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SUBSCRIBE The leading Copyright |
[Federal Register: September 15, 2003 (Volume 68, Number 178)]
[Proposed Rules]
[Page 54063-54119]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se03-29]
[[Page 54063]]
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Part II
Department of State
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22 CFR Parts 96 and 98
Hague Convention on Intercountry Adoption; Intercountry Adoption Act of
2000; Accreditation of Agencies; Approval of Persons; Preservation of
Convention Records; Proposed Rules
[[Page 54064]]
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DEPARTMENT OF STATE
22 CFR Part 96
[Public Notice 4466]
RIN 1400-AA-88
Hague Convention on Intercountry Adoption; Intercountry Adoption
Act of 2000; Accreditation of Agencies; Approval of Persons;
Preservation of Convention Records
AGENCY: Department of State.
ACTION: Proposed rule.
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SUMMARY: The Department of State (the Department) is proposing
regulations to implement 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
Convention and the IAA require that adoption service providers be
accredited or approved to provide adoption services for intercountry
adoptions involving two countries party to the Convention. These
proposed rules establish procedures that the Department will use to
designate accrediting entities for the purpose of evaluating agencies
and persons and determining if they may be granted accreditation or
approval. These proposed rules also contain procedures and standards to
accredit agencies and approve persons to provide adoption services in
Convention cases. These rules will ensure that, when the Convention
enters into force for the United States, there will be accredited
agencies and approved persons to provide adoption services for
Convention adoptions.
DATES: 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-01/96 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-01/96 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: Edward Betancourt or Anna Mary Coburn
at 202-647-2826 or Jessica Rosenbaum at 202-312-9717. 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 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 and the Department of
Homeland Security Web site at http://www.immigration.gov. Background
information about the development of these regulations is provided at
http://www.hagueregs.org.
Preamble Table of Contents
I. Legal Authority
II. Introduction
III. The 1993 Hague Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption
A. Development of the Hague Convention on Intercountry Adoption
B. U.S. Ratification of the Convention
C. Use of Private, Accredited Adoption Service Providers
D. Ability of U.S. Accredited Agencies and Approved Persons to
Operate in Other Convention Countries
E. Timing of Implementation
IV. The Intercountry Adoption Act of 2000 (IAA)
A. Passage of the IAA
B. Overview of Substantive Provisions
C. Distinction between ``Agency'' and ``Person''
D. Federalism Issues
E. Economic Impact/Effect on Small Entities
F. The IAA Exemptions to the Paperwork Reduction Act
V. The Proposed Implementing Regulations on Accreditation and
Approval
A. Public Input on the Proposed Regulations
B. The Department's Preparation of the Proposed Regulations
C. Overview of the Proposed Regulations
1. Subpart A--General Provisions
2. Subpart B--Selection, Designation, and Duties of Accrediting
Entities
3. Subpart C--Accreditation and Approval Requirements for the
Provision of Adoption Services
4. Subpart D--Application Procedures for Accreditation and
Approval
5. Subpart E--Evaluation of Applicants for Accreditation and
Approval
6. Subpart F--Standards for Convention Accreditation and
Approval
7. Subpart G--Decisions on Applications for Accreditation and
Approval
8. Subpart H--Renewal of Accreditation and Approval
9. Subpart I--Routine Oversight by Accrediting Entities
10. Subpart J--Oversight through Review of Complaints
11. Subpart K--Adverse Action by Accrediting Entities
12. Subpart L--Oversight of Accredited Agencies and Approved
Persons by the Secretary
13. Subpart M--Dissemination and Reporting of Information by
Accrediting
Entities
14. Subpart N--Procedures and Standards Relating to Temporary
Accreditation
VI. Regulatory Review
A. Regulatory Flexibility Act/Executive Order 13272: Small
Business
B. The Small Business Regulatory Enforcement Fairness Act of
1996
C. The Unfunded Mandates Reform Act of 1995
D. Executive Order 13132: Federalism
E. Executive Order 12866: Regulatory Review
F. Executive Order 12988: Civil Justice Reform
G. The Paperwork Reduction Act of 1995
H. The Treasury and General Government Appropriations Act of
1999--Assessment of Federal Regulations and Policies on Families
I. Legal Authority
The Hague Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption, May 29, 1993,
[[Page 54065]]
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. Introduction
Regulations to implement the 1993 Hague Convention on Protection of
Children and Co-operation in Respect of Intercountry Adoption (the
Convention) and the recently enacted Intercountry Adoption Act of 2000
(the IAA), Public Law 106-279, 42 U.S.C. 14901-14954 (herein referred
to as the IAA or Public Law 106-279), are being proposed for the first
time. These regulations will be added as part 96 of title 22 of the
Code of Federal Regulations (CFR). The purpose of these regulations is
to enable the United States to become a party to the Convention. The
Convention governs intercountry adoptions between countries that are
parties to the Convention (``Convention adoptions''). The IAA is the
U.S. implementing legislation for the Convention. Once the Convention
enters into force for the United States, all Convention adoptions must
comply with the Convention, the IAA, and these regulations.
These regulations address the accreditation of agencies (non-profit
adoption service providers) and the approval of persons (for-profit and
individual adoption service providers) to provide adoption services in
Convention cases. The regulations also set forth the process for
designating one or more accrediting entities to perform the
accreditation and approval functions, the procedures for conferring and
renewing accreditation and approval, the procedures for monitoring
compliance with accreditation or approval standards, the rules for
taking adverse action against accredited agencies and approved persons,
and the standards for accreditation and approval. The regulations also
address which agencies and persons are required to adhere to these
standards, and what adoption-related activities are exempted from the
accreditation and approval requirements. Finally, the regulations set
forth the procedures and requirements for temporary accreditation under
section 203(c) of the IAA. (Pub. L. 106-279, section 203(c)).
These regulations do not address how the Department and the
Department of Homeland Security (herein referred to as DHS until the
Department of Homeland Security identifies which DHS bureau will assume
the functions delegated to the Immigration and Naturalization Service
(INS) under the IAA will implement the provisions of the Convention and
the IAA that govern procedures for completing and recognizing
Convention adoptions. The regulations on intercountry adoption
procedures for Convention adoptions will become part 97 of title 22 of
the CFR and will be published at a later date. Also published in
today's Federal Register is the proposed rule for part 98 of title 22
of the CFR. Part 97 is reserved, and part 98 provides the proposed rule
on the Department and DHS's retention of Convention records.
The IAA designates the U.S. Department of State as the Central
Authority for the United States. The Secretary of State is designated
as the head of the Central Authority. For purposes of this Preamble,
the shorthand term ``the Department'' is generally used rather than the
Secretary of State or the Department of State. Certain Central
Authority functions are delegable outside of the Department and the
Federal government and will effectively be delegated either to the
accrediting entities or to the accredited agencies, temporarily
accredited agencies, or approved persons, as appropriate, pursuant to
these regulations. The IAA specifically provides that the Department
may ``authorize public or private entities to perform appropriate
central authority functions for which the [Department] is responsible,
pursuant to regulations or under agreements published in the Federal
Register.'' (Pub. L. 106-279, section 102(f)(1)).
As Central Authority, the Department will be responsible for:
Acting as liaison with other Central Authorities; assisting U.S.
citizens seeking to adopt children from abroad and to residents of
other Convention countries seeking to adopt children from the United
States; exchanging information; overseeing the accreditation and
approval of adoption service providers; monitoring and facilitating
individual cases involving U.S. citizens; and, jointly with the
Attorney General (presumably now the Secretary of Homeland Security),
establishing a Case Registry with information on intercountry adoptions
with Convention and non-Convention countries.
This Preamble is intended to facilitate understanding of the
background and purpose underlying the regulations. The Preamble should
not be considered a substitute for the text of the regulations
themselves. The Preamble is designed to provide an overview of the
proposed regulations; however, it will not become part of the final
regulations when they are published in the CFR. Accrediting entities,
as well as accredited agencies and approved persons, and those working
under the supervision and responsibility of accredited agencies and
approved persons, will be held responsible for compliance with the
regulations that apply to them.
III. The 1993 Hague Convention on Protection of Children and
Cooperation in Respect of Intercountry Adoption
A. Development of the Hague Convention on Intercountry Adoption
A copy of the Convention is available on the Hague Conference Web
site at http://www.hcch.net. The Convention is a multilateral treaty
developed under the auspices of the intergovernmental organization
known as the Hague Conference on Private International Law (Hague
Conference). The Convention provides a framework of safeguards for
protecting children and families involved in intercountry adoption,
while still being acceptable to, and capable of being implemented by,
diverse sending and receiving countries. This Convention is one of the
most widely embraced and broadly accepted conventions developed by the
Hague Conference.
The Convention is the first international instrument to recognize
that intercountry adoption could ``offer the advantage of a permanent
home to a child for whom a suitable family cannot be found in his or
her state of origin.'' (S. Treaty Doc. 105-51, at 1). Some countries
involved in the multilateral negotiations on the Convention sought to
prohibit intercountry adoptions even for those children eligible for
adoption for whom a permanent family placement in the child's country
of origin could not be arranged. On the other hand, proponents of
intercountry adoption at the Hague Conference believed that the best
interests of a child would not be served by arbitrarily prohibiting a
child in need of a permanent family placement from being matched with
an adoptive family simply because the family resided in another
country. The Convention reflects a consensus that an intercountry
adoption may well be in an individual child's best interests.
If a country becomes a party to the Convention, intercountry
adoptions--incoming and outgoing--with other party countries must
comply with the requirements of the Convention. The objectives of the
Convention are: First, to establish safeguards to ensure that
intercountry adoptions take place in the best interests of the child
and with respect for the child's fundamental rights as recognized in
international law; second, to establish a system of cooperation among
contracting states to ensure that those safeguards are
[[Page 54066]]
respected and thereby prevent the abduction, sale of, or traffic in
children; and third, to secure the recognition in contracting states of
adoptions made in accordance with the Convention. The Convention also
requires all parties to act expeditiously in the process of adoption.
The Convention's norms and principles apply whether the party country
is acting as a sending country or as a receiving country.
To accomplish its goals, the Convention makes a number of
significant modifications to current intercountry adoption practice,
including three particularly important changes. First, the Convention
mandates close coordination between the governments of contracting
countries through a Central Authority in each Convention country. In
its role as a coordinating body, the Central Authority is responsible
for sharing information about the laws of its own and other Convention
countries and monitoring individual cases. Second, the Convention
requires that each country involved make certain determinations before
an adoption may proceed. The sending country must determine in advance
that the child is eligible to be adopted, that it is in the child's
best interests to be adopted internationally, that the consent of birth
parents, institutions, or authorities that are necessary under the law
of the country of origin have been obtained freely and in writing, and
that the consent of the child, if required, has been obtained. The
sending country must also prepare a child background study that
includes the medical history of the child as well as other background
information.
Concurrently, the receiving country must determine in advance that
the prospective adoptive parent(s) are eligible and suited to adopt,
that they have received counseling, and that the child will be eligible
to enter and reside permanently in the receiving country. The receiving
country must also prepare a home study on the prospective adoptive
parent(s). These advance determinations and studies are designed to
ensure that the child is protected and that there are no obstacles to
completing the adoption.
B. U.S. Ratification of the Convention
The United States signed the Convention on March 31, 1994, with the
intent to ratify it in due course. On September 20, 2000, the Senate
gave its advice and consent to ratification. The Senate's advice and
consent to the Convention were subject to the following declaration:
``The President shall not deposit the instrument of ratification for
the Convention until such time as the Federal law implementing the
Convention is enacted and the United States is able to carry out all
the obligations of the Convention, as required by its implementing
legislation.'' (146 Cong. Rec. S8866 (daily ed. Sept. 20, 2000)). Thus,
the Convention will not actually come into force and govern
intercountry adoptions between the United States and other party
countries until the United States is able to carry out its obligations.
These regulations are essential in enabling the United States to meet
its Convention obligations.
The United States strongly supports the Convention's purposes and
principles and believes that U.S. ratification will further the
critical goal of protecting children and families involved in
intercountry adoptions. The United States is a major participant in
intercountry adoption, primarily as a receiving country but also as a
sending country. Many U.S. citizens adopt children eligible for
adoption from another country, and in those cases the United States is
acting as a receiving country. From October 1999 to September 2002, a
total of 59,079 children were issued orphan visas to immigrate to the
United States in connection with their adoption. As a sending country,
the United States also places children abroad for adoption. There are
no reliable statistics at the Federal level on the number of U.S.
children adopted annually by persons resident in a foreign country.
Advocates for ratification of the Convention argued that many
Convention countries would eventually refuse to permit intercountry
adoptions by U.S. citizens unless the United States ratified the
Convention (Hearing on the Convention and IAA Before the Senate Comm.
on Foreign Relations, 106th Cong. (October 5, 1999)). The Department in
fact has seen such developments. The Department wishes to complete
preparations for implementation as rapidly as possible to ensure that
U.S. families and the children they adopt have the advantage of the
Convention's protections and that U.S. prospective adoptive parent(s)
will be able to adopt children from Convention countries, particularly
if those countries prohibit adoptions vis-[agrave]-vis countries that
are not party to the Convention. The Department also wants to ensure
that U.S. children who are adopted by parents from other countries are
protected under the Convention and the IAA as well.
C. Use of Private, Accredited Adoption Service Providers
One particularly controversial issue that arose during Convention
negotiations was whether private adoption service providers would be
permitted to perform Central Authority functions. Some countries wanted
all parties to rely exclusively on public or governmental authorities
to perform Central Authority functions. Other countries, including the
United States, advocated for parties to have the option of using
private adoption service providers to complete Convention tasks. In the
United States, private, non-profit adoption service providers currently
handle the majority of U.S. intercountry adoption cases. In its final
form, the Convention permits party countries to choose to use private,
Convention-accredited adoption service providers to perform Central
Authority tasks. Specifically, Article 22 permits private, non-profit
adoption service providers instead of Central Authorities to complete
certain Central Authority functions required by the Convention. As
discussed below, however, private, for-profit providers may perform
such functions only as authorized under Article 22(2), which imposes
limitations that do not apply to private, non-profit providers.
By including a provision allowing non-governmental bodies to
provide adoption services, the Convention recognized the critical role
private bodies play--and historically have played--in the intercountry
adoption process. In the United States, for example, the number of
intercountry adoptions from 1989 to 2001 totaled 147,021, and private,
non-profit adoption service providers handled most of those adoptions.
Recognizing, also, the role of private, for-profit adoption service
providers in the United States, the Senate gave its advice and consent
to the ratification of the Convention subject to a declaration,
pursuant to Article 22(2) of the Convention, that U.S. Central
Authority functions under Articles 15 to 21 of the Convention may be
performed by approved private, for-profit adoption service providers.
(146 Cong. Rec. S8866 (daily ed. Sept. 20, 2000)).
Consistent with Article 22 of the Convention and the declaration
just discussed, the IAA establishes a system to accredit private non-
profit, and to approve for-profit, adoption service providers and
outlines specific standards the private providers must meet in order to
become accredited agencies (in the case of non-profits) or approved
persons (in the case of for-
[[Page 54067]]
profits and private individuals). The proposed regulations focus
exclusively on this essential process of accrediting agencies and
approving persons that wish to offer or provide adoption services in
Convention cases.\1\ These regulations contain detailed and
comprehensive standards intended to ensure that the United States
complies with the Convention, which requires that accredited agencies
and approved persons be directed and staffed by persons qualified by
their ethical standards and by training or experience to work in the
field of intercountry adoption, and be subject to supervision by
competent authorities of the Convention country as to their
composition, operation, and financial situation. Accredited agencies
and approved persons must also comply with the requirements of Article
32 of the Convention, which provides that no one shall derive improper
financial or other gain from activity related to an intercountry
adoption; only costs and expenses, including reasonable professional
fees of persons involved in the adoption, may be charged or paid; and
the key personnel of the agencies and persons involved in an adoption
shall not receive remuneration which is unreasonably high in relation
to services rendered. These proposed regulations reflect those
Convention requirements.
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\1\ The Convention uses the terms private accredited bodies and
bodies or persons to refer to adoption service providers. The IAA
uses the terms agency and person and accredited agency and approved
person to encompass such providers. The IAA terms--agency or person
and accredited agency or approved person--will be used from this
point forward in the Preamble and are defined in subpart A of part
96.
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D. Ability of U.S. Accredited Agencies and Approved Persons To Operate
in Other Convention Countries
Once accredited or approved, an agency or person may offer or
provide adoption services in the United States in Convention cases.
However, under Article 12 of the Convention, a private body accredited
in one Convention country may act in another Convention country only if
the competent authorities of both countries have authorized it to do
so. Thus, U.S. accredited agencies and approved persons are not
automatically entitled to operate in other Convention countries. In
practice, this means that even if a U.S. agency or person is accredited
or approved in the United States, another Convention country may choose
to work with only certain U.S. accredited agencies or approved persons.
Currently some Convention (and non-Convention) countries require
U.S. agencies and persons to be accredited under the laws and standards
of that Convention country. This practice may well continue. The
Department is hopeful that, to avoid duplicative accreditation
processes, and as permitted by Article 12 of the Convention, other
Convention countries will recognize the accreditation or approval
granted by the United States and permit U.S. accredited agencies and
approved persons to act inside the other Convention country without
requiring any further accreditation. The Department is mindful,
however, that some U.S. agencies or persons, especially those that work
in more than one Convention country, may well have to go through
several costly accreditation processes. One of the rationales for
drafting comprehensive, stringent standards for U.S. accreditation and
approval is to encourage other Convention countries to accept U. S.
accreditation or approval and not require further accreditation or
approval.
E. Timing of Implementation
In accordance with the U.S. Senate's conditions for ratification,
the Convention will not actually come into force for the United States
until the United States is able to meet its obligations under the
Convention and the U.S. instrument of ratification is deposited. Once
the instrument of ratification is deposited, the Convention will come
into force for the United States on the first day of the month
following the expiration of three months after the deposit (thus, after
a period of not less than three months and not more than four months).
Practically speaking, the United States must have accredited bodies
ready to provide adoption services before the Convention enters into
force for the United States. Thus, the regulations contemplate that the
accrediting entities will be able to use the standards in subpart F of
the regulations to begin accrediting agencies and approving persons
before the Convention enters into force for the United States. This
process of accrediting agencies or approving persons prior to the
actual entry into force of the Convention is necessary so that there
are agencies and persons legally permitted to provide adoption services
as of the date the Convention first enters into force for the United
States.
These regulations, therefore, will be effective prior to the date
the Convention comes into force for the United States to enable the
Department and its designated accrediting entities to perform the time-
consuming task of accrediting and approving private bodies. Certain
sections of these proposed regulations will not be operative, however,
until the Convention enters into force for the United States. The
proposed regulation by its own terms makes these sections effective
only after entry into force of the Convention. For example, the
provision that requires all agencies and persons to be accredited or
approved will become effective on the date that the Convention enters
into force. This approach is consistent with section 505(a)(2) of the
IAA, which provides that the IAA mandatory accreditation and approval
requirement take effect upon the entry into force of the Convention for
the United States. The Department will announce the entry into force
date for the Convention in the Federal Register. Until the Convention
enters into force for the United States, agencies and persons may
continue to provide adoption services without accreditation or
approval, even for adoptions involving other countries that are parties
to the Convention, if permitted by such Convention countries.
In summary, the steps taken prior to ratification of the Convention
are: (1) The Department, after publication of these proposed
regulations open to notice and comment, publishes the final
regulations; (2) The Department identifies and retains accrediting
entities; (3) The designated accrediting entities begin the process of
evaluating those agencies and persons that applied by the
``transitional application date'' (see Section C, Subpart D--
Application Procedures for Accreditation and Approval in this
Preamble); (4) The Department will set and announce a ``deadline for
initial accreditation and approval'' depending upon a number of
factors, including the number of agencies and persons that apply by the
transitional application date and the time the accrediting entities
require to evaluate these first applicants for accreditation and
approval; (5) The accrediting entities will send to the Department a
list of agencies and persons that have been accredited or approved by
the deadline for initial accreditation and approval; (6) The Department
will deposit the instrument of ratification and identify those agencies
and persons that are accredited or approved to provide adoption
services for Convention adoptions. The Convention does not come into
force for the United States until three to four months after the
instrument of ratification is deposited.
In addition, section 505(b)(1) and (2) of the IAA provides special
transition
[[Page 54068]]
rules for adoption cases that are pending when the Convention enters
into force for the United States. For immigrating children, the
Convention and the IAA will not apply where a petition regarding
adoption was filed with DHS before the Convention entered into force
for the United States. For emigrating children, the Convention and the
IAA do not apply if the prospective adoptive parent(s) have filed the
appropriate application to initiate the adoption process in their
country of residence before the Convention entered into force for the
United States. The regulations elaborating on these IAA transition
rules for Convention cases are not covered in this set of proposed
regulations on accreditation and approval. Rather, the regulations for
section 505(b)(1) and (2) of the IAA will be in part 97, which will
cover intercountry adoption procedures and will be proposed in a future
rulemaking.
IV. The Intercountry Adoption Act of 2000 (IAA)
A. Passage of the IAA
The IAA implements the Convention in the United States. In 2000,
Congress considered and passed the IAA during approximately the same
time period that the Senate was considering the Convention. The
President transmitted the Convention to the Senate for its advice and
consent on June 11, 1998. (S. Treaty Doc. 105-51 at III (1998)). The
treaty was read for the first time and then transferred to the Senate
Committee on Foreign Relations. To accompany the Convention, the
Department, with the involvement of the INS (now part of DHS) and the
Department of Health and Human Services (HHS), had drafted and
transmitted to both houses of Congress proposed implementing
legislation--entitled the Intercountry Adoption Act. That legislative
proposal was not introduced in Congress but influenced the implementing
legislation that was eventually introduced. On March 23, 1999, Senators
Helms and Landrieu and other co-sponsors introduced the Intercountry
Adoption Convention Implementation Act of 1999. (S. 682, 106th Cong.
1st Sess. (1999)). (A companion bill, identical to S. 682, was
introduced in the House by Congressman Burr (H.R. 2342, 106th Cong. 1st
Sess. (1999)). On September 22, 1999, Congressman Gilman, along with 36
co-sponsors, introduced the Intercountry Adoption Act of 1999. (H.R.
2909, 106th Cong. 1st Sess. (1999)). The Senate Foreign Relations
Committee held hearings on October 5, 1999, and also issued a committee
report on S. 682 (Report of the Senate Committee on Foreign Relations
on the Intercountry Adoption Act of 2000, 106th Cong. 2nd Sess., S.
Rep. No.106-276 (2000)). The House International Relations Committee
held hearings on H.R. 2909 on October 29, 1999, and also issued a
committee report. (Report of the House Committee on International
Relations on the Intercountry Adoption Act, 106th Cong. 2nd Sess., H.R.
Rep. No.106-691 (2000)).
S. 682/H.R. 2342 and H.R. 2909 differed in some major provisions.
In particular, S. 682 provided for the Department to have
responsibility for oversight of the accreditation and approval process.
In contrast, H.R. 2909 designated HHS as the Federal oversight agency,
as proposed by the Administration. Ultimately, the Department was given
the responsibility for establishing and overseeing the accreditation
and approval process. A consensus was reached on other controversial
issues and H.R. 2909, as amended, was passed by both the House and the
Senate. It was signed by the President on October 6, 2000, and became
Public Law No. 106-279.
B. Overview of Substantive Provisions
The IAA's purposes reflect and complement those of the Convention.
They are: To protect the rights of, and prevent abuses against,
children, birth families, and adoptive parents involved in adoptions
(or prospective adoptions) subject to the Convention, and to ensure
that such an adoption is in a child's best interests; and to improve
the ability of the Federal government to assist U.S. citizens seeking
to adopt children from abroad and residents of other countries party to
the Convention seeking to adopt children from the United States. To
accomplish these goals, the IAA provisions: (1) Set forth minimum
standards and requirements for accreditation and approval; (2) make
substantive changes to the Immigration and Nationality Act (INA) with
respect to Convention adoptions; (3) set requirements for completing
individual adoptions; and (4) confer specific responsibilities on the
Department and other government entities for carrying out the mandates
of the Convention and the IAA.
The IAA designates the Department as the Central Authority for the
United States. As Central Authority, the Department has a number of
important programmatic responsibilities, including: Acting as liaison
with other Central Authorities; coordinating activities under the
Convention; monitoring and facilitating individual cases involving U.S.
citizens, where necessary; and establishing and managing a Case
Registry of intercountry adoptions. Some important functions related to
the Convention are also vested in the Department of Justice, DHS, and
State courts. The Secretary of Homeland Security 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). The Department expects
that the Attorney General will retain responsibility for enforcement of
the criminal and civil penalties imposed by section 404 of the IAA.
Once DHS has identified the specific bureau that will assume the
functions delegated to the Attorney General or the INS under the IAA,
the Department will provide that information.
Most relevant to these regulations, the IAA confers on the
Department the authority and responsibility for establishing and
overseeing a system for accrediting agencies and approving persons that
wish to provide adoption services in Convention cases. Consistent with
the Convention's acceptance of the use of private bodies, the IAA
authorizes the use of accredited agencies and approved persons to
complete certain case-specific Central Authority functions, rather than
relying exclusively on Federal or State entities. The IAA provides
detailed requirements for accreditation and approval. Rather than
mandating direct Federal accreditation of agencies and persons, the IAA
authorizes the Department to designate one or more accrediting entities
to accredit agencies and to approve persons that meet the requirements
for such entities set forth in these regulations.
The Convention and the IAA dramatically change the use of
accreditation in the adoption field. Traditionally, accreditation has
been a voluntary credentialing process used to encourage sound and
ethical practices. Under the IAA, accreditation or approval pursuant to
these regulations is now mandatory for agencies and persons that
provide certain adoption services in Convention cases.
To enforce this mandatory accreditation and approval requirement,
the IAA establishes civil and criminal penalties. (Pub. L. 106-279,
section 404). With limited exceptions set forth in section 201(b) of
the IAA and in subpart C of these regulations,
[[Page 54069]]
individuals or agencies that offer or provide adoption services in
connection with a Convention adoption without either (a) becoming
accredited or approved in accordance with these regulations, or (b)
acting under the supervision and responsibility of an accredited agency
or approved person are subject to civil money penalties of $50,000 for
the first violation and $100,000 for succeeding violations under
section 404(a) of the IAA. Under section 404(c), the knowing or willful
failure to become accredited or approved or to act under supervision
and responsibility, as required, carries a penalty of imprisonment for
not more than five years or fines of up to $250,000, or both. In
promulgating these regulations, the Department believes that it is
critical to alert all agencies and persons that the failure to obtain
accreditation or approval or to act under the supervision and
responsibility of an accredited agency or approved person could cause
the imposition of the IAA's severe civil or criminal penalties. Subpart
C of the regulations, which contains the rules on who must meet the
accreditation and approval requirements and incorporates the narrow
statutory exemptions from accreditation or approval, should be
consulted and carefully studied for guidance.
C. Distinction Between ``Agency'' and ``Person''
The Convention effectively differentiates between non-profit bodies
and for-profit entities and individuals. The Convention favors the use
of non-profit bodies, and Article 11 of the Convention requires that
``accredited'' bodies ``pursue only non-profit objectives''--a
requirement incorporated into these regulations by reference to non-
profit tax treatment under section 501(c)(3) of the Internal Revenue
Code or relevant State law. Notwithstanding this preference, the
Convention in Article 22 also permits other bodies and persons--herein
referred to as ``for-profits''--to provide Convention adoption
services. Persons (for-profit entities and individuals) must, however,
meet the requirements of Article 22(2) of the Convention, which are not
applicable to non-profit agencies. Article 22(2) requires persons to
have the integrity, professional competence, experience,
accountability, ethical standards, and training or experience to work
in the field of intercountry adoption. Moreover, Article 22(4) of the
Convention explicitly allows party states to declare that the adoption
of their children may take place only if the functions of Central
Authorities are performed by public authorities or accredited agencies
(effectively, for U.S. purposes, private non-profits) and not by
approved persons (effectively, for U.S. purposes, ``for-profits'').
These regulations reflect the Convention distinction by utilizing
different terms to describe non-profit agencies versus for-profit
entities and individuals. Under these regulations, agency means a
private, non-profit organization licensed to provide adoption services
in at least one State. It does not include individuals or for-profit
entities. Person means an individual or for-profit entity (including a
corporation, company, association, firm, partnership, society, or joint
stock company) providing adoption services--consistent with the
definition in section 3(14) of the IAA. To be consistent with the
Convention's requirement that only non-profit agencies be accredited,
the IAA provides for the accreditation solely of agencies and uses a
different term--approval--to describe the status of individuals and
for-profit entities. (See Pub. L. 106-279, section 203). Therefore,
under the IAA's rubric, agencies are eligible to seek accreditation
while persons (individuals and for-profit entities) are eligible only
to seek approval.
The Department has made every attempt within the given statutory
framework to ensure that persons adhere to the same requirements as
non-profit agencies. Thus, the standards in subpart F of part 96 (with
limited exceptions to recognize the special circumstances of private
individuals) apply both to agencies seeking accreditation and to
persons seeking approval. Sections 96.31 and 96.35 also contain
provisions unique to persons seeking approval. They mainly provide
standards tailored to the different corporate structures used by such
persons or contain more rigorous provisions than those applicable to
agencies in light of the additional Article 22(2) provisions on
professional competence that apply only to persons. Also, the
Convention allows only accredited agencies, not persons, to assume
responsibility for preparing a home study or a child background study.
The proposed rules, therefore, provide that, when an approved person or
a non-accredited agency, rather than an accredited agency, completes a
home study or child background study, it must have the home study or
child background study approved by an accredited agency. The approval
requirement is included so as to comply with Article 22(5) of the
Convention which requires that home studies and child background
studies be prepared under the responsibility of accredited agencies or
public authorities.
Although the IAA allows approved persons to provide adoption
services in Convention cases, some State laws do not. These regulations
are not intended to affect any State laws that may prohibit such
persons--either individuals or for-profit entities--from providing
adoption services in a particular State. If a State does not allow
persons (whether the prohibition is against individuals or for-profits
or both) to operate in a particular State, these regulations do not in
any way preempt such State law. The Department welcomes comments on the
interplay between State law and the IAA provision for approval of
persons. The Department's goal is to follow the IAA and allow persons
to be approved without preempting State laws that may prohibit
individuals or for-profit entities from providing adoption services in
a particular State.
Persons seeking approval should note that these regulations require
them to be licensed or otherwise authorized to provide adoption
services in at least one State. If in the future all States were to
prohibit for-profit entities from providing adoption services, then no
for-profits could become approved under these regulations. Similarly,
if in the future all States prohibited individuals from providing
adoption services, then no individuals could become approved under
these regulations.
According to Article 22(4) of the Convention, Convention countries
may declare that adoptions of children habitually resident in their
territory may take place only if the functions of the Central Authority
in the receiving country are performed by public authorities or by non-
profit accredited bodies. Thus, individual Convention countries may
refuse altogether to work with approved persons and may be willing to
work only with accredited agencies.
D. Federalism Issues
The Convention and the IAA for the first time require Federal
regulation of agencies and persons for purposes of intercountry
adoptions. Historically, State law alone regulated agencies and
persons. The IAA contains a specific provision disfavoring preemption
of State law unless State law provisions are inconsistent with the
Convention or the IAA. (Pub. L. 106-279, section 503(a)). The
Department throughout the regulations has been careful to defer to
State law, especially in the case of U.S. emigrating children whose
adoptions will continue to be covered mainly by
[[Page 54070]]
State law, even when not explicitly required by the IAA. In particular,
the regulations require agencies and persons to comply with any
applicable licensing and other laws and regulations in the States in
which they operate, and do not supplant existing State licensing and
other laws and regulations. For example, when a State requirement
exceeds a standard in subpart F of part 96, the agency or person must
also comply with the State requirement as necessary to ensure that it
maintains its State license. Similarly, when the IAA standard for
accreditation or approval is more stringent than a State requirement,
the agency or person must meet the IAA standard as well as the State
standard. Also, the regulations utilize State law definitions whenever
possible. For example, the regulations defer to State law to define
``best interests of the child'' instead of developing a Federal
definition that would replace existing State law definitions. Finally,
a number of the standards, such as those relating to internet use,
expressly require observance of State as well as Federal law.
The impact of the Convention and the IAA is clearest in cases of
U.S. children emigrating from the United States to a Convention country
in connection with their adoption. Previously, State law alone governed
cases of children emigrating for adoption, whereas there has been
Federal involvement (through the immigration laws) in incoming cases.
Now adoptions involving emigration to Convention countries must comply
with the procedures and safeguards of the Convention (such as those of
Convention Articles 4 and 17) and the IAA, which include requirements
that may not currently exist in State law. Under these regulations, the
burden of making the majority of the Convention and the IAA
determinations for emigrating children is unavoidably placed on State
courts. The Department assumes that these determinations generally will
be made in the context of adoption or placement proceedings that would
occur in any event, and that the States may charge fees to cover the
costs of these services. Nevertheless, the Department is sensitive
about imposing additional burdens on States; therefore, the regulations
do not call for State court action other than as strictly required to
permit an adoption under the Convention or the IAA. States that do not
wish to undertake even those minimal requirements may refrain from
permitting Convention adoptions or placements in their jurisdictions.
Also, throughout the preliminary input phase, State agencies were
asked to submit comments on the draft regulations and such input was
used in the drafting of the proposed regulations. The Department
welcomes comments from State and local agencies and tribal governments
on the proposed regulations and in particular seeks comment on the
standards covering cases in which a child is emigrating from the United
States in Sec. Sec. 96.53, 96.54, and 96.55 of subpart F.
E. Economic Impact/Effect on Small Entities
One of the most challenging issues facing the Department was how
comprehensive and stringent these standards should be, bearing in mind
the desirability of minimizing the cost and burden on agencies and
persons, especially on small entities. The Department throughout the
development of the proposed regulations considered the economic burden
of this completely new Federal level of regulation. Some groups called
for extensive Federal regulation of agencies and persons without
acknowledging the added costs such standards would entail. The
Department has sought to strike a balance--using the IAA statutory
standards as guidance--between the need to avoid costly over-regulation
of what traditionally has been an area regulated almost exclusively by
State law and the need to have comprehensive standards designed to
ensure that Convention and IAA requirements are met and to improve the
quality of services provided to birth families, adoptive families, and
children. The Department believes that the overall economic impact of
the proposed regulations has been minimized using this approach;
therefore, there is not sufficient impact to warrant preparation of a
regulatory impact analysis (RIA) under Executive Order 12866 or other
similar mandates. In particular, the Department has analyzed the
proposed regulations and concluded that they will not have an annual
effect on the economy of $100 million or more or adversely affect in
any material way the economy, jobs, productivity, the environment,
public safety, or health.
The Department arrived at this conclusion based on the information
provided from adoption service providers, accrediting entities, and
others in the adoption community during the preliminary consultation
process. The Department also relied on its statistics regarding the
number of intercountry adoptions per year and the number of
intercountry adoptions per year with other Convention countries. The
Department used the data on the number of intercountry adoptions for FY
2002, FY2001, and FY 2000. Using the information on the range of costs
of providing adoption services gathered during the consultative process
and the Department's data on the number of intercountry adoptions per
year, the Department was able to make some estimates about the current
economic status of the non-profit, adoption service provider sector of
the economy.
For FY October 2001 to September 2002, U.S. citizens adopted 21,378
children from other countries. For FY October 2000 to September 2001,
U.S. citizens adopted 19,224 children from other counties. For FY
October 1999 to September 2000, U.S. citizens adopted 18,477 children
from other countries. Thus, using this historical data, the Department
assumed that the typical number of intercountry adoptions per year is
20,000. The cost for intercountry adoption and related services to
parents may range from $20,000 to $30,000 per case. Assuming 20,000
intercountry adoption cases per year, the Department estimates that the
total expenditures for adoption services and related costs and the
total annual gross revenues for non-profit adoption service providers
could range from between $400 to $600 million per year (an estimate
that includes the costs of travel and accommodations as well as charges
imposed by the sending countries on the adoptive parents). The total
costs of providing adoption services could vary from year to year
depending upon the number of intercountry adoptions as well as other
factors. However, even if the Department uses adoption services cost
estimates that include travel and local services, the current total
size for the non-profit sector to be regulated is small--that is,
between $400 to $600 million.
Additionally, in intercountry adoption cases, a significant portion
of the reported costs of providing services in a particular adoption
case may include the costs of travel and accommodations for the parents
and child during the adoption process as well as local costs imposed by
the sending country. These costs are incurred directly by the adoptive
parents or are charged by the adoption service provider as fees and
passed on to the public or other entities in the sending country. The
cost of providing intercountry adoption services, excluding the cost of
travel and accommodations and the costs of local services, varies
widely depending on the provider as well as the country of origin for
the child. The travel and local services costs are unlikely to be
affected by the implementation of this proposed
[[Page 54071]]
rule. The Department estimates that the cost of providing intercountry
adoption services, excluding travel and local services costs, may be
from 25% to 80% lower than the estimated range of $20,000 to $30,000
per adoption case. If it is assumed that the costs would be 25% less
than the estimated range, then the costs of providing adoption services
may range from between $15,000 to $22,500 per adoption case. If it is
assumed that the costs would be 80% less than the estimated range, then
the costs of providing adoption services may range from $4,000 to
$6,000 per adoption case. It is this segment of adoption services costs
(which excludes travel and local in-country services costs) that is
most likely to be affected by the proposed rule. Thus, the total size
of the non-profit sector to be regulated, rather than ranging from $400
to $600 million, may be viewed as ranging from $80 million to $450
million.
At least initially, the number of agencies and persons affected by
the proposed rule is likely to be small because the current number of
cases subject to the Convention is small. Currently, most intercountry
adoptions to the United States are from non-Convention countries. For
example, for FY 2002, the number of cases with Convention countries was
1,433; for FY 2001, the number of cases with Convention countries was
1,680; for FY 2000, the number of cases with Convention countries was
2,025. (The number of intercountry adoption cases from Convention
countries to the United States to date has changed from year to year
for a variety of reasons, including because new countries ratify or
accede to the Convention, or sometimes a Convention country declares a
moratorium on intercountry adoptions.) In future years, any increase in
the cost of the rule may be incremental, as new countries join the
Convention and agencies and persons that assist with adoptions in those
countries are required to come into compliance.
Using the data on the number of adoptions from Convention
countries, the Department notes as follows: For FY 2002, the percentage
of Convention cases out of a total of 21,378 was 6.7%; for FY 2001, the
percentage of Convention cases out of a total of 19,224 was 8.7%; for
FY 2000, the percentage of Convention cases out of a total of 18,477
was 11.0%. It is only those agencies and persons who will be providing
adoption services in cases where the other country is a party to the
Convention that will have to comply immediately with the requirement to
become accredited or approved. Therefore, intercountry adoptions with
countries party to the Convention account for adoption services costs
in the range of $28.6 million to $43.0 million when estimated travel/
accommodations and local services costs are included in the cost of
providing adoption services in a case. Similarly, intercountry
adoptions with countries party to the Convention account for adoption
services revenues in the range of $5.7 million to $32.3 million when
estimated travel/accommodations and local services costs are excluded.
Under this analysis, the Department's estimates show that the total
costs for adoption services provided (which could range from $5.7
million to $43.0 million) in the number of cases immediately subject to
the proposed rule is very likely to be less than the $100 million
Executive Order 12866 threshold.
Furthermore, the Department expects the total cost burden of the
rule to be substantially less than the current total estimated cost of
providing adoption services regardless of which analysis is used to
calculate the total yearly costs associated with providing adoption
services. During the consultation process thus far, the Department has
not received any information that would indicate that the cost to the
adoption community of compliance with the proposed regulations would be
near the current cost of providing adoption services. Rather, all
indications are that the cost to comply will be a fraction increase in
the current cost of providing adoption services. Therefore, the
Department considers the total cost of adoptions to be a reasonable
upper limit on the possible cost of the proposed rule. The Department,
however, requests comments on its cost estimates and in particular
requests that commenters address the following questions: (1) How many
agencies are likely to seek full accreditation in accordance with
subpart F rather than temporary accreditation under subpart N? (2) What
are accrediting entities likely to charge the agencies and persons for
the accreditation and approval process? (3) Is the estimated cost of
providing adoption services(estimated to range from $20,000 to $30,000)
in a particular case a current reasonable estimate? (4) What proportion
of the costs of rendering adoption services are pass-through costs
forwarded to foreign entities providing local services in the sending
country? (5) What proportion of the costs for adoption services in a
particular case is for the costs of travel and accommodations? (6) How
many persons (for-profits and individuals) plan to seek approval? (7)
What are the estimated costs agencies and persons will have to expend
to comply with the standards in subpart F? Specifically, commenters
should provide information on the costs of obtaining insurance coverage
as required by the standards in Sec. 96.45 and Sec. 96.46; the costs
of retaining personnel that meet the professional and educational
requirements in Sec. 96.37; and the costs of providing the mandatory
training to prospective adoptive parent(s) in Sec. 96.48. Comments or
concerns about the cost impact of any other standard in subpart F or
subpart N are welcome. It would be helpful if commenters supply
information and data to support any comments on these enumerated
issues.
The Department also considered the potential impact of these
regulations on small entities, as required by the Regulatory
Flexibility Act and Executive Order 13272. The Department has sought to
ensure that the standards do not unnecessarily or adversely affect the
currently sound practices of small agencies and persons, especially
since almost all of the agencies and persons covered would meet a Small
Business Administration (SBA) definition of a small entity for this
type of non-profit service provider. Concerns about minimizing any
increases in the cost of intercountry adoption and any unnecessary
adverse impact of these regulations on small entities were of utmost
importance in the Department's decision-making process, and great care
was taken to address these concerns while still seeking to ensure
compliance with the Convention and the IAA mandate for comprehensive
regulation of adoption service providers. To minimize the impact on
small entities, the Department developed regulations that are
performance-based accreditation standards (see subpart F) as opposed to
design-oriented, licensing criteria. Consistent with the IAA, the
regulations also provide a special tiering set-up and a different
implementation timetable for small agencies by allowing for a temporary
accreditation process (see subpart N). Also, again consistent with the
IAA, the regulations contain exemptions for small providers, such as
home study preparers, and permit agencies and persons to act as
supervised providers rather than requiring them to complete the full
accreditation or approval process (see subpart C).
The Department is cognizant that the cost of providing adoption
services is closely related to the level and type of regulation. The
Department is aware that ultimately the costs of accreditation and
approval will be passed on to
[[Page 54072]]
adoptive parents and may increase the cost of providing services in
each individual adoption. Moreover, the Department also weighed the
difficulties for families of absorbing additional costs for adoption
services against the requests, often from adoptive families, for better
services and more public information about agencies and persons, so
that families could compare providers before selecting an adoption
service provider. The Department also took into consideration the
relevant assistance available to families, such as the Federal adoption
tax credit, to offset increased costs of services. Therefore, the
Department sought at all times to strike the appropriate balance among
competing objectives. The Department understands, however, that
revision of these standards may be necessary after further public
comment and particularly welcomes comment on the effect of these
regulations on both non-profit and for-profit small entities. The
Department requests that agencies or persons who submit such proposals
provide information on their size, non-profit or for-profit status, and
identify what specific standards should be added, modified, or deleted,
and include justifications for any such suggestions.
F. The IAA Exemptions to the Paperwork Reduction Act
Pursuant to 44 U.S.C. 3506(c), 3507, and 3512, which were enacted
by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13,
agencies normally are required to submit to OMB for review and approval
new ``collections of information,'' including any collections of
information inherent in a final rule. Information collections under the
PRA are defined, in 44 U.S.C. 3502(3), to include ``obtaining, causing
to be obtained, soliciting, or requiring the disclosure to third
parties or the public, of facts or opinions by or for an agency,
regardless of form or format, calling for * * * answers to identical
questions posed to, or identical reporting or recordkeeping
requirements imposed on, ten or more persons.'' OMB has interpreted
this definition to include information collections regardless of
whether they are ``mandatory, voluntary, or required to obtain or
retain a benefit.'' (5 CFR 1320.3(c)).
Section 503(c) of the IAA specifically exempts sections 104,
202(b)(4), and 303(d) of the IAA from these PRA requirements. (Pub. L.
106-279, section 503(c)). Given these statutory exemptions to the PRA,
the Department has determined that the collections of information in
this proposed rule are exempt from PRA requirements, with the exception
of the collections in Sec. Sec. 96.91 and 96.92 of subpart M, which
are discussed in the PRA analysis in the Regulatory Review portion of
the Preamble (Part VI, Section G).
The implications of the PRA exemptions in section 503(c) of the IAA
are that, with respect to the exempted information collections, the
Department is not required to follow the procedures established by 44
U.S.C. 3506(c) for reviewing information collections, allowing public
comment on them, and then certifying that they meet the requirements
set forth in that section. In addition, the exemption from 44 U.S.C.
3507 means that the Department may sponsor the exempted collections of
information without complying with 44 U.S.C. 3506, and that the
Department is not required to obtain a control number from OMB
indicating its approval of the collections. Nor are the exempted
information collections subject to the three-year validity period
limitation imposed by 44 U.S.C. 3507(g), after which covered
information collections must be revalidated. Finally, the exemption
from 44 U.S.C 3512 means that the Department may require compliance
with the exempted information collections, and may impose penalties for
failing to comply, even though the collections will not display an OMB
control number. Consistent with the IAA's accreditation and approval
scheme, the consequences of failing to provide or retain information,
or of otherwise failing to comply with the requirements of an exempted
information collection, will be felt through the accreditation and
approval process itself (including, when appropriate, through denial of
accreditation or approval or the imposition of adverse actions which
can result in loss of accreditation or approval).
The IAA exemptions from the PRA were sought by the Department
because of concerns that application of the normal PRA requirements
would have been largely inconsistent or incompatible with the
accreditation/approval and oversight framework established by the IAA.
First, the IAA mandates a number of reporting requirements, some of
which are driven by the need to ensure U.S. compliance with the
Convention. Without an exemption, the PRA and its three-year limitation
on collections of information would have interposed a periodic
justification process that would have been unnecessary in view of the
IAA's permanent and very specific statutory reporting requirements and
that could have impeded collection of information necessary to meet our
Convention obligations.
Second, the IAA leaves much of the responsibility for accreditation
and approval to the private sector and adopts a private sector model
for accreditation/approval that is fundamentally inconsistent with the
information collection controls imposed by the PRA. An accreditation
process by its nature requires the preparation and presentation of
documentation to an accrediting entity to demonstrate qualifications.
This process alone typically takes a year or more in existing
accreditation contexts. Monitoring by an accrediting entity once
accreditation or approval is granted, to determine whether
accreditation or approval can be maintained, similarly requires the
retention and sometimes the preparation of records for inspection by an
accrediting entity. Consistent with an accreditation model, and with
the decision to rely heavily on the private sector to implement the
Convention in the United States, the IAA requires adoption services
providers to be accredited or approved by a private, non-profit
accrediting entity (or if so designated as an accrediting entity, by a
State public body). The IAA, however, also ensures appropriate Federal
oversight and compliance with the Convention by requiring any
accrediting entity to act pursuant to regulations, including
accreditation/approval standards, promulgated by the Department. As in
other accreditation contexts, the IAA clearly contemplates an extended
start-up period in which providers demonstrate to any one of the
designated accrediting entities that they meet the standards for
accreditation/approval. The IAA also specifically provides that the
accreditation/approval period will be three-to five-years, and that
there will be continuous monitoring of accredited agencies and approved
persons by an accrediting entity in light of the standards during their
period of accreditation or approval.
Imposition of the PRA requirements on this process could have
burdened it to the point where it could not function. It would be
difficult to adapt the PRA process in a meaningful way to the IAA's
accreditation/approval process, which fundamentally involves the
ongoing measurement of performance against standards through document
review. The PRA's provision for the expiration of collections of
information after three years, unless reviewed and renewed, would also
have directly interfered with the need for settled procedures and
standards that both the accrediting entities and the providers could be
sure would remain in effect
[[Page 54073]]
during both the period of application and any selected period of
accreditation or approval. (Under the IAA, the Secretary may select an
accreditation/approval period of three, four, or five years.)
The IAA exemptions from the requirements of the PRA must be
understood in this context. The Department understands that the
exemptions were intended to be construed broadly to facilitate
implementation of an accreditation/approval process as envisioned by
the IAA. At the same time, however, the IAA expressly requires that
these regulations, including the standards for accreditation and
approval, be published for notice and comment under the Administrative
Procedure Act (APA). Thus, the IAA ensures public participation in the
creation of all elements of these regulations, including those that
could have effects of the kind normally addressed through PRA review.
As noted, the three provisions of the IAA exempt from the PRA
provisions discussed above are sections 104, 202(b)(4), and 303(d). The
following explains how these exemptions relate to the proposed
regulations, to the extent that they include ``information
collections'' under the PRA:
Section 104 of the IAA. Section 104 of the IAA requires the
Department to make annual reports on intercountry adoptions to several
congressional committees. The IAA lists the information and data that
must be collected and conveyed annually to Congress. To ensure the
availability of this information to the Secretary, the proposed
regulations include standards addressing the information accredited
agencies and approved persons must be prepared to provide to their
accrediting entity and the information the accrediting entity must in
turn provide to the Secretary. Within subpart F, Sec. 96.43 of the
regulations requires the agencies and persons to provide to the
accrediting entity the information listed in section 104 of the IAA.
Section 96.93 of subpart M of these regulations similarly mirrors the
statutory requirements and mandates that the accrediting entity obtain
the information from the agencies and persons.
Section 202(b)(4) of the IAA. Section 202(b)(4) of the IAA provides
that the accrediting entity's responsibilities shall include
``[c]ollection of data, maintenance of records, and reporting to the
Secretary, the United States central authority, State courts, and other
entities (including on persons and agencies granted or denied approval
or accreditation), to the extent and in the manner that the Secretary
requires'' (emphasis added). The Department understands the concept of
``collection of data'' by the accrediting entity ``to the extent and in
the manner that the Secretary requires'' to encompass the Secretary's
decisions regarding what data must be provided by the adoption service
providers to the accrediting entities and what data may be collected by
the accrediting entities in the course of performing any of their
duties under the IAA, including deciding whether an adoption service
provider can be accredited or approved, conducting oversight
activities, and taking enforcement actions. (Pub. L. 106-279, section
202(b)(1)-(3)). The Department, as the lead agency responsible for
interpreting the IAA and the IAA's exemptions to the PRA, believes that
the IAA's expansive discretionary language (that is, information may be
collected ``to the extent and manner required by the Secretary'')
demonstrates that Congress intended the scope of this exemption to the
PRA to be broad.
Thus, as developed in these regulations, the exemption covers
determining the provider's compliance with the standards for
accreditation/approval in subpart F (or, in the case of temporarily
accredited agencies, in subpart N). It also covers obtaining
information from adoption service providers as they apply for
accreditation or approval and in the course of monitoring their
performance under the standards. The exemption in section 202(b)(4) of
the IAA also extends to information the accrediting entity is required
to provide to the Secretary, any entity acting on behalf of the
Secretary (including the Complaint Registry, to the extent that it will
assist the Secretary in addition to the accrediting entities), and to
law enforcement officials and State courts. The exemption thus extends
to the portions of these regulations that require such disclosures or
that otherwise are intended to ensure that the Department is able to
perform its oversight responsibilities under the IAA. As a result of
this exemption, the Department has determined that all of the
information collections established by these regulations that are not
covered by the exemption of IAA sections 104 (discussed above) and
303(d) (discussed below) are covered by the exemption in section
202(b)(4) of the IAA, with the exception of certain collections
required under subpart M, as discussed below.
Section 303(d) of the IAA. Section 102(e) of the IAA requires the
Secretary and the Attorney General to establish a case registry of all
incoming and outgoing intercountry adoption cases, regardless of
whether they occur under the Convention. In furtherance of this
requirement, section 303(d) of the IAA requires that all agencies and
persons providing adoption services in connection with an ``outgoing''
intercountry adoption not subject to the Convention file certain
information with the Case Registry as required by the Secretary and the
Attorney General through joint regulations. (The Department expects
these functions of the Attorney General to be assumed by the Secretary
of Homeland Security.) The standards for accreditation/approval in
these proposed regulations include standards in subpart F at Sec.
96.43 and, for supervised providers, at Sec. Sec. 96.45(b)(11) and
96.46(b)(11), relating to compliance with the joint regulations
contemplated by section 303(d). (The joint regulations have not yet
been proposed.) Because IAA section 503(c) exempts section 303(d) from
the PRA requirements, these proposed standards, which are designed to
promote observance of the requirement of section 303(d), are exempt.
V. The Proposed Implementing Regulations on Accreditation and Approval
A. Public Input on the Proposed Regulations
In the IAA itself, Congress explicitly required the Department,
when developing these regulations, to consider the views of the
adoption community. Specifically, the IAA provides:
[T]he Secretary shall consider any standards or procedures
developed or proposed by, and the views of, individuals and entities
with interest and expertise in international adoptions and family
social services, including public and private entities with
experience in licensing and accrediting adoption agencies. (Pub. L.
106-279, section 203(a)(2)).
The Department took this mandate very seriously and considered the
views of the adoption community before drafting this proposed
regulation. While a number of changes to current practice will be
necessary and desirable to come into compliance with the Convention and
the IAA, the Department looked to the adoption community for ideas as
to how it should implement its responsibilities. In particular, to
comply with the section 203(a)(2) mandate in the IAA, the Department
issued a Scope of Work to identify a consulting firm with expertise in
accreditation and intercountry adoption. After considering proposals
from interested consultants, the Department retained the private firm
of Acton Burnell, which undertook
[[Page 54074]]
consultations with the public and formulated suggestions for the
proposed accreditation regulations in the form of an initial draft.
Acton Burnell undertook extensive research and consultation that
included review of current, private accreditation standards, analysis
of applicable State regulations, and solicitation of input from members
of the adoption community, including adoption service providers,
professional membership organizations, advocacy groups, coalition
groups, birth parents, adoptive parents, adoptees, legal, medical, and
social work professionals, Federal and State public bodies, and
standard-setting and regulatory professionals.
The Department requested that Acton Burnell establish a multi-
disciplinary team of experts in accreditation and intercountry adoption
and use an open process designed to ensure that all segments of the
adoption community had a full opportunity to provide input at public
meetings and to articulate their opinions and concerns. In response,
Acton Burnell set up an interactive Web site to keep the public
informed about the project. It also created and disseminated two
surveys in conjunction with the public meetings--one for agencies and
persons and one for prospective adoptive parents, adoptive parents,
birth parents, and adoptees. Acton Burnell then announced and convened
a public meeting on April 2, 2001, to gather input for the regulations.
Any person was permitted to send in statements or other material prior
to the first meeting, and copies of such statements were made available
to attendees. Additionally, all interested persons were welcome to
attend and had the opportunity to address the Acton Burnell team and
other attendees. Acton Burnell received considerable public input,
including actual proposed standards from various coalition groups as
well as statements from adoption research organizations and input from
other advocacy groups. It considered the input from all of these
sources and used it to produce draft proposed regulations that were
made available to the public on a Web site at http://www.hagueregs.org.
After publishing an initial draft of the regulations, Acton Burnell
convened a second set of public meetings on June 18 and 19, 2001, and
invited all interested persons to submit written statements. Department
personnel attended these meetings. Submitted statements were circulated
amongst the attendees and those that had been provided in electronic
form were posted on the Web site. After considering all of the input
provided, including, but not limited to, the information from the
surveys, the content from written statements sent, and the oral
statements given at the public meetings, Acton Burnell produced another
draft of the regulations which it submitted to the Department on July
31, 2001. The Acton Burnell team then engaged in extensive
consultations with the Department and produced further revised
recommended draft regulations. The Department permitted the revised
draft regulations to be posted on the Web site in October and December
of 2001. The revised draft regulations were posted on the Web site for
informational purposes, but not for additional public comment. The
multiple draft regulations produced by Acton Burnell and posted on its
Web site were not subject to the notice and comment provisions of the
APA, 5 U.S.C. 553, because it was understood that the Department would
use the Acton Burnell product to formulate its own version of the
proposed regulations, which would be subject to APA notice and comment.
B. The Department's Preparation of the Proposed Regulations
The Department has considered all of the public input and the
substantive recommendations and proposed draft regulations published by
Acton Burnell and submitted to the Department for review. The
Department also relied heavily upon the standards for accreditation and
approval listed in section 203(b) of the IAA to determine what
performance and organizational standards to include in the regulations.
It also looked to the legislative history of the IAA, as appropriate,
and consulted with interested congressional staff. Most important, the
Department looked to the guiding principles provided by the Convention.
Where the Convention delineates certain tasks that must be completed
for an adoption to proceed, the regulations set a standard governing
how accredited agencies and approved persons must complete those tasks.
The Department also tried to ensure that the regulations fully
reflect the Federal government's obligations under the Convention and
the IAA. Further, the Department crafted the regulations to facilitate
practical implementation. The Department also sought to ensure that the
regulations protected birth parents, adoptive parents, and children
involved in a Convention adoption. In particular, the regulations
address certain undesirable and problematic practices that the
Department has observed through its current work with intercountry
adoptions.
Also, when considering the regulations applicable to accrediting
entities, the Department kept in mind the need to find competent and
willing accrediting entities. The Department did not want to create
inflexible regulations that would discourage any accrediting entity
from seeking to be designated. Therefore, the Department examined the
current practices of accrediting entities and attempted to create
uniform procedures without completely modifying current practice. As a
variety of organizations, including State entities, may seek
designation, the regulations are intended to be as flexible as feasible
to encourage many entities to seek designation. The Department would
prefer to have a number of accrediting entities, in order to expedite
the initial accreditation and approval phase, to avoid a bottleneck of
applicants, and to ensure geographical diversity and competition with
respect to fees and services.
The Department recognizes that by proposing to regulate accrediting
entities, in addition to entering into the anticipated Agreements
between the Department and the accrediting entities, the Department is
binding potential accrediting entities to certain practices in advance
of their designation. Potential accrediting entities should be aware
that they will be bound by the final regulations and that the
Department's flexibility in negotiating Agreements will be limited by
the final regulations. The Department is mindful that these procedures
may be different from the practices that prospective accrediting
entities use in other, non-Convention contexts. The Department welcomes
public comment on the substance and level of the regulation of
accrediting entities and the tasks expected of them, especially from
any potential private accrediting entities or State entities that are
considering becoming designated accrediting entities.
Finally, the Department considered the views of all members of the
adoption community. The Department recognizes that there are many areas
of consensus within the adoption community as well as a number of
critical issues on which some elements of the community remain divided.
The regulations had to draw a number of difficult compromises that are
likely to evoke comment or dissent from one or more segments of the
adoption community. While preparing the proposed regulations, the
Department has tried to balance all the input received and also craft
proposed regulations that are consistent with the Convention and the
IAA. Also, the
[[Page 54075]]
Department had to adapt the work product of Acton Burnell into a
Federal regulatory format and to address a number of issues that had
not been raised or addressed during the preliminary public input phase.
These regulations are now published for notice and comment under the
APA, 5 U.S.C. 553, as required by the IAA.
C. Overview of the Proposed Regulations
These regulations contain the following sections: Subpart A
contains the definitions governing the use of defined terms throughout
these regulations. Subpart B sets forth the process by which the
Department will designate one or more accrediting entities to perform
the accreditation and approval functions and describes the authority
and responsibilities of accrediting entities. Subpart C articulates the
accreditation and approval requirements of the IAA by describing which
entities are covered by the IAA's requirements, delineating the
exceptions to those requirements, and addressing the responsibilities
of public bodies that provide adoption services in Convention cases.
Subparts D and E describe the process for seeking and being evaluated
for accreditation or approval. Subpart F sets forth in detail the
standards for accreditation and approval, including the parameters and
requirements for working with entities or individuals in the United
States or in other Convention countries that are not accredited or
approved but will act under the supervision and responsibility of an
agency or person accredited or approved in the United States. Subparts
G and H address notification of accreditation and approval decisions
and the process for renewing accreditation or approval. Subparts I, J,
K, and L cover monitoring of and complaints against accredited agencies
and approved persons, adverse actions against accredited agencies or
approved persons by the accrediting entity, and suspension,
cancellation, or debarment of accredited agencies or approved persons
by the Secretary. Subpart M addresses how and under what circumstances
the accrediting entities will disseminate and report information about
accredited agencies and approved persons to the public and to the
Secretary. Finally, subpart N sets forth the procedures and standards
for temporary accreditation.
1. Subpart A--General Provisions
Subpart A contains the definitions for part 96. Most of the
definitions are taken directly from the IAA. If a specific definition
substantially affects a particular provision in the proposed
regulation, the definition typically is addressed below in the context
of discussion of that provision. The IAA definition of Convention
adoption, however, has ramifications throughout the regulations, and
thus is addressed in this introductory section.
The definition for Convention adoption was difficult to draft
because the Convention and the IAA contain differently worded rules for
when the Convention will apply to a particular intercountry adoption.
Article 2 of the Convention, provides: ``the Convention shall apply
where a child habitually resident in one Contracting State (`the State
of origin') has been, is being, or is to be moved to another
Contracting State (`the receiving State') either after his or her
adoption in the State of origin by spouses or a person habitually
resident in the receiving State, or for the purposes of such an
adoption in the receiving State or in the State of origin.'' (S. Treaty
Doc. 105-51, Art. 2). Under the IAA, however, a Convention adoption is
defined as an adoption of a child resident in a foreign country party
to the Convention by a U.S. citizen, or an adoption of a child resident
in the United States by an individual residing in another Convention
country. (Pub. L. 106-279, 3(10)).
The regulations attempt to clarify the IAA definition of Convention
adoption and to harmonize the Convention and the IAA definitions. The
IAA definition of Convention adoption, taken literally, would include
every adoption in a Convention country by a U.S. citizen. For example,
the definition would include children outside the United States adopted
in accordance with a country's adoption procedures by a U.S. citizen
parent who did not intend to move the child back to the United States.
In such situations, the country of origin usually does not treat the
adoption as an intercountry adoption covered by the Convention and thus
requiring the use of accredited agencies or approved persons. The
Department does not believe that the intent of the IAA or the
Convention was to treat all adoptions of children in a Convention
country by a U.S. citizen parent as intercountry adoptions covered by
the Convention. Therefore, the definition of Convention adoption in
Sec. 96.2 construes the IAA definition of Convention adoption by
specifying the requirement that the child, in connection with his or
her adoption, must have moved, or there must be an intent to move the
child, from one Convention country to another Convention country. This
interpretation of the IAA definition of Convention adoption is intended
to make clear that adoptions by a U.S. citizen residing abroad, even in
a country party to the Convention, are not always automatically
intercountry adoptions covered by the Convention where the adopting
parent is a U.S. citizen. The Department welcomes comment on the
definition of Convention adoption, especially from those organizations
or agencies and persons who assist U.S. citizens residing abroad with
adoptions and from prospective and adoptive parents living abroad as
well.
2. Subpart B--Selection, Designation, and Duties of Accrediting
Entities
Subpart B addresses the Department's designation of accrediting
entities. The Department will designate one or more private, non-profit
organizations or State-based authorities to act as accrediting entities
and enter into agreements with them for this purpose. Such entities
will have responsibility for: Evaluating the eligibility of agencies
and persons for accreditation or approval and granting or denying
accreditation or approval; determining whether to renew accreditation
or approval; monitoring and addressing complaints against accredited
agencies and approved persons; taking adverse action against accredited
agencies and approved persons; and disseminating and reporting
information about accredited agencies and approved persons. Subpart B
sets forth the eligibility criteria for designation as an accrediting
entity, additional requirements for designation, the authorities and
responsibilities of accrediting entities, the general content of the
Agreement, and what actions the Department may take against an
accrediting entity that fails to fulfill its responsibilities as set
forth in these regulations or the Agreement.
Subpart B also sets forth the procedures and requirements
accrediting entities must follow when setting a fee schedule.
Accrediting entities may only charge fees on a cost-recovery basis, and
the Department must approve the fee schedule. Additionally, an
accrediting entity must make such fee schedules available to the public
upon request and specify the fees to be charged to an applicant in a
contract between the accrediting entity and the applicant.
Several aspects of the proposed regulations relating to fees
deserve particular note. First, the Secretary may require a portion of
the fee to cover the Complaint Registry. Second, applicants will pay a
single fee that will cover both the pre- and post-accreditation/
approval work of any accrediting entity. The fee will be non-refundable
even if an application is denied.
[[Page 54076]]
The Department seeks comments from all parties, especially from
potential accrediting entities, on the regulations governing the
accreditation and approval process. In particular, potential
accrediting entities should comment on the practical issues these
regulations may present for them if they seek to become designated as
accrediting entities.
3. Subpart C--Accreditation and Approval Requirements for the Provision
of Adoption Services
(a) Authorized Providers. Subpart C explains what agencies and
persons are subject to the IAA's accreditation and approval
requirements and under what conditions they may provide adoption
services in Convention cases. Section 201 of the IAA mandates that,
once the Convention enters into force for the United States, no agency
or person may offer or provide ``adoption services,'' as defined Sec.
96.2(e), in connection with a Convention adoption in the United States
unless that agency or person is accredited or temporarily accredited or
approved pursuant to these regulations. If the agency or person is not
accredited, temporarily accredited, or approved, it must (1) be
providing adoption services under the supervision and responsibility of
an accredited agency, temporarily accredited agency, or approved person
(``a supervised provider''); (2) be performing an activity that is
exempted from the accreditation or approval requirements; or (3) or be
operating as a public body.
The requirement to be accredited, temporarily accredited, or
approved applies regardless of the number of adoption cases for which
the agency or person is offering or providing ``adoption services.''
The provision of an adoption service in one Convention adoption case is
sufficient to trigger this requirement. Conversely, if an agency or
person does not provide ``adoption services'' in any cases subject to
the Convention, this requirement does not apply. If an agency or person
is providing adoption services in bothConvention and non-Convention
cases, the requirement applies.
It is critical to note that the requirements pertaining to
accreditation and approval are triggered when an agency or person
offers or provides any single one of the six services listed in the
definition of ``adoption services.'' (Pub. L. 106-279, section 3(3)).
The IAA's definition, which is adopted by these regulations, lists six
core, but limited functions, that it calls ``adoption services.'' (Pub.
L. 106-279, section 3(3)). Services that are not listed in the
definition given in Sec. 96.2(e) of these regulations are not
considered ``adoption services'' for the purpose of the IAA and
therefore do not trigger the requirement that the agency or person
providing the service be accredited, temporarily accredited, or
approved or be operating under the supervision and responsibility of an
accredited agency, temporarily accredited agency, or approved person.
Therefore, for example, if an agency or person provides only services
not listed in the definition of adoption services (such as post-
placement counseling, a medical evaluation of a child's records or of a
video of the child provided by the child's country of residence, pre-
adoptive parent training courses or meetings, or post-adoption services
for children whose adoptions were dissolved), that agency or person is
not required to be accredited, temporarily accredited, or approved or
to operate under the supervision and responsibility of an accredited
agency, temporarily accredited agency or approved person. Conversely,
if a service provided by an agency or person is listed as any one of
the six adoption services in the definition of adoption services, the
agency or person must be accredited, temporarily accredited, or
approved or it must act under the supervision and responsibility of an
accredited agency, temporarily accredited agency, or approved person
(unless it is a public body or is only performing an exempted service).
For example, securing necessary consents to termination of parental
rights and to adoption is one of the defined six adoption services.
Thus, a lawyer, who may provide this service now as a legal service,
may not do so in Convention cases unless he or she is approved or is
doing so as part of an accredited agency, temporarily accredited
agency, or an approved person or is acting under the supervision and
responsibility of an accredited agency, temporarily accredited agency,
or approved person.
When determining whether an activity is included in the definition
of adoption services, the reader must pay close attention to the
language used in the list of services. For example, post-placement
monitoring, but not post-placement counseling, is included in the
definition of ``adoption services.'' Therefore, the former triggers the
requirement, but the latter does not. Similarly, one listed adoption
service is ``identifying and arranging an adoption.'' An agency or
person that both identifies a child for adoption and arranges the
adoption would be covered by the requirement. On the other hand, a
magazine or TV show or newsletter, which simply posts pictures and
information about children waiting for adoptive placements on behalf of
other agencies, persons, or public bodies, would not be covered. These
media companies are not covered because they are only communicating
information on a child awaiting placement, rather than both identifying
a child for adoption and arranging the adoption.
Although some of the preliminary public input asserted that
Congress did not intend for each single, named adoption service to
trigger the accreditation, approval, or supervision requirement, the
Department has rejected such an interpretation of the IAA. Instead, the
Department interprets the IAA as mandating that the provision of any
one of these six adoption services triggers the requirement that an
agency or person be accredited, temporarily accredited, or approved or
operate under the supervision and responsibility of an accredited
agency, temporarily accredited agency, or approved person (unless it is
a public body or is only performing an exempted service). The
alternative reading--that the requirement is triggered only when an
agency or person actually provides all six services--would nullify the
protective intention, capacity, and effect of the IAA. Such a reading
would permit an agency or person to decline to provide one of the
enumerated adoption services and thereby evade the requirement.
(b) Accreditation and Approval Versus Acting as a Supervised
Provider. Although the IAA is clear that an agency or person wishing to
offer or provide adoption services in cases subject to the Convention
must be accredited, temporarily accredited, or approved or operate
under the supervision of an accredited agency, temporarily accredited
agency, or approved person (unless it is a public body or providing
only an exempted service), it does not provide guidance on how to
choose between these options. The Department understands that each
agency or person will face a difficult choice in making this decision
and is not able to provide specific advice on what is best for each
individual agency or person. However, the Department believes it is
helpful to underscore the ramifications of choosing between being
accredited/approved and being a supervised provider. First, agencies
and persons that do not become accredited, temporarily accredited, or
approved must be supervised by an accredited agency, temporarily
accredited agency, or approved person (unless they are a public body or
are providing only an exempted service in the case). Second,
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agencies and persons that do not become accredited, temporarily
accredited, or approved, and instead act as a supervised provider, are
not subject to all of the standards in subpart F. They are, however,
subject to the standards contained in Sec. 96.45 (supervised providers
in the United States) or Sec. 96.46 (supervised providers in other
Convention countries) of subpart F. Third, agencies and persons that do
not become accredited, temporarily accredited, or approved cannot
operate as the primary provider in a Convention case.
(c) Primary Providers. These regulations establish as a principle
of accreditation and approval that an accredited agency, temporarily
accredited agency, or an approved person must identify itself as the
``primary provider'' in each Convention case. The primary provider must
be an accredited agency, temporarily accredited agency, or approved
person. It cannot be a supervised provider. If there is only one
accredited agency, temporarily accredited agency, or approved person
among the agencies and persons providing the six adoption services (as
defined), then that one inherently must act as the primary provider.
Where more than one accredited agency, temporarily accredited agency,
or approved person is providing services in the same Convention case,
and therefore more than one agency or person is eligible to act as the
primary provider, the agency or person performing the tasks listed in
Sec. 96.14(a)(1)-(4) must be designated as the primary provider.
Whether the accredited or temporarily accredited agency or the approved
person is providing all of the adoption services itself or is using
supervised providers or other providers to provide the six adoption
services, the regulations also establish, as a principle of
accreditation and approval, that all six of the services listed in the
definition of adoption services must be provided in each Convention
adoption case.
The primary provider under the accreditation and approval standards
has two principal responsibilities. First, the primary provider is
responsible for ensuring that all six of the adoption services listed
in the definition of ``adoption services'' are provided in each
Convention case. Second, the primary provider is responsible for
supervising non-accredited agencies and non-approved persons that are
providing adoption services (as defined) in the case. The requirements
and parameters for providing supervision can be found in Sec. Sec.
96.45 and 96.46.
The primary provider principle is appropriate and necessary for a
number of reasons. Although the IAA is clear that agencies and persons
providing adoption services in a Convention case must either be
accredited, temporarily accredited, or approved or supervised, it is
silent on how supervision will be provided and how providers in the
same Convention case must coordinate adoption service delivery. These
regulations provide that framework through the creation of the primary
provider requirement incorporated into the accreditation and approval
standards as appropriate. Also, to provide clarity in response to the
numerous inquiries about the requirement during the preliminary public
input phase, the primary provider principle appears in the regulations
as a freestanding provision in Sec. 96.14, which is cross-referenced
to the definition of primary provider in Sec. 96.2(cc).
The Department is aware that this principle both reflects and
changes current practice. This scheme allows agencies and persons,
especially small agencies and persons, to continue to form the network
of providers needed to complete each individual intercountry adoption.
The Department does not want to interfere unnecessarily with how a
network is formed to provide services in each particular adoption case.
The Department understands that agencies with an adoption program in
one country must be able to connect with potentially 50+ other agencies
or persons because the prospective adoptive parent(s) to be matched
with a child could be in any one of the 50 States or in other U.S.
jurisdictions. Conversely, prospective adoptive parent(s) who seek to
adopt a particular child identified as in need of an adoptive placement
must be able to connect with an agency or person (which may not be
located in the State where the prospective adoptive parent(s) resides)
that has an adoption program in the country of origin from which they
wish to adopt a child. In deference to the historically important role
the formation of networks and the use of small agencies and persons
have played in providing services that match children from many
different countries of origin with prospective adoptive parent(s) in
diverse and widely dispersed geographical areas, the Department has
crafted regulations that allow such relationships among agencies or
persons to continue. The Department's goal is to mirror current
practices and to provide regulatory flexibility so that the regulations
do not negatively affect small agencies and persons and other
providers.
The regulations through the accreditation and approval standards do
require, however, an accredited agency, temporarily accredited agency,
or approved person in every case be identified as the primary provider
and formally assume responsibility for supervision of other providers
in the case, both in the United States and overseas, that are not
accredited or approved. Another important provision, in Sec. Sec.
96.45(c) and 96.46(c), is that a primary provider must assume legal
responsibility for the actions of supervised providers, both in the
United States and overseas.
As stated, the Department is not seeking to alter current practice
unnecessarily, particularly where current practice does not give rise
to the types of abuses that the Convention and the IAA seek to curtail.
In this case, however, while the concept of identifying a primary
provider is not an established practice and is not provided for in the
IAA, the Department has concluded that it is necessary to have an
organizing principle to ensure that one agency or person has ultimate
responsibility for proper and effective service provision. Close
coordination is particularly important given the Convention's
requirements that key tasks and determinations be undertaken and made
before the adoption proceeds to ensure that the adoption is in the best
interests of the individual child and in compliance with U.S.
obligations to other Convention countries. The Department also believes
that the primary provider requirement will improve practice without
unduly changing the adoption community's current structure for
providing adoption services. The Department also notes that, consistent
with the IAA, the regulations provide for regulatory flexibility and
enable all agencies or persons, including those that are small, to
choose to become accredited, temporarily accredited, or approved (and
act as a primary provider in a particular case where necessary) or to
be supervised providers.
When acting as the primary provider and using supervised providers,
the accredited agency, temporarily accredited agency, or approved
person must comply with Sec. 96.44 (Acting as Primary Provider), Sec.
96.45 (Using Supervised Providers in the United States), and Sec.
96.46 (Using Supervised Providers in Other Convention Countries) as
well as all of the other standards in subpart F.
The primary provider may work with a variety of entities. In the
United
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States, the primary provider may work with: (1) Other U.S. accredited
agencies, temporarily accredited agencies, and approved persons; (2)
agencies and persons acting under its supervision and responsibility
(U.S. supervised providers); (3) public bodies; and (4) exempted
providers. In another Convention country, the primary provider may work
with: (1) Agencies, persons, or other entities accredited by the other
Convention country; (2) Convention country public authorities or
competent authorities; and (3) agencies, persons, or other entities
acting under the primary provider's supervision and responsibility
(``foreign supervised providers''). As noted, the conditions on the use
of these agencies, persons, or other entities, whether domestic or
foreign, are listed in Sec. Sec. 96.45 and 96.46.
(d) Supervised Providers. Agencies and persons that do not become
accredited or approved may provide adoption services in the United
States in cases subject to the Convention only under the supervision
and responsibility of the accredited agency, temporarily accredited
agency, or approved person that is acting as the primary provider in
the case (unless they are a public body or are only performing an
exempted service). These agencies or persons are called ``supervised
providers.'' Supervised providers are not required to be in substantial
compliance with all of the accreditation and approval standards set
forth in subpart F. However, these regulations do set forth
requirements that apply when a primary provider uses a supervised
provider to provide adoption services in a Convention case. Those
requirements are set forth in Sec. Sec. 96.45 and 96.46.
The following entities are not considered supervised providers: (1)
Agencies or persons that are accredited, temporarily accredited, or
approved in the United States; (2) public bodies; (3) agencies,
persons, or entities accredited by other Convention countries; and (4)
public authorities and competent authorities of other Convention
countries. Such entities are not required to act as supervised
providers; that is, they are not required to act under what in these
regulations is referred to as the supervision and responsibility of the
primary provider. Primary providers are not required to provide
supervision and responsibility for them when they provide adoption
services in a Convention case. Only non-accredited and non-approved
entities that do not fall into one of these categories are considered
supervised providers for the purpose of these regulations. While the
primary provider will have legal responsibility for the work of its
supervised providers, it will not have legal responsibility for the
work of other accredited/approved providers; public bodies; agencies,
persons, or entities accredited by other Convention countries, and
public authorities and competent authorities of other Convention
countries, except to the extent that the primary provider must ensure
that all six adoption services are provided.
(e) Activities That Do Not Require Accreditation, Approval, or
Supervision. The IAA highlights four types of activities that, under
specified circumstances, do not give rise to the requirement that an
agency or person be accredited, temporarily accredited, or approved or
operate under the supervision and responsibility of an accredited
agency, temporarily accredited agency, or approved person. These
activities are: (1) The completion of a home study or child background
study; (2) the provision of child welfare services where the agency or
person is not performing any other adoption service in the case; (3)
the provision of legal services where the agency or person is not
performing any adoption service in the case; or (4) activities
undertaken by prospective adoptive parent(s) acting on their own
behalf.
Home Study or Child Background Study. Even though it is listed as
an adoption service in the IAA definition of adoption services, the
performance of a home study or child background study, by itself, does
not require the agency or person to be accredited, temporarily
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