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Intercountry Adoption--Reporting on Non-Convention and Convention Adoptions of Emigrating Children [
72 FR 9852
FEDERAL REGISTER CITE:
72 FR 9852
DATE OF PUBLICATION:
BILLING CODE: 4710-06-P
DEPARTMENT OF STATE
22 CFR Part 99
[Public Notice 5705]
Intercountry Adoption--Reporting on Non-Convention and Convention Adoptions of Emigrating Children
Department of State.
The Department of State (the Department), with the joint review and approval of the Department of Homeland Security (DHS), is issuing a new rule to implement the requirement in the Intercountry Adoption Act of 2000 (the IAA) to establish a Case Registry for, inter alia, emigrating children. This final rule imposes reporting requirements on adoption service providers, including governmental authorities who provide adoption services, in cases involving adoptions of children who will emigrate from the United
States. These reporting obligations apply to all intercountry adoptions, regardless of whether they are covered under the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention). This final rule, although issued with the joint review and approval of DHS pursuant to section 303(d) of the IAA, only adds a new section to the
Department's Convention regulations; no amendments or additions are made to DHS regulations.
This rule is effective April 5, 2007. Information about the date the Convention will enter into force with respect to the United States is provided in 22 CFR 96.17.
FOR FURTHER INFORMATION CONTACT:
Anna Mary Coburn at 202-736-9081. 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.
The Convention is a multilateral treaty that provides a framework for the adoption of children habitually resident in one country that is a party to the Convention by persons habitually resident in another country that is also a party to the Convention. The Convention establishes procedures to be followed in these intercountry adoption cases and imposes safeguards to protect the best interests of children. When the Convention enters into force with respect to the United States, it will apply to the United S
tates as both a country of origin (outgoing cases, i.e., where children are emigrating from the United States to a foreign country) and a receiving country (incoming cases, i.e., where children are immigrating to the United States from a foreign country).
The implementing legislation for the Convention is the IAA. The IAA requires the Department and DHS to establish a Case Registry to track all intercountry adoption cases: Convention and non-Convention; emigrating and immigrating cases. The Department is, with the joint review and approval of DHS, promulgating this final rule to require adoption service providers that provide adoption services in intercountry adoption cases involving a child emigrating from the United States (including governmental authoriti
es who provide such adoption services) to report certain information to the Department for incorporation into the Case Registry.
II. The Final Rule
The Department issued a proposed rule for public comment (See Proposed Rule on Intercountry Adoption--Reporting on Non-Convention and Convention Adoptions of Emigrating Children, 71 FR 54001-54005, September 13, 2006). No public comments were received. The Department is now issuing the final rule as it was proposed. No changes have been made to the text of the rule, except that the Department has made certain technical clarifications, including changing the § 99.2 heading and § 99.2(d)(1) to correct any m
isimpression that the rule applies only to U.S. national children and changing § 99.2(a) to clarify that the reporting requirements do not take effect until the Convention has entered into force for the United States.
III. Regulatory Review
A. Administrative Procedure Act
In accordance with provisions of the Administrative Procedure Act governing rules promulgated by Federal agencies that affect the public (5 U.S.C. 533), the Department published this rule for public comment.
B. Regulatory Flexibility Act/Executive Order 13272: Small Business
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-612 and Executive Order 13272, section 3(b), the Department of State has evaluated the effects of this action on small entities, and has determined, and hereby certifies, pursuant to 5 U.S.C. 605(b), that it would not have a significant economic impact on a substantial number of small entities. Overall, the number of outgoing intercountry adoption cases is expected to be very small in comparison with the number of incoming cases. Consequently,
very few ASPs that are small entities will also be involved in outgoing cases. Moreover, the rule requires only extremely limited reporting requirements for outgoing cases. Thus, the Department does not believe the economic impact on small entities will be significant. The Department received no public comments on the rule's impact on small entities.
C. 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. The rule would not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based companies to compete with foreign-based compan
ies in domestic and export markets.
D. The Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Pub. L. 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires agencies to prepare a statement, including cost-benefit and other analyses, before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more
in any year. Moreover, because this rule will not significantly or uniquely affect small governments, section 203 of the UFMA, 2 U.S.C. 1533, does not require preparation of a small government agency plan in connection with it.
E. Executive Order 13132: Federalism
A rule has federalism implications under Executive Order 13132 if it has substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This regulation will not have such effects, and therefore does not have sufficient federalism implications to require consultations or to warrant the preparation of a federalism summary impact statement under section 6 of Executive Orde
F. Executive Order 12866: Regulatory Review
The Department of State does not consider this rule to be a “significant regulatory action” within the scope of section 3(f)(1) of Executive Order 12866. Nonetheless, the Department has reviewed the rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Order.
G. Executive Order 12988: Civil Justice Reform
The Department has reviewed this rule in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. The Department has made every reasonable effort to ensure compliance with the requirements in Executive Order 12988.
H. The Paperwork Reduction Act (PRA) of 1995
Under the PRA, 42 U.S.C. 3501 et seq., agencies are generally required to submit to the Office of Management and Budget (OMB) for review and approval information collection requirements imposed on “persons” as defined in the PRA. Section 503(c) of the IAA exempts from the PRA information collection “for purposes of sections 104, 202(b)(4), and 303(d)” of the IAA “or for use as a Convention record as defined” in the IAA. All information collections that relate to outgoing non-Convention cases will be collect
ions made for the purposes of section 303(d) of the IAA, and thereby are exempt. All information collections that relate to outgoing Convention cases will be Convention records as defined in and subject to the preservation requirements of 22 CFR part 98, which implements section 401(a) of the IAA. Additionally, the majority of information collection imposed on persons pursuant to this rule, with respect to both Convention and non-Convention cases, will be for the purposes of obtaining information for congre
ssional reports required under section 104 of the IAA. Accordingly, the Department has concluded that the PRA does not apply to information collected from the public under this rule.
List of Subjects in 22 CFR Part 99
Adoption and foster care; International agreements; Reporting and recordkeeping requirements.
Accordingly, the Department adds new part 99 to title 22 of the CFR, chapter I, subchapter J, to read as follows:
PART 99--REPORTING ON CONVENTION AND NON-CONVENTION ADOPTIONS OF EMIGRATING CHILDREN
99.2 Reporting requirements for adoption cases involving children emigrating from the United States.
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.
§ 99.1 Definitions.
As used in this part, the term:
means the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption done at The Hague on May 29, 1993.
(b) Such other terms as are defined in 22 CFR 96.2 shall have the meaning given to them therein.
§ 99.2 Reporting requirements for adoption cases involving children emigrating from the United States.
(a) Once the Convention has entered into force for the United States, an agency (including an accredited agency and temporarily accredited agency), person (including an approved person), public domestic authority, or other adoption service provider providing adoption services in a case involving the emigration of a child from the United States must report information to the Secretary in accordance with this section if it is identified as the reporting provider in accordance with paragraph (b) of this sectio
(b) In a Convention case in which an accredited agency, temporarily accredited agency, or approved person is providing adoption services, the primary provider is the reporting provider. In any other Convention case, or in a non-Convention case, the reporting provider is the agency, person, public domestic authority, or other adoption service provider that is providing adoption services in the case, if it is the only provider of adoption services. If there is more than one provider of adoption services in a
non-Convention case, the reporting provider is the one that has child placement responsibility, as evidenced by the following factors:
(1) Entering into placement contracts with prospective adoptive parent(s) to provide child referral and placement;
(2) Accepting custody from a birthparent or other legal guardian for the purpose of placement for adoption;
(3) Assuming responsibility for liaison with a foreign government or its designees with regard to arranging an adoption; or
(4) Receiving information from, or sending information to a foreign country about a child that is under consideration for adoption.
(c) A reporting provider, as identified in paragraph (b) of this section, must report the following identifying information to the Secretary for each outgoing case within 30 days of learning that the case involves emigration of a child from the United States to a foreign country:
(1) Name, date of birth of child, and place of birth of child;
(2) The U.S. State from which the child is emigrating;
(3) The country to which the child is immigrating;
(4) The U.S. State where the final adoption is taking place, or the U.S. State where legal custody for the purpose of adoption is being granted and the country where the final adoption is taking place; and
(5) Its name, address, phone number, and other contact information.
(d) A reporting provider, as identified in paragraph (b) of this section, must report any changes to information previously provided as well as the following milestone information to the Secretary for each outgoing case within 30 days of occurrence:
(1) Date case determined to involve emigration from the United States (generally the time the child is matched with adoptive parents);
(2) Date of U.S. final adoption or date on which custody for the purpose of adoption was granted in United States;
(3) Date of foreign final adoption if custody for purpose of adoption was granted in the United States, to the extent practicable; and
(4) Any additional information when requested by the Secretary in a particular case.
§ 99.3 [Reserved].
December 18, 2006
Bureau of Consular Affairs,
Department of State.
February 2, 2007
Secretary of Homeland Security,
Department of Homeland Security.