
Small Business Regulatory Enforcement Fairness Act of 1996, Public Law
104-121. The rule will not result in an annual effect on the economy of
$100 million or more, a major increase in costs or prices, or
significant adverse effects on competition, employment, investment,
productivity, or innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
C. The Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA),
Public Law 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires
agencies to prepare a statement, including cost-benefit and other
analyses, before proposing any rule that may result in an annual
expenditure of $100 million or more by State, local, or tribal
governments, or by the private sector. Section 4 of UFMA, 2 U.S.C.
1503, excludes legislation necessary for implementation of treaty
obligations. The IAA falls within this exclusion because it is the
implementing legislation for the Convention. In any event, this rule
will not result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any year. Moreover, because this rule will not
significantly or uniquely affect small governments, section 203 of the
UFMA, 2 U.S.C. 1533, does not require preparation of a small government
agency plan in connection with it.
D. Executive Order 13132: Federalism
A rule has federalism implications under Executive Order 13132 if
it has a substantial direct effect on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.
This regulation will not have such effects, and therefore does not have
sufficient federalism implications to require consultations or to
warrant the preparation of a federalism summary impact statement under
section 6 of Executive Order 13132.
E. Executive Order 12866: Regulatory Review
Under section 3(f) of Executive Order 12866, proposed regulations
that meet the definition of ``significant regulatory action'' generally
must be submitted to OMB for review. Section 3 of Executive Order 12866
exempts from this requirement ``rules that pertain to a military or
foreign affairs function of the United States, other than procurement
regulations and regulations involving the import or export of non-
defense articles and services.'' This rule, through which the
Department provides for the implementation of the Convention, directly
pertains to foreign affairs functions of the United States. Although
the Department does not consider this rule to be a ``significant
regulatory action'' within the meaning of the Executive Order 12866,
the Department has consulted with the INS (now part of DHS) during the
formulation of the rule. The rule was sent for review to OMB.
F. Executive Order 12988: Civil Justice Reform
The Department has reviewed these proposed regulations in light of
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
ambiguity, minimize litigation, establish clear legal standards, and
reduce burden. The Department has made every reasonable effort to
ensure compliance with the requirements in Executive Order 12988.
G. The Paperwork Reduction Act (PRA) of 1995
Under the PRA, 42 U.S.C. 3501 et seq., agencies are generally
required to submit to OMB for review and approval collection of
information requirements imposed on ``persons'' as defined in the PRA.
These regulations impose retention requirements only on the Department
of State and DHS, and do not impose any information collection
requirements on ``persons.'' Therefore, the requirements of the PRA do
not apply.
List of Subjects in 22 CFR Part 98
Adoption and foster care; International agreements; reporting and
record-keeping requirements.
Accordingly, the Department propses to add a new part 98 of title
22 of the CFR, chapter 1, subchapter J, to read as follows:
PART 98--INTERCOUNTRY ADOPTION/CONVENTION RECORD PRESERVATION
Sec.
98.1 Definitions
[[Page 54122]]
98.2 Preservation of Convention Records
Authority: Convention on Protection of Children and Co-operation
in Respect of Intercountry Adoption (done at The Hague, May 29,
1993), S. Treaty Doc. 105-51 (1998); 1870 U.N.T.S. 167 (Reg. No.
31922 (1993)); Intercountry Adoption Act of 2000, 42 U.S.C. 14901-
14954.
Sec. 98.1 Definitions.
As used in this part:
(a) Convention means the Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption, done at The Hague on
May 29, 1993.
(b) Convention record means any item, collection, or grouping of
information contained in an electronic or physical document, an
electronic collection of data (including the information contained in
the Case Registry), a photograph, an audio or video tape, or any other
information storage medium of any type whatever that contains
information about a specific past, current, or prospective adoption
covered by the Convention (regardless of whether the adoption was made
final) that has been generated or received by the Secretary or DHS.
Convention record includes a record, generated or received by the
Secretary or DHS, about a specific adoption case involving two
Convention countries other than the United States in connection with
which the Secretary or DHS performs a Central Authority function.
(c) Such other terms as are defined in 22 CFR 96.2 shall have the
meaning given to them therein.
Sec. 98.2 Preservation of Convention records.
Once the Convention has entered into force for the United States,
the Secretary and DHS will preserve, or require the preservation of,
Convention records generated or received by the Secretary or DHS in
connection with adoptions and placements for adoption covered by the
Convention for a period of not less than 75 years. For Convention
records involving a child who is immigrating to the United States and
Convention records involving a child who is emigrating from the United
States, the 75-year period shall start on the date that the Secretary
or DHS generates the first document or entry or receives the first
document in any Convention record related to the adoption of the child.
For an intercountry adoption or placement for adoption involving two
Convention countries other than the United States, the 75-year period
shall start on the date that the Secretary or DHS generates the first
document or entry or receives the first document for a Convention
record in connection with the performance of a Central Authority
function.
Dated: August 27, 2003.
Richard Armitage,
Deputy Secretary of State, Department of State.
[FR Doc. 03-22651 Filed 9-12-03; 8:45 am]
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