Rule2024-14628
Intercountry Adoption: Regulatory Changes to Accreditation and Approval Regulations in Intercountry Adoption
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 12, 2024
Effective
January 8, 2025
Issuing agencies
State Department
Abstract
The Department of State (the Department) publishes a final rule revising the Code of Federal Regulations to amend requirements for accreditation and approval by the United States to provide adoption services in intercountry adoption cases. This rule amends regulations to provide clarification, updates, or other adaptation of familiar accreditation and approval standards for intercountry adoption. It also includes a new section with alternative procedures for primary providers that apply in intercountry adoption by relatives. The new regulations for adoption by relatives simplify and streamline the adoption process by limiting the number of adoption services the primary provider must provide. The final rule emphasizes that accredited agencies and approved persons comply with all applicable laws in foreign countries where they provide adoption services.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 134 (Friday, July 12, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 134 (Friday, July 12, 2024)]
[Rules and Regulations]
[Pages 57238-57283]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14628]
[[Page 57237]]
Vol. 89
Friday,
No. 134
July 12, 2024
Part III
Department of State
-----------------------------------------------------------------------
22 CFR Part 96
Intercountry Adoption: Regulatory Changes to Accreditation and Approval
Regulations in Intercountry Adoption; Final Rule
Federal Register / Vol. 89, No. 134 / Friday, July 12, 2024 / Rules
and Regulations
[[Page 57238]]
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 96
[Public Notice: 12242]
RIN 1400-AE39
Intercountry Adoption: Regulatory Changes to Accreditation and
Approval Regulations in Intercountry Adoption
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of State (the Department) publishes a final
rule revising the Code of Federal Regulations to amend requirements for
accreditation and approval by the United States to provide adoption
services in intercountry adoption cases. This rule amends regulations
to provide clarification, updates, or other adaptation of familiar
accreditation and approval standards for intercountry adoption. It also
includes a new section with alternative procedures for primary
providers that apply in intercountry adoption by relatives. The new
regulations for adoption by relatives simplify and streamline the
adoption process by limiting the number of adoption services the
primary provider must provide. The final rule emphasizes that
accredited agencies and approved persons comply with all applicable
laws in foreign countries where they provide adoption services.
DATES: This final rule becomes effective January 8, 2025.
FOR FURTHER INFORMATION CONTACT:
<bullet> Technical Information: Emily Spencer, (202) 647-4000,
<a href="/cdn-cgi/l/email-protection#2243464d52564b4d4c4d544750514b454a566251564356470c454d54"><span class="__cf_email__" data-cfemail="0263666d72766b6d6c6d746770716b656a764271766376672c656d74">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Preamble Contents
I. Introduction
II. Overview of Major Changes and Provisions in the Final Rule
A. Adoption by Relatives
B. Compliance With All Applicable Laws
C. Child Care Payments
D. Procedures and Requirements for Adverse Action by the
Secretary, Including for Challenges to Such Adverse Action
E. Pausing on Revising Standards in Subpart F
F. Other Significant Changes
III. Section-by-Section Discussion of Significant Public Comments
IV. Timeline for Implementing Changes in the Final Rule
V. Regulatory Analysis
I. Introduction
This final rule amends 22 CFR part 96 and the changes clarify and
update the 2006 final rule that established the regulatory framework
for the accreditation and approval function required under the 1993
Hague Convention on Protection of Children and Co-operation in Respect
of Intercountry Adoption (the Convention), the Intercountry Adoption
Act of 2000 (IAA), and the Intercountry Adoption Universal
Accreditation Act of 2012 (UAA). The Department drew from its 17 years
of observations and experience with the accreditation regulations to
reflect the rule's practical operation, and from the observations of
adoption stakeholders including, but not limited to, adoptive parents,
adoption service providers (ASPs), Congressional offices, adult
adoptees, and law enforcement authorities.
On November 20, 2020, the Department published a notice of proposed
rulemaking (NPRM, often referred in this preamble as the proposed
rule). The proposed rule included changes to subparts A, B, E, F, L,
and M and a new subpart R. The Department intends to examine changes to
the remaining subparts at a later time.
This final rule takes into account public comments received in
response to the NPRM. The Department appreciates the extensive feedback
received from stakeholders in response to the NPRM and notes the many
contributions from stakeholders who recommended substantive revisions
to the Department's changes in the proposed rule. The final rule
incorporates many of the substantive revisions proposed by the public.
Additionally, as explained below, this rule does not include three
major sections of the proposed rule. The Department will consider
consultations with stakeholders before making further regulatory
proposals relating to these three sections.
II. Overview of Major Changes and Provisions in the Final Rule
This section of the final rule summarizes the major differences
between the proposed rule and the final rule. This overview is followed
in part III by a detailed, section-by-section discussion of significant
comments received in response to the NPRM.
A. Adoption by Relatives
The long-anticipated \1\ new provisions on adoption by relatives
were welcomed by most commenters, though some thought the new
provisions did not go far enough in streamlining the required adoption
services and should have further limited the role of primary providers
in relative cases. Most commenters, however, welcomed the simplified
role of the primary provider in the proposed rule requiring primary
providers to focus on three of the six adoption services listed in the
CFR: \2\
---------------------------------------------------------------------------
\1\ The IAA provided in section 502(a) for establishment by
regulation of alternative procedures for adoption of children by
relatives. The Department did not include alternative procedures for
adoption by relatives in its accreditation rule published in 2006,
which this rule amends, opting to pursue it later once the new
accreditation rule was implemented. Adoption service providers with
clients adopting relatives asked frequently over the intervening
years when the Department would produce alternative procedures for
relative cases.
\2\ 22 CFR 96.2 Definitions: Adoption service means any one of
the following six services:
(1) Identifying a child for adoption and arranging an adoption;
(2) Securing the necessary consent to termination of parental
rights and to adoption;
(3) Performing a background study on a child or a home study on
a prospective adoptive parent(s), and reporting on such a study;
(4) Making non-judicial determinations of the best interests of
a child and the appropriateness of an adoptive placement for the
child;
(5) Monitoring a case after a child has been placed with
prospective adoptive parent(s) until final adoption; or
(6) When necessary because of a disruption before final
adoption, assuming custody and providing (including facilitating the
provision of) child care or any other social service pending an
alternative placement.
---------------------------------------------------------------------------
<bullet> (3) Performing a background study on a child or a home
study on a prospective adoptive parent(s), and reporting on such a
study;
<bullet> (5) Monitoring a case after a child has been placed with
prospective adoptive parent(s) until final adoption; and
<bullet> (6) When necessary because of a disruption before final
adoption, assuming custody and providing (including facilitating the
provision of) childcare or any other social service pending an
alternative placement.
The new provisions in Sec. 96.100 allow a primary provider to
develop and implement an adoption service plan addressing only three
adoption services noted above in adoption by relatives. In all other
intercountry adoptions, the primary provider must develop and implement
a service plan for providing all six adoption services, in accordance
with Sec. 96.44. The provisions in Sec. 96.100(d) require that the
alternative procedures in Sec. 96.100 be performed in accordance with
the Convention, the IAA, the UAA and their implementing regulations.
Some commenters expressed the preference that post-placement
monitoring should not be required at all in adoptions by relatives. The
Department emphasizes that post-placement monitoring mandated in the
IAA remains an important element of the adoption services in the final
rule,
[[Page 57239]]
including with respect to the adoption by relatives. Adoption services
five and six include essential services related to monitoring the
continued well-being of the child's placement and to ensuring that the
prospective adoptive parents can care for the particular needs of a
child. Unlike other services that may not be applicable or made
redundant in the context of a pre-existing relationship, services 5 and
6 apply equally whether or not the child is related to the prospective
adoptive parents.
The public comments also revealed disagreement regarding how the
term ``relative'' should be defined and to which family relationships
the alternative procedures for primary providers should apply. Some
commenters preferred the relationships found in the regulations of the
Department of Homeland Security (DHS) at 8 CFR 204.309(b)(2)(iii) which
are exempt from the prohibition on prior contact with a child's parents
or caregivers. Section 96.2 Definitions includes a definition of
relative relationships that applies solely to determinations of when
those alternative procedures for primary providers in Sec. 96.100 may
be used. Although the Department's and DHS's definitions overlap quite
a bit, they differ enough in content and purpose that the Department
retained its proposed definition of ``relative'' in the final rule. The
definition of ``relative,'' and other public comments related to
subpart R are further addressed in the section-by-section discussion in
part III, below, and in appendix A at the end of this notice.
B. Compliance With All Applicable Laws
In the NPRM, the Department proposed a new section 96.29 in subpart
F identifying conduct that does not conform to the regulatory framework
of the IAA. Commenters found the new provisions to be duplicative and
pointed out that agencies and persons were already required to operate
in accordance with the Convention, the IAA, the UAA, and their
implementing regulations. They suggested that restating the principle
again as a new standard in subpart F was not necessary. The final rule
does not include a new section 96.29. The Department instead retained
the provisions on compliance with applicable laws in foreign countries
in section 96.30 and renamed that section State Licensing and
Compliance with All Applicable Laws. For a discussion of this and other
provisions proposed in section 96.29, see the public comment discussion
of Sec. 96.29 in section III of this preamble.
C. Child Care Payments
The changes to sections 96.36(a) and 96.40(c)(4) in the NPRM would
have prohibited ASPs from charging prospective adoptive parents for the
care of a particular child prior to the completion of the intercountry
adoption process. Payments for specific child welfare activities, if
permitted by the country of origin, are controversial because of the
potential risk of diverting payments to support illicit practices such
as recruiting children into institutions or incentivizing institutions
to retain children longer than necessary, and as such, have been
prohibited by many countries. The Department recognizes, however, that
prohibiting such payments that could pay for essential needs such as
food, medical care, and other child welfare-related services may be
detrimental to children, particularly for children awaiting adoption
who have special needs.
Commenters pointed out that historically payments were allowed if
permitted or required by the child's country of origin. Several
commenters noted the regularity with which the health of a child with
special needs deteriorates and medical needs increase during the time
between the referral and the final adoption, and that preventing
funding for such care, if permitted by the country of origin, would not
be in the best interests of the child. As discussed in section III of
this preamble, the Department did not retain in the final rule proposed
changes to Sec. 96.36(a). This final rule reinforces the standard in
Sec. 96.36(a) with changes to Sec. 96.36(b) that augment
recordkeeping requirements on the payment of fees in connection with
intercountry adoption. Enhanced standards for recordkeeping will
increase the oversight of any permitted or required payments for
specific activities related to the adoption as outlined in Sec.
96.36(a). The recordkeeping requirements will help decrease the risk
that payments intended to benefit children will be diverted for illicit
purposes. It will also assist agencies and persons to effectively
monitor and oversee payments and fees paid by their employees and
supervised providers in connection with an intercountry adoption. In no
instance shall permitted or required contributions be remitted as
payment or as an inducement to release a child for adoption.
D. Procedures and Requirements for Adverse Action by the Secretary,
Including for Challenges to Such Adverse Action
The proposed changes to section 96.83 in subpart L impact
provisions regarding adverse action by the Secretary leading to
suspension or cancellation of an agency or person's accreditation or
approval. The changes include procedural requirements for notifying
agencies and persons of adverse actions taken by the Secretary and the
reasons for such action. New sections 96.84(a) and (b) describe the
administrative process by which an ASP may request withdrawal of the
suspension or cancellation as unwarranted and the standards the
Department will use to review such a request. The process mirrors
provisions in Sec. 96.76 in which an ASP may provide information to an
accrediting entity to demonstrate that an adverse action was
unwarranted. This process is independent of a petition for relief from
the Secretary's suspension or cancellation and is based upon the ASP's
correction of deficiencies. A petition for relief is now addressed in
Sec. 96.84(c) and is similar to provisions in Sec. 96.78(a).
A number of commenters appreciated the introduction of due process
features when the Secretary imposes adverse action of suspension or
cancellation. Other commenters thought accrediting entities should
adhere to such procedures when imposing adverse actions, particularly
providing specific evidence relied on to support the adverse action.
The discussion in the section-by-section analysis for section 96.83
explains that some due process provisions in Sec. 96.83 go farther
than those governing adverse action by accrediting entities in Sec.
96.76. This is largely because of the emergent nature of the conduct
triggering suspension or cancellation by the Secretary. Similarly,
imposing adverse action before providing an opportunity to rebut the
Department's conclusions is justified and often cannot wait when the
imposition of adverse action relates to child safety or other serious
or emergent compliance issues.
In 2016, the Department exercised its authority for the first time
to debar an agency and determined based on that experience that it
would be beneficial to propose relevant details in the regulations as
to the notice, evidentiary, and procedural requirements relating to
debarment proceedings. Section 96.88 sets forth the procedures,
requirements, time frames, and standards of review that apply when the
Department
[[Page 57240]]
undertakes a debarment proceeding when prior notice is given. In Sec.
96.89, the Department sets forth the corresponding procedures,
requirements, time frames, and standards of review for debarment
effective immediately, without prior notice. Some commenters objected
to short time frames to obtain and present information in the
proceedings and the lack of common procedural features such as
discovery. They asserted the lack of discovery, for example, might
prejudice the agency's or person's ability to respond fully to claims
against it. The Department considers these and other comments relating
to debarment proceeding procedures and requirements in the section-by-
section analysis in part III of this preamble, including appeal options
in federal court and notification requirements when the Secretary
debars an accredited agency or approved person.
E. Pausing on Revising Standards in Three Sections of Subpart F
The Department received public comments expressing concern or
disagreement about parts of the proposed changes in sections 96.40,
96.50, and 96.54 in the proposed rule. The Department concluded that
the issues raised in these comments warrant further consideration. This
final rule does not include revisions to these three sections. A brief
summary of the relevant comments and content of these sections follows:
Sec. 96.40: Fee Policies and Procedures
Comments submitted about standards relating to adoption fees and
expenses uniformly expressed concern with the way the Department
characterized fees relating to intercountry adoption practice and the
burden on adoption service providers to revise, recalculate, and report
fee schedules conforming to the proposed changes. Commenters indicated
the proposed rubrics failed to reflect the way agencies and persons
structure their work as well as the flexibility needed to adapt to
dynamic conditions.
Sec. 96.50: Placement and Post-Placement Monitoring Until Final
Adoption in Incoming Cases
The revisions to Sec. 96.50 in the proposed rule would have
expanded required efforts by ASPs for taking action in the event of a
disruption and reporting to all relevant authorities about disruption
cases. Commenters asserted the proposed changes would require
significant resources to implement.
Sec. 96.54: Placement Standards in Outgoing Convention Cases
We received many comments relating to the proposed changes to this
section. The comments were against making any of our proposed changes,
arguing among other things that the provisions would have a negative
impact on outgoing adoption practice.
Two Additional Sections in Subpart F Ready for Renewed Consultations
Several commenters expressed strong interest in making changes to
two additional sections in subpart F, sections 96.46 and 96.48.
Sec. 96.46: Using Providers in Foreign Countries
Regarding foreign supervised providers, in the proposed rule the
Department acknowledged there were areas of discord relating to
oversight of foreign supervised providers. We stated our intention to
undertake a consultative process on these issues that would consider
the entire range of standards relating to foreign supervised providers.
In addition to a few minor textual updates to Sec. 96.46 in the NPRM
and in the final rule, we made changes to Sec. 96.46(b)(7) and (8)
requiring all payments to foreign supervised providers be provided
through the primary provider. The primary provider must also provide
prospective adoptive parents with a written explanation about the
return of unused funds within 60 days.
Sec. 96.48: Preparation and Training of Prospective Adoptive Parents
in Incoming Cases
Several commenters were disappointed that the proposed rule did not
amend the requirements for parent preparation and training. The
commenters expressed a need to increase the number of hours required
for parent preparation and welcomed an opportunity to collaborate on
the parameters of such training. No such changes are reflected in the
final rule but further consideration will be given to these
suggestions.
F. Other Significant Changes
Changes to Elements in Subpart A, General Provisions
In the definitions section of the final rule, Sec. 96.2, we did
not retain the proposed definition of ``authorization.'' Commenters
noted this feature of the Hague Adoption Convention, Article 12, is
already incorporated into the regulations in the many references to
compliance with the Convention and further definition would be
repetitive.
In the final rule, we have kept several of the proposed changes to
the definition of ``best interests of the child'' in Sec. 96.2. The
definition in the final rule clarifies how U.S. accredited and approved
providers should consider the best interests of a child when the child
is abroad and outside the jurisdiction of a U.S. State. The NPRM only
included a reference to the Convention in the proposed revision to the
definition of best interests of the child. Based on public comments,
the definition in the final rule also includes a reference to the IAA,
the UAA, and their implementing regulations.
We made a change from the NPRM to the definition of ``supervised
provider,'' adding for clarity the term ``domestic or'' before the term
``foreign entity.''
We did not retain a definition of ``unregulated custody transfer''
(UCT) in the NPRM, in response to comments noting that States have
jurisdiction over child welfare and protection matters, including what
constitutes UCT and any practice standards relating to it.
Changes to Elements in Subpart B, Selection, Designation, and Duties of
Accrediting Entities
Section 96.7 of the final rule retains the proposed revision in the
NPRM requiring accrediting entities to retain all records relating to
accreditation decision making for a period of 10 years. In response to
comments, this final rule provides for the Secretary to extend the time
accrediting entities must retain documents, but not shorten it to less
than 10 years.
Section 96.8 of the final rule incorporates the proposed provisions
establishing a new process for reporting accrediting entity fee
schedule changes in the Federal Register.
The Department retained the proposed change to Sec. 96.10
permitting a finding that accrediting entities are out of compliance
for approving or accrediting an agency or person when the Secretary had
to intervene and itself impose suspension, cancellation, or debarment
of an agency or person.
Section 96.12 of the final rule retains the minor edits in the
NPRM, but it remains in subpart C.
Changes to Elements in Subpart E, Evaluation of Applicants for
Accreditation and Approval
In tandem with changes in section 96.7 as noted above, we retained
in the final rule the proposed change to Sec. 96.26 requiring
accrediting entities to retain an accurate record of accreditation and
approval decision making for at least 10 years, or longer if the
Secretary requires it.
[[Page 57241]]
In Sec. 96.27(e) the final rule incorporates a proposed change
requiring accrediting entities to take into account in evaluating an
application for accreditation or approval the reasons underlying a
previous denial of accreditation or approval.
Changes to Standards in Subpart F, Standards for Intercountry Adoption
Accreditation and Approval
We did not retain proposed changes to Sec. 96.32 requiring
agencies and persons to retain records related to the monitoring and
oversight of supervised providers for a period of not less than 25
years. Several commenters expressed concern with the cost of
implementing these provisions. On balance, the cost of creating and
retaining such records for 25 years and potentially even longer could
not be justified by the potential benefits.
Concerning the requirements in Sec. 96.33(e) relating to the cash
reserve of two months operating expenses, in the final rule we did not
retain the proposed deletion of ``financial resources'' in this
standard. Based on several public comments, we removed the reference to
liquid assets. To avoid possible confusion or ambiguity as to these
terms, the Department retained the existing CFR language in Sec.
96.33(e).
Section 96.34 of this final rule mandates that compensation must
not be unreasonably high but does not retain the proposed changes meant
to take into account what services ``actually cost.'' Commenters found
the proposed formulation too vague for accrediting entities to
implement.
The Department accepted the recommendation by a commenter that
several additional training topics be added to the list of topics in
Sec. 96.38. They relate to trauma-informed parenting, the impact of
adoption on children already in the home, and parental support for
children who experience discrimination based on race, physical,
cognitive, and other disabilities.
Addressing questions raised in comments, section 96.41 of the final
rule establishes that a complaint may be submitted by email, must
include the name of the complainant and must be dated.
The final rule incorporates practical steps in Sec. 96.47 for
withdrawal of a home study recommendation that a family be found
suitable to adopt abroad, including timelines for notifying adoptive
parents, primary providers, and USCIS. The final rule does not retain
proposed changes to Sec. 96.52(a)(1) requiring extensive additional
agency and person reporting to the Secretary and the foreign Central
Authority about ``material facts'' of intercountry adoption cases.
III. Section-by-Section Discussion of Comments
This section provides a detailed discussion of significant comments
received and describes differences between the NPRM and this final
rule.
Subpart A--General Provisions
Section 96.2 Definitions
1. Comment: Several commenters suggest edits to the proposed
definition of ``authorization'' to clarify that such permission from a
Central Authority is for the ability to provide adoption services
generally and not just for one specific adoption. The commenters also
recommend deleting the last sentence of the definition suggesting it
goes beyond the scope of defining the term.
Response: The final rule does not retain the proposed definition of
``authorization.'' It also does not establish a standard for foreign
authorization. Where foreign countries require authorization to provide
adoption services, agencies and persons are obliged to be in full
compliance with the laws of that foreign country in accordance with the
new section 96.30(e) in the final rule. For additional information, see
the discussion relating to section 96.29, below.
2. Comment: One commenter expresses concern that the proposed
revision to the definition of ``best interests of the child'' does not
sufficiently reflect the provision of section 503(a) of the IAA (42
U.S.C. 14953(a)) that defers to State law unless such provisions are
inconsistent with the Convention or the IAA. The commenter is concerned
the phrase ``without reference to the law of any particular State'' is
in direct conflict with the IAA's objective to defer to State law
definitions whenever possible. The commenter recommends deleting this
reference and if it is retained, that in addition to the Convention, a
reference to the IAA should also be added. The commenter is also
concerned that a reference to ``the object and purpose of the
Convention'' could be interpreted to include provisions of other
international conventions.
Response: The Department revised the definition of ``best interests
of the child'' in the final rule to include a reference to the IAA, the
UAA, and their implementing regulations to clarify that the revision
does not include reference to any other international conventions. We
have also removed the reference to ``without reference to the law of a
particular State'' because we believe the intent of the regulation is
clear without this specific reference. The Department does not agree
that the new definition is inconsistent with the IAA. The value of the
revised definition is that it provides useful information to agencies
and persons about how to approach making determinations of the best
interests of a child when the child is outside of any State
jurisdiction. The definition affirms the central concept that in cases
in which a State has jurisdiction to decide whether a particular
adoption or adoption-related action is in a child's best interests,
``best interests of the child'' shall have the meaning given to it by
the law of the State.
3. Comment: Some commenters are concerned the definition of ``best
interests of the child'' does not appropriately acknowledge the role
played by central or competent authorities in making best interest
determinations for children in countries of origin. The commenters note
such determinations usually require judicial approval.
Response: The revised definition does not impose duties on public
foreign authorities, who are expected to act in accordance with their
own laws, regulations, and practices. In this final rule, to the extent
that accredited agencies and approved persons contribute to decisions
or actions abroad regarding best interests of the child, the revised
definition reinforces how the determination should be made. Section
96.2 of the regulations specifically defines one of the six adoption
services as ``making non-judicial determinations of the best interests
of the child and the appropriateness of an adoptive placement for a
child.'' The Department recognizes the role played by the competent
authority but does not agree this definition in the final rule
conflicts with the role played by central or competent authorities in
making a best interest determination for children. Rather, it clarifies
the guiding documents an agency or person should use when providing
this adoption service outside of a State jurisdiction.
4. Comment: One commenter proposes adding other people who could be
party to a service agreement in accordance with Sec. 96.44 to the
definition of ``client,'' namely, birth parents in outgoing adoption
cases. This commenter also recommends including the child who is being
adopted in an outgoing adoption in the definition of ``client'' in
Sec. 96.2.
Response: Based on the public comments, we have withdrawn the
definition of ``client.'' We agree that
[[Page 57242]]
only referencing prospective adoptive parents in the definition of
client with respect to a service agreement may be unnecessarily
limiting, particularly with respect to outgoing adoptions. Given the
possible different parties that could be included as clients for the
services agreement with an agency or person, the Department is not
including a definition of ``client'' in Sec. 96.2 of the final rule.
5. Comment: Several commenters raise concerns about the addition of
a new definition of ``complaint'' in Sec. 96.2 and its impact on Sec.
96.41, procedures for responding to complaints and improving service
delivery.
Response: The final rule does not add a definition of
``complaint.'' For comments and responses relating to the proposed
definition of ``complaint'' together with a discussion of comments
relating to responding to complaints and related procedures, see Sec.
96.41, below.
6. Comment: Two commenters note the Department proposed changes to
the definition of ``public foreign authority'' by adding ``a court or
regulatory'' before ``authority operated by a national or subnational
government of a foreign country'' but did not propose similar changes
to the definition of ``public domestic authority.'' The commenters
object to the difference and are concerned the differences could cause
confusion, particularly the proposed changes to the definition of
public foreign authority.
Response: In response to these comments the Department is not
including in the final rule the revisions to definitions of ``public
foreign authority'' and ``public domestic authority.'' The Department
does not want to create confusion between the definitions of
``competent authority'' and ``public foreign authority'' as used in
sections 96.12 and 96.14 which could make it more difficult to
determine which entities require supervision.
7. Comment: Several commenters recommend the Department revise its
definition of ``relative'' by using instead the list of relative
relationships found in 8 CFR 204.309(b)(2)(iii).
Response: This final rule retains the NPRM definition of
``relative'' in Sec. 96.2. The Department believes the Sec. 96.2
definition of relative serves a purpose entirely different from the
definition of relative found in DHS regulations at 8 CFR
204.309(b)(2)(iii). Although there is significant overlap in the two
definitions, their differences are also significant. See Appendix A at
the end of this notice showing how the two lists of relative
relationships overlap and how they differ in approach.
The DHS regulation at 8 CFR defines which pre-existing familial
relationships are exempt from the prohibition on prior contact between
a prospective adoptive parent and the prospective adoptive child's
parents, legal custodian, or other individual or entity who is
responsible for the child's care. Additionally, the DHS regulation
defines such relative relationships in terms of the prospective
adoptive parent's relationship with the parent of the child to be
adopted. In contrast, the Department's final rule definition of
relative addresses relationships between the prospective adoptive
parent(s) and the child to be adopted.
The relationships in the Department's definition of relative in
Sec. 96.2 include first- and second-degree relatives: parents and
siblings and grandparents, aunts, uncles, nieces and nephews as well as
analogous relationships through marriage and adoption. These are all
familial relationships that a primary provider can more readily
document to determine whether a prospective adoptive parent has a
qualifying relationship for the alternative procedures for primary
providers in Sec. 96.100. Relatives beyond the second degree such as
great-grandparents, great aunts, great uncles and first and second
cousins may still adopt relatives. However, primary providers in these
cases would be required to develop a service plan for all six adoption
services and implement that plan in accordance with Sec. 96.44.
8. Comment: Commenters raised the concern that adoptive parents who
adopt a child could assert a relative relationship with that child on
the basis of its adoption and thus avail themselves of the alternative
procedures for adoption by relatives in Sec. 96.100.
Response: The relationships within the definition of ``relative''
in Sec. 96.2 must exist between the prospective adoptive parent and
the child prior to initiating an adoption to be able to take advantage
of the provisions in Sec. 96.100. For greater clarity, we revised the
definition of ``relative'' as follows: ``Relative . . . means a
prospective adoptive parent was already, before the adoption, any of
the following: parent, step-parent, etc. (emphasis added).''
9. Comment: One commenter is concerned that the addition of
``person or'' after ``foreign'' in the definition of ``supervised
provider'' will cause ambiguity in the definition given that the phrase
``person'' is first referred to in the definition of supervised
provider, without specific reference to ``foreign.'' The commenter
suggests adding a reference to ``domestic'' in addition to ``foreign''
to clarify the definition.
Response: The Department has modified the definition of
``supervised provider'' to provide clarity. We included ``domestic or''
before the word ``foreign.''
10. Comment: Several commenters object to the phrase ``intent on
severing'' in the proposed definition of ``unregulated custody
transfer'' because it is ambiguous and does not explain how a parent's
intention should be determined. Another commenter argues that the
definition is unconstitutional because it treats parents by adoption
differently from biological parents.
Response: The final rule does not contain a definition of
``unregulated custody transfer.'' Given that the States have
jurisdiction over child welfare and protection matters and that some
States have already defined UCT, we defer to the States to determine
what constitutes UCT rather than propose a definition in this rule.
Subpart B--Selection, Designation, and Duties of Accrediting Entities
Section 96.4 Designation of Accrediting Entities by the Secretary
1. Comment: Several commenters are concerned the proposed addition
of ``under Sec. 96.5(b)'' to Sec. 96.4(c) will result in adoption
service providers losing the choice to select the accrediting entity
that conducts their accreditation or approval.
Response: Section 96.4(b) is unchanged in the final rule and
permits the Secretary's designation of an accrediting entity to include
limitations on the accrediting entity's geographic jurisdiction or
impose other limits on the entity's jurisdiction. For clarity, the
final rule retains the minor proposed change in Sec. 96.4(c), which
connects the reference to a public entity in Sec. 96.4(c) to the
requirements relating to public entities in Sec. 96.5(b).
Section 96.6 Performance Criteria for Designation as an Accrediting
Entity
1. Comment: One commenter suggests the Department is revising Sec.
96.6 to accommodate a specific accrediting entity.
Response: The Department made no changes in response to this
comment. Rather than addressing any one specific entity, the
requirements in Sec. 96.6 outline the performance criteria any
accrediting entity must demonstrate to the Secretary when it is seeking
designation as an accrediting entity. The changes to Sec. 96.6(c) and
(d) clarify that an accrediting entity must demonstrate that it has the
capacity to monitor and take appropriate adverse actions against
agencies and persons, even if did not initially accredit or approve
them. This change expands the performance criteria
[[Page 57243]]
that must be demonstrated by an entity seeking designation by the
Department.
Section 96.7 Authorities and Responsibilities of an Accrediting Entity
1. Comment: A commenter noted in Sec. 96.7(a)(4) that the
Department changed the function of the accrediting entities from
``investigating'' complaints to ``reviewing'' complaints and asked for
clarification of what review means in this context.
Response: The Department declines to further define ``review'' in
the final rule. Clarification of the meaning of the term ``review'' is
incorporated in the Memoranda of Agreement between the accrediting
entities and the Department and figures prominently in the Department-
approved accrediting entity policies and procedures relating to
complaints.
2. Comment: Several commenters recommend the Department specify in
the regulation that the Secretary could extend the time that an
accrediting entity maintains all records related to its role as the
accrediting entity.
Response: In response to these comments, Sec. 96.7(a)(9) and Sec.
96.26(d) of the final rule include a reference to ``longer if'' to
clarify that ten years is the minimum amount of time for an accrediting
entity to maintain its records, but the Secretary can extend it.
Section 96.8 Fees Charged by Accrediting Entities
1. Comment: Several commenters expressed the belief that the
Department should require more transparency of an accrediting entity's
costs to perform functions authorized by the Secretary by requiring it
to make available, upon request from the public, its demonstration of
compliance with Sec. 96.8(a).
Response: The Department is not changing the rule to mandate that
accrediting entities demonstrate to the public compliance with Sec.
96.8 as this regulation addresses the factors the Department will
consider, pursuant to Section 202(d) of the IAA, in deciding whether to
approve an accrediting entity's proposed fee schedule. The language in
the proposed rule for Sec. 96.8(b) is the same in the final rule and
requires the Department to publish proposed fee schedules in the
Federal Register for public comment. The Department believes this will
increase the transparency of an accrediting entity's fee schedules,
particularly proposed changes, while also adhering to the requirements
in the IAA.
2. Comment: Several commenters suggest that fees charged by
accrediting entities should be refundable for services not rendered.
Several commenters also recommend the Department add a provision
prohibiting accrediting entities from charging additional fees for
siblings.
Response: Section 96.8(c)(1) requires that the fees for
accreditation and approval not be refundable. The Department is not
changing this provision because we believe it protects an accrediting
entity's capacity to perform its roles and functions required by law
and its agreement with the Department, while remaining consistent with
Section 202(d) of the IAA. The Department does not agree that a new
provision should be added to restrict the possible fee structure for an
accrediting entity; however, we encourage interested persons to utilize
the public comment process outlined in Sec. 96.8(b).
Section 96.10 Suspension or Cancellation of the Designation of an
Accrediting Entity by the Secretary
1. Comment: Several commenters propose adding the word
``sufficient'' in front of evidence in Sec. 96.10(c)(1).
Response: The Department is not making any changes in response to
this comment because we do not agree ``evidence'' needs to be qualified
in this standard. The procedures outlined in Sec. 96.10(b) provide the
accrediting entity with an opportunity to demonstrate that suspension
or cancellation by the Secretary is unwarranted, in accordance with the
agreement with the Department pursuant to Sec. 96.9.
Subpart E--Evaluation of Applicants for Accreditation and Approval
Section 96.25 Access to Information and Documents Requested by the
Accrediting Entity
1. Comment: One commenter is concerned the proposed change to Sec.
96.25 is overly broad and should specify that the intent of
``deliberate destruction of documentation'' is to prevent an
accrediting entity from accessing the documentation. Several commenters
indicate support for the change but are concerned an accrediting entity
could take adverse action against an agency or person for following its
own document retention and disposition policy. These commenters
recommend that an accrediting entity be required to provide notice
specifying which documentation and information the agency or person
must retain.
Response: Section 96.25(c) permits an accrediting entity to take
appropriate adverse action against an agency or person based solely on
an agency or person failing to provide requested documents or
information to an accrediting entity. The final provision in Sec.
96.25(c) permits an accrediting entity to take appropriate adverse
action if the agency or person ``engages in deliberate destruction of
documentation or provides false or misleading documents or
information'' to an accrediting entity. An accrediting entity requires
access to an agency or person's information and documents to perform
its functions authorized by the Secretary. Section 96.25(a) outlines
the access and Sec. 96.25(b) limits the accrediting entity's access to
Convention adoption files and cases subject to the UAA, with the
exception of first-time applicants for accreditation or approval. The
requirements in this regulation, along with Sec. 96.42 on the
retention, preservation, and disclosure of adoption records, provide
sufficient information for an agency or person about the disclosure
requirements to an accrediting entity.
With regard to adverse action, section 96.76 outlines the
procedures governing adverse action by an accrediting entity. These
procedures would guide an accrediting entity's procedures for taking
appropriate adverse action based on Sec. 96.25(c).
The Department has modified Sec. 96.25(c) in the final rule to
clarify that the deliberate destruction of documentation relates to the
documents or information requested by the accrediting entity that
requires or requests the documentation to evaluate an agency or person
for accreditation or approval and to perform its oversight,
enforcement, renewal, data collection, and other functions.
Section 96.26 Protection of Information and Documents by the
Accrediting Entity
1. Comment: Several commenters disagree with adding ``foreign'' to
Sec. 96.26(b) because they do not think an accrediting entity should
make disclosures of information and documents to a foreign authority
unless such disclosure falls into a circumstance outlined in Sec.
96.26(b). The commenters suggest such disclosures to a foreign
authority be coordinated through the Department of State.
Response: We have made a change to Sec. 96.26(b) by removing the
term ``foreign'' as recommended. This change clarifies that documents
and information may not be disclosed by an accrediting entity to a
foreign authority unless the disclosure meets the circumstances
outlined in Sec. 96.26(b)(1) through (3).
2. Comment: Several commenters are concerned Sec. 96.26(d) would
limit the requirements for an accrediting entity to
[[Page 57244]]
maintain accurate records. The commenters suggest this could weaken the
Department of State's oversight of an accredited entity.
Response: Section 96.26(d), formerly the last sentence of Sec.
96.26(c), clarifies the minimum period for an accrediting entity to
maintain complete and accurate records of all information it receives
related to an agency or person and the basis for accrediting entity
decisions concerning the agency or person. The Department has made a
change to clarify that the Secretary will only lengthen, not shorten,
the requirement for an accrediting entity to maintain a complete and
accurate record of all information it receives related to an agency or
person, and the basis for an accrediting entity's decisions concerning
the agency or person.
3. Comment: Several commenters suggest requiring an accrediting
entity to disclose to an agency or person any information or records
the accrediting entity uses as the basis of an adverse action.
Response: We did not make any changes in response to this comment.
The Department did not propose changes to subpart K, which includes
procedures and responsibilities of an accrediting entity for decisions
leading to the imposition of adverse action.
Section 96.27 Substantive Criteria for Evaluating Applicants for
Accreditation or Approval
1. Comment: Several commenters are concerned that removing the word
``only'' from Sec. 96.27(c) would allow an accrediting entity greater
flexibility and discretion, outside the scope of subpart F, when
evaluating applicants for accreditation or approval.
Response: To avoid any confusion about how the standards are
applied, we have not included the proposed changes to Sec. 96.27(c) in
the final rule.
Subpart F--Standards for Convention Accreditation and Approval
Section 96.29 Compliance With All Applicable Laws
1. Comment: Commenters object to the provisions in the proposed
Sec. 96.29(a) requiring that an agency or person has not provided any
adoption service without accreditation or approval, or as an exempted
or supervised provider. Commenters also object to the proposed
requirement that an agency or person demonstrate it has not provided
any adoption services in a foreign country without authorization. In
addition, commenters point out that these prohibitions are not
constrained in time, not limited in terms of pre- or post-IAA or
Convention, nor do they contemplate how agencies and persons must
document their compliance.
Response: The Department is reorganizing the material in Sec.
96.29 and has removed the proposed Sec. 96.29(a) from subpart F. The
provisions in the proposed Sec. 96.29(b) are already included in Sec.
96.25 where issues relating to an accrediting entity's access to
information and documents are found. The parts of the proposed Sec.
96.29(c) and (d) relating to compliance with the laws of jurisdictions
where agencies and persons provide adoption services are now retained
in Sec. 96.30(e). For information about disposition of provisions in
the proposed Sec. 96.29 relating to foreign country authorization in
line with Convention Article 12, see comment 4, below.
2. Comment: Several commenters are concerned with the provisions in
the proposed Sec. 96.29(d) concerning compliance with the laws of each
jurisdiction in which an agency or person operates. They state that
foreign laws are often vague or contradictory and compliance is
difficult to achieve. Some also note that even when laws are clear,
some countries of origin lack the infrastructure to act on them quickly
enough to meet urgent needs of children waiting for intercountry
adoption placements.
Response: The requirement for agencies and persons to act in
compliance with all applicable laws tracks closely with the minimum
requirements of the accreditation regulations in the IAA found in
Section 203(b)(1)(F) (42 U.S.C. 14923(b)(1)(F)): ``The agency has
established adequate measures to comply (and to ensure compliance of
theirs and clients) with the Convention, this chapter, and any other
applicable law.'' To clarify the provisions relating to compliance with
all applicable laws, the final rule includes the first sentence of the
proposed language of Sec. 96.29(d) as new section 96.30(e).
3. Comment: Several commenters note that even when laws in some
countries of origin are known there may be different interpretations of
laws as well as waivers or exceptions that may be informally permitted
and unevenly administered. These factors make it difficult to determine
compliance with applicable foreign laws. Commenters recommend that
issues of compliance with foreign laws be referred to law enforcement,
noting further their belief that it is not an accrediting entity role
to unilaterally determine if an agency has violated a law. The
commenters question the practicality of expecting accrediting entities
to have and maintain expertise in domestic and foreign law.
Response: The IAA gives accrediting entities the responsibility to
assess agency and person substantial compliance with accreditation
standards, which include requirements to comply with applicable foreign
laws. Law enforcement concerns may emerge in the context of an
accrediting entity's accreditation, approval, or monitoring and
oversight of an agency or person and, where appropriate, the agency's
or person's conduct may be referred to law enforcement entities for
investigation and possible prosecution. The role of law enforcement is
separate from that of an accrediting entity, which is to provide
monitoring and oversight of an agency's or person's compliance with
standards for accreditation and approval.
4. Comment: Several commenters observe that the proposed rule
introduces a new standard in the proposed Sec. Sec. 96.29(a), (c), and
(d) requiring foreign country authorization to provide adoption
services in countries requiring such authorization. They note that
determining country of origin authorization requirements can be
difficult.
Response: The Department removed the specific references to foreign
country authorization in the final rule. However, if a country of
origin requires authorization in the context of obligations under
Article 12, an agency or person must obtain such authorization to
comply fully with the laws of the foreign country where they or it
operates.
Licensing, Compliance With Applicable Laws, and Corporate Governance
Section 96.30 State Licensing and Compliance With All Applicable Laws
The Department is revising the heading associated with this Section
and adding Sec. 96.30(e), formerly the first half of the proposed
Sec. 96.29(d).
Section 96.32 Internal Structure and Oversight
1. Comment: Many commenters oppose the proposed retention
requirements for records relating to the selection, monitoring, and
oversight of foreign supervised providers, financial transactions to
and from foreign countries, and records relating to complaints. The
commenters are concerned this new requirement will significantly
increase the costs to an agency or person to comply with the new
standard for document retention. Several commenters note Sec. 96.42
[[Page 57245]]
includes the requirements for the retention, preservation, and
disclosure of adoption records. The commenters note the retention
requirement in Sec. 96.42 for adoption records defers to applicable
State law, which may require adoption records be retained permanently.
Several commenters are also concerned that the change to the standard
could violate State laws in some jurisdictions.
Response: In response to public comments, the final rule does not
include the provision in Sec. 96.32(c) of the NPRM. The final rule
continues to require the agency or person to keep permanent records of
the meetings and deliberations of its governing body and of its major
decisions affecting the delivery of adoption services.
Financial and Risk Management
Section 96.33 Budget, Audit, Insurance, and Risk Assessment
Requirements
1. Comment: Commenters want the term ``liquid assets'' removed from
the proposed changes to Sec. 96.33(e) because ``liquid assets'' are
already included in the standard, as ``liquid assets'' are a type of
asset. The commenters suggest using the term ``or other assets,'' which
is inclusive of liquid assets. Commenters are also concerned that
emphasizing liquid assets will make it more difficult for smaller
agencies and persons to keep sufficient assets liquid and in reserve.
Response: The final rule does not include the proposed reference to
liquid assets. Also, the final rule does not retain the proposed
deletion of ``financial resources.'' To avoid possible confusion or
ambiguity as to these terms, the Department retained the existing CFR
language in Sec. 96.33(e).
2. Comment: Several commenters recommend the reserve requirement
should apply only to an agency or person's intercountry adoption work.
These commenters note that it is more challenging for agencies and
persons that operate non-adoption programs to meet the reserve
requirement of the standard.
Response: We have not included limiting the cash and other asset
reserves solely to an agency or person's intercountry adoption
programs. The reserve provisions are meant to protect prospective
adoptive families by considering the financial viability of the entire
organization, including where the agency or person engages in other
work beyond intercountry adoption.
3. Comment: One commenter requests the Department clarify why it is
moving the last sentences of Sec. 96.33(e) to a new section, Sec.
96.33(f). The commenter notes if an agency or person ceases to provide
or is no longer permitted to provide adoption services in intercountry
adoption cases, the transfer plan required by the standard is not
enforceable. The commenter notes agencies and persons are increasingly
unwilling to accept transfer cases due to concerns that the agency or
person may be found out of substantial compliance with the regulations.
The commenter suggests the Department should play a greater role
helping agencies and persons to transfer adoption cases and records.
Response: Section 96.33(f) remains unchanged from its formulation
in the proposed rule. The standard requires an agency or person to have
a plan to transfer its intercountry adoption cases if it ceases to
provide or is no longer able to provide adoption services in
intercountry adoption cases. Making a transfer plan benefits adoptive
families in the process of adopting because it includes provisions for
reimbursement to them of funds paid for services not yet rendered. For
purposes of clarity, we have included this standard in its own section.
The Department's role when an agency or person is unable to transfer
its intercountry adoption cases consistent with its plan is outlined in
Sec. Sec. 96.7 and 96.77.
Section 96.34 Compensation
1. Comment: Several commenters request clarification about the
meaning of a ``plan to compensate'' in Sec. 96.34(a). These commenters
recommend that the Department use the phrase ``or offers to
compensate'' to clarify the requirement of the standard.
Response: We have modified Sec. 96.34(a) to clarify that any
payment or offer of payment that includes an incentive fee or
contingent fee for a child placed for adoption is not in compliance
with this standard. The final rule broadens the requirement to ensure
that any individual or entity involved in an intercountry adoption is
not compensated with an incentive fee or contingent fee for a child
located or placed for adoption. The final rule addresses known
practices to circumvent this limitation on the payment of incentive and
contingent fees.
2. Comment: In several sections of the proposed rule commenters
expressed uncertainty of our meaning when we inserted the term ``or
entity'' after the word ``individual.''
Response: The Department made no change in response to the comments
regarding use of the terms ``individual'' or ``entity.'' In their
common usage, the terms differentiate between a single person--an
individual--and a group of individuals such as a corporation or
agency--an entity. This distinction helps to clarify that the
compensation limits in Sec. 96.34 have broad application.
3. Comment: In Sec. 96.34(d), commenters oppose the proposed
formulation ``what such services actually cost'' in the country for
lack of clarity, particularly regarding who determines what services
actually cost in every country program. The commenters also point out
that what a service costs is influenced by many factors, and that it
will be difficult for an accrediting entity to determine actual costs
given the variables involved.
Response: The standard in Sec. 96.34(d) relates to avoiding
unreasonably high fees, wages or salaries paid to directors, officers,
employees, and supervised providers along with any other individual, or
entity involved on behalf of an agency or person. The Department has
not retained the proposed phrase ``what services actually cost,''
including instead ``taking into account the country in which the
services are provided and norms for compensation within the
intercountry adoption community in that country, to the extent that
such norms are known to the accrediting entity.'' This standard
provides several factors to consider in making such a determination
including, the country, the location, number, and qualifications of
staff, workload requirements, budget, and the size of the agency or
person (such as a for-profit organization).
Ethical Practices and Responsibilities
Section 96.35 Suitability of Agencies and Persons To Provide Adoption
Services Consistent With the Convention
1. Comment: A commenter requests clarification as to whether the
new disclosure requirement in Sec. 96.35(b)(6) relates to
investigations by foreign authorities that are known to an agency or
person.
Response: Section 96.35(b)(6) adds a new element to the disclosure
requirement relating to any known past or pending investigations by
foreign authorities.
2. Comment: A commenter raised a concern about a disclosure
requirement in Sec. 96.35(b)(7) that an agency of person must disclose
``any instances where the agency or person has been found guilty of any
crime under Federal, State, or foreign law . . .'' The commenter
pointed out that in some criminal cases a defendant may be permitted by
the court to enter a plea of nolo contendere resulting in a conviction,
but without
[[Page 57246]]
admission or finding of guilt. The commenter was concerned that an
agency or person may have been convicted of illicit activity without
being found guilty and would not be under obligation to disclose the
conviction.
Response: The Department made no changes to this section. We
decline to look behind the court's acceptance of the nolo contendere
plea. Only those convictions in which an agency or person is found
guilty of a crime requires disclosure under Sec. 96.35(b)(7). We note
that other parts of Sec. 96.35, i.e., paragraphs (b)(9) and (c)(1),
may require disclosure of conduct of concern that leads to a conviction
even without specifying guilt, or that is inconsistent with the
principles of the Convention.
3. Comment: One commenter is concerned the proposed change in Sec.
96.35(b)(9) from activities that ``are'' inconsistent with the
principles of the Convention to activities that ``may be'' inconsistent
could create ambiguity for an agency or person about the disclosures
required by this standard.
Response: The Department removed the proposed changes to ``may be''
in Sec. Sec. 96.35(b)(9) and 96.35(c)(4) replacing them with ``are.''
4. Comment: Commenters are concerned in Sec. 96.35(c)(2) that the
broader language requiring disclosure of employees with formal
disciplinary actions or known investigations might be too broad because
it would include employees who are not involved in the adoption
process. One commenter suggests the new standard would require an
agency or person to disclose to an accrediting entity any disciplinary
actions, such as reporting late to work.
Response: The Department has revised the standard to revert to the
language limiting the section to senior management positions but has
retained the language adding formal disciplinary actions. Disciplinary
action taken against employees at any level relating to lateness for
work would fall outside the scope of these changes because they are not
related to financial irregularities. Furthermore, the scope of these
changes in this section is likely to reassure prospective adoptive
parents that agencies and persons do due diligence across their entire
organization to detect and address financial irregularities by senior
management.
Section 96.36 Prohibition on Child Buying and Inducement
1. Comment: Some commenters are concerned the proposed changes to
Sec. 96.36(a) would restrict agencies and persons from remitting
reasonable payments for activities related to the adoption as outlined
in the current Sec. 96.36(a) as long as such payments are permitted by
the child's country of origin and are not remitted as a payment or
inducement to release the child. One commenter states that this change
would prohibit an agency or person from making reasonable payments to
address often severe medical needs for a child who had already been
matched with prospective adoptive parents. The commenter notes that
prohibiting such payment could be harmful to the best interests of a
child.
Response: In response to these comments, the Department has revised
Sec. 96.36(a), reintroducing the deleted portion relating to
``reasonable payments.'' We have also retained language in Sec.
96.36(a) clearly prohibiting agencies and persons from ``giving money
or other consideration, directly or indirectly, to a child's parent(s),
other individual(s), or an entity as payment for the child or as an
inducement to release the child.'' As we noted in 71 FR 8063, February
15, 2006, ``This standard, derived from the current, longstanding DHS
regulations at 8 CFR 204.3, protects birth parents, children, and
adoptive parents. Regardless of how adoption services fees are
described, characterized, or classified, if the fee is remitted as
payment for the child, or as an inducement to release the child, then
the standard is violated and appropriate action may be taken against an
agency or person.'' This standard is also consistent with DHS
regulations at 8 CFR 204.304, which prohibit in Convention cases the
improper inducement or influence of any decision concerning the
placement of a child for adoption, consent to the adoption of a child,
relinquishment of a child for purposes of adoption, or performance of
any act by the child's parents that make the child eligible for
classification as a Convention adoptee.
2. Comment: Commenters point out that the term ``inducement''
(found in both the current and proposed regulations at Sec. 96.36(a))
is not defined in these regulations and suggests that the Department
include a definition for this term that makes clear it would only be
prohibiting ``illicit'' inducement.
Response: The Department made no changes in response to these
comments. Inducement in the context of this rule and in the DHS
regulations governing the intercountry adoption of children from non-
Convention countries under section 101(b)(1)(F) of the Immigration and
Nationality Act (INA) (8 CFR 204.3(i)) and governing Convention
adoptions under INA 101(b)(1)(G) (8 CFR 204.304(a)) refer to ``the act
of influencing an act or decision'' and clearly encompasses the illicit
conduct that the IAA and the Convention seek to eradicate. Whatever
other benign meanings the term may have clearly do not apply here. The
heading to Sec. 96.36 already unambiguously employs the term
``inducement,'' associating it with the term ``child buying,'' leaving
no question that ``inducement'' here refers to illicit conduct.
3. Comment: A commenter is concerned that the term ``agent'' has
been too broadly interpreted and recommended we provide additional
clarification.
Response: To refine the standard in Sec. 96.36(b), the Department
added the term ``supervised'' and removed the term ``and agents'' from
the section. These changes are consistent with the definition of
``supervised provider'' in Sec. 96.2, which makes clear that
``agents'' are encompassed in the meaning of supervised provider.
Professional Qualifications and Training for Employees
Section 96.37 Education and Experience Requirements for Social Service
Personnel
1. Comment: One commenter is concerned with the reference to
``counseling'' in Sec. 96.37(a) and recommends changing it to
``assessment'' to more accurately reflect the services provided by
agencies and persons.
Response: Apart from adding a heading to Sec. 96.37(a), the
Department did not propose a substantive change to this standard.
Section 96.37(a) applies to employees of an agency or person with
appropriate qualifications and credentials to perform work requiring
application of clinical skills and judgment. This standard does not
require that an agency or person have employees that provide all of the
adoption-related social service functions outlined in Sec. 96.37(a),
but it does require that if an agency or person uses employees for such
functions, that any such employee have the appropriate qualifications
and credentials to perform functions requiring clinical skills and
judgment, counseling among them.
2. Comment: A commenter suggests that the proposed change to Sec.
96.37 adding ``training'' to the standard is duplicative of the
training requirements for social service personnel in Sec. 96.38 and
should be deleted.
Response: The Department has retained the proposed change to Sec.
96.37(c) thus expanding the existing standard to include training in
the
[[Page 57247]]
professional delivery of intercountry adoption services for the agency
or person's executive director, the supervisor overseeing a case, or
the social service employee providing adoption-related social services
that require the application of clinical skills and judgment. This
aspect of the standard is not addressed in other areas of the
regulations.
3. Comment: One commenter requests clarification about why the
Department proposes to include headings for Sec. 96.37(a), (b), and
(c) and if the headings provide a change to the meaning of the
standard.
Response: Section 96.37 has four paragraphs with headings. The
Department added headings to the other parts of the standard to enhance
clarity, not to change the underlying meaning of the existing
regulation.
Section 96.38 Training Requirements for Social Service Personnel
1. Comment: One commenter seeks clarification as to whether in
accordance with Sec. 96.38(d) an agency or person has the discretion
to exempt newly hired employees as it relates to Sec. 96.38(b). Also,
the commenter thinks the use of the term ``exemption'' in the context
of this section needs clarification.
Response: We have modified Sec. 96.38(d) to make it clear that an
agency or person may, but is not required to, exempt newly hired
employees from elements of the orientation and initial training
required in paragraphs (a) and (b) of this section. Such an exemption
is only permitted if the newly hired employee was employed by an agency
or person within the last two years and received the training
requirements outlined in Sec. Sec. 96.38, 96.39, and 96.40. Note that
any exemption under Sec. 96.38(d) is made solely by the employing
agency or person, who have no need to seek such exemptions from another
entity. We use this term ``to exempt'' or ``exemption from'' to mean
``relieved from requirements'' elsewhere in this or other training
sections of the rule.
2. Comment: A commenter suggests adding in Sec. 96.38(b) several
new areas for training social service personnel and recommends adding
several additional topics to the standard.
Response: The Department revised the list of topics to include
additional training requirements for social service personnel.
3. Comment: A commenter asks why the Department employed the term
``sociological . . . problems'' in Sec. 96.38(b)(7) and asked for
clarification, particularly related to the proposed language related to
the possibility that such problems may not be reflected in the medical
reports transmitted to prospective adoptive parents.
Response: The Department revised the final rule by removing the
term ``sociological'' from Sec. 96.38(b)(7), relying on the remaining
elements of this section to inform training relating to medical and
psychological problems experienced by children and the possibility that
such problems may not be reflected in the medical reports transmitted
to prospective adoptive parents.
Information Disclosure, Fee Practices, and Quality Control Policies and
Practices
Section 96.39 Information Disclosure and Quality Control Practices
1. Comment: Some commenters think the new provisions in Sec.
96.39(a)(1) are unduly burdensome for agencies and persons to disclose
detailed fee information about supervised and exempted providers to
prospective adoptive parent(s) on initial contact.
Response: In response to these comments, the Department has made
several revisions to Sec. 96.39 in the final rule. The final rule
requires an agency or person to fully disclose to the general public
and prospective client(s) the supervised providers in the United States
and in the child's country of origin with whom they can expect to work
and the usual costs associated with their services.
Responding to Complaints and Records and Report Management
Section 96.41 Procedures for Responding to Complaints and Improving
Service Delivery
1. Comment: Several commenters raise concerns that the new
definition of ``complaint'' and the changes in Sec. 96.41(b) will
increase the number of complaints and require significantly more
disclosures to the Department pursuant to Sec. 96.41(f). Commenters
also state that the proposed changes expand the scope of complaints and
would require agencies and persons to accept complaints from any
individual or entity, even about matters unrelated to their
intercountry adoption practice.
Response: The Department withdraws the proposed definition of
``complaint'' and the proposed changes to Sec. 96.41(b), retaining a
reference to written or electronic and dated complaint submissions (by
email or facsimile) in which the complainant is clearly identified.
These changes recognize the validity of electronic forms of complaint
and the value of complaints from birth parents, prospective adoptive
parents, adoptive parents, or adoptees. Tracking and summarizing the
complaints received pursuant to Sec. 96.41(b) provides useful
information regarding trends to agencies and persons, accrediting
entities, and the Department.
2. Comment: Several commenters object to removing the language in
Sec. 96.41(b) that agencies and persons accept complaints from a
complainant ``that he or she believes raise an issue of compliance with
the Convention, the IAA, the UAA, or the regulations implementing the
IAA or UAA.'' The commenters also raise concerns about the proposed
definition of complaint in Sec. 96.2, noting that its formulation used
``may raise an issue of non-compliance with the Convention, the IAA,
the UAA, or the regulations implementing the IAA and the UAA,'' was
different from the reference in Sec. 96.41(b) of ``he or she believes
raise an issue of compliance.'' The commenters are concerned that the
use of ``may raise'' in the definition along with the perception that
individuals and entities could submit complaints directly to the
Department would sidestep the process for filing complaints outlined in
Sec. Sec. 96.69-71.
Response: To improve clarity, the final rule does not include a
definition of complaint in Sec. 96.2. The final rule includes the
reference to and most of the revisions to Sec. 96.41(b) (as noted in
its response to comment 1, above) returning to the formulation ``he or
she believes raise an issue of. . . .''
3. Comment: One commenter expresses concern that the changes to
Sec. 96.41(b) and to the new definition of complaint would permit
complaints filed by anyone electronically without identifying the
complainant. As written, this commenter thinks the changes would
encourage anonymous complaints and that agencies and persons would be
required to, but unable to, respond to such complaints.
Response: In the final rule, the Department provides for electronic
submission of complaints without a written signature to facilitate use
of electronic means of communication while at the same time adding
clear requirements to the standard in Sec. 96.41(b) that each
complaint must be dated and identify the complainant.
4. Comment: A commenter believes provisions in the proposed
complaint definition allow for filing complaints directly with an
accrediting entity, the Department, and even the Complaint Registry,
which would create a direct contradiction to Sec. Sec. 96.69(b) and
96.71(b)(1). Section 96.69(b) requires complainants who are parties to
a specific intercountry adoption case to first file a complaint and
attempt to seek
[[Page 57248]]
resolution with an agency or person before filing with the Complaint
Registry.
Response: We have withdrawn the new definition of complaint from
the final rule, which removes the changes noted above that the
commenter found suggestive of being contrary to the complaint
procedures found in Sec. Sec. 96.69 and 96.71.
Section 96.42 Retention, Preservation, and Disclosure of Adoption
Records
1. Comment: One commenter, while not opposed to the revision, asked
why it was necessary to include a reference to State law in Sec.
96.42(b).
Response: The Department added a reference to State law because the
proposed rule broadens the disclosure requirements by deleting ``non-
identifying'' from ``information.'' Section 401(c) of the IAA mandates
that applicable State law govern the disclosure of adoption records and
State law may limit the information an agency or person may make
available to an adoptee or adoptive parent(s) of minor children.
Section 96.43 Case Tracking, Data Management, and Reporting
1. Comment: Several commenters request the Department add
``whenever possible . . .'' for information and reports on disruptions
in Sec. 96.43(b)(3) as it is in the rule for dissolutions in Sec.
96.43(b)(4). The commenters maintain obtaining the requested
information is difficult, particularly when adoptive parents are
unwilling to provide the information to the agency or person.
Response: In response to public comments, the final rule reflects
the removal of all proposed changes to Sec. 96.43. Cooperation between
the Department, the accrediting entities, and agencies and persons in
recent years with regard to adoption instability matters, including
reporting on disruption cases, has proven to be robust and effective.
The proposed expanded reporting for disrupted placements includes
information that is often already provided by agencies and persons
reporting on disrupted placements.
2. Comment: Several commenters note that removing the phrase ``set
forth in the country of origin,'' in Sec. 96.43(b)(6) significantly
broadens the scope of information agencies and persons will be required
to provide the Department. The commenters also note agencies and
persons would need time to comply with the reporting requirement due to
the proposed significant changes to Sec. 96.40.
Response: The final rule reflects the removal of all proposed
changes to Sec. 96.43 and continues to reflect the annual reporting
requirement in section 104(b)(7) of the IAA. (42 U.S.C. Ch 143 Sec.
14914 (b)(7)).
Service Planning and Delivery
Section 96.45 Using Supervised Providers in the United States
1. Comment: Several commenters are concerned with the proposed
changes in Sec. 96.45(a)(2) requiring supervised provider compliance
with the Convention, the IAA, the UAA, and their implementing
regulations. One commenter thinks the proposed regulation is overly
broad and tantamount to requiring supervised providers to become
accredited to comply with the standard. The commenter recommends
limiting the provision as follows: ``In providing any adoption service,
complies with the relevant section of the Convention, the IAA, the UAA,
and regulations implementing the IAA and UAA for the adoption service
being provided.''
Response: The Department modified the final rule to reflect this
suggested language.
2. Comment: One commenter, pointing to proposed changes to Sec.
96.45(b)(9), is concerned the changes would expose a supervised
provider in the United States to requests for information from
accrediting entities with no jurisdiction over the accreditation or
approval of the primary provider. Such inquiries would be burdensome
and lack authority.
Response: In response to this comment, the Department is adding
clarifying information about a requesting accrediting entity's
jurisdiction. With more than one accrediting entity, an accrediting
entity could be responsible for monitoring and oversight of a primary
provider, even though it was not the accrediting entity to issue the
primary provider's accreditation or approval. The final rule reflects
this requirement for supervised providers to respond to an accrediting
entity's request for information. However, we have modified the rule to
add ``. . . or an accrediting entity with jurisdiction over the
primary provider'' to Sec. 96.45(b)(9) to clarify that the requesting
accrediting entity must have jurisdiction over the primary provider.
Section 96.46 Using Providers in Foreign Countries
1. Comment: Commenters remarked that the proposed rule stated the
Department would not propose changes to the regulations relating to
foreign supervised providers but in fact made a few changes to Sec.
96.46.
Response: The Department noted in its preamble to the proposed rule
\3\ that it was not addressing regulatory changes to accreditation
standards relating to foreign supervised providers. Instead, the
preamble pointed to a consultative process with stakeholders to address
a wide range of related standards. Most of the changes introduced in
the proposed rule in Sec. 96.46 were minor corrections or
clarifications. The one substantive change in this section, found in
Sec. 96.46(b)(7) and (8), requires the primary provider to include in
the agreement with foreign supervised providers that the foreign
supervised provider's fees and expenses will be billed to and paid by
the client(s) through the primary provider. This change prohibits
foreign supervised providers from requiring direct payments for
adoption services abroad from prospective adoptive parents, which would
expose them to potential abuses such as overcharging.
---------------------------------------------------------------------------
\3\ 85 FR 74497, November 20, 2020.
---------------------------------------------------------------------------
2. Comment: A commenter points out the benefit of requiring all
foreign fees to be paid through the primary provider to mitigate the
potential for fraud and illicit financial practices, but also notes the
need to preserve provisions lost to the removal of Sec. 96.46(b)(8),
provisions for refundability of fees paid overseas.
Response: The Department included in the final rule a provision in
Sec. 96.46(b)(7) requiring the primary provider to provide a written
explanation of how and when such fees and expenses will be refunded if
the service is not provided or completed and will return any funds
collected to which the client(s) may be entitled within sixty days of
the completion of the delivery of services.
3. Comment: Several commenters recommend removing the new
provisions in Sec. 96.46(b)(7). They think requiring primary providers
to bill prospective adoptive parents for and pay fees directly to
foreign supervised providers is inefficient and would unnecessarily add
administrative costs to prospective adoptive parents for making wire
transfers on their behalf. The commenters observe this would limit
families using other payment options open to them such as domestic wire
transfers or domestic checking. These commenters recommend allowing
prospective adoptive families to take care of their own wire transfers
to pay for fees in country, including those due to foreign supervised
providers. Other commenters question the stated premise on which the
change was based, namely
[[Page 57249]]
that it was meant to protect adoptive families from transporting large
sums of cash to countries of origin. These commenters argue that
transporting cash to is no longer standard practice and that adoptive
families typically use bank wire transfers instead.
Response: The Department retained the changes in Sec. 96.46(b)(7)
in the final rule. This standard applies only to fees and expenses
related to providing adoption services. These services are enumerated
in the supervisory agreement between the primary provider and the
foreign supervisor, pursuant to Sec. 96.46(b)(1). Fees and expenses
for other services in the country of origin may be paid for directly by
prospective adoptive parents. The elements in this standard reinforce
in an important way the supervisory relationship between primary
providers and foreign supervised providers as they require active
primary provider oversight of the receipt and expenditure of funds
relating to adoption services provided abroad.
Standards for Cases in Which a Child Is Immigrating to the United
States (Incoming Cases)
Section 96.47 Preparation of Home Studies in Incoming Cases
1. Comment: A commenter recommends deleting ``counseling'' from
Sec. 96.47(a)(3). The commenter thinks this change would bring Sec.
96.47(a)(3) into closer alignment with 8 CFR 204.311(c)(5), (c)(8),
(c)(9), and (g)(4).
Response: In response to this comment, the Department revised Sec.
96.47(a)(3) to include the language ``preparation'' in addition to
``counseling'' and ``training.'' Counseling, where indicated, may
inform the home study, whether provided by a home study preparer
licensed to provided formal counseling, or when the family is referred
to a different professional licensed to provide it. Preparation would
include a wide variety of work provided by the home study preparer
short of formal counseling for which a separate license would be
required.
2. Comment: Several commenters are concerned about the requirement
in Sec. 96.47(e)(1) to inform the prospective adoptive parent(s) prior
to USCIS if the agency or person withdraws its recommendation of the
prospective adoptive parent(s) for adoption. In their view, to provide
for the child's safety, it may be in the best interests of the child to
notify USCIS first.
Response: The Department made no revisions to the order in which
agencies and persons must notify prospective adoptive families and
USCIS of their withdrawal of a recommendation in favor of the family
adopting. We did add the primary provider as an additional entity to
notify, if appropriate. The notification requirements in Sec.
96.47(b)(1) and (2) allow expeditious notification of prospective
adoptive parents and USCIS. An agency or person is not required to wait
five business days to provide adoptive families with written notice of
the withdrawal, just that it do so within five business days of its
decision to withdraw. Likewise, the regulation does not insist that an
agency or person wait five days before notifying USCIS. In practical
terms, once the agency or person decides to withdraw its recommendation
of the family to adopt, it can notify the family in writing immediately
following the decision and can notify USCIS in writing immediately
thereafter, causing no delay that would be contrary to the best
interests of the child.
3. Comment: A commenter is concerned that Sec. 96.47(e) is unclear
as to what involvement and responsibilities a primary provider would
have if it was not the entity that conducted or approved the home
study.
Response: The Department is revising Sec. 96.47(e) to include
notification of the primary provider in the case. Because the primary
provider as identified in Sec. 96.14 is responsible for ensuring the
six adoption services are provided in an intercountry adoption case as
provided in Sec. 96.44, notification is essential to its ability to
perform its overarching function in the case. We also revised Sec.
96.47(e)(1) in the final rule to require the agency or person, if
applicable, to make reasonable efforts to also notify the primary
provider of its withdrawal of any approval of the home study.
4. Comment: Many commenters recommend the Department remove ``good
cause'' from Sec. 96.47(e)(3).
Response: The Department removed the reference to ``good cause''
from the final rule and revised Sec. 96.47(e)(3) to require that an
agency or person maintain written records of the withdrawal of its
recommendation and/or approval, the step(s) taken prior to reaching
such a decision, and the reasons for the withdrawal.
5. Comment: Several commenters believe the proposed language in the
proposed Sec. 96.47(e)(4) and (5) is repetitive of other provisions
applicable to home studies and should be omitted.
Response: The Department removed Sec. 96.47(e)(4) and (5) from the
final rule in response to these comments.
Section 96.49 Provision of Medical and Social Information in Incoming
Cases
1. Comment: A commenter requests the Department revise the
reference to videotape and photograph to video and photo to make it
clear the standard also includes digital videos and photographs.
Response: The Department replaced all references to the term
``videotape'' with the term ``video'' in Sec. 96.49 in the final rule
but did not revise the term ``photographs.'' The Department believes
the term ``photographs'' is inclusive of photographs taken with film or
digitally.
Sec. 96.51 Post-Adoption Services in Incoming Cases
1. Comment: Several commenters are concerned that a dissolution
could occur years after the adoption is finalized and any cost schedule
would be obsolete. In addition, there are concerns this regulation
would force ASPs to be experts in the laws of all 50 states where a
dissolution could take place.
Response: The Department did not retain a requirement to provide
the cost for post-adoption services for all agencies and persons. The
rule requires agencies and persons to inform prospective adoptive
parents whether post-adoption services will be provided. Section 96.40
requires agencies and persons, before providing any adoption services,
to provide expected total fees and expenses for post-placement and
post-adoption reports. The Department encourages agencies and approved
providers to assist adoptive families by providing post-adoption
services where possible. Section 96.51(c) requires agencies and persons
to provide post-adoption reporting in the adoption services contract if
such reporting is required by a child's country of origin.
Section 96.52 Performance of Communication and Coordination Functions
in Incoming Cases
1. Comment: Several commenters note the proposed changes in Sec.
96.52(a)(1) would significantly increase reporting requirements for
agencies and persons and that the new reporting requirements to U.S.
and foreign Central Authorities are either already part of other
reporting standards or not required by foreign authorities.
Response: In response to the comments about the proposed changes to
Sec. 96.52(a)(1), the final rule reflects removal of the proposed new
requirements in Sec. 96.52(a)(1).
2. Comment: One commenter notes the addition of ``including any
updates
[[Page 57250]]
and amendments'' to Sec. 96.52(b)(1) should be further clarified by
adding ``when requested or required'' by the relevant Central
Authority. The commenter is concerned that if the Central Authority
does not require such updates, the additional information could
overwhelm Central Authorities and add costs for clients if the updates
or amendments require translation.
Response: In response to this comment, the Department revised Sec.
96.52(b)(1) to include ``any updates required by such competent
authorities in the child's country of origin.'' Agencies and persons
must provide Central Authorities with the most up-to-date suitability
information on the prospective adoptive parent(s).
3. Comment: One commenter notes the requirements under Sec.
96.52(b)(4) is an action performed by the Department, not the agency or
person, and should be deleted.
Response: The Department did not delete this section. Section
96.52(b) retains the flexibility of the phrase ``the agency or person
takes all appropriate measures, consistent with the procedures of the
U.S. Central Authority and the foreign country.'' The Department has
revised the final rule to clarify that this action could be to
``confirm that this information has been transmitted to the foreign
country's Central Authority or other competent authority by the U.S.
Central Authority.'' Providing this communication and coordination is
important to ensuring that the Convention process is followed and to
avoid unnecessary delays in the process.
4. Comment: One commenter observes that the requirement of Sec.
96.52(d) is about an outdated practice related to the cost of replacing
hard copies of home studies. The commenter notes this requirement of
returning an original home study and/or the original child background
study to the authorities that forwarded them is unnecessary.
Response: The Department revised this standard in the final rule
relying on agencies and persons to determine the appropriate course of
action for disposition of case documents in the event the transfer of
the child does not take place. Factors to consider include but are not
limited to, the specific requirements, if any, of competent authorities
in either the State or in the receiving country and the preference of
prospective adoptive parent(s) to continue pursuing an adoption.
5. Comment: One commenter notes Sec. 96.52(e) is overly broad and
that a violation of any standard in Subpart F would also include a
violation of Sec. 96.52(e).
Response: We have made no changes in the final rule in response to
this comment about section 96.52(e). This final rule clarifies that the
obligation in Sec. 96.52(e) only applies to requirements that the
Secretary has identified under existing authorities and made known
(directly or via an accrediting entity) to agencies and persons.
Standards for Cases in Which a Child is Emigrating From the United
States
Section 96.55 Performance of Convention Communication and Coordination
Functions on Outgoing Convention Cases
1. Comment: One commenter is concerned that in Sec. 96.55(c) the
use of the word ``original'' in this context is outdated and asks why
this standard only applies to the home study and child study and not
other documents.
Response: The requirement in Sec. 96.55(c) derives from Article
19(3) of the Convention, which provides that: ``If the transfer of the
child does not take place, the reports referred to in Articles 15 (home
study of prospective adoptive parents) and 16 (child background study)
are to be sent back to the authorities who forwarded them.'' The final
rule allows accredited agencies and approved persons to meet this
Convention obligation by considering the specific requirements, if any,
of competent authorities in either the U.S. State or in the receiving
country and the preference of prospective adoptive parent(s).
Subpart L--Oversight of Accredited Agencies and Approved Persons by the
Secretary
Section 96.83 Suspension or Cancellation of Accreditation or Approval
by the Secretary
1. Comment: Several commenters note their support of the due
process elements of the revisions in Sec. 96.83(b) governing
suspension and cancellation of accreditation by the Secretary and
requested the same due process be given to agencies and persons when an
accrediting entity imposes adverse action.
Response: The Department made no changes to the regulations in
response to these comments. The circumstances associated with
suspensions and cancellations by the Secretary under Sec. 96.83 are
more likely to involve complex fact patterns and emergent situations
than the broader range of adverse actions imposed by an accrediting
entity pursuant to subpart K. The revisions to Sec. 96.83(b) include
more detailed notice provisions warranted by the circumstances in such
cases.
2. Comment: Commenters point out as written, Sec. 96.83(c)
mandates notification to entities including the Hague Permanent Bureau,
State licensing authorities, Central Authorities where the agency or
person operates, and other authorities as appropriate, of the
Secretary's decision to suspend or cancel accreditation, seemingly
before that decision has become final. Commenters request that the
Sec. 96.83(c) notifications occur only after the disclosures made to
the agency or person at the time of the Secretary's written notice of
its decision to suspend or cancel and after the process in Sec.
96.84(a) and (b) permitting rebuttal of the decision on the facts.
Response: The Department made no changes to Sec. 96.83(a)
requiring the Secretary to suspend or cancel the accreditation or
approval when s/he finds the agency or person is substantially out of
compliance with the standards in subpart F, nor to notification of
suspension or cancellation pursuant to Sec. 96.83(c). There is no
expectation of delay of the effect of suspension or cancellation and no
provision similar to Sec. 96.77(a) by which the Secretary could delay
the effect of suspension or cancellation. Furthermore, the provisions
in Sec. 96.84 allowing for withdrawal of suspension or cancellation by
the Secretary assume the suspension or cancellation has already been
notified pursuant to Sec. 96.83(c) and provides for notification to
the same authorities of the withdrawal.
Section 96.88 Procedures for Debarment With Prior Notice
1. Comment: Commenters request that in the proposed Sec. 96.88(a),
the Department provide additional information on the rationale for
standard-specific non-compliance determinations.
Response: The Department made no changes in response to these
comments. The rationale for standard-specific non-compliance is
demonstrated through conduct-specific information provided pursuant to
Sec. 96.88(a)(2). The two sections 96.88(a)(2) and 96.88(a)(3), in
conjunction, will provide sufficient notice to agencies and persons to
provide transparency and clarity to the adverse action notification
process.
2. Comment: Several commenters are concerned the time allotted for
the Department to respond to an agency's response to a notice of
debarment hearing in the proposed Sec. 96.88(b) and (c) precludes the
agency or person from a meaningful response and allows the Department
to gather additional or different evidence than was originally
[[Page 57251]]
relied upon without the agency having a similar opportunity. Similarly,
commenters wonder why agencies and persons would not be entitled to
conduct discovery.
Response: The Department made no changes in response to this
comment. As noted in the proposed Sec. 96.88(c)(5), the procedures for
debarment in Sec. 96.88 are informal and permissive; the hearing
officer may accommodate reasonable variations in the process.
Information developed from all sources becomes part of the record and
is available to all parties. Although there is no right to subpoena
witnesses or conduct discovery, the agency or person may testify in
person, offer evidence on its own behalf, present witnesses, and make
arguments at the hearing. Taken together, these features offer a sound
basis for an effective and fair proceeding.
3. Comment: One commenter is concerned that the Department, while
permitting agencies to provide witnesses, may undermine that right by
denying a visa to a foreign citizen willing to testify.
Response: The Department has included the option for testifying via
teleconference or to accept an affidavit or sworn deposition testimony
at the discretion of the hearing officer if any witness is unable to
appear. Obtaining a visa to appear in person should not prevent a
witness in a foreign country from providing testimony in a debarment
hearing. All testimony becomes part of the written record, the only
record to be reviewed by the Secretary to make a debarment decision.
4. Comment: Citing the intent of Congress as stated in Senate
Report 106-276 that the Secretary may take enforcement actions only
after the established avenue of enforcement by the accrediting entity
has been found wanting, one commenter recommends that any written
notice of a debarment hearing explain why the accrediting entity with
jurisdiction is not taking action in the case.
Response: The Department made no change to the regulation in
response to this comment and notes that the cited Senate Report
comments on the Secretary's authority in IAA Section 204(b) to suspend
or cancel accreditation decisions by accrediting entities. The
procedures in Sec. 96.88 relate to IAA Section 204(c) Debarment.
Debarment is an exceptional proceeding outside of other enforcement
actions established by the IAA, justified by circumstances that warrant
exceptional action, i.e., when ``there has been a pattern of serious,
willful, or grossly negligent failures to comply or other aggravating
circumstances indicating that continued accreditation or approval would
not be in the best interests of the children and families concerned.''
IAA Section 204(c)(1)(B), (42 U.S.C. 14924(c)(1)(B)). In this
situation, the Congress provided authority for the Secretary to
institute debarment proceedings on the Secretary's own initiative and
independent of action by an accrediting entity, though an accrediting
entity may request or recommend the Secretary debar an agency or
person.
Section 96.90 Review of Suspension, Cancellation, or Debarment by the
Secretary
1. Technical Correction: The Department addresses in Sec. 96.90(b)
judicial review of final decisions by the Secretary pursuant to IAA
Section 204(d) (42 U.S.C. 14924(d)). We erroneously stated in our
proposed rule that if the petition to Federal Court raises an issue
``whether the deficiencies necessitating a suspension or cancellation
have been corrected,'' the agency or person must first exhaust the
procedures pursuant to Sec. 96.84(b). The referenced procedures are
found instead in Sec. 96.84(c). We made this correction in the final
rule.
2. Comment: Several commenters are concerned with the provisions in
Sec. 96.90(b) requiring, under certain conditions, that agencies and
persons exhaust the process in Sec. 96.84(c) before seeking judicial
review. The commenters think this requirement exceeds the Department's
authority to limit judicial review.
Response: The Department has made no changes to the provisions in
Sec. 96.90(b). IAA Section 204(b) (42 U.S.C. 14924(b)) provides for
agencies or persons to petition a Federal Court to set aside the
Secretary's final suspension, cancellation, and debarment decisions.
Section 96.84(a)-(b) and Sec. 96.84(c) provide two distinct processes
to seek the Secretary's review of their suspension and cancellation
decisions: Section 96.84(a)-(b) provides for a time-limited basis for
filing with the Secretary a statement along with supporting materials
as to why the decision was unwarranted and an internal review on the
merits. Section 96.90(b) also denotes at what point a decision becomes
final and thus reviewable in Federal Court. Section 96.84(c) is
different in character from and operates independently of questions of
``unwarrantedness.'' Section 96.84(c) executes the Secretary's
authority in IAA Section 204(b)(2) (42 U.S.C. 14924(b)(2)) to terminate
a suspension or permit reapplication in the case of cancellation, ``at
any time when the Secretary is satisfied that the deficiencies on the
basis of which adverse action is taken under paragraph 1 have been
corrected. . . .'' Petitions under this section may be made regardless
of whether the Secretary has made a final decision of suspension or
cancellation pursuant to Sec. 96.84(a) and (b) and IAA Section 204(d)
(42 U.S.C. 14924(d)). Far from limiting an agency or person's right to
judicial review in such instances, Sec. 96.90(b) streamlines that
review process by allowing the Secretary to resolve first the issue the
IAA assigns her/him to resolve. The decision to terminate suspension or
cancellation pursuant to Sec. 96.84(c) is not a final decision subject
to judicial review pursuant to IAA Section 204(d).
Subpart M--Disseminating and Reporting of Information by the
Accrediting Entities
Section 96.92 Dissemination of Information to the Public About
Accreditation and Approval Status
1. Comment: One commenter thinks the proposed deletion of Sec.
96.92(b) will weaken the requirement for an accrediting entity to make
information available to the public about an agency or person's
accreditation and approval status. However, the commenter also notes
the revision to Sec. 96.92(a) will require an accrediting entity to
make information available more regularly than the current quarterly
requirement.
Response: Subpart M is intended to help prospective adoptive
parent(s) make informed decisions about accredited agencies and
approved persons. The final rule requires an accrediting entity to
provide information about agency and person activities in Sec.
96.92(a) more frequently, at least monthly rather than quarterly. The
final rule retains Sec. 96.92(b), formerly Sec. 96.91(b), in order to
maintain the requirement for an accrediting entity to provide such
information upon specific request to individual members of the public.
The final rule retains the addition of ``including, where relevant, the
identity and conduct of any foreign supervised provider'' to assist
prospective adoptive parents to make more informed decisions about the
selection of an agency or person.
Subpart R--Alternative Procedures for Primary Providers in Intercountry
Adoption by Relatives
Sec. 96.100 Alternative Procedures for Primary Providers in
Intercountry Adoption by Relatives
1. Comment: Several commenters welcome the effort to provide
[[Page 57252]]
regulations relating to adoption by relatives. Others expressed
reservations that the proposed regulation will not produce the
anticipated result of streamlining the process.
Response: The Department made no changes to the proposed
regulations in Subpart R except for withdrawing Sec. 96.100(d) and
renumbering Section 96.100(e) to become the new Sec. 96.100(d). We
agree with one commenter's statement that the relative adoption
regulations balance services provided by close family members and
services for which the primary provider is responsible. By limiting the
required number of adoption services the primary provider must provide,
the agencies or person's time commitment to such cases may be reduced,
which is likely to reduce the cost of the services they provide in such
cases.
2. Comment: Some commenters are concerned the new provisions are
not sufficient to overcome the perceived risks to families and to
agencies and persons for providing limited adoption services in
relative cases. These commenters noted that providing adoption services
5 (post-placement monitoring) and 6 (disruption before final adoption)
from the United States is difficult and it is unrealistic to expect an
agency or person would have the capacity, knowledge, or relationships
to effectively monitor a placement or be able to support the parties
involved in a disrupted placement.
Response: As envisioned by the IAA, adoption services 5 and 6 are
important pieces of the regulatory process to protect the interests of
children, birth parents, and prospective adoptive parents in
intercountry adoption cases. Protecting those interests is no less a
feature in the alternative procedures for intercountry adoption by
relatives, and the final rule reflects this reality. Circumstances in
each adoption case may vary and demand the primary provider's judgment
and expertise with post-placement monitoring and transfer of the child
to the custody of the adoptive family.
3. Comment: Several commenters point out the importance of training
for prospective adoptive parent(s) in relative adoption cases but note
the training elements in Sec. 96.48 were not tailored to prepare
adoptive families for adoption by relatives.
Response: The Department made no changes to Sec. 96.48
(preparation and training for prospective adoptive parents) in the
final rule with respect to adoption by relatives. We agree prospective
adoptive parent(s) adopting relatives will benefit from pre-adoptive
training and preparation and that some parts of the training outlined
in Sec. 96.48 may be more relevant to the relative adoption context
than others. See the plans for review of Sec. 96.48 in paragraph II.E.
of this preamble.
IV. Timeline for Implementing Changes in the Final Rule
All changes in the final rule, including those related to the new
alternative procedures for adoption by relatives abroad in subpart R,
become effective 180 days after publication of the final rule in the
Federal Register.
V. Regulatory Analysis
Administrative Procedure Act (APA)
Consistent with the requirements in Section 203 of the Intercountry
Adoption Act, as amended, the Department is issuing this final rule
after having provided a period of public notice and comment on the rule
in an NPRM published November 20, 2020.
Regulatory Flexibility Act/Executive Order 13272: Small Business
This section considers the cost to small business entities of the
changes to the accreditation regulations in this final rule as required
by the Regulatory Flexibility Act (RFA, 5 U.S.C. et seq., Pub. L. 96-
354) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA). The RFA generally requires an agency to prepare a
regulatory flexibility analysis of any rule subject to notice and
comment rulemaking requirements under 5 U.S.C. 553(b). The IAA in
section 203(a)(3) (42 U.S.C. 14923(a)(3)) provides that subsections
(b), (c), and (d) of 5 U.S.C. 553 apply to this rulemaking. Consistent
with the Regulatory Flexibility Act, we prepared a final regulatory
flexibility analysis, which requires the following elements:
(1) A Statement About the Need for and Objectives of the Rule
We refer the reader to the supplemental information on the final
rule at the top of this preamble, which summarizes what we set out to
accomplish in this final rule.
(2) A Statement of the Significant Issues Raised by the Public Comments
in Response to the Initial Regulatory Flexibility Analysis (IRFA), a
Statement of the Assessment of the Agency of Such Issues, and a
Statement of any Changes Made in the Proposed Rule as a Result of Such
Comments
The public comments addressed the content of our IRFA, both in
general terms and in comments directed to specific proposed changes.
Some commenters were concerned that the cumulative impact of the
proposed changes to our accreditation rule would result in increased
costs to agencies and to fees charged to families. This was the most
consistent concern. Some commenters thought that our estimated costs of
implementation were low or did not consider some of the tasks they felt
were essential to implementing the proposed changes. Of the
Department's roughly 170 proposed edits and substantive changes to the
accreditation rule, nearly half received no public comments. For the
most part, these were minor edits or corrections to the regulation
text, with no impact on the cost of implementation. We incorporated
these changes into the final rule.
For the proposed changes about which stakeholders provided
comments, we evaluated them first on the basis of substance, i.e., what
was the commenter trying to communicate about the proposed rule, and
how did that align with our underlying statute, the IAA, and the
Convention? Did the commenter propose a change we had not previously
considered? How did the proposed change impact other parts of the
regulations?
Subsequent to these considerations on substance we considered the
cost to agencies and persons of implementing the commenter-proposed
regulatory changes: If a proposed change was incremental, was the cost
to implement also small? Or would a proposed change increase
implementation costs but significantly enhance the regulation's ability
to promote the child and family protection objectives of the IAA and
the Convention? These inquiries helped us balance the impact of
commenter-proposed changes on substance and costs in our final rule.
The section-by-section discussion of significant comments in preamble
section III demonstrates this analytical approach.
Significant Comments: Here are a few examples of significant public
comments by commenters seeking relief from changes to the accreditation
regulations they found too costly, too burdensome to implement.
(a) Standards Related to Adoption Placement Disruption Reporting
In section 96.50, which deals with agency and person
responsibilities when a placement disrupts prior to the final adoption,
our proposed changes strengthened standards for agency or person action
when a disruption occurs.
Commenters recommended reducing or eliminating many of the changes,
which they found overly burdensome to implement. Our policy priority
remains to enhance protection of children who
[[Page 57253]]
are the most vulnerable when a disruption occurs. We believe it may be
possible to develop a more streamlined standard on disruption reporting
that minimizes costs while enhancing protection for children in these
cases. We withdrew proposed changes to Sec. 96.50 to gain a better
understanding of stakeholder perspectives through consultation before
proposing changes relating to disruption reporting.
(b) Standards Relating to Making Direct Payments to Orphanages or Other
Entities for Children Pending Adoption
In the proposed rule in section 96.36 (a), we prohibited direct
payments to birth parents, individuals, orphanages, or other
institutions for the benefit of specific children and birth parents.
Direct support payments by adoption service providers, their employees,
and agents for specific child welfare activities, if permitted by the
country of origin, has long been the subject of deep controversy among
international child welfare and adoption experts. Our challenge is to
sufficiently regulate the financial aspects of intercountry adoption to
best mitigate the risk of these payments being diverted to support
illicit practices directly or indirectly. Illicit practices we seek to
avoid include, among others, recruiting children into institutions or
child buying for purposes of intercountry adoption, or incentivizing
institutions to retain children longer than necessary. Commenters
argued strongly that this approach would be prejudicial to the best
interests and wellbeing of children and noted in particular the
importance of supporting children with medical conditions that require
immediate attention that might not otherwise be possible without direct
financial support. We found these arguments to be persuasive but remain
deeply concerned about the possible diversion of these funds to illicit
practices, which threaten the viability of intercountry adoption as a
whole in addition to putting at risk the best interests and wellbeing
of children. Our solution was to withdraw the prohibitions against
making payments for child welfare and child protective services, while
at the same time enhancing the standards for recordkeeping to increase
oversight of the use of those funds. On balance, we wanted to respect
the views of commenters about the value of providing targeted funds for
child welfare and protective services in the period between matching
and adoption, while imposing effective controls tracking the use of
those funds.
(c) Standards Relating to Disclosure of Fees To Be Paid by Prospective
Adoptive Parents
We decided to withdraw, pending further stakeholder consultation,
proposed changes in section 96.40 that would broadly restructure the
way adoption service providers report fees to the public. The public
comments argued strongly not to implement these changes because of the
high cost associated with implementation. Many commenters thought the
new structure did not adequately represent the way adoption service
providers categorize fees and estimated expenses for prospective
adoptive parent(s), nor did it address practical barriers to
implementing the new structure. We believe strongly in achieving
greater transparency in adoption service provider fees while taking
seriously concerns that the cost of implementation would be higher than
we had assessed. This is another area in which we believe additional
stakeholder consultations are required to identify viable solutions
before moving forward with any changes to the regulations.
(3) A Description of the Comments Filed by SBA
The Chief Counsel for Advocacy of the Small Business Administration
did not provide comments to our proposed rule.
(4) A Description and Estimate of the Number of Small Entities to Which
the Rule Will Apply
Table 1 summarizes the number of adoption service providers
accredited or approved to provide adoption services in intercountry
adoption cases. As of July 2022, there were 84 accredited or approved
firms. Of those firms, 72 are small business entities according to the
definition of the North American Industry Classification System
(NAICS), which the SBA relies on to define small business firms.
Different industries define small business firms differently. NAICS
Code 624110 is the industry code for Child and Youth Services and
includes establishments such as adoption agencies or entities that
provide child adoption services. NAICS code 624110 defines small firms
as those with gross revenues of up to $15.5 million. We established
agency and person annual gross revenues or receipts from their public
filings of IRS form 990. Six firms are not small business entities
because their annual gross receipts exceeded $15.5 million. For six
adoption service providers we have no gross receipts data (a small
number of firms are not required to file form 990). Table 1 shows the
distribution of gross receipts for the remaining 72 small firms.
Table 1--U.S. Accredited and Approved Adoption Service Provider Firms
Grouped by Annual Gross Receipts, NAICS Industry Code 624110
------------------------------------------------------------------------
Number of
Firms grouped by self-reported gross adoption Percentage of
receipts service small firms
providers
------------------------------------------------------------------------
Other Firms:
Firms with Gross Receipts over 6 N/A
$15.5M.............................
All Small Firms:
Small Firms with Gross Receipts up 72 100%
to $15.5M..........................
Firms with Gross Receipts over $5M 7 10%
and up to $15.5M...................
Firms with Gross Receiptsover $2M 12 17%
and up to $5M......................
Firms with Gross Receiptsover $1M 11 15%
and up to $2M......................
Firms with Gross Receiptsover $500K 14 19%
and up to $1M......................
Firms with Gross Receiptsover $0 and 28 39%
up to $500K........................
Firms for Which We Have No Financial 6 N/A
Data...................................
Total Number of U.S.Accredited and 84 N/A
Approved Adoption Service Providers
------------------------------------------------------------------------
[[Page 57254]]
(5) A Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including Estimation of the
Classes of Small Business Entities That Will Be Subject to the
Requirements and the Types of Skills Necessary for Preparation of the
Report or Record
Several of the new provisions in the final rule require additional
record-keeping or reporting. The skills needed to perform the
recordkeeping and reporting aspects of these changes to the regulation
include planning for the form such recordkeeping will take, tracking of
funds possibly provided using Excel or similar spreadsheet software,
collecting information in a word processing document in some cases, and
planning for receipt and review of reporting. Examples of increased
recordkeeping and reporting:
<bullet> Proposed changes to section 96.32 include a new
requirement for agencies and persons to disclose to the accrediting
entities business relationships with organizations having interlocking
leadership or whose leaders share family relationships. This
requirement will apply to all agencies or persons, regardless of size.
The standard will require ASPs to maintain lists and to report them to
the accrediting entities. It will also require keeping the lists
updated, which will result in some, though modest, ongoing
implementation costs, after the first year.
<bullet> Section 96.36 concerns the prohibition on child buying and
inducement. As discussed above, this final rule does not contain the
prohibition on certain reasonable payments proposed in the NPRM. At the
same time, we introduced greater accountability for all payments
through record-keeping requirements for payments made or fees paid in
connection with an intercountry adoption. Accounting for such payments
will help decrease the risk of payments intended to benefit children
being diverted to support illicit practices. The record-keeping
requirements mentioned here apply to agency and person employees and
supervised providers who must retain a record of all payments provided
in connection with an intercountry adoption and the purposes for which
they were paid.
<bullet> Changes to section 96.46 provide that fees and expenses
paid to foreign supervised providers for adoption services abroad will
be billed to and paid by adoptive families through the primary
provider. This new requirement will mean agencies and persons will
transfer some funds to foreign supervised providers that families may
have been providing themselves. Agencies and persons already have
strong oversight responsibilities and supervision requirements with
respect to foreign supervised providers, which are reinforced by these
changes. The primary provider in the case is obliged under these
changes to provide a written explanation of how and when such fees and
expenses will be refunded if not used for the purpose intended. This
process will require greater awareness and accountability on the part
of the primary provider regarding how funds provided for use abroad are
dispersed and accounted for.
<bullet> In some cases, an agency or person becomes aware of new
information related to suitability and may withdraw its recommendation
of the prospective adoptive parents in the home study or approval of a
home study. When this occurs, the new provisions in section 96.47(e)
require the agency or person to notify appropriate parties, including
USCIS, the primary provider, and the prospective adoptive parents.
These disclosure requirements must be accomplished in a timely fashion.
All disclosures can be made electronically to facilitate the urgency of
the decision-making in the case and to limit the cost of disclosures.
<bullet> Finally, in section 96.51, which addresses post-adoption
services, including dissolution of an adoption, we included a new
requirement that agencies and persons that do not provide post-adoption
services provide clients information about potential sources of post-
adoption support services where they live.
(6) Description of the Steps the Agency Took To Minimize the
Significant Adverse Economic Impact on Small Entities, Organizations,
or Small Government Jurisdictions
As noted, the Department diligently considered the concerns of
agencies and persons about the cost of these changes to the
regulations. The Department's primary concern was to meet the
obligations of the statute on which the regulations are based and the
treaty obligations under the Convention. We undertook to balance those
interests with the practical realities of implementing changes to the
regulations by the regulated entities. Part of this process was to try
to determine what the cost of implementation would be. In our proposed
rule, we provided the calculations we used to determine these costs,
including the sources of information relating to national wage averages
for the various categories of work with appropriate skill sets. The
Department relied on the extensive public record of regional and
national wage earner salaries found in Department of Labor
publications. These data offered the most thoroughgoing estimates of
what workers such as social workers, trainers, bookkeeping clerks, and
auditors earn on average nationally, along with descriptions of what
kinds of work they perform.
In Table 2, we summarize the implementation costs associated with
significant changes found in the final rule. As noted before, we
withdrew some proposed changes and accepted some recommendations from
public commenters to alter other proposed changes, all of which had the
result of significantly reducing projected implementation costs of this
final rule. We estimated average cost of implementing the proposed
changes in the proposed rule was over $14,000 for each small firm in
the first year. The current estimate for implementing the changes in
the final rule is just over $4,000 for a single firm in the first year.
Table 2--Projected Costs To Implement Changes in the Final Rule
------------------------------------------------------------------------
------------------------------------------------------------------------
Projected Implementation Costs for Small Firms
------------------------------------------------------------------------
A. Estimated Average First Year Costs for each Small $4,164.50
Firm...................................................
* For subsequent year average costs, see the bottom
of this table.
------------------------------------------------------------------------
Projected Implementation Costs for the Total Costs for all Small Firms
and the Total of all Firms--all Sizes
------------------------------------------------------------------------
B. Total Estimated Average First Year Costs for all $299,844
Small Firms............................................
= A. x 72 small firms...............................
C. Total Estimated Average First Year Costs for all $349,818
Firms--all Sizes.......................................
= A. x 84 firms of all sizes........................
------------------------------------------------------------------------
[[Page 57255]]
----------------------------------------------------------------------------------------------------------------
B. Estimated
A. Estimated average 1st C. Estimated
New regulatory elements and computation of estimated average average 1st year $ costs -- average 1st
first year costs year $ costs all small year $ costs --
per small firm firms all firms
----------------------------------------------------------------------------------------------------------------
1. Sec. 96.32(e)(4): ASP discloses to the AE any orgs that $310 $22,320 $26,040
share with it any leadership, officers, boards, or family
relationships, and whether it provides services to or receives
payment from the agency or person..............................
----------------------------------------------------------------------------------------------------------------
<bullet> Creating and maintaining needed information:.......................................................
[cir] 10 hours @$31/hour................................................................................
Estimated annual first year cost: $310..........................................................................
----------------------------------------------------------------------------------------------------------------
2. Sec. 96.34: No incentive or contingent fees or plans to 180 12,924 15,078
compensate formally or informally for locating or placing
children.......................................................
----------------------------------------------------------------------------------------------------------------
<bullet> Updating Policies and Procedures:..................................................................
[cir] 1-4 hours @$31/hour...............................................................................
[cir] Min./Max. cost: $31/$124..........................................................................
[cir] Average estimated cost: $77.50....................................................................
<bullet> Training:..........................................................................................
[cir] 1-5 hours @$34/hour...............................................................................
[cir] Min/Max cost: $65/$294............................................................................
[cir] Average estimated cost: $102......................................................................
Estimated annual first year cost: $179.50.......................................................................
----------------------------------------------------------------------------------------------------------------
3. Sec. 96.36(b): Requires employees and supervised providers 1,228 88,380 103,110
to record all payments or fees tendered and the purpose for
which they were paid...........................................
----------------------------------------------------------------------------------------------------------------
<bullet> Updating Policies and Procedures:..................................................................
[cir] 1-6 hours @$31/hour...............................................................................
[cir] Min/Max Cost: $31/$186............................................................................
[cir] Average Estimated Cost: $108.50...................................................................
<bullet> Training:..........................................................................................
[cir] 1-5 hours @$34/hour...............................................................................
[cir] Min/Max Cost: $34/$170............................................................................
[cir] Average Estimated Cost: $102......................................................................
<bullet> Financial Recordkeeping:...........................................................................
[cir] 2-4 hrs./month @$23/hour (x 12)...................................................................
[cir] Min/Max Cost: $552/$1104..........................................................................
[cir] Average Estimated Cost: $828......................................................................
<bullet> Auditor/Defining Data Set:.........................................................................
[cir] 1-8 hours @$42/hour...............................................................................
[cir] Min/Max Cost: $42/$336............................................................................
[cir] Average Estimated Cost: $189......................................................................
Estimated annual first year cost: $1,227.50.....................................................................
----------------------------------------------------------------------------------------------------------------
4. Sec. 96.37(c): Social service personnel/supervisors require 130 9,360 10,920
experience or training in professional delivery of adoption
services.......................................................
----------------------------------------------------------------------------------------------------------------
<bullet> Updating Policies and Procedures:..................................................................
[cir] 2 hours @$31/hour.................................................................................
[cir] Estimated cost: $62...............................................................................
<bullet> Training:..........................................................................................
[cir] 2 hours @$34/hour.................................................................................
[cir] Estimated cost: $68...............................................................................
Estimated annual first year cost: $130..........................................................................
----------------------------------------------------------------------------------------------------------------
5. Sec. 96.38(b): Topics relating to intercountry adoption 272 19,584 22,848
about which agency social service personnel require training...
----------------------------------------------------------------------------------------------------------------
<bullet> Training:..........................................................................................
[cir] 1-15 hours @$34/hour..............................................................................
[cir] Min/Max Cost: $34/$510............................................................................
Estimated annual first year cost: $272..........................................................................
----------------------------------------------------------------------------------------------------------------
6. Sec. 96.38(d): Exemption from training for newly hired 97.50 7,020 8,190
social service staff in certain circumstances..................
----------------------------------------------------------------------------------------------------------------
<bullet> Updating Policies and Procedures:..................................................................
[cir] 1-2 hours @$31/hour...............................................................................
[cir] Min/Max Cost: $31/$62.............................................................................
[cir] Average Estimated Cost: $46.50....................................................................
<bullet> Training:..........................................................................................
[cir] 1-2 hours @$34/hour...............................................................................
[cir] Min/Max Cost: $34/$68.............................................................................
[cir] Average Estimated Cost: $51.......................................................................
Estimated annual first year cost: $97.50........................................................................
----------------------------------------------------------------------------------------------------------------
7. Sec. 96.41(b): Permits any birth parent, PAP, adoptive 82 5,904 6,888
parent, or adoptee to lodge electronic complaints and clarifies
that all complaints must clearly identify the complainant and
the date of the complaint......................................
----------------------------------------------------------------------------------------------------------------
<bullet> Updating Policies and Procedures...................................................................
[cir] 1 hour @$31/hour..................................................................................
[cir] Estimated cost: $31...............................................................................
<bullet> Training:..........................................................................................
[cir] 1-2 hours @$34/hour...............................................................................
[cir] Min/Max Cost: $34/$68.............................................................................
[[Page 57256]]
[cir] Average Estimated Cost: $51.......................................................................
Estimated annual first year cost: $82...........................................................................
----------------------------------------------------------------------------------------------------------------
8. Sec. 96.46(b)(7): Prohibits PAP direct payments to foreign 729.50 52,524 61,278
supervised providers for adoption services. Primary providers
bill clients and pay fees and expenses due to the foreign
supervised providers...........................................
----------------------------------------------------------------------------------------------------------------
<bullet> Updating Policies and Procedures:..................................................................
[cir] 1-6 hours @$31/hour...............................................................................
[cir] Min/Max Cost: $31/$186............................................................................
[cir] Average Estimated Cost: $109......................................................................
<bullet> Training:..........................................................................................
[cir] 1-5 hours @$34/hour...............................................................................
[cir] Min/Max Cost: $34/$170............................................................................
[cir] Average Estimated Cost: $102......................................................................
<bullet> Financial Recordkeeping:...........................................................................
[cir] 1-2 hrs./month @$23/hour (x 12)...................................................................
[cir] Min/Max Cost: $276/$552...........................................................................
[cir] Average Estimated Cost: $414......................................................................
<bullet> Auditor/Defining Data Set:.........................................................................
[cir] 1-4 hours @$42/hour...............................................................................
[cir] Min/Max Cost: $42/$168............................................................................
[cir] Average Estimated Cost: $189......................................................................
Estimated annual first year cost: $729.50.......................................................................
----------------------------------------------------------------------------------------------------------------
9. Sec. 96.47(e): Procedures for withdrawal of home study 326.50 23,508 27,426
approval including notification to USCIS, the primary provider,
and others as appropriate......................................
----------------------------------------------------------------------------------------------------------------
<bullet> Updating Policies and Procedures; Notifying Prospective Adoptive Parents, USCIS, and the Department
as Needed:.................................................................................................
[cir] 1-8 hours @$31/hour...............................................................................
[cir] Min/Max Cost: $31/$248............................................................................
[cir] Average Estimated Cost: $139.50...................................................................
<bullet> Training:..........................................................................................
[cir] 1-10 hours @$34/hour..............................................................................
[cir] Min/Max Cost: $34/$340............................................................................
[cir] Average Estimated Cost: $189......................................................................
Estimated annual first year cost: $326.50.......................................................................
----------------------------------------------------------------------------------------------------------------
10. Sec. 96.51: Clarifies ASP role in post-adoption services 365 26,280 30,660
in incoming cases and requires providing sources of support in
the event of dissolution if the ASP does not provide post
adoption services..............................................
----------------------------------------------------------------------------------------------------------------
<bullet> Updating Policies and Procedures:..................................................................
[cir] 1-5 hours @$31/hour...............................................................................
[cir] Min/Max Cost: $31/$155............................................................................
[cir] Average Estimated Cost: $93.......................................................................
<bullet> Training:..........................................................................................
[cir] 1-15 hours @$34/hour..............................................................................
[cir] Min/Max Cost: $34/$510............................................................................
[cir] Average Estimated Cost: $272......................................................................
Estimated annual first year cost: $365..........................................................................
----------------------------------------------------------------------------------------------------------------
11. Additional Costs............................................ 445 32,040 37,380
----------------------------------------------------------------------------------------------------------------
<bullet> Executive Director's time:.........................................................................
[cir] 5 hours/year @$89/hour: $445......................................................................
<bullet> Cost of Archiving Electronic Information:..........................................................
[cir] There may be some archiving costs to store the new information to be collected in the final rule.
Costs will vary according to the ASP's electronic processing needs, how it organizes its electronic
records, and any excess capacity on hand to absorb the additional information. Given these factors, we
are unable to estimate this additional cost............................................................
Estimated annual first year cost: $445..........................................................................
----------------------------------------------------------------------------------------------------------------
Total Estimated Average Costs for the First Year............ 4,164.50 299,844 349,818
----------------------------------------------------------------------------------------------------------------
B. Average
A. Average subsequent C. Average
New regulatory elements and computation of estimated average subsequent year $ costs -- subsequent
subsequent year costs year $ costs all small year $ costs --
per small firm firms all firms
----------------------------------------------------------------------------------------------------------------
1. Sec. 96.32(e)(4): Subsequent years average costs for 62 4,464 5,208
maintaining lists and disclosure to the accrediting entities of
any orgs that share with it any leadership, officers, boards,
or family relationships and whether it provides services to or
receives payment from the agency or person.....................
----------------------------------------------------------------------------------------------------------------
<bullet> Maintaining the information:.......................................................................
[cir] 2 hours @$31/hour.................................................................................
Estimated annual subsequent year cost for small firms: $62......................................................
----------------------------------------------------------------------------------------------------------------
[[Page 57257]]
----------------------------------------------------------------------------------------------------------------
B. Average
A. Average subsequent C. Average
New regulatory elements and computation of estimated average subsequent year $ costs -- subsequent
subsequent year costs year $ costs all small year $ costs --
per small firm firms all firms
----------------------------------------------------------------------------------------------------------------
2. Sec. 96.36(b): (Subsequent year average costs for the 828 59,616 69,552
enhanced recordkeeping of fees and payments made in connection
with intercountry adoption.)...................................
----------------------------------------------------------------------------------------------------------------
<bullet> Financial Recordkeeping:...........................................................................
[cir] 2-4 hrs./month @23/hour...........................................................................
[cir] Min/Max cost: $552/$1,104.........................................................................
Estimated average annual subsequent year cost for small firms: $828.............................................
----------------------------------------------------------------------------------------------------------------
Total Average Costs for Subsequent Years.................... 890 64,080 74,760
----------------------------------------------------------------------------------------------------------------
Wage categories with national average wage rates from the may 2022
bureau of labor statistics occupational employment and wage statistics
data tables
-------------------------------------------------------------------------
National
ASP staff roles Performed by average hourly
rate
------------------------------------------------------------------------
Financial Recordkeeping........... Bookkeeping Clerk @$23
(Occupation
category 43-3031).
Updating Policies and Procedures; Social Worker @31
Notifying Prospective Adoptive (Occupation
Parents, USCIS, and the category 21-1029).
Department as Needed.
Training.......................... Training Officer @34
(Occupation
category 13-1151).
Auditor/Data Set Defining......... Auditor (Occupation @42
category 13-2011).
Chief Executives.................. Executive Director/ @89
CEO (Occupation
category 11-1011).
------------------------------------------------------------------------
Table 3 illustrates the estimated annual cost of implementation
expressed as a percentage of gross receipts of agencies and persons.
For nearly all accredited agencies and approved persons, the cost of
implementation represents less than one percent, and in no case more
than 1.6% of gross receipts, as reported in IRS Form 990. We also
expect that agencies and persons will benefit from economies generated
by sharing information related to implementation, which may result in
cost savings, particularly relating to tasks such as updating policies
and procedures and preparing internal and external training related to
new or revised standards.
Table 3--Revenue Test for Accredited or Approved Adoption Service Providers' Cost of Implementation as a Percentage of Annual Gross Receipts
[NAICS Industry Code 624110--Up to $15.5 Million = Small Firm]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Average $ cost
Average annual adoption Percentage of Average $ cost per firm in
Firm size (by gross receipts) gross $ service small firms per firm in Revenue test % sub-sequent Revenue test %
receipts provider firms first year years
--------------------------------------------------------------------------------------------------------------------------------------------------------
Firms with Gross Receipts over $15.5M... 26,375,544 6 N/A 4,165 <1 890 <1
Small Firms:
Gross Receipts--All Small Firms $0 2,883,831 72 100 4,165 <1 890 <1
up to $15.5M.......................
Firms with Gross Receipts over $5M 8,550,186 7 10 4,165 <1 890 <1
and up to $15.5M...................
Firms with Gross Receipts over $2M 3,577,609 12 17 4,165 <1 890 <1
and up to $5M......................
Firms with Gross Receipts over $1M 1,351,564 11 15 4,165 <1 890 <1
and up to $2M......................
Firms with Gross Receipts over $500K 677,821 14 19 4,165 <1 890 <1
and up to $1M......................
Firms with Gross Receipts over $0K 261,977 28 39 4,165 1.6 890 <1
and up to $500K....................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Adoption Service Provider Firms about which We Have No Financial Data: 6.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Congressional Review Act
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, Public Law 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
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of U.S.-based companies to
compete with foreign-based companies in domestic and import markets.
The Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (codified
at 2 U.S.C. 1532) 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 will not result in any such expenditure, nor
will it significantly or uniquely affect small governments or the
private sector.
Executive Orders 12372 and 13132: Federalism
While States traditionally have regulated adoptions and will have
an interest in this rule, the Department does not believe this
regulation will have substantial direct effects on the States, on the
relationship between the national government and the States, or the
distribution of power and
[[Page 57258]]
responsibilities among the various levels of government. The rule does
not impose any obligations on State governments or have federalism
implications warranting the application of Executive Orders 12372 and
13132.
Executive Orders 12866, 14094, and 13563
The Department has reviewed this final rule to ensure its
consistency with the regulatory philosophy and principles set forth in
Executive Order 12866, as amended by Executive Order 14094. The cost to
accredited agencies and approved persons for implementing the changes
in the final rule are modest and reflect an effort to maximize desired
outcomes at minimized cost. The obligation to determine whether the
benefits of the proposed revision to the accreditation regulation
outweigh the costs of achieving them is made more difficult by the fact
that the benefits, which primarily relate to protecting the best
interests of the child, as well as providing certain consumer
protections for prospective adoptive parents, are difficult to quantify
economically. That makes a strict cost-benefit analysis difficult to
accomplish. Nonetheless, we believe the benefits apparent from this
qualitative discussion of costs and benefits support our conclusion
that the costs associated with the proposed changes are justified and
conclude they deliver significant benefits on several levels. The
benefits to children, to adoptive families, to society in general, and
to the institution of intercountry adoption in terms of its world-wide
viability, outweigh the dollar costs of implementing the proposed
changes.
We discussed earlier in this preamble why we pursued revisions to
the accreditation rule and why we introduced new elements. We noted
qualitative factors informing the process and our estimates of average
dollar costs to implement them. In parts II and III of this preamble,
we highlighted changes included in this final rule responsive to
adoption service provider comments addressing both the cost and the
effectiveness of our proposed revisions to the rule. The following
discussion summarizes the categories of benefits driving changes
incorporated in the final rule.
Because this final rule concerns standards for agencies and persons
providing adoption services in intercountry adoption and the
accreditation and oversight process authorizing them to do so, our
cost-benefit analysis relies on categories of benefits that are both
nonmonetizable and nonquantifiable. The qualitative character of the
resulting cost-benefit analysis closely reflects the qualitative
outcomes essential to carrying out our statutory accreditation scheme
in service of each side of the adoption triad: children, birth
families, and adoptive families.
As part of the cost-benefit analysis responsive to Executive Orders
12866, as amended, and E.O. 13563 we weighed possible changes to the
final rule against several categories of qualitative benefits
summarized in Table 4.
Table 4--Benefit Categories
------------------------------------------------------------------------
-------------------------------------------------------------------------
Benefit Category 1--Efficiency.
Benefit Category 2--Clarity and Transparency.
Benefit Category 3--Payment Accountability.
Benefit Category 4--Enhanced Expertise of Social Service Personnel.
Benefit Category 5--Preserving Due Process Protections.
------------------------------------------------------------------------
Benefit category 1--Efficiency. This category represents maximizing
the effective use of resources in a standard or process. The new
provisions relating to adoption by relatives are illustrative as they
provide a streamlined process limiting primary provider services while
leveraging the experience of in-country relatives. The resulting
savings in time and expense promises to make adoption by relatives a
more accessible option for adoptive families.
Benefit Category 2--Clarity and Transparency. The revised
regulations provide processes that address persistent questions raised
by adoption service providers and accrediting entities, such as
requirements for notification regarding changes in prospective adoptive
parent suitability. This benefit category is also embodied in the
revision to best interests of the child and in clarifying the
requirements of the submission of complaints to adoption service
providers.
Benefit Category 3--Payment Accountability. In the final rule we
introduce enhanced recordkeeping practices for payments and fees made
in connection with an intercountry adoption. In addition, we added a
standard that prohibits foreign supervised providers from directly
billing prospective adoptive parents for the provision of adoption
services abroad. These changes will increase transparency between
primary providers and foreign supervised providers in a child's country
of origin and better protect prospective adoptive parents from price
gouging and from imposition of unexpected additional fees in the
adoption process abroad.
Benefit Category 4--Enhanced Expertise of Social Service Personnel.
We enhanced social worker training standards to incorporate new
elements relating to trauma-informed parenting and assisting children
with special needs. Agencies and persons utilize initial and ongoing
training to keep newly hired and current employees well prepared and
highly knowledgeable. Duties assigned to social service personnel
include providing adoptive families adoption-related social services
that involve the application of clinical skills and judgment.
Benefit Category 5--Preserving Due Process Protections. The
accreditation regulations include procedures for holding agencies and
persons accountable for misconduct through adverse action proceedings.
In the final rule we introduce new procedural safeguards applicable
when the Secretary suspends or cancels accreditation or approval,
including how to overcome the suspension or cancellation either because
the adverse action was unwarranted or because the deficiencies leading
to suspension or cancellation have been corrected. These changes also
enhance clarity and transparency for adoption service providers faced
with a loss of accreditation or approval. The new procedures for use in
debarment proceedings, likewise, provide clarity and transparency while
also effectively protecting the due process rights of agencies and
persons accused of the most egregious abuses and facing the most severe
penalties.
Taken as a whole, the changes in this final rule represent
essential revisions to make the accreditation regulations more
effective given the purposes of the Convention and implementing
legislation, noted above, working for the best interests of children
and enhanced viability of intercountry adoption worldwide.
[[Page 57259]]
Total Cost Estimates
Table 5 summarizes the financial impacts of the proposed rule.
Total monetized costs of the proposed rule include the aggregated
average cost of implementing the proposed changes to the accreditation
rule summarized in Table 2. The 10-year discounted cost of the proposed
rule in 2023 dollars would range from $953,000 to $994,000 (with three
and seven percent discount rates, respectively). The annualized costs
of the proposed rule would range from $95,000 to $99,000 (with three
and seven percent discount rates, respectively).
Table 5--Costs of the Proposed Rule in 2023 $ (Thousands) With Three and
Seven Percent Discount Rates
------------------------------------------------------------------------
All adoption
service provider
Fiscal year firms regardless
of size
------------------------------------------------------------------------
2024................................................ 350
2025................................................ 75
2026................................................ 75
2027................................................ 75
2028................................................ 75
2029................................................ 75
2030................................................ 75
2031................................................ 75
2032................................................ 75
2033................................................ 75
-------------------
Undiscounted Total.............................. $1,025
-------------------
Total with 3% discounting....................... $994
-------------------
Total with 7% discounting....................... $953
-------------------
Annualized, 3% discount rate, 10 years...... $99
-------------------
Annualized, 7% discount rate, 10 years...... $95
------------------------------------------------------------------------
Executive Order 12988: Civil Justice Reform
The Department has reviewed these regulations in light of sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation risks, establish clear legal standards, and reduce
burden. The Department has made every reasonable effort to ensure
compliance with the requirements in Executive Order 12988.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
The Department has determined that this rulemaking will not have
tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not pre-empt tribal law.
Accordingly, the requirements of Section 5 of Executive Order 13175 do
not apply to this rulemaking.
The Paperwork Reduction Act of 1995
In accordance with 42 U.S.C. 14953(c), 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
Accreditation, Administrative practice and procedure, Intercountry
adoption, Reporting and recordkeeping requirements, Standards,
Treaties.
For the reasons stated in the preamble, the Department of State
amends 22 CFR part 96 as follows:
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.
0
2. Revise subpart A to read as follows:
Subpart A--General Provisions
Sec.
96.1 Purpose.
96.2 Definitions.
96.3 [Reserved]
Subpart A--General Provisions
Sec. 96.1 Purpose.
This part provides for the accreditation and approval of agencies
and persons pursuant to the Intercountry Adoption Act of 2000 (42
U.S.C. 14901-14954, Pub. L. 106-279), which implements the 1993 Hague
Convention on the Protection of Children and Co-operation in Respect of
Intercountry Adoption, U.S. Senate Treaty Doc. 105-51, Multilateral
Treaties in Force as of January 1, 2016, p. 9; and the Intercountry
Adoption Universal Accreditation Act of 2012 (42 U.S.C. 14925, Pub. L.
112-276).
Sec. 96.2 Definitions.
As used in this part, the term:
Accredited agency means an agency that has been accredited by an
accrediting entity, in accordance with the standards in subpart F of
this part, to provide adoption services in the United States in
intercountry adoption cases.
Accrediting entity means an entity that has been designated by the
Secretary to accredit agencies and/or to approve persons for purposes
of providing adoption services in the United States in intercountry
adoption cases.
Adoption means the judicial or administrative act that establishes
a permanent legal parent-child relationship between a minor and an
adult who is not already the minor's legal parent and terminates the
legal
[[Page 57260]]
parent-child relationship between the adoptive child and any former
parent(s).
Adoption record means any record, information, or item related to a
specific intercountry adoption of a child received or maintained by an
agency, person, or public domestic authority, including, but not
limited to, photographs, videos, correspondence, personal effects,
medical and social information, and any other information about the
child.
Adoption service means any one of the following six services:
(1) Identifying a child for adoption and arranging an adoption;
(2) Securing the necessary consent to termination of parental
rights and to adoption;
(3) Performing a background study on a child or a home study on a
prospective adoptive parent(s), and reporting on such a study;
(4) Making non-judicial determinations of the best interests of a
child and the appropriateness of an adoptive placement for the child;
(5) Monitoring a case after a child has been placed with
prospective adoptive parent(s) until final adoption; or
(6) When necessary because of a disruption before final adoption,
assuming custody and providing (including facilitating the provision
of) child care or any other social service pending an alternative
placement.
Agency means a private, nonprofit organization licensed to provide
adoption services in at least one State. (For-profit entities and
individuals that provide adoption services are considered ``persons''
as defined in this section.)
Approved home study means a review of the home environment of the
child's prospective adoptive parent(s) that has been:
(1) Completed by an accredited agency; or
(2) Approved by an accredited agency.
Approved person means a person that has been approved, in
accordance with the standards in subpart F of this part, by an
accrediting entity to provide adoption services in the United States in
intercountry adoption cases.
Best interests of the child, in cases in which a State has
jurisdiction to decide whether a particular adoption or adoption-
related action is in a child's best interests, shall have the meaning
given to it by the law of the State. In all other cases, including any
case in which a child is outside the United States at the time the ASP
considers the best interests of the child in connection with any
decision or action, best interests of the child shall be interpreted in
light of the object and purpose of the Convention, the IAA, the UAA,
and their implementing regulations.
Case Registry means the tracking system jointly established by the
Secretary and DHS to comply with section 102(e) of the IAA (42 U.S.C.
14912).
Central Authority means the entity designated as such under Article
6(1) of the Convention by any Convention country, or, in the case of
the United States, the United States Department of State. In countries
that are not Convention countries, Central Authority means the relevant
``competent authority'' as defined in this section.
Child welfare services means services, other than those defined as
``adoption services'' in this section, that are designed to promote and
protect the well-being of a family or child. Such services include, but
are not limited to, providing temporary foster care for a child in
connection with an intercountry adoption or providing educational,
social, cultural, medical, psychological assessment, mental health, or
other health-related services for a child or family in an intercountry
adoption case.
Competent authority means a court or governmental authority of a
foreign country that has jurisdiction and authority to make decisions
in matters of child welfare, including adoption.
Complaint Registry means the system created by the Secretary
pursuant to Sec. 96.70 to receive, distribute, and monitor complaints
relevant to the accreditation or approval status of agencies and
persons.
Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption done at The Hague on May
29, 1993.
Convention adoption means the adoption of a child resident in a
Convention country by a United States citizen, or an adoption of a
child resident in the United States by an individual or individuals
residing in a Convention country, when, in connection with the
adoption, the child has moved or will move between the United States
and the Convention country.
Convention country means a country that is a party to the
Convention and with which the Convention is in force for the United
States.
Country of origin means the country in which a child is a resident
and from which a child is emigrating in connection with his or her
adoption.
Debarment means the loss of accreditation or approval by an agency
or person as a result of an order of the Secretary under which the
agency or person is temporarily or permanently barred from
accreditation or approval.
DHS means the U.S. Department of Homeland Security and encompasses
the former Immigration and Naturalization Service (INS) or any
successor entity designated by the Secretary of Homeland Security to
assume the functions vested in the Attorney General by the IAA relating
to the INS's responsibilities.
Disruption means the interruption of a placement for adoption
during the post-placement period.
Dissolution means the termination of the adoptive parent(s)'
parental rights after an adoption.
Exempted provider means a social work professional or organization
that performs a home study on prospective adoptive parent(s) or a child
background study (or both) in the United States in connection with an
intercountry adoption (including any reports or updates), but that is
not currently providing and has not previously provided any other
adoption service in the case.
IAA means the Intercountry Adoption Act of 2000, Public Law 106-279
(2000) (42 U.S.C. 14901-14954), as amended from time to time.
INA means the Immigration and Nationality Act (8 U.S.C. 1101 et
seq.), as amended.
Intercountry adoption means a Convention adoption of a child
described in INA section 101(b)(1)(G) or the adoption of a child
described in INA section 101(b)(1)(F).
Legal custody means having legal responsibility for a child under
the order of a court of law, a public domestic authority, competent
authority, public foreign authority, or by operation of law.
Legal services means services, other than those defined in this
section as ``adoption services,'' that relate to the provision of legal
advice and information and to the drafting of legal instruments. Such
services include, but are not limited to, drawing up contracts, powers
of attorney, and other legal instruments; providing advice and counsel
to adoptive parent(s) on completing DHS or Central Authority forms; and
providing advice and counsel to accredited agencies, approved persons,
or prospective adoptive parent(s) on how to comply with the Convention,
the IAA, the UAA, and the regulations implementing the IAA and the UAA.
Person means an individual or a private, for-profit entity
(including a corporation, company, association, firm, partnership,
society, or joint stock company) providing adoption services.
[[Page 57261]]
It does not include public domestic authorities or public foreign
authorities.
Post-adoption means after an adoption; in cases in which an
adoption occurs in a foreign country and is followed by a re-adoption
in the United States, it means after the adoption in the foreign
country.
Post-placement means after a grant of legal custody or guardianship
of the child to the prospective adoptive parent(s), or to a custodian
for the purpose of escorting the child to the identified prospective
adoptive parent(s), and before an adoption.
Primary provider means the accredited agency or approved person
that is identified pursuant to Sec. 96.14 as responsible for ensuring
that all six adoption services are provided and for supervising and
being responsible for supervised providers where used.
Public domestic authority means an authority operated by a State,
local, or Tribal government within the United States.
Public foreign authority means an authority operated by a national
or subnational government of a foreign country.
Relative, for the purposes of the alternative procedures for
primary providers in intercountry adoption by relatives found in
subpart R of this part, means a prospective adoptive parent was
already, before the adoption, any of the following: parent, step-
parent, brother, step-brother, sister, step-sister, grandparent, aunt,
uncle, half-brother to the child's parent, half-sister to the child's
parent, half-brother, half-sister, or the U.S. citizen spouse of the
person with one of these qualifying relationships with the child. The
relationship can exist by virtue of blood, marriage, or adoption.
Secretary means the Secretary of State, the Assistant Secretary of
State for Consular Affairs, or any other Department of State official
exercising the Secretary of State's authority under the Convention, the
IAA, the UAA, or any regulations implementing the IAA and the UAA,
pursuant to a delegation of authority.
State means the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, Guam, and the U.S. Virgin Islands.
Supervised provider means any agency, person, or other non-
governmental entity, including any domestic or foreign entity,
regardless of whether it is called a facilitator, agent, attorney, or
by any other name, that is providing one or more adoption services in
an intercountry adoption case under the supervision and responsibility
of an accredited agency or approved person that is acting as the
primary provider in the case.
UAA means the Intercountry Adoption Universal Accreditation Act of
2012 (42 U.S.C. 14925, Pub. L. 112-276 (2012)).
USCIS means U.S. Citizenship and Immigration Services within the
U.S. Department of Homeland Security.
Sec. 96.3 [Reserved]
0
3. Revise subpart B to read as follows:
Subpart B--Selection, Designation, and Duties of Accrediting Entities
Sec.
96.4 Designation of accrediting entities by the Secretary.
96.5 Requirement that accrediting entity be a nonprofit or public
entity.
96.6 Performance criteria for designation as an accrediting entity.
96.7 Authorities and responsibilities of an accrediting entity.
96.8 Fees charged by accrediting entities.
96.9 Agreement between the Secretary and the accrediting entity.
96.10 Suspension or cancellation of the designation of an
accrediting entity by the Secretary.
96.11 [Reserved]
Subpart B--Selection, Designation, and Duties of Accrediting
Entities
Sec. 96.4 Designation of accrediting entities by the Secretary.
(a) The Secretary, in the Secretary's discretion, will designate
one or more entities that meet the criteria set forth in Sec. 96.5 to
perform the accreditation and/or approval functions. Each accrediting
entity's designation will be set forth in an agreement between the
Secretary and the accrediting entity. The agreement will govern the
accrediting entity's operations. The agreements will be published in
the Federal Register.
(b) The Secretary's designation may authorize an accrediting entity
to accredit agencies, to approve persons, or to both accredit agencies
and approve persons. The designation may also limit the accrediting
entity's geographic jurisdiction or impose other limits on the entity's
jurisdiction.
(c) A public entity under Sec. 96.5(b) may only be designated to
accredit agencies and approve persons that are located in the public
entity's State.
Sec. 96.5 Requirement that accrediting entity be a nonprofit or
public entity.
An accrediting entity must qualify as either:
(a) An organization described in section 501(c)(3) of the Internal
Revenue Code of 1986, as amended (26 CFR 1.501(c)(3)-1), that has
expertise in developing and administering standards for entities
providing child welfare services; or
(b) A public entity (other than a Federal entity), including, but
not limited to, any State or local government or governmental unit or
any political subdivision, agency, or instrumentality thereof, that has
expertise in developing and administering standards for entities
providing child welfare services.
Sec. 96.6 Performance criteria for designation as an accrediting
entity.
An entity that seeks to be designated as an accrediting entity must
demonstrate to the Secretary:
(a) That it has a governing structure, the human and financial
resources, and systems of control adequate to ensure its reliability;
(b) That it is capable of performing the accreditation or approval
functions or both on a timely basis and of administering any renewal
cycle authorized under Sec. 96.60;
(c) That it can monitor the performance of accredited agencies and
approved persons (including their use of any supervised providers) to
ensure their continued compliance with the Convention, the IAA, the
UAA, and the regulations implementing the IAA and the UAA;
(d) That it has the capacity to take appropriate adverse actions
against accredited agencies and approved persons;
(e) That it can perform the required data collection, reporting,
and other similar functions;
(f) Except in the case of a public entity, that it operates
independently of any agency or person that provides adoption services,
and of any membership organization that includes agencies or persons
that provide adoption services;
(g) That it has the capacity to conduct its accreditation and
approval functions fairly and impartially;
(h) That it can comply with any conflict of interest prohibitions
set by the Secretary;
(i) That it prohibits conflicts of interest with agencies or
persons or with any membership organization that includes agencies or
persons that provide adoption services; and
(j) That it prohibits its employees or other individuals acting as
site evaluators, including, but not limited to, volunteer site
evaluators, from becoming employees or supervised providers of an
accredited agency or approved person for at least one year after they
have evaluated such agency or person for accreditation or approval.
[[Page 57262]]
Sec. 96.7 Authorities and responsibilities of an accrediting entity.
(a) An accrediting entity may be authorized by the Secretary to
perform some or all of the following functions:
(1) Determining whether agencies are eligible for accreditation;
(2) Determining whether persons are eligible for approval;
(3) Overseeing accredited agencies and/or approved persons by
monitoring their compliance with applicable requirements;
(4) Reviewing and responding to complaints about accredited
agencies and approved persons (including their use of supervised
providers);
(5) Taking adverse action against an accredited agency or approved
person, and/or referring an accredited agency or approved person for
possible action by the Secretary;
(6) Determining whether accredited agencies and approved persons
are eligible for renewal of their accreditation or approval on a cycle
consistent with Sec. 96.60;
(7) Collecting data from accredited agencies and approved persons,
maintaining records, and reporting information to the Secretary, State
courts, and other entities; and
(8) Assisting the Secretary in taking appropriate action to help an
agency or person in transferring its intercountry adoption cases and
adoption records.
(9) Maintaining all records related to its role as an accrediting
entity for a period of at least ten years, or longer if otherwise set
forth in its agreement with the Secretary.
(b) The Secretary may require the accrediting entity:
(1) To utilize the Complaint Registry as provided in subpart J of
this part; and
(2) To fund a portion of the costs of operating the Complaint
Registry with fees collected by the accrediting entity pursuant to the
schedule of fees approved by the Secretary as provided in Sec. 96.8.
(c) An accrediting entity must perform all responsibilities in
accordance with the Convention, the IAA, the UAA, the regulations
implementing the IAA and the UAA, and its agreement with the Secretary.
Sec. 96.8 Fees charged by accrediting entities.
(a) An accrediting entity may charge fees for accreditation or
approval services under this part only in accordance with a schedule of
fees approved by the Secretary. Before approving a schedule of fees
proposed by an accrediting entity, or subsequent proposed changes to an
approved schedule, the Secretary will require the accrediting entity to
demonstrate:
(1) That its proposed schedule of fees reflects appropriate
consideration of the relative size and geographic location and volume
of intercountry adoption cases of the agencies or persons it expects to
serve; and
(2) That the total fees the accrediting entity expects to collect
under the schedule of fees will not exceed the full costs of the
accrediting entity functions the Secretary has authorized it to perform
under this part (including, but not limited to, costs for completing
the accreditation or approval process, complaint review, routine
oversight and enforcement, and other data collection and reporting
activities).
(b) The Secretary shall publish in the Federal Register a notice of
the proposed fee schedule along with a summary of the information
provided by the accrediting entity and a general statement explaining
their basis. After notice required by this section, the Secretary shall
give interested persons an opportunity to participate in the proposed
fee schedule setting through submission of written data, views, or
arguments with or without opportunity for oral presentation. After
consideration of the relevant matter presented, the Secretary shall,
following approval of the final schedule of fees, publish the final
schedule of fees and a concise general statement of their basis.
(c) The schedule of fees must:
(1) Establish separate, non-refundable fees for accreditation and
approval; and
(2) Include in each fee the costs of all activities associated with
such fee, including but not limited to, costs for completing the
accreditation or approval process, complaint review, routine oversight
and enforcement, and other data collection and reporting activities,
except that separate fees based on actual costs incurred may be charged
for the travel and maintenance of evaluators.
(d) An accrediting entity must make its approved schedule of fees
available to the public, including prospective applicants for
accreditation or approval, upon request. At the time of application,
the accrediting entity must specify the fees to be charged to the
applicant in a contract between the parties and must provide notice to
the applicant that no portion of the fee will be refunded if the
applicant fails to become accredited or approved.
(e) Nothing in this section shall be construed to provide a private
right of action to challenge any fee charged by an accrediting entity
pursuant to a schedule of fees approved by the Secretary.
Sec. 96.9 Agreement between the Secretary and the accrediting
entity.
An accrediting entity must perform its functions pursuant to a
written agreement with the Secretary that will be published in the
Federal Register. The agreement will address:
(a) The responsibilities and duties of the accrediting entity;
(b) The method by which the costs of delivering the authorized
accrediting entity functions may be recovered through the collection of
fees from those seeking accreditation or approval, and how the entity's
schedule of fees will be approved;
(c) How the accrediting entity will address complaints about
accredited agencies and approved persons (including their use of
supervised providers) and complaints about the accrediting entity
itself;
(d) Data collection requirements;
(e) Matters of communication and accountability between both the
accrediting entity and the applicant(s) and between the accrediting
entity and the Secretary; and
(f) Other matters upon which the parties have agreed.
Sec. 96.10 Suspension or cancellation of the designation of an
accrediting entity by the Secretary.
(a) The Secretary will suspend or cancel the designation of an
accrediting entity if the Secretary concludes that it is substantially
out of compliance with the Convention, the IAA, the UAA, the
regulations implementing the IAA and the UAA, other applicable laws, or
the agreement with the Secretary. Complaints regarding the performance
of the accrediting entity may be submitted to the Department of State,
Bureau of Consular Affairs. The Secretary will consider complaints in
determining whether an accrediting entity's designation should be
suspended or canceled.
(b) The Secretary will notify an accrediting entity in writing of
any deficiencies in the accrediting entity's performance that could
lead to the suspension or cancellation of its designation and will
provide the accrediting entity with an opportunity to demonstrate that
suspension or cancellation is unwarranted, in accordance with
procedures established in the agreement entered into pursuant to Sec.
96.9.
(c) An accrediting entity may be considered substantially out of
compliance under circumstances that include, but are not limited to:
(1) Failing to act in a timely manner when presented with evidence
that an accredited agency or approved person is
[[Page 57263]]
substantially out of compliance with the standards in subpart F of this
part;
(2) Accrediting or approving an agency or person whose performance
results in intervention of the Secretary for the purpose of suspension,
cancellation, or debarment;
(3) Failing to perform its responsibilities fairly and objectively;
(4) Violating prohibitions on conflicts of interest;
(5) Failing to meet its reporting requirements;
(6) Failing to protect information, including personally
identifiable information, or documents that it receives in the course
of performing its responsibilities; and
(7) Failing to monitor frequently and carefully the compliance of
accredited agencies and approved persons with the Convention, the IAA,
the UAA, and the regulations implementing the IAA and the UAA,
including the home study requirements of the Convention, section
203(b)(1)(A)(ii) of the IAA (42 U.S.C. 14923(b)(1)(A)(ii)), and Sec.
96.47.
(d) An accrediting entity that is subject to a final action of
suspension or cancellation may petition the United States District
Court for the District of Columbia or the United States district court
in the judicial district in which the accrediting entity is located to
set aside the action as provided in section 204(d) of the IAA (42
U.S.C. 14924(d)).
Sec. 96.11 [Reserved]
0
4. Revise Sec. 96.12 to read as follows:
Sec. 96.12 Authorized adoption service providers.
(a) Except as provided in section 505(b) of the IAA (relating to
transition cases) and section 2(c) of the UAA (relating to transition
cases), an agency or person may not offer, provide, or facilitate the
provision of any adoption service in connection with an intercountry
adoption unless it is:
(1) An accredited agency or an approved person;
(2) A supervised provider; or
(3) An exempted provider, if the exempted provider's home study or
child background study will be reviewed and approved by an accredited
agency pursuant to Sec. 96.47(c) or Sec. 96.53(b).
(b) A public domestic authority may also offer, provide, or
facilitate the provision of any such adoption service.
(c) Neither conferral nor maintenance of accreditation or approval,
nor status as an exempted or supervised provider, nor status as a
public domestic authority shall be construed to imply, warrant, or
establish that, in any specific case, an adoption service has been
provided consistently with the Convention, the IAA, the UAA, or the
regulations implementing the IAA and the UAA. Conferral and maintenance
of accreditation or approval under this part establishes only that the
accrediting entity has concluded, in accordance with the standards and
procedures of this part, that the accredited agency or approved person
provides adoption services in substantial compliance with the
applicable standards set forth in this part; it is not a guarantee that
in any specific case the accredited agency or approved person is
providing adoption services consistently with the Convention, the IAA,
the UAA, the regulations implementing the IAA and the UAA, or any other
applicable law, whether Federal, State, or foreign. Neither the
Secretary nor any accrediting entity shall be responsible for any acts
of an accredited agency, approved person, exempted provider, supervised
provider, or other entity providing services in connection with an
intercountry adoption.
0
5. Revise subpart E to read as follows:
Subpart E--Evaluation of Applicants for Accreditation and Approval
Sec.
96.23 Scope.
96.24 Procedures for evaluating applicants for accreditation or
approval.
96.25 Access to information and documents requested by the
accrediting entity.
96.26 Protection of information and documents by the accrediting
entity.
96.27 Substantive criteria for evaluating applicants for
accreditation or approval.
Subpart E--Evaluation of Applicants for Accreditation and Approval
Sec. 96.23 Scope.
The provisions in this subpart govern the evaluation of agencies
and persons for accreditation or approval.
Sec. 96.24 Procedures for evaluating applicants for accreditation or
approval.
(a) The accrediting entity must designate at least two evaluators
to evaluate an agency or person for accreditation or approval. The
accrediting entity's evaluators must have expertise in intercountry
adoption, standards evaluation, finance or accounting, or have
experience with the management or oversight of child welfare
organizations and must also meet any additional qualifications required
by the Secretary in the agreement with the accrediting entity.
(b) To evaluate the agency's or person's eligibility for
accreditation or approval, the accrediting entity must:
(1) Review the agency's or person's written application and
supporting documentation;
(2) Verify the information provided by the agency or person by
examining underlying documentation;
(3) Consider any complaints received by the accrediting entity
pursuant to subpart J of this part; and
(4) Conduct site visit(s).
(c) The site visit(s) may include, but need not be limited to,
interviews with birth parents, adoptive parent(s), prospective adoptive
parent(s), and adult adoptee(s) served by the agency or person,
interviews with the agency's or person's employees, and interviews with
other individuals knowledgeable about the agency's or person's
provision of adoption services. It may also include a review of on-site
documents. The accrediting entity must, to the extent practicable,
advise the agency or person in advance of the type of documents it
wishes to review during the site visit. The accrediting entity must
require at least one of the evaluators to participate in each site
visit. The accrediting entity must determine the number of evaluators
that participate in a site visit in light of factors such as:
(1) The agency's or person's size;
(2) The number of adoption cases it handles;
(3) The number of sites the accrediting entity decides to visit;
and
(4) The number of individuals working at each site.
(d) Before deciding whether to accredit an agency or approve a
person, the accrediting entity may, in its discretion, advise the
agency or person of any deficiencies that may hinder or prevent its
accreditation or approval and defer a decision to allow the agency or
person to correct the deficiencies.
Sec. 96.25 Access to information and documents requested by the
accrediting entity.
(a) The agency or person must give the accrediting entity access to
information and documents, including adoption case files and
proprietary information, that it requires or requests to evaluate an
agency or person for accreditation or approval and to perform its
oversight, enforcement, renewal, data collection, and other functions.
The agency or person must also cooperate with the accrediting entity by
making employees available for interviews upon request.
(b) Accrediting entity review of adoption case files pursuant to
paragraph (a) of this section shall be limited to Convention adoption
case files and cases subject to the UAA, except that, in the case of
first-time applicants for accreditation or approval, the accrediting
entity may review adoption case files related to other non-
[[Page 57264]]
Convention cases for purposes of assessing the agency's or person's
capacity to comply with record-keeping and data-management standards in
subpart F of this part. The accrediting entity shall permit the agency
or person to redact names and other information that identifies birth
parent(s), prospective adoptive parent(s), and adoptee(s) from such
non-Convention adoption case files not subject to the UAA prior to
their inspection by the accrediting entity.
(c) If an agency or person fails to provide requested documents or
information, or to make employees available as requested, or engages in
deliberate destruction of requested documentation or information, or
provides false or misleading documents or information, the accrediting
entity may deny accreditation or approval or, in the case of an
accredited agency or approved person, take appropriate adverse action
against the agency or person solely on that basis.
Sec. 96.26 Protection of information and documents by the
accrediting entity.
(a) The accrediting entity must protect from unauthorized use and
disclosure all documents and information about the agency or person it
receives including, but not limited to, documents and proprietary
information about the agency's or person's finances, management, and
professional practices received in connection with the performance of
its accreditation or approval, oversight, enforcement, renewal, data
collection, or other functions under its agreement with the Secretary
and this part.
(b) The documents and information received may not be disclosed to
the public and may be used only for the purpose of performing the
accrediting entity's accreditation or approval functions, monitoring
and oversight, and related tasks under its agreement with the Secretary
and this part, or to provide information to the Secretary, the
Complaint Registry, or an appropriate Federal, State, tribal, or local
authority, including, but not limited to, a public domestic authority
or local law enforcement authority unless:
(1) Otherwise authorized by the agency or person in writing;
(2) Otherwise required under Federal or State laws; or
(3) Required pursuant to subpart M of this part.
(c) Unless the names and other information that identifies the
birth parent(s), prospective adoptive parent(s), and adoptee(s) are
requested by the accrediting entity for an articulated reason, the
agency or person may withhold from the accrediting entity such
information and substitute individually assigned codes in the documents
it provides. The accrediting entity must have appropriate safeguards to
protect from unauthorized use and disclosure of any information in its
files that identifies birth parent(s), prospective adoptive parent(s),
and adoptee(s). The accrediting entity must ensure that its officers,
employees, contractors, and evaluators who have access to information
or documents provided by the agency or person have signed a non-
disclosure agreement reflecting the requirements of paragraphs (a) and
(b) of this section.
(d) The accrediting entity must maintain a complete and accurate
record of all information it receives related to an agency or person,
and the basis for the accrediting entity's decisions concerning the
agency or person for a period of at least ten years, or longer if
otherwise set forth in its agreement with the Secretary.
Sec. 96.27 Substantive criteria for evaluating applicants for
accreditation or approval.
(a) The accrediting entity may not grant an agency accreditation or
a person approval, or permit an agency's or person's accreditation or
approval to be maintained, unless the agency or person demonstrates to
the satisfaction of the accrediting entity that it is in substantial
complia
[…truncated; see source link]Indexed from Federal Register on July 12, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.