[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]


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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.

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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,

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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]
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