[Federal Register Volume 80, Number 27 (Tuesday, February 10, 2015)]
[Rules and Regulations]
[Pages 7321-7323]
From the Federal Register Online via the Government Publishing 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,

[[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]
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