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  • News: DOS Final Rule on Regulatory Change Concerning Intercountry Adoption Universal Accreditation Act

    [Federal Register Volume 80, Number 27 (Tuesday, February 10, 2015)]
    [Rules and Regulations]
    [Pages 7321-7323]
    From the Federal Register Online via the Government Printing Office [www.gpo.gov]
    [FR Doc No: 2015-02248]


    =======================================================================
    -----------------------------------------------------------------------

    DEPARTMENT OF STATE

    22 CFR Part 96

    [Public Notice: 9023]
    RIN 1400-AD45


    Adoptions: Regulatory Change To Clarify the Application of the
    Accreditation Requirement and Standards in Cases Covered by the
    Intercountry Adoption Universal Accreditation Act

    AGENCY: Department of State.

    ACTION: Final rule.

    -----------------------------------------------------------------------

    SUMMARY: This rule amends the Department of State (Department) interim
    rule on the accreditation and approval of adoption service providers in
    intercountry adoptions, and adopts the interim rule as final. The
    revisions reflect the requirement of the Intercountry Adoption
    Universal Accreditation Act of 2012 (UAA) that the accreditation
    standards developed in accordance with the 1993 Hague Convention on
    Protection of Children and Co-operation in Respect of Intercountry
    Adoption (Convention) and the Intercountry Adoption Act of 2000 (IAA),
    which previously only applied in Convention adoption cases, apply also
    in non-Convention adoption cases. Non-convention adoption cases are
    known as ``orphan'' cases, defined in the Immigration and Nationality
    Act (INA). This rule also revises the accreditation rule by referring
    to the Department of Homeland Security (DHS) Convention home study
    regulation and deleting obsolete references, such as any reference to
    temporary accreditation.

    DATES: This document finalizes the interim final rule published on July
    14, 2014 (79 FR 40629), and is effective February 10, 2015.

    FOR FURTHER INFORMATION CONTACT: Office of Legal Affairs, Overseas
    Citizen Services, U.S. Department of State, CA/OCS/L, SA-17, Floor 10,
    Washington, DC 20522-1710; (202) 485-6079.

    SUPPLEMENTARY INFORMATION:

    Why is the Department promulgating this rule?

    This rule clarifies that under the Intercountry Adoption Universal
    Accreditation Act of 2012 (UAA), signed into law January 14, 2013, and
    effective July 14, 2014, the accreditation requirement and standards
    found in 22 CFR part 96 apply to any person (including non-profit
    agencies, for-profit agencies and individuals but excluding government
    agencies and tribal authorities), providing adoption services on behalf
    of prospective adoptive parents in an ``orphan'' intercountry adoption
    case described under section 101(b)(1)(F) of the Immigration and
    Nationality Act. Specifically, under Section 2 of the UAA ``[t]he
    provisions of title II and section 404 of the Intercountry Adoption Act
    of 2000 (42 U.S.C. 14901 et seq.), and related implementing
    regulations, shall apply to any person offering or providing adoption
    services in connection with a child described in section 101(b)(1)(F)
    of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1)(F)), to the
    same extent as they apply to the offering or provision of adoption
    services in connection with a Convention adoption.''
    Title II of the Intercountry Adoption Act of 2000 (IAA) (Pub. L.
    106-279) requires that any person providing adoption services in a
    Convention case be an accredited, approved, or an exempted adoption
    service provider, and section 404 imposes civil and criminal penalties
    for violations of the Act. On February 15, 2006 the Department of State
    published implementing regulations at 71 FR 8064, on the accreditation
    and approval of agencies and persons in accordance with the Convention
    and the IAA.
    The UAA extends that rule from Convention cases to ``orphan''
    cases. This regulatory change includes a number of technical edits to
    facilitate interpretation of the regulatory requirements and clarify
    designated accrediting entities' authority under the UAA and the IAA.
    The Department is amending the regulation to make 22 CFR part 96,
    as affected by the UAA, easier to read. This rule will aid the
    accrediting entity applying the standards and adoption service
    providers required to comply with the standards. In particular, this
    rule adds references to the UAA where the IAA is referenced; adds a
    sentence concerning the UAA effective date; redefines ``Central
    Authority'' to include competent authorities, thereby clarifying how
    the term applies in countries that are not party to the Convention;
    redefines adoption records to include non-Convention case records and
    changes Section 96.25(b) concerning accrediting entity access to non-
    Convention records in cases subject to the UAA; defines the terms INA,
    IAA, and intercountry adoption; refers to ``accreditation and
    approval'' instead of to ``Convention accreditation and approval;''
    revises Sec. 96.46(a)(4) to clarify that foreign supervised providers
    in non-Convention countries may not have a pattern of licensing
    suspensions relating to key Convention principles; and revises
    references to ``Convention adoption,'' ``cases subject to the
    Convention,'' ``Convention case,'' ``Convention country,'' and
    ``Convention-related activity'' to ensure that such references include
    non-Convention adoptions, activities, countries, and cases under the
    UAA.
    Additionally, this rule corrects the references in 22 CFR
    96.37(f)(2), and 96.47(a)(4) and (b), to refer to the correct
    Department of Homeland Security (DHS) definition of home study preparer
    and home study requirements. When the original rule was issued in 2006,
    DHS had not yet published its final rule concerning home studies in
    Convention cases. Thus, the 2006 State Department rule referred to the
    ``orphan'' home study requirements under 8 CFR 204.3(b) and (e),
    instead of the Convention home study requirements found in 8 CFR
    204.301 and 311. This rule references the correct DHS regulation. The
    change clarifies that the home study must be prepared by an accredited
    agency, approved person, exempted provider, or a supervised provider.
    In addition, when the home study is not performed in the first instance
    by an accredited agency, then an accredited agency must review and
    approve it. The orphan and Convention home study requirements also
    differ concerning the required elements,

    [[Page 7322]]

    applicable definitions, and the duty to disclose. The Department notes
    that, since the publication of the interim final rule, DHS published
    interim specific guidance in the USCIS Adjudicator's Field Manual,
    Chapter 21.5(e)(2)(C), on how the Convention home study requirements
    apply in orphan cases. Finally, the rule amends 22 CFR part 96 to
    delete obsolete provisions, including any references to temporary
    accreditation, deleting subpart N in its entirety. Under the IAA,
    temporary accreditation was only possible for a one- or two-year period
    following the entry into force of the Convention. Because the
    Convention entered into force for the United States on April 1, 2008,
    more than two years ago, temporary accreditation is no longer possible.
    The rule also deletes the section on ``special provisions for agencies
    and persons seeking to be accredited or approved as of the time the
    Convention enters into force for the United States'' and a reference to
    that section. Further, the rule revises requirements concerning
    ``notification of accreditation and approval decisions'' and ``length
    of accreditation or approval period,'' deleting provisions that applied
    only during the transitional period to the Convention entering into
    force and clarifying that for purposes of the notification requirement
    the phrase ``accreditation or approval decisions'' refers to whether an
    application is granted or denied.
    Cases that are grandfathered under Section 2(c) of the UAA are not
    affected by this rule. See the Department's adoption Web site and the
    DHS/USCIS Web site for information on this grandfathering provision.
    The interim final rule received no public comment about the changes
    in the accreditation regulations. The Department is making corrections
    to the interim final rule in the final rule. In Sec. 96.14(a) the
    terms ``Convention adoption case'' and ``Convention case'' were both
    meant to be replaced by the term ``intercountry adoption case,'' but
    the replacement only occurred for ``Convention case'' and a space
    disappeared between ``adoption'' and ``case'' resulting in an anomalous
    term ``intercountry adoption case''. The final rule corrects these
    errors.

    Administrative Procedure Act

    The Department published this rule as an interim final rule based
    on its determination for good cause that delaying the effect of this
    rule during the period of public comment would be impractical,
    unnecessary and contrary to public interest under Section 553 of the
    Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B). The rule was
    published and went into effect on the date that the UAA went into
    effect, July 14, 2014, which aided the accrediting entity in its
    accreditation and oversight function and avoided confusion among
    adoption service providers and other members of the public about how
    the accreditation standards apply in ``orphan'' intercountry adoption
    cases. As noted above, the only change to the text of the interim final
    rule is a correction in Sec. 96.14(a).

    Regulatory Flexibility Act/Executive Order 13272: Small Business

    Consistent with section 605(b) of the Regulatory Flexibility Act (5
    U.S.C. 605(b)), the Department certifies that this rule does not have a
    significant economic impact on a substantial number of small entities.
    The rule clarifies the requirements imposed by the UAA and IAA on
    adoption service providers providing services in ``orphan''
    intercountry adoption cases described under section 101(b)(1)(F).

    Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L.
    104-4, 109 Stat. 48, codified at 2 U.S.C. 1532) generally requires
    agencies to prepare a statement before proposing any rule that may
    result in an annual expenditure of $100 million or more by State,
    local, or tribal governments, or by the private sector. This rule does
    not result in any such expenditure, nor will it significantly or
    uniquely affect small governments or the private sector.

    Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804, for
    purposes of congressional review of agency rulemaking under the Small
    Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121).
    This rule will not result in an annual effect on the economy of $100
    million or more; a major increase in costs or prices; or adverse
    effects on competition, employment, investment, productivity,
    innovation, or the ability of United States-based companies to compete
    with foreign-based companies in domestic and import markets.

    Executive Order 12866

    The Department of State has reviewed this rule to ensure its
    consistency with the regulatory philosophy and principles set forth in
    Executive Order 12866 and has determined that the benefits of this
    final regulation justify its costs. The Department does not consider
    this rulemaking to be an economically significant action within the
    scope of section 3(f)(1) of the Executive Order.
    The rule does not add any new legal requirements to Part 96 but
    reflects the changes affected by the UAA to apply these accreditation
    standards in orphan cases. The UAA and this rule benefit prospective
    adoptive parents, children, and birth families involved in the
    intercountry adoption process by ensuring that adoption service
    providers providing services in orphan cases are subject to the same
    accreditation standards and ongoing oversight and monitoring that apply
    in Convention cases.
    Concerning the cost of the UAA, the Report from the Congressional
    Budget Office (CBO) on October 17, 2012, notes that the UAA imposes ``a
    private sector mandate by requiring all providers of placement services
    for intercountry adoptions to be compliant with the accreditation
    standards of the Hague Convention.'' The report notes, further, that
    ``[t]he initial fees for obtaining accreditation can range between
    $10,000 and $16,000 depending on the size and annual revenue of the
    entity seeking accreditation. Annual fees to maintain accreditation are
    less than $1,000 on average, but are also subject to change based on
    the revenue of the entity. The cost of liability insurance for adoption
    agencies varies from state to state and can range between $10,000 and
    $50,000 per year.'' Overall, CBO concluded: ``Based on information
    gathered from industry professionals, the Department of Health and
    Human Services, and an accreditation agency, the number of entities
    that would be affected is relatively small. Therefore, CBO estimates
    that the aggregate cost of the mandate to the private sector would fall
    below the annual threshold established in UMRA [Unfunded Mandates
    Reform Act] ($146 million in 2012, adjusted annually for inflation).''
    The Council on Accreditation (COA), the accrediting entity
    designated by the Department, reports that approximately forty new
    agencies applied for accreditation since the UAA became law in January
    of 2013. This number is much fewer than COA had anticipated.

    Executive Orders 12372 and 13132: Federalism

    This regulation will not have substantial direct effects on the
    States, on the relationship between the national government and the
    States, or the distribution of power and responsibilities among the
    various levels of government. Nor will the rule have federalism
    implications warranting

    [[Page 7323]]

    the application of Executive Orders 12372 and No. 13132.

    Executive Order 12988: Civil Justice Reform

    The Department has reviewed the regulations in light of Executive
    Order No. 12988 to eliminate ambiguity, minimize litigation, establish
    clear legal standards, and reduce burden.

    Executive Order 13563: Improving Regulation and Regulatory Review

    The Department has considered this rule in light of Executive Order
    13563, dated January 18, 2011, and affirms that this regulation is
    consistent with the guidance therein.

    Paperwork Reduction Act

    This rule does not impose information collection requirements
    subject to the provisions of the Paperwork Reduction Act, 44 U.S.C.
    Chapter 35.

    List of Subjects in 22 CFR Part 96

    Adoption, Child welfare, Children immigration, Foreign persons.

    For the reasons stated in the preamble, the interim final rule
    amending 22 CFR part 96, which was published at 79 FR 40629 on July 14,
    2014, is adopted as a final rule with the following changes:

    PART 96--INTERCOUNTRY ADOPTION ACCREDITATION OF AGENCIES AND
    APPROVAL OF PERSONS

    0
    1. The authority citation for part 96 continues to read as follows:

    Authority: The Convention on Protection of Children and Co-
    operation in Respect of Intercountry Adoption (done at the Hague,
    May 29, 1993), S. Treaty Doc. 105-51 (1998), 1870 U.N.T.S. 167 (Reg.
    No. 31922 (1993)); The Intercountry Adoption Act of 2000, 42 U.S.C.
    14901-14954; The Intercountry Adoption Universal Accreditation Act
    of 2012, Pub. L. 112-276, 42 U.S.C. 14925.


    Sec. 96.14 [Amended]

    0
    2. Amend Sec. 96.14(a) by removing the terms ``Convention adoption
    case'' and ``intercountry adoptioncase'' and adding in place of each
    the term ``intercountry adoption case''.

    Dated: January 27, 2015.
    David T. Donahue,
    Senior Advisor for Consular Affairs, U.S. Department of State.
    [FR Doc. 2015-02248 Filed 2-9-15; 8:45 am]
    BILLING CODE 4710-06-P
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