Intercountry Adoption-Issuance of Hague Convention Certificates and Declarations in Convention Adoption Cases, 34857-34864 [E6-9507]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 71, Number 116 (Friday, June 16, 2006)]
[Proposed Rules]
[Pages 34857-34864]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-9507]


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DEPARTMENT OF STATE

22 CFR Part 97

[Public Notice 5443]
RIN 1400-AC19


Intercountry Adoption--Issuance of Hague Convention Certificates 
and Declarations in Convention Adoption Cases

AGENCY: Department of State.

ACTION: Proposed Rule.

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SUMMARY: The Department of State (the Department) is proposing new 
regulations to implement the certification and declaration provisions 
of the 1993 Hague Convention on Protection of Children and Co-operation 
in Respect of Intercountry Adoption (the Convention) and the 
Intercountry Adoption Act of 2000 (the IAA) with respect to adoption 
and custody proceedings taking place in the United States. This 
proposed regulation would govern the application process for Hague 
Convention Certificates and Hague Convention Declarations in cases 
involving emigration of a child from the United States. It would also 
establish a process for seeking certification, for purposes of Article 
23 of the Convention, that an adoption done in the United States 
following a grant of custody in a Convention country of origin was done 
in accordance with the Convention.

DATES: Comments must be received on or before August 15, 2006.

ADDRESSES: You may submit comments, identified by docket number State/
AR-01/97, by one of the following methods (no duplicates, please):
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Electronically: You may submit electronic comments to 
adoptionregs@state.gov. Attachments must be in Microsoft Word.
     Mail: U.S. Department of State, CA/OCS/PRI, Adoption 
Regulations Docket Room, (SA-29), 2201 C Street, NW,, Washington, DC 
20520.
     Courier: U.S. Department of State, CA/OCS/PRI, Adoption 
Regulations Docket Room, (SA-29), 2201 C Street, NW., Washington, DC, 
20520. (Because access to the Department of State is not readily 
available to private individuals without Federal Government 
identification, do not personally deliver comments to the Department.)
     Docket: Comments received before the close of the comment 
period will be available to the public, including information 
identifying the commenter. The Department will post comments on its 
public Web site at: https://travel.state.gov. They are also available 
for public inspection by calling Delilia Gibson-Martin at 202-736-9105 
for an appointment.

FOR FURTHER INFORMATION CONTACT: For further information, contact Anna 
Mary Coburn at 202-736-9081, or send an e-mail to 
adoptionregs@state.gov. Hearing- or speech-impaired persons may use the 
Telecommunications Devices for the Deaf (TDD) by contacting the Federal 
Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    The Convention is a multilateral treaty that provides a framework 
for the adoption of children habitually resident in one country party 
to the Convention by persons habitually resident in another country 
party to the Convention. It establishes procedures to be followed in 
such adoption cases and imposes safeguards to protect the best 
interests of the children concerned. It provides for each country that 
is a party to the Convention to establish a Central Authority and 
permits the delegation of certain Central Authority functions to other 
entities, to the extent permitted by the law of the relevant country. 
With certain limited exceptions, Article 23 of the Convention requires 
all Convention parties to recognize adoptions that occur pursuant to 
the Convention, if the adoption is certified by the country of adoption 
as having been made in accordance with the Convention.
    The U.S. implementing legislation for the Convention is the IAA, 
which establishes the U.S. Department of State as the Central Authority 
for the United States. For Convention adoptions involving the 
emigration of a child from the United States (outgoing cases), section 
303(c) of the IAA gives the Department responsibility for issuing an 
official certification that the child has been adopted, or a 
declaration that custody for the purpose of adoption has been granted, 
in accordance with the Convention and the IAA. The IAA assigns to State 
courts with jurisdiction over matters of adoption, or custody for 
purposes of adoption, the responsibility for receiving and verifying 
documents required under the Convention, making certain determinations 
required of the country of origin by the Convention, and determining 
that the placement is in the best interests of the child. The IAA also 
addresses the delegation of Central Authority functions to entities 
other than the Department of State, providing for accreditation, 
temporary accreditation, approval, and operating under supervision as 
the principal ways in which a private entity can be authorized to 
perform tasks assigned to the Central Authority.
    Separate regulations implement other aspects of the Convention and 
the IAA, such as the accreditation and approval of adoption service 
providers to perform adoption services in cases covered by the 
Convention (22 CFR 96), preservation of Convention records (22 CFR 98), 
and immigration procedures

[[Page 34858]]

for Convention adoption cases (e.g., visa regulations to appear at 22 
CFR 42). Further background on the Convention and the IAA is provided 
in the in the Preamble to the Final Rule on the Accreditation and 
Approval of Agencies and Persons under the IAA, Section I and II, 71 FR 
8064-8066 (February 15, 2006) and the Preamble to the Proposed Rule on 
the Accreditation of Agencies and Approval of Persons under the 
Intercountry Adoption Act of 2000, Sections III and IV, 68 FR 54065-
54073 (September 15, 2003).

II. The Proposed Rule

    This proposed rule would establish the Department's procedures for 
application, adjudication, and issuance of Hague Convention 
Certificates and Hague Convention Declarations in outgoing cases. It 
also would establish a separate, discretionary, procedure pursuant to 
which the Department may certify that an incoming case finalized in the 
United States (i.e., a case in which custody was granted abroad but the 
adoption was done by a U.S. court) was done in accordance with the 
Convention. The Department anticipates that this latter authority will 
be used rarely, and only if an issue arises concerning recognition of 
the adoption by a foreign authority pursuant to Article 23 of the 
Convention.

Definitions

    Section 97.1 sets forth definitions used in this section that are 
specific to this regulation, and incorporates the definitions set forth 
in 22 CFR 96.2, the definitional section of the accreditation and 
approval regulation, for terms defined there.
    The term Adoption Court is defined to mean the State court with 
jurisdiction over matters of adoption and of custody for purposes of 
adoption.
    U.S. authorized entity and foreign authorized entity are shorthand 
forms to encompass the entities that may perform the case-specific 
Central Authority functions that may be delegated to authorized 
entities. In the United States, public domestic authorities may perform 
these Central Authority functions. In addition, private entities that 
have become accredited agencies, temporarily accredited agencies, or 
approved persons, as well as agencies operating under their supervision 
and responsibility as supervised providers, in accordance with the 
accreditation and approval standards at 22 CFR 96, are generally 
authorized to perform such Central Authority functions. However, the 
authority of private entities that are not accredited or temporarily 
accredited is limited when completing a home study or a child 
background study. The Convention requires that home studies and child 
background studies be prepared under the responsibility of an 
accredited body or public domestic authority; correspondingly, the 
accreditation and approval standards at 22 CFR 96.53 provide for 
background studies in outgoing cases that are not prepared in the first 
instance by an accredited agency or temporarily accredited agency to be 
reviewed and approved by such an agency.
    Convention countries may choose not to allow private entities to 
perform Central Authority functions; the definition of foreign 
authorized entity therefore includes the foreign Central Authority 
itself as well as any foreign accredited bodies or other public or 
private entities authorized under foreign law to perform the relevant 
Central Authority function in a Convention adoption case. The Web site 
of the Hague Conference on Private International Law, www.hcch.net, 
lists the names of entities that each Convention country has so 
authorized. (Click on ``Welcome,'' then, in the left hand column, 
``Conventions,'' then the 1993 Convention (No. 33), and then, in the 
right hand column, ``Authorities.'')
    The terms Hague Convention Certificate and Hague Convention 
Declaration are defined as the documents the Secretary of State (the 
Secretary) will issue to attest that a child has been adopted or that 
custody of a child has been granted, respectively, in the United States 
in accordance with the Convention and the IAA. Consistent with the 
waiver authority provided in section 502 of the IAA, Sec.  97.4(b) of 
the proposed regulation authorizes the Secretary to issue either 
document, appropriately modified, in the absence of compliance with the 
IAA, in the interests of justice or to prevent grave physical harm to a 
child. Section 97.4(b), unlike the other provisions of the rule, refers 
to the ``Secretary of State'' acting ``personally.'' Accordingly, the 
authority to issue an appropriately modified Hague Adoption Certificate 
or Hague Custody Declaration may not be delegated.

Application for a Hague Adoption Certificate or a Hague Custody 
Declaration in an Outgoing Convention Case

    Section 97.2(a) of the regulation sets forth the procedural 
requirements for obtaining a Hague Adoption Certificate or Hague 
Custody Declaration in an outgoing case. Applicants must either be a 
party to the adoption or custody proceedings (i.e., adoptive or 
prospective adoptive parent(s) or the child) or other applicants will 
have to demonstrate that the documents will be used to obtain a legal 
benefit or for purposes of a legal proceeding. The Department has 
discretion under the rule to determine whether to issue the documents 
to persons in the latter category, which is intended to encompass 
persons such as executors and heirs of the parties, who may need 
documentation for estate purposes. (Legal representatives acting 
directly on behalf of a parent or the child will be covered by the 
first category.) The Department believes this approach strikes an 
appropriate balance between protecting the privacy of participants in 
the adoption process while permitting discretionary and limited access 
to others who have a compelling need for the record.
    Section 97.2(b) sets forth the documentary requirements for 
submitting an application for a Hague Adoption Certificate or Hague 
Custody Declaration in an outgoing case. The requirements include a 
completed application form and any required fee.
    Section 97.2(b) also instructs applicants to submit an official 
copy of the adoption court's order finding that the child is adoptable 
and that the adoption or proposed adoption is in the child's best 
interests and granting the adoption or custody for purposes of 
adoption. These findings, which will be made by State courts in 
accordance with State law, are fundamental to any adoption.
    In addition, the proposed regulation instructs applicants to 
provide an official copy of the adoption court's findings verifying, in 
substance, that the Convention and IAA requirements set forth in Sec.  
97.3 have been met. This can be done either in the final adoption or 
custody order or in a separate document. The qualifier ``in substance'' 
is intended to make clear that the regulation does not govern the 
precise words the court must use, but rather the substantive finding 
required. If the adoption court fails to verify compliance with one or 
more requirements set forth in Sec.  97.3, the applicant may provide 
authenticated documentation showing compliance with the requirement(s) 
at issue and explaining why verification by the adoption court cannot 
be submitted. The Department expects that cases in which alternative 
proof of Convention compliance is necessary will be few; applicants 
will be expected to take all reasonable steps to obtain a court order 
addressing these requirements, which, in some cases, may require 
seeking a supplemental or amended order from the adoption court. The 
adoption court

[[Page 34859]]

is best placed to make these findings, and is specifically charged by 
the IAA to make nearly all of the findings required.
    The Department has broad authority under section 303(a)(3) of the 
IAA to require the submission of any information concerning the case 
necessary to issue the Hague Adoption Certificate or Hague Custody 
Declaration or otherwise to carry out the duties of the United States 
Central Authority. Consistent with this, Sec.  97.2(b)(4) indicates 
that the Department may, in its discretion, request additional 
documentation and information from the applicant. The Department 
anticipates using this authority principally when evidence provided 
pursuant to Sec.  97.2(b)(1)-(3) is inadequate or otherwise raises a 
suspicion of noncompliance or if information becomes available to the 
Department independently that raises a question of compliance. Section 
97.2(c) establishes the Department's authority to consider applications 
abandoned when such requested documentation or information is not 
provided within 120 days. This provision will facilitate the 
Department's recordkeeping and case-tracking efforts.

Requirements Subject to Verification in an Outgoing Convention Case

    Section 97.3 sets forth the additional requirements that must be 
satisfied in order for the Department to conclude that an adoption or 
grant of custody for purposes of adoption has been made in compliance 
with the Convention and the IAA. These requirements do not replace 
State laws on adoption or custody. Rather, State law, unless directly 
inconsistent with the Convention and the IAA, still applies to 
Convention adoptions and is not preempted. This proposed rule also does 
not affect the application of other federal laws. Specifically, the 
Convention, the IAA, and this proposed rule do not affect the 
application of the Indian Child Welfare Act (ICWA), which applies to 
cases involving Native American children, or any other applicable 
federal laws covering adoptions.
    The proposed rule does, however, add new Federal requirements 
derived directly from the Convention and the IAA, which must be met 
before the Department will issue a Hague Convention Certificate or a 
Hague Convention Declaration. Because State courts are best placed to 
determine compliance with these requirements in the context of adoption 
proceedings they adjudicate, and to enhance governmental efficiency, 
this proposed rule effectively directs the prospective adoptive 
parent(s) to seek certain findings from the State court in the course 
of their adoption proceedings. Nearly all the findings involve subjects 
that the IAA explicitly assigns to the adoption court. The Department 
has limited the elements set forth in Sec.  97.3 to those required in 
order to determine Convention and IAA compliance.
    Paragraph (a) provides that an accredited agency, temporarily 
accredited agency, or a public domestic authority must complete or 
approve a child background study that meets the specific requirements 
of the Convention. This provision implements section 303(a)(1)(A) of 
the IAA and Convention Article 16(1). The term U.S. authorized entity 
is not used in this provision because child background studies prepared 
by an approved person or a non-accredited supervised provider--each of 
which is encompassed by ``U.S. authorized entity''--or by an exempted 
provider, must subsequently be approved by an accredited agency, 
temporarily accredited agency, or public domestic authority in order to 
accommodate the Convention Article 22(5) requirement that such studies 
be prepared under the responsibility of the Central Authority, a public 
authority, or an accredited body and the accreditation standards in 22 
CFR 96, which provide for child background studies in outgoing cases 
that are not prepared by an accredited or temporarily accredited agency 
to be approved by such an agency. Thus, in summary, to accommodate both 
the Convention and 22 CFR 96 and for the Department to attest to Hague 
and IAA compliance in an outgoing case, this regulation requires the 
child background study to be completed by an accredited agency, 
temporarily accredited agency, or public domestic authority or else 
subsequently be approved by such an entity. (Similarly, home studies in 
such cases must be prepared under the responsibility of a foreign 
Central Authority, foreign accredited body, or public foreign 
authority.)
    Paragraph (b) provides that a U.S. authorized entity must conclude 
that the child is adoptable and, without revealing birthparent 
identities where prohibited by applicable State law, transmit to a 
foreign authorized entity the documentation on the child set forth in 
Convention Article 16(2), including a determination that the envisaged 
placement is in the best interests of the child. This provision also 
makes clear that the U.S. authorized entity's best interests 
determination must be made in reference to the home and child 
background studies and must give due consideration to the child's 
upbringing and ethnic, religious and cultural background, as required 
by Convention Article 16. This paragraph also implements subparagraphs 
(A) and (C) of section 303(a)(1) of the IAA.
    Paragraph (c) requires, consistent with section 303(a)(1)(B) of the 
IAA and the Convention's requirement that due consideration be given to 
domestic placement, that reasonable efforts be made to actively recruit 
and make a diligent search for a U.S. adoptive family for the child and 
that a timely U.S. adoptive placement could not be found. This 
paragraph cross-references Sec.  96.54 of the accreditation and 
approval regulation, which specifies particular methods of making such 
a search, including disseminating information about the child in 
various ways, listing the child on an adoption exchange for 60 days, 
responding to inquiries, and providing the child's background study to 
potential U.S. adoptive parents. Section 96.54 also recognizes that 
there are some circumstances when the procedures it specifies are not 
appropriate; specifically, Sec.  96.54 excludes from its scope cases in 
which the prospective adoption is by relatives, or the birth parent(s) 
have identified specific prospective adoptive parent(s), or in other 
special circumstances accepted by the adoption court. (For example, an 
adoption court might determine that such ``special circumstances'' 
existed if a public domestic authority followed alternative recruiting 
and search procedures provided for by State law or if the particular 
child required a speedier placement than could be found domestically.)
    Paragraph (d) provides that a U.S. authorized entity must receive 
from a foreign authorized entity a home study prepared in accordance 
with applicable foreign law under the responsibility of a foreign 
Central Authority, foreign accredited body, or foreign public authority 
that includes the information required by Convention Articles 5(a) and 
(b) and 15 and by section 303(a)(2)(B) of the IAA. As with the child 
background study, Convention Article 22(5) restricts who may perform 
this function, and this restriction is reflected in the rule.
    Paragraph (e) provides that the Central Authority or other 
competent authority of the receiving country must declare that the 
child will be authorized to enter and reside in the receiving country 
permanently or on the same basis as the adopting parent. This reflects 
the requirements set forth in Convention Article 5(c) and section

[[Page 34860]]

303(a)(2)(C)(i) of the IAA. Under the Convention, this determination 
must be made by a competent authority; this language, drawn from the 
IAA, recognizes that in some cases the foreign Central Authority itself 
may be the authority competent to make this determination.
    Paragraph (f) addresses situations in which foreign law requires a 
foreign Central Authority or other foreign entity to consent to or 
approve an adoption before it goes forward. Convention Article 17(b) 
provides that, where required by the law of the receiving country, the 
country's Central Authority (or a foreign authorized entity other than 
the Central Authority to whom the relevant Central Authority function 
has been delegated) must consent to the adoption. Section 
303(a)(2)(C)(ii) of the IAA requires submission to the U.S. adoption 
court of a declaration by the foreign ``Central Authority (or other 
competent authority)'' that it consents to the adoption, if such 
consent is necessary under the laws of the receiving country for the 
adoption to become final. To harmonize these provisions, paragraph (f) 
follows the IAA's approach of reading the Convention term ``required'' 
to mean ``necessary for the adoption to become final'' and recognizing 
that the consent of a competent authority other than a Central 
Authority might be required under foreign law for the adoption to 
become final. Paragraph (f) thus provides that a foreign authorized 
entity or competent authority must declare that it consents to the 
adoption if its consent is necessary under the law of the relevant 
foreign country for the adoption to become final.
    Paragraphs (g) and (h), respectively, set forth the requirements of 
Convention Article 4(c), relating to the counseling and consent of 
guardians of a child, and Article 4(d), relating to the counseling and 
consent, where required, of the child. State law will continue to 
govern related issues, such as who must consent to the adoption and the 
particular requirements of proper legal form for consent, unless State 
law is in conflict with the Convention or the IAA, in which case the 
Convention or IAA provision would govern. Notably, consent of the birth 
mother, where required, may be given only after the birth of the child. 
State law allowing birth mother consent to be given before the birth of 
the child would be in direct conflict with the Convention and thus 
preempted. The Department welcomes comments from State, local, and 
tribal authorities on this point.
    Paragraph (i) sets forth several duties of a U.S. authorized 
entity. A U.S. authorized entity must ensure that prospective adoptive 
parents agree to the adoption, as required by Convention Article 17(a). 
A U.S. authorized entity and a foreign authorized entity must both 
agree that the adoption may proceed, as required by Convention Article 
17(c). (Applicants for a Hague Adoption Certificate or Hague Custody 
Declaration will be asked to provide this information for use on the 
certificate/declaration, as required by Article 23.) A U.S. authorized 
entity also must take all appropriate measures to ensure that transfer 
of the child takes place in secure and appropriate circumstances and, 
if possible, in the company of the adoptive or prospective adoptive 
parent(s), and arrange to obtain permission for the child to leave the 
United States, as required by Convention Articles 19(2) and 18, 
respectively. Finally, a U.S. authorized entity must arrange to keep a 
foreign authorized entity informed about the adoption process and the 
measures taken to complete it, as well as about the progress of a 
placement if a probationary period is required; to return the home 
study and child background study to the authorities that forwarded them 
if the transfer of the child does not take place, and to be consulted 
in the event that a new placement or alternative long-term care for the 
child is needed, as required by Convention Articles 19(3), 20, and 21. 
These requirements are phrased in terms of the U.S. authorized entity 
``arranging'' or ``taking all appropriate measures'' for them to occur 
because at the time of the adoption, the duties inherently will not yet 
have been performed. While section 303(b)(1)(B) of the IAA contemplates 
judicial review of compliance with Convention Articles 18 through 21, 
realistically the court will only be able to ensure that appropriate 
arrangements for future compliance are in place.
    Paragraph (j) implements the ``no contact'' rule of Article 29 of 
the Convention, which is designed to reduce the opportunities for 
coercion, bribery, and child buying in the consent process. The 
Convention provides there can be no contact between the prospective 
adoptive parent(s) and the birthparent(s), or other persons caring for 
the child, until the appropriate authorities of the receiving country 
have determined the prospective adoptive parents are eligible and 
suitable to adopt and the appropriate authorities of the country of 
origin have determined that the child is adoptable and that, after due 
consideration to domestic placement, intercountry adoption is in the 
child's best interests, and have ensured that all necessary guardian 
counseling and consent has occurred. This prohibition on prior contact 
applies unless the adoption takes place within a family or the contact 
is in compliance with conditions established by the appropriate 
authority of the country of origin. Such conditions may be established 
either by State law or by a public domestic authority acting within its 
jurisdiction. When conditions have not been established, such contacts 
may not occur because the Convention intends that such contacts be 
either barred or subject to regulation. (Note that this prohibition 
does not apply to contact by prospective adoptive parent(s) directly 
with the child.) The Department is particularly interested in receiving 
comments from State, local, and tribal authorities as to whether 
appropriate and sufficient conditions on contact between prospective 
adoptive parent(s) and birthparent(s) or other persons caring for the 
child are currently in place.
    Paragraph (k) implements paragraphs (a) and (b) of Convention 
Article 32, which prohibit improper financial or other gain in relation 
to adoption activities and permit only costs and expenses (including 
reasonable professional fees) to be charged or paid.
    Other requirements of the Convention need not be specifically 
verified by the court, either because they are not part of the process 
for an individual adoption case, or because existing law will address 
them adequately. For example, Convention Article 32(c) provides that 
directors, administrators and employees of adoption-related entities 
may not receive unreasonably high remuneration. The accreditation and 
approval regulations address unreasonable remuneration of private 
bodies (22 CFR 96.34(d)) and we have no reason to believe that the 
remuneration of public employees would be considered ``unreasonably 
high.''

Issuance of a Hague Adoption Certificate or a Hague Custody Declaration 
in an Outgoing Convention Case

    Section 97.4(a) provides that the Department shall issue a Hague 
Adoption Certificate or a Hague Custody Declaration if the Department, 
in its discretion, is satisfied that the adoption or grant of custody 
was made in compliance with the Convention and IAA. Thus, even if an 
applicant provides all information required by Sec.  97.2, it is within 
the Department's discretion to deny the application if the Department 
is not satisfied that the

[[Page 34861]]

Convention and IAA were complied with. This provision is consistent 
with section 303(c) of the IAA, which provides that the Secretary shall 
issue such a document upon ``verification as necessary'' of the 
information required to establish Convention and IAA compliance.
    Section 97.4(b) implements the Secretary's authority pursuant to 
section 502(b) of the IAA, which permits the Secretary, personally, to 
the extent consistent with the Convention, to waive requirements of the 
IAA otherwise applicable or any regulations promulgated thereunder in 
the interests of justice or to prevent grave physical harm to a child. 
This regulation therefore permits the Secretary personally to authorize 
issuance of an appropriately modified Hague Adoption Certificate or 
Hague Custody Declaration attesting to Convention compliance in 
appropriate circumstances even if applicable IAA requirements have not 
been met. The Department anticipates that this exceptional, and 
discretionary, authority will only be exercised in extremely rare 
circumstances and only where foreign recognition of a Convention-
compliant adoption is appropriate. As noted previously, this authority 
may not be delegated.

Certification of Hague Convention Compliance in an Incoming Convention 
Case Where Adoption Occurs in the United States

    Section 97.5 is meant to address those cases in which custody for 
the purposes of adoption was granted to U.S. prospective adoptive 
parents by a competent authority in the child's country of origin, but 
the adoption occurs in the United States. In such cases, at the time a 
child receives an IR-4 visa, prospective adoptive parents will receive, 
pursuant to section 301(a) of the IAA and visa regulations that will be 
published in 22 CFR 42, a certificate indicating that legal custody has 
been granted for purposes of emigration and adoption, pursuant to the 
Convention and the IAA. Section 301(c) of the IAA requires such a 
certificate in order for a State court to finalize the adoption in the 
United States. The certification envisioned by Convention Article 23, 
however, is a certification by the country of adoption that the 
adoption was made in accordance with the Convention. It is therefore 
conceivable that the custody certificate issued by the consular 
officer, coupled with the State court order, would be inadequate to 
obtain recognition of the adoption outside the United States pursuant 
to Convention Article 23. In such a case, U.S. certification of 
Convention compliance following the U.S. adoption may be required. This 
second certification is not required, however, for the adoption to be 
recognized in the United States or for the child to be documented as a 
U.S. citizen. (Section 97.5(a) is not intended to address cases in 
which adoption is granted in the foreign country, an IR-3 visa is 
issued, and parent(s) later choose to re-adopt in the United States 
even though such a re-adoption is not required for recognition or 
citizenship purposes.)
    Section 97.5(b) sets forth the documentation that must be submitted 
to the Department in order to seek such a certification. It includes a 
copy of the certificate issued by a consular officer pursuant to 
applicable visa regulations certifying that legal custody for the 
purposes of emigration and adoption was granted in the Convention 
country pursuant to the Convention and the IAA, an official copy of the 
adoption court order granting the adoption, a signed statement 
explaining the need for such a certification, and any additional 
information or documentation the Department may request in its 
discretion.
    The proposed regulation requires a statement of need because the 
Department anticipates that this certification will only be required in 
very few cases. A State court's adoption order should be recognized 
within the United States; thus, it is only if the adoptive family 
leaves the United States that recognition could potentially be an 
issue, and even then we have no specific information to indicate that 
U.S. adoption orders are not normally recognized abroad.
    Section 97.5(c) mirrors Sec.  97.2(c), authorizing the Department 
to consider such a request abandoned if documentation and information 
is not provided within 120 days of a request. Section 97.5(d) gives the 
Department authority to issue the requested certification if satisfied 
that the adoption was made in compliance with the Convention. The 
Secretary also has authority to decline issuance for any reason, 
including that the requestor did not establish a valid need for the 
certification. Although any person may request such a certification, 
requestors who are not parties to the adoption must, in addition to the 
requirements of Sec.  97.5(b), demonstrate that issuance of such a 
certification would be to obtain a legal benefit or for purposes of a 
legal proceeding.

Regulatory Review

A. Administrative Procedures Act

    This rule, through which the Department provides for implementation 
of the Convention, which focuses on issuance of documents to facilitate 
cross-border recognition of adoptions done under the Convention, 
involves a foreign affairs function of the United States and therefore 
pursuant to 5 U.S.C. 553(a)(1) is not subject to the procedures 
required by 5 U.S.C. 553 and 554. Nonetheless, the Department is 
publishing this proposed rule and inviting public comment. All comments 
received before the close of business on the comment closing date 
indicated above will be considered and will be available for 
examination in the docket. Comments received after the comment closing 
date will be filed in the docket and will be considered to the extent 
practicable.

B. Regulatory Flexibility Act/Executive Order 13272: Small Business

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-
612, and Executive Order 13272, Section 3(b), the Department of State 
has evaluated the effects of this proposed action on small entities and 
has determined and hereby certifies that this rule would not have a 
significant economic impact on a substantial number of small entities.

C. Small Business Regulatory Enforcement Fairness Act of 1996

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

D. The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Pub. L. 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires agencies 
to prepare a statement, including cost-benefit and other analyses, 
before proposing any rule that may result in an annual expenditure of 
$100 million or more by State, local, or tribal governments, or by the 
private sector. Section 4 of UFMA, 2 U.S.C. 1503,

[[Page 34862]]

excludes regulations necessary for implementation of treaty 
obligations. This proposed regulation falls within this exclusion 
because it would implement the Convention. In any event, this rule 
would not result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any year. Moreover, because this rule would not 
significantly or uniquely affect small governments, section 203 of the 
UFMA, 2 U.S.C. 1533, does not require preparation of a small government 
agency plan in connection with it.

E. Executive Order 13132: Federalism

    A rule has federalism implications under Executive Order 13132 if 
it has substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
This regulation will not have such effects, and therefore does not have 
sufficient federalism implications to require consultations or to 
warrant the preparation of a federalism summary impact statement under 
section 6 of Executive Order 13132.
    The Convention and the IAA do, however, address issues that 
previously had been regulated primarily at the State level, as 
discussed in the preamble to the proposed rule on accreditation and 
approval of agencies and persons, appearing at 68 Fed. Reg. 54064, 
54069-54070. In recognition of this fact, section 503(a) of the IAA 
contains a specific provision limiting preemption of State law to those 
State law provisions inconsistent with the Convention or the IAA, and 
only to the extent of the inconsistency. These regulations do not 
create new federalism implications beyond those created by the IAA and 
the Convention, and the Department has been careful in these 
regulations to defer to State authorities whenever possible consistent 
with Convention and IAA mandates. As with the regulations on 
accreditation and approval, the Department welcomes comments from State 
and local agencies and tribal governments on the proposed regulations. 
We also envision significant outreach and consultation with appropriate 
State authorities in the ultimate implementation of any regulation on 
this topic.

F. Executive Order 12866: Regulatory Review

    This rule, through which the Department provides for implementation 
of the Convention, which focuses on issuance of documents to facilitate 
cross-border recognition of adoptions done under the Convention, 
pertains to a foreign affairs function of the United States; therefore, 
pursuant to section 3(d)(2) of the Executive Order 12866, this proposed 
rule is not subject to the review procedures set forth in Executive 
Order 12866. In addition, the Department is exempt from Executive Order 
12866 except to the extent it is promulgating regulations in 
conjunction with a domestic agency that are significant regulatory 
actions. Nonetheless, the Department of State has reviewed this 
proposed rule to ensure its consistency with the regulatory philosophy 
and principles set forth in Executive Order 12866 and has provided it 
to OMB for comment.

G. Executive Order 12988: Civil Justice Reform

    The Department has reviewed this proposed regulation in light of 
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal standards, and 
reduce burden. The Department has made every reasonable effort to 
ensure compliance with the requirements in Executive Order 12988.

H. The Paperwork Reduction Act (PRA) of 1995

    Under the Paperwork Reduction Act (PRA), 42 U.S.C. 3501 et seq., 
agencies are generally required to submit to OMB for review and 
approval information collection requirements imposed on ``persons'' as 
defined in the PRA. Section 503(c) of the IAA, however, exempts from 
the PRA any information collection ``for purposes of sections 104, 
202(b)(4), and 303(d)'' of the IAA ``or for use as a Convention record 
as defined'' in the IAA. Convention record is defined in section 3(11) 
of the IAA to mean ``any item, collection, or grouping of information 
contained in an electronic or physical document, an electronic 
collection of data, a photograph, an audio or video tape, or any other 
information storage medium of any type whatever that contains 
information about a specific past, current, or prospective Convention 
adoption (regardless of whether the adoption was made final) that has 
been preserved in accordance with section 401(a) by the Secretary of 
State or the Attorney General.'' Information collections imposed on 
persons pursuant to this rule would relate directly to specific 
Convention adoptions (whether final or not), insofar as collections 
would be used by the Department in its determination of whether a 
Convention adoption, or a grant of custody for purposes of a Convention 
adoption, has been conducted in accordance with the Convention and the 
IAA. Upon receipt, these information collections would be subject to 
the preservation requirements set forth in 22 CFR 98 to implement 
section 401(a) of the IAA.
    Accordingly, the Department has concluded that the PRA would not 
apply to information collected from the public under this rule, for the 
purpose of determining entitlement to a Hague Adoption Certificate or 
Hague Custody Declaration, or a certification of Convention compliance 
pursuant to Sec.  97.5, because such documents would be collected for 
use as Convention records.
    The Department intends, nonetheless, to consider carefully how to 
minimize the burden on the public of information collections contained 
in this rule as such collections, in particular the required 
application form, are developed.

List of Subjects in 22 CFR Part 97

    Adoption and foster care, International agreements, Reporting and 
recordkeeping requirements.

    Accordingly, the Department proposes to add new part 97 to title 22 
of the CFR, chapter I, subchapter J, to read as follows:

PART 97--ISSUANCE OF HAGUE CONVENTION CERTIFICATES AND DECLARATIONS 
IN CONVENTION ADOPTION CASES

Sec.
97.1 Definitions.
97.2 Application for a Hague Adoption Certificate or a Hague Custody 
Declaration in an Outgoing Convention Case.
97.3 Requirements Subject to Verification in an Outgoing Convention 
Case.
97.4 Issuance of a Hague Adoption Certificate or a Hague Custody 
Declaration in an Outgoing Convention Case.
97.5 Certification of Hague Convention Compliance in an Incoming 
Convention Case where Final Adoption Occurs in the United States.
97.6-97.7 [Reserved].

    Authority: 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)); Intercountry Adoption Act of 2000, 42 U.S.C. 14901-
14954.


Sec.  97.1  Definitions.

    As used in this part:
    (a) Adoption Court means the State court with jurisdiction over the

[[Page 34863]]

adoption or the grant of custody for purpose of adoption.
    (b) U.S. Authorized Entity means a public domestic authority or an 
agency or person that is accredited or temporarily accredited or 
approved by an accrediting entity pursuant to 22 CFR 96, or a 
supervised provider acting under the supervision and responsibility of 
an accredited agency or temporarily accredited agency or approved 
person.
    (c) Foreign Authorized Entity means a foreign Central Authority or 
an accredited body or entity other than the Central Authority 
authorized by the relevant foreign country to perform Central Authority 
functions in a Convention adoption case.
    (d) Hague Adoption Certificate means a certificate issued by the 
Secretary certifying that a child has been adopted in the United States 
in accordance with the Convention and, except as provided in Sec.  
97.4(b), the IAA.
    (e) Hague Custody Declaration means a declaration issued by the 
Secretary declaring that custody of a child for purposes of adoption 
has been granted in the United States in accordance with the Convention 
and, except as provided in Sec.  97.4(b), the IAA.
    (f) Terms defined in 22 CFR 96.2 have the meaning given to them 
therein.


Sec.  97.2  Application for a Hague Adoption Certificate or a Hague 
Custody Declaration in an Outgoing Convention Case.

    (a) Any party to an outgoing Convention adoption or custody 
proceeding may apply to the Secretary for a Hague Adoption Certificate 
or a Hague Custody Declaration. Any other interested person may also 
make such application, but such application will not be processed 
unless such applicant demonstrates that a Hague Adoption Certificate or 
Hague Custody Declaration is needed to obtain a legal benefit or for 
purposes of a legal proceeding, as determined by the Secretary in the 
Secretary's discretion.
    (b) Applicants for a Hague Adoption Certificate or Hague Custody 
Declaration shall submit to the Secretary:
    (1) A completed application form in such form as the Secretary may 
prescribe, with any required fee;
    (2) An official copy of the order of the adoption court finding 
that the child is adoptable and that the adoption or proposed adoption 
is in the child's best interests and granting the adoption or custody 
for purposes of adoption;
    (3) An official copy of the adoption court's findings (either in 
the order granting the adoption or custody for purposes of adoption or 
separately) verifying, in substance, that each of the requirements of 
Sec.  97.3 has been complied with or, if the adoption court has not 
verified compliance with a particular requirement in Sec.  97.3, 
authenticated documentation showing that such requirement nevertheless 
has been met and a written explanation of why the adoption court's 
verification of compliance with the requirement cannot be submitted; 
and
    (4) Such additional documentation and information as the Secretary 
may request at the Secretary's discretion.
    (c) If the applicant fails to submit all of the documentation and 
information required pursuant to paragraph (b)(4) of this section 
within 120 days of the Secretary's request, the Secretary may consider 
the application abandoned.


Sec.  97.3  Requirements Subject to Verification in an Outgoing 
Convention Case.

    (a) Preparation of Child Background Study. An accredited agency, 
temporarily accredited agency, or public domestic authority must 
complete or approve a child background study that includes information 
about the child's identity, adoptability, background, social 
environment, family history, medical history (including that of the 
child's family), and any special needs of the child.
    (b) Transmission of Child Data. A U.S. authorized entity must 
conclude that the child is adoptable and, without revealing the 
identity of the birth mother or the birth father if these identities 
may not be disclosed under applicable State law, transmit to a foreign 
authorized entity the background study, proof that the necessary 
consents have been obtained, and the reason for its determination that 
the proposed placement is in the child's best interests, based on the 
home study and child background study and giving due consideration to 
the child's upbringing and his or her ethnic, religious, and cultural 
background.
    (c) Reasonable Efforts to Find Domestic Placement. Reasonable 
efforts consistent with 22 CFR 96.54 must be made to actively recruit 
and make a diligent search for prospective adoptive parent(s) to adopt 
the child in the United States and a timely adoptive placement in the 
United States not found.
    (d) Preparation and Transmission of Home Study. A U.S. authorized 
entity must receive from a foreign authorized entity a home study on 
the prospective adoptive parent(s) prepared in accordance with the laws 
of the receiving country, under the responsibility of a foreign Central 
Authority, foreign accredited body, or public foreign authority, that 
includes:
    (1) Information on the prospective adoptive parent(s)' identity, 
eligibility, and suitability to adopt, background, family and medical 
history, social environment, reasons for adoption, ability to undertake 
an intercountry adoption, and the characteristics of the children for 
whom they would be qualified to care;
    (2) Confirmation that a competent authority has determined that the 
prospective adoptive parent(s) are eligible and suited to adopt and has 
ensured that the prospective adoptive parent(s) have been counseled as 
necessary; and
    (3) The results of a criminal background check.
    (e) Authorization to Enter. The Central Authority or other 
competent authority of the receiving country must declare that the 
child will be authorized to enter and reside in the receiving country 
permanently or on the same basis as the adopting parent(s).
    (f) Consent by Foreign Authorized Entity. A foreign authorized 
entity or competent authority must declare that it consents to the 
adoption, if its consent is necessary under the law of the relevant 
foreign country for the adoption to become final.
    (g) Guardian Counseling and Consent. Each person, institution, and 
authority other than the child whose consent is necessary for the 
adoption must be counseled as necessary and duly informed of the 
effects of the consent (including whether or not an adoption will 
terminate the legal relationship between the child and his or her 
family of origin); must freely give consent expressed or evidenced in 
writing in the required legal form without any inducement by 
compensation of any kind; and consent must not have been subsequently 
withdrawn. If the consent of the mother is required, it may be given 
only after the birth of the child.
    (h) Child Counseling and Consent. As appropriate in light of the 
child's age and maturity, the child must be counseled and informed of 
the effects of the adoption and the child's views must be considered. 
If the child's consent is required, the child must also be counseled 
and informed of the effects of granting consent, and must freely give 
consent expressed or evidenced in writing in the required legal form 
without any inducement by compensation of any kind.
    (i) Authorized Entity Duties. A U.S. authorized entity must:
    (1) Ensure that the prospective adoptive parent(s) agree to the 
adoption;

[[Page 34864]]

    (2) Agree, together with a foreign authorized entity, that the 
adoption may proceed;
    (3) Take all appropriate measures to ensure that the transfer of 
the child takes place in secure and appropriate circumstances and, if 
possible, in the company of the adoptive parent(s) or the prospective 
adoptive parent(s), and arrange to obtain permission for the child to 
leave the United States; and
    (4) Arrange to keep a foreign authorized entity informed about the 
adoption process and the measures taken to complete it, as well as 
about the progress of the placement if a probationary period is 
required; to return the home study and the child background study to 
the authorities that forwarded them if the transfer of the child does 
not take place; and to be consulted in the event a new placement or 
alternative long-term care for the child is required.
    (j) Contacts. Unless the child is being adopted by a relative, 
there may be no contact between the prospective adoptive parent(s) and 
the child's birthparent(s) or any other person who has care of the 
child prior to the competent authority's determination that the 
prospective adoptive parent(s) are eligible and suited to adopt and the 
adoption court's determinations that the child is adoptable, that the 
requirements in paragraphs (c) and (g) of this section have been met, 
and that an intercountry adoption is in the child's best interests, 
provided that this prohibition on contacts shall not apply if the 
relevant State or public domestic authority has established conditions 
under which such contact may occur and any such contact occurred in 
accordance with such conditions.
    (k) Improper financial gain. No one may derive improper financial 
or other gain from an activity related to the adoption, and only costs 
and expenses (including reasonable professional fees of persons 
involved in the adoption) may be charged or paid.


Sec.  97.4  Issuance of a Hague Adoption Certificate or a Hague Custody 
Declaration in an Outgoing Convention Case.

    (a) The Secretary shall issue a Hague Adoption Certificate or a 
Hague Custody Declaration if the Secretary, in the Secretary's 
discretion, is satisfied that the adoption or grant of custody was made 
in compliance with the Convention and the IAA.
    (b) If compliance with the Convention can be certified but it is 
not possible to certify compliance with the IAA, the Secretary 
personally may authorize issuance of an appropriately modified Hague 
Adoption Certificate or Hague Custody Declaration, in the interests of 
justice or to prevent grave physical harm to the child.


Sec.  97.5  Certification of Hague Convention Compliance in an Incoming 
Convention Case where Adoption Occurs in the United States.

    (a) Any person may request the Secretary to certify that an 
incoming Convention adoption finalized in the United States was done in 
accordance with the Convention.
    (b) Persons seeking such a certification must submit the following 
documentation:
    (1) A copy of a Hague Convention Certificate issued by a consular 
officer pursuant to applicable visa regulations certifying that legal 
custody of the child has been granted to the U.S. citizen parent for 
purposes of adoption;
    (2) An official copy of the adoption court's order granting the 
final adoption;
    (3) A signed statement explaining the need for such a 
certification; and
    (4) Such additional documentation and information as the Secretary 
may request at the Secretary's discretion.
    (c) If a person seeking the certification described in paragraph 
(a) of this section fails to submit all the documentation and 
information required pursuant to paragraph (b)(4) of this section 
within 120 days of the Secretary's request, the Department may consider 
the request abandoned.
    (d) The Secretary may issue the certification if the Secretary, in 
the Secretary's discretion, is satisfied that the adoption was made in 
compliance with the Convention. The Secretary may decline to issue a 
certification, including to a party to the adoption, in the Secretary's 
discretion. A certification will not be issued to a non-party requestor 
unless the requestor demonstrates that the certification is needed to 
obtain a legal benefit or for purposes of a legal proceeding, as 
determined by the Secretary in the Secretary's discretion.


Sec. Sec.  97.6-97.7  [Reserved].

    Dated: June 9, 2006.
Maura A. Harty,
Assistant Secretary, Bureau of Consular Affairs, Department of State.
[FR Doc. E6-9507 Filed 6-15-06; 8:45 am]
BILLING CODE 4710-06-P