Hague Convention on Intercountry Adoption; Intercountry Adoption Act of 2000; Consular Officer Procedures in Convention Cases, 35847-35852 [E6-9596]
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Federal Register / Vol. 71, No. 120 / Thursday, June 22, 2006 / Proposed Rules
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Regulatory Flexibility Act
The Chief Counsel for Regulation at
the Department certified to the Chief
Counsel for Advocacy, Small Business
Administration that this rule, if
promulgated, would not have a
significant economic impact on a
substantial number of small entities.
The Department proposes to establish
procedures for importation of supplies
free of antidumping or countervailing
duties if those supplies are to be used
in emergency relief work, as authorized
under section 318(a) of the Tariff Act of
1930, as amended (‘‘the Act’’) (19 U.S.C.
1318(a)). Section 318(a) of the Act gives
the Secretary of the Treasury authority,
on a temporary basis, to respond
immediately where the President
declares the existence of an emergency.
Specifically, the Secretary may ‘‘permit
* * * the importation free of duty of
* * * supplies for use in emergency
relief work.’’ This authority, insofar as
it encompasses antidumping and
countervailing duties, was delegated to
the Secretary of Commerce in 1979.
Section 318(a) of the Act authorizes the
Secretary to take action ‘‘under such
regulations as the Secretary may
prescribe.’’ This proposed action
prescribes such regulations. This
proposed action only addresses the
procedures for importation of supplies
for emergency relief work free of
antidumping and countervailing duties.
The Department is unable to estimate
the number of small entities that will be
affected by this rule as the Department
does not collect this information; nor is
the Department able to predict the types
of entities that would apply for
importation of supplies for use in
emergency relief work free of
antidumping or countervailing duties.
However, there is the possibility that
this rule would impact some number of
small entities. Although the number of
small entities that may impacted is
unknown, this rule would not impose a
significant economic impact. This rule
merely sets up the process persons
would use to request importation of
supplies for use in emergency relief
work free of antidumping or
countervailing duties. The exemption of
certain goods from liability for
antidumping or countervailing duties
will not result in a significant economic
impact because the exempted goods
would be gifts contributed to, or goods
sold for, the specific purpose of
providing emergency relief. Because the
purpose of these provisions is targeted
specifically for emergency relief and not
for mass consumption, this rule would
not have a significant economic impact
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on a substantial number of small
entities.
List of Subjects in 19 CFR Part 358
Administrative practice and
procedure, Antidumping duties,
Business and industry, Countervailing
duties, Emergency powers, Reporting
and recordkeeping requirements.
Dated: June 16, 2006.
David M. Spooner,
Assistant Secretary for Import
Administration.
For the reasons stated, 19 CFR part
358 is proposed to be added to read as
follows:
PART 358—SUPPLIES FOR USE IN
EMERGENCY RELIEF WORK
Sec.
358.101
358.102
358.103
Scope.
Definitions.
Importation of supplies.
Authority: 19 U.S.C. 1318(a).
§ 358.101
Scope.
This part sets forth the procedures for
importation of supplies for use in
emergency relief work free of
antidumping or countervailing duties,
as authorized under section 318(a) of
the Act.
§ 358.102
Definitions.
For purposes of this part:
Act means the Tariff Act of 1930, as
amended.
Customs means the Bureau of
Customs and Border Protection of the
United States Department of Homeland
Security.
Department means the United States
Department of Commerce.
Order means an order issued by the
Secretary under section 303, section
706, or section 736 of the Act.
Secretary means the Secretary of
Commerce or a designee.
Supplies for use in emergency relief
work means supplies for use in
emergency relief work related to the
emergency declared by the President.
§ 358.103
Importation of supplies.
(a) Where the President, acting under
section 318 of the Act, authorizes the
Secretary to permit the importation of
supplies for use in emergency relief
work free of antidumping and
countervailing duties, the Secretary
shall consider requests for such
importation under the following
conditions:
(1) Before importation, a written
request shall be submitted to the
Secretary by the person in charge of
sending the subject merchandise from
the foreign country, or by the person for
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whose account it will be brought into
the United States. Three copies of the
request should be submitted to the
Secretary of Commerce, Attention:
Import Administration, Central Records
Unit, Room 1870, U.S. Department of
Commerce, 1401 Constitution Avenue,
NW., Washington, DC 20230.
(2) The request shall state the
Department antidumping or
countervailing duty order case number,
the producer of the merchandise, a
detailed description of the merchandise,
current HTS number, price in the
United States, quantity, proposed date
of entry, proposed port of entry, mode
of transport, destination, use to be made
of the merchandise, and any other
information the person would like the
Secretary to consider.
(b) If the Secretary determines to
permit importation of particular
merchandise for use in emergency relief
work, the Secretary will notify the
person who submitted the request and
instruct Customs to allow entry of the
merchandise without regard to
antidumping or countervailing duties.
(c) Any subject merchandise entered
under paragraph (b) of this section
which is used in the United States other
than for a purpose contemplated for it
by section 318(a) of the Act may be
subject to seizure or other penalty,
including under section 592 of the Act.
(d) Any subject merchandise entered
under paragraph (b) of this section is
subject to the Department’s reporting
requirements in its conduct of an
antidumping or countervailing duty
administrative review, however, the
Department will exclude such
merchandise from the calculation of
assessment and cash deposit rates.
[FR Doc. 06–5612 Filed 6–21–06; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF STATE
22 CFR Part 42
[Public Notice 5445]
RIN 1400–AC17
Hague Convention on Intercountry
Adoption; Intercountry Adoption Act of
2000; Consular Officer Procedures in
Convention Cases
State Department.
Proposed Rule with request for
comments.
AGENCY:
ACTION:
SUMMARY: This proposed rule amends
U.S. Department of State regulations to
provide for intercountry adoptions that
will occur pursuant to the Hague
Convention on Protection of Children
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Federal Register / Vol. 71, No. 120 / Thursday, June 22, 2006 / Proposed Rules
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and Co-operation in Respect of
Intercountry Adoption (hereinafter the
‘‘Convention’’) and the Intercountry
Adoption Act of 2000 (hereinafter the
‘‘IAA’’) This proposed rule addresses
consular officer processing of
immigration petitions, visas, and
Convention certificates in cases of
children immigrating to the United
States in connection with an adoption
subject to the Convention.
DATES: Written comments must be
submitted on or before July 24, 2006.
ADDRESSES: You may submit comments,
identified by any of the following
methods:
• E-mail: visaregs@state.gov. You
must include the RIN number in the
subject line of your message.
• Mail: Chief, Legislation and
Regulations Division, Visa Office, U.S.
Department of State, 2401 E Street, NW.,
Washington DC 20520–0106.
• Fax: 202–663–3898. You must
include the RIN number in the subject
line of your message.
Persons with access to the Internet may
also view this document and provide
comments by going to the
regulations.gov Web site at: https://
www.regulations.gov/index.cfm.
FOR FURTHER INFORMATION CONTACT:
Barbara J. Kennedy, Legislation and
Regulations Division, Visa Services,
U.S. Department of State, 2401 E Street,
NW., Room L–603, Washington, DC
20520–0106; telephone 202–663–1206
or e-mail KennedyBJ@state.gov.
SUPPLEMENTARY INFORMATION:
Background
The Hague Convention on Protection
of Children and Co-operation in Respect
of Intercountry Adoption (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 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 at issue. It also
provides for recognition of adoptions
that occur pursuant to the Convention.
In the United States, the implementing
legislation for the Hague Convention is
the Intercountry Adoption Act of 2000
(IAA). To implement the Convention,
the IAA makes two significant changes
to the Immigration and Nationality Act
(INA): (1) It creates a new definition of
child applicable in Convention adoption
cases, INA 101(b)(1)(G) (‘‘Hague child’’),
that roughly parallels the current
‘‘orphan’’ definition, INA 101(b)(1)(F),
but that applies only to children being
adopted from Convention parties. (2) It
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incorporates Hague procedures into the
immigration process for children
covered by INA 101(b)(1)(G), most
directly by precluding approval of an
immigration petition under this
classification until the Department has
certified that the child was adopted in
accordance with the Convention and the
IAA. Separately, the IAA requires
domestic entities to recognize adoptions
that have been so certified by the
Department.
The Department of Homeland
Security will be issuing separate but
complementary regulations relating to
the immigration process for Hague
children. Additional regulations will
implement other aspects of the
Convention and the IAA, such as on the
accreditation/approval of adoption
service providers to perform adoption
services in cases covered by the
Convention (22 CFR Part 96),
preservation of records (22 CFR Part 98),
and certificate issuance with respect to
U.S. court proceedings (22 CFR Part 97).
Further background on the Convention
and IAA is provided in the Preamble to
the Final Rule on the Accreditation of
Agencies and Approval of Persons
under the Intercountry Adoption Act of
2000, Sections III and IV, 71 FR 8064–
8066 (February 15, 2006).
The Proposed Regulation
This proposed rule establishes new
procedures that consular officers will
follow in adjudicating Hague child
cases. Although much of the petition
and visa processes will be similar to the
current orphan case procedures, there
are important changes. Perhaps most
significantly, U.S. authorities will
perform the bulk of petition and visa
adjudication work much earlier than
under current practice. This early
review will enable U.S. authorities to
make the determination required by
Article 5 of the Convention that the
child will be eligible to enter and reside
permanently in the receiving state prior
to the adoption or grant of custody. The
regulation also provides that, once the
country of origin has provided
appropriate notification that the
adoption or custody grant has occurred,
the consular officer will issue a
certificate to the U.S. adoptive or
prospective adoptive parent if the
officer is satisfied that the requirements
of the Convention and IAA have been
met, and only if so will the consular
officer approve the immigration petition
and complete visa processing. To
streamline the process, the regulation
departs from current practice by
allowing consular officers to approve
Hague child petitions regardless of
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whether the petition was originally filed
with the Department or DHS.
Paragraph (a) of the proposed § 42.24
sets forth short forms and abbreviations
of terms used in this section that do not
appear in the general definitions for 22
CFR Part 42.
Paragraph (b) clarifies that INA
101(b)(1)(G) is the only definition of
child applicable to adoptions subject to
the Convention. Children who are
immigrating to the United States from a
Convention country in connection with
an adoption will not be classifiable
under INA 101(b)(1)(F). The Convention
obligates Contracting Parties to apply
the Convention in all cases that fall
within its scope. Continuing to allow
children to qualify under INA
101(b)(1)(F), which provides for
children to enter the United States as
part of the intercountry adoption
process, but which does not incorporate
Hague procedures, would be
inconsistent with this mandate. (Note,
however, that it may still be possible for
a child adopted in a Hague country to
qualify for a visa pursuant to INA
101(b)(1)(E). INA 101(b)(1)(E) is
designed to allow immigration of an
adopted child who is an established part
of an existing family. It generally
requires that the child have been in the
legal custody of, and have resided with,
the adoptive parent(s) for at least two
years. Unlike INA 101(b)(1)(F), INA
101(b)(1)(E) is not targeted at children
habitually resident abroad being
adopted by parents habitually resident
in the United States, but rather at
adoptive families formed while both
parents and child were habitually
resident abroad. A subsequent move to
the United States would not trigger U.S.
procedural obligations under the
Convention.
Paragraph (c) provides that the
provisions of § 42.24 will govern the
operations of consular officers in
processing Hague child cases. It also
incorporates the Secretary’s nondelegable authority to waive any
requirement of the IAA or these
regulations in a particular case in the
interests of justice or to prevent grave
physical harm to the child, to the extent
consistent with the Convention. This
authority is granted in IAA section 502.
The Department does not anticipate that
the Secretary will exercise this
authority, which would require her
personal consideration of the matter,
except in the most rare and unusual of
circumstances.
Paragraph (d) states the general rules
that will govern the adoption process in
Hague child cases and the division of
functions between DHS and the
Department. To qualify as a Hague
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child, a DHS or consular officer must
review and provisionally approve an
immigration petition for the child (I–
600) and a consular officer must review
and annotate the child’s visa application
prior to the foreign adoption or custody
proceeding. A consular officer will give
final approval to the petition and visa
application only after the adoption or
custody proceeding, and before a visa
may be issued to the child.
This procedure reflects a significant
shift in timing of consular processing of
adoption cases that is effectively
mandated by the Convention. Under
current practices, the determination of
whether the child will be permitted to
enter the United States is generally
made only after the adoption or custody
proceeding has been completed. Article
5 of the Convention requires that the
receiving country make such a
determination much earlier in the
process. Pursuant to this Article, the
adoption may not take place until the
competent authorities of the receiving
State have (1) Determined that the
prospective adoptive parents are eligible
and suited to adopt; (2) ensured that the
prospective adoptive parents have been
counseled as may be necessary; and (3)
determined that the child is or will be
authorized to enter and reside
permanently in that State. These
requirements effectively mean that U.S.
authorities must provisionally review
the child’s case before an adoption or
custody proceeding under the
Convention takes place abroad.
Paragraph (e) sets forth the procedures
a consular officer will follow if a
petition is filed abroad with a consular
officer. Consular officers are instructed
to follow DHS requirements in making
a decision on provisional approval of
the petition. Based on consultations
with DHS, the Department anticipates
that before providing provisional
approval, a consular or DHS officer will
need to establish that DHS has granted
I–600A approval (concluding that
prospective adoptive parents are eligible
and suitable to adopt). In addition, a
consular or DHS officer will need to
determine whether, but for the absence
of a final adoption or custody order, the
proposed adoption or custody grant
complies with all Convention
requirements and whether the child
falls within the Hague child definition.
In some cases, as is current practice,
DHS will carry out an initial review of
classification but request that a consular
officer do additional reviews,
determinations or investigations. The
regulation makes clear that the consular
officer will provide this service to DHS
so that it can decide whether to grant
provisional approval of the petition.
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Paragraph (f) instructs consular
officers to approve a petition
provisionally if, in accordance with
applicable DHS requirements, it appears
the child will be classifiable as a Hague
child and that the proposed adoption or
grant of custody will be in compliance
with the Convention. If a consular
officer knows or has reason to believe
the petition is not provisionally
approvable, the consular officer must
return the petition to DHS for
processing in accordance with existing
procedures for consular officer
suspension of action in petition cases,
which are set forth in § 42.43.
Paragraph (g) requires an immigrant
visa application for the child, together
with supporting documentation
identified in 42.63 (Application forms
and other documentation) and 42.65
(Supporting documents) and any
required fees, to be submitted to a U.S.
consular officer located in the consular
district in which the child’s visa will be
processed (as determined by § 42.61) for
a provisional review of visa eligibility.
Paragraph (g) also requires visa
applicants to comply with the
remainder of the requirements normally
applicable to persons filing an
immigrant visa petition to the extent
practicable to do so: § 42.62 (personal
appearance and interview of applicant),
§ 42.64 (passport requirements), § 42.66
(medical examination) and § 42.67
(execution of application, registration,
and fingerprinting). Because
conclusions drawn at this stage of
processing will be critical to the
determination of the child’s eligibility to
enter and reside permanently in the
United States, it will be important for
the consular officer to make as
comprehensive a review of visa
eligibility as possible. In some cases,
however, it will not be practicable to
satisfy all visa processing requirements
prior to the adoption or custody grant,
in particular with respect to
requirements that require actions to be
taken by the applicant child. For
example, it may not be practicable for a
child to travel a considerable distance to
be examined by a panel physician or be
interviewed by a consular officer until
the adoption or custody proceeding has
taken place. Thus the regulation does
not require applicants to comply with
§ 42.62, § 42.64, § 42.66 or § 42.67 at the
provisional review stage if it is not
practicable to do so.
Paragraph (h) instructs the consular
officer to determine visa eligibility
provisionally based on the information
provided. The consular officer must
follow all procedures that would
normally be required to adjudicate an
immigrant visa, except to the extent the
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consular officer cannot because the
applicant has not provided the
necessary input. For example, the
consular officer does not need to
examine a panel physician’s report if
the applicant has not undergone a panel
physician exam. If there is other
information in the record before the
consular officer indicating that the child
may have a disease that would result in
a medical ineligibility, however, the
consular officer will have to take this
information into account as part of the
provisional review process.
If it appears that the child will not be
ineligible for a visa, the consular officer
will so annotate the visa application. If
it appears the child will be ineligible for
a visa, the rule requires the consular
officer to inform the prospective
adoptive parents of the ineligibility and
give them an opportunity to show that
it will be overcome. If, after the
prospective adoptive parents have had
such an opportunity, the child
continues to appear ineligible, the
consular officer will be required to deny
the visa in accordance with the normal
procedures set forth in § 42.81.
Although these procedures normally
apply only to executed visa
applications, this proposed rule will
authorize consular officers to follow the
procedures set forth in § 42.81 even if
the application has not been executed.
This adjustment to normal procedures is
required because in at least some cases
the applicant may not have complied
with § 42.67 (execution of application,
registration, and fingerprinting). If, in
the course of reviewing the visa-related
materials, the consular officer comes to
know or have reason to believe that the
petition is not approvable, the consular
officer will be required to return the
petition to DHS for processing in
accordance with existing procedures for
consular officer suspension of action in
petition cases, set forth in § 42.43.
Paragraph (i) provides that, if both the
petition and visa provisional reviews
are concluded favorably, and the
consular officer is aware of no grounds
that would preclude the entry of the
child into the United States, the
consular officer will notify the country
of origin that the steps required under
Article 5 have been taken, so that the
adoption or custody proceeding may
proceed. The Department intends that,
in general, the consular officer’s
notification will be transmitted to the
country of origin through the relevant
adoption service provider.
Paragraph (j) provides that, once the
country of origin has notified the
consular officer that the adoption or
grant of custody has occurred and once
any remaining petition or visa-related
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requirements have been met, the
consular officer will reexamine the case.
(Thus, for example, if it was not
practicable for the child to submit to a
panel physician’s exam at the
provisional review stage, the exam must
be done prior to this final stage of
consular officer review.) If, upon review
of additionally submitted information,
the consular officer is satisfied that the
Convention and IAA requirements have
been met, the consular officer will affix
a certificate so indicating to the
adoption decree or grant of custody.
This certificate will meet the
requirements of INA section 204(d)(2),
which mandates certification by the
Department prior to petition approval,
as well as the requirements of IAA
section 301(a), which addresses
certificate issuance by the Department
to parents. Paragraph (j) also instructs
consular officers that, for purposes of
deciding whether to issue a certificate,
the fact that a consular officer
previously provided notification to the
country of origin pursuant to paragraph
(i) (i.e., the Article 5 notification) with
respect to the case is prima facie
evidence of compliance with the
Convention and IAA. The earlier
provisional approval of the petition, and
Article 5 notification, will have required
a finding of Convention and IAA
compliance on every matter except the
existence of a final adoption or custody
decree. Thus, following appropriate
notification from the country of origin
regarding completion of the adoption or
custody proceedings, and compliance
with all remaining visa and petition
requirements, the prior determinations
should be considered a sufficient basis
on which to issue a certificate except in
very unusual cases in which a consular
officer becomes aware of information
calling into question Convention and
IAA compliance.
Paragraph (k) instructs consular
officers to notify the country of origin in
those rare cases for which they are
unable to certify Convention and IAA
compliance as provided in paragraph (j).
For example, new information may be
discovered that reveals that birthparent
consent was fraudulently obtained.
Article 24 of the Convention provides
that recognition of an adoption may be
refused by a Contracting State if the
adoption is manifestly contrary to its
public policy, taking into account the
best interests of the child. The country
of origin is notified so that it can be
involved in determining appropriate
next steps in the case.
Following the determination of
whether to issue the certificate
described in paragraph (j), paragraph (l)
instructs the consular officer to perform
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a final adjudication of the petition and
visa application in accordance with
standard procedures.
There may also be circumstances in
which, although the adoption is
certified as being in compliance with
the Convention and the IAA, a visa
cannot be issued to the child, at least in
the immediate term. For example, if the
panel physician medical exam is not
performed prior to Article 5 notification,
completion of that exam may reveal that
the child has a medical ineligibility.
Such cases will usually be resolved
through treatment of an illness or
through the use of Department and DHS
waiver authorities in appropriate cases.
Paragraph (m) instructs consular
officers unable to give final approval to
the petition at this stage to follow
standard procedures in handling such
cases, which include returning the
petition to DHS for possible revocation,
pursuant to § 42.43, and denial of the
visa pursuant to § 42.81. If the petition
is approvable but the visa application is
not, the visa must be refused in
accordance with § 42.81.
The 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, Public Law 104–121. This 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, innovation, or on the
ability of United States-based
companies to compete with foreign
based companies in domestic and
export markets.
Regulatory Findings
Executive Orders 12372 and 13132:
Federalism
This regulation will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or the
distribution of power and
responsibilities among the various
levels of government. Nor will the rule
have federalism implications warranting
the application of Executive Orders No.
12372 and No. 13132.
Administrative Procedure Act
In accordance with provisions of the
Administrative Procedure Act governing
rules promulgated by federal agencies
that affect the public (5 U.S.C. 552), the
Department is publishing this proposed
rule and inviting public comment.
Regulatory Flexibility Act/Executive
Order 13272: Small Business
The Department of State, in
accordance with the Regulatory
Flexibility Act (Pub. L. 96–354, 5 U.S.C.
601–612) and Executive Order 13272,
section 3(b), has evaluated the effects of
this action of 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.
The Unfunded Mandates Reform Act of
1995
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UFMA),
Public Law 104–4, 109 Stat. 48, 2 U.S.C.
1532, generally requires agencies to
prepare a statement before proposing
any rule that may result in an annual
expenditure of $100 million or more by
State, local, or tribal governments, or by
the private sector. This rule would not
result in any such expenditure, nor
would it significantly or uniquely affect
small governments.
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Executive Order 12866
The Department of State does not
consider this rule to be a ‘‘significant
regulatory action’’ within the scope of
section 3(f)(1) of Executive Order 12866.
Nonetheless, the Department has
reviewed the rule to ensure its
consistency with the regulatory
philosophy and principles set forth in
the Executive Order.
Executive Order 12988: Civil Justice
Reform
The Department has reviewed the
regulations in light of sections 3(a) and
3(b)(2) of Executive Order No. 12988 to
eliminate ambiguity, minimize
litigation, establish clear legal
standards, and reduce burden.
Paperwork Reduction Act
This rule does not impose any new
reporting or recordkeeping requirements
subject to the Paperwork Reduction Act
(PRA), 44 U.S.C. Chapter 35. The
Department plans for applicants for
visas for children adopted under the
Hague Convention to use visa
application forms that have already
been approved by OMB. The forms
related to the petition process, such as
the I600 and I600A, are DHS forms, and
DHS would be responsible for
compliance with the PRA, where it
applies, with respect to any changes in
those forms. We currently anticipate
that the certificates to be issued by
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consular officers will not involve the
collection of additional information not
already collected. Moreover, Section
503(c) of the IAA exempts from the PRA
any information collection ‘‘for use as a
Convention record as defined’’ in the
IAA. Information collected on
Convention adoptions in connection
with the visa, petition, and certificate
processes would relate directly to
specific Convention adoptions (whether
final or not), and therefore would fall
within this exemption. Accordingly, the
Department has concluded that this
regulation will not involve an
‘‘information collection’’ under the
Paperwork Reduction Act.
List of Subjects in 22 CFR Part 42
Immigration, Passports, Visas,
Intercountry adoption, Convention
certificates.
In view of the foregoing, 22 CFR part
42 would be amended as follows:
PART 42—VISAS: DOCUMENTATION
OF IMMIGRANTS UNDER THE
IMMIGRATION AND NATIONALITY
ACT, AS AMENDED
1. The authority citation for part 42 is
revised to read as follows:
Authority: 8 U.S.C. 1104 and 1182; Pub. L.
107–56, sec 421; The Convention on
Protection of Children and Cooperation 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, Pub. L.
106–279.
2. Add a new § 42.24 to subpart C to
read as follows:
mstockstill on PROD1PC68 with PROPOSALS
§ 42.24 Adoption under the Hague
Convention on Protection of Children and
Cooperation in Respect of Intercountry
Adoption and the Intercountry Adoption Act
of 2000.
(a) For purpose of this section, the
following definitions apply:
Convention means the Convention on
Protection of Children and Co-operation
in Respect of Intercountry Adoption
done at The Hague on May 29, 1993.
DHS means the 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.
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.
(b) A child habitually resident in a
country with which the Convention is
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15:29 Jun 21, 2006
Jkt 208001
in force with the United States who is
traveling to the United States in
connection with an adoption must
qualify for visa status under the
provisions of INA section 101(b)(1)(G)
as provided in this section. Such a child
shall not be accorded status under INA
section 101(b)(1)(F).
(c) The provisions of this section
govern the operations of consular
officers in processing cases involving
children for whom classification is
sought under INA section 101(b)(1)(G),
unless the Secretary has personally
waived any requirement of the IAA or
these regulations in a particular case in
the interests of justice or to prevent
grave physical harm to the child, to the
extent consistent with the Convention.
(d) An alien child shall only be
classifiable under INA section
101(b)(1)(G) if, before the child is
adopted or legal custody for the purpose
of adoption is granted, (1) A petition for
the child has been received and
provisionally approved by a DHS officer
or, where authorized by DHS, by a
consular officer, and (2) a visa
application for the child has been
received and annotated in accordance
with paragraph (h) of this section by a
consular officer. No alien child shall be
issued a visa pursuant to INA section
101(b)(1)(G) unless the petition and visa
application are finally approved by a
consular officer.
(e) If a petition for a child under INA
section 101(b)(1)(G) is received by a
consular officer, the consular officer
will review the petition for the purpose
of determining whether the petition can
be provisionally approved in
accordance with applicable DHS
requirements. If a petition for a child
under INA section 101(b)(1)(G) is
received by a DHS officer, the consular
officer will conduct any reviews,
determinations or investigations
requested by DHS with regard to the
petition and classification
determination in accordance with
applicable DHS procedures.
(f) A petition shall be provisionally
approved by the consular officer if, in
accordance with applicable DHS
requirements, it appears that the child
will be classifiable under INA
101(b)(1)(G) and that the proposed
adoption or grant of custody will be in
compliance with the Convention. If the
consular officer knows or has reason to
believe the petition is not provisionally
approvable, the consular officer shall
return it to DHS pursuant to § 42.43.
(g) After a petition has been
provisionally approved, a completed
visa application form, any supporting
documents required pursuant to § 42.63
and § 42.65, and any required fees must
PO 00000
Frm 00016
Fmt 4702
Sfmt 4702
35851
be submitted to the consular officer in
accordance with § 42.61 for a
provisional review of visa eligibility.
The requirements in § 42.62, § 42.64,
§ 42.66 and § 42.67 shall also be
satisfied to the extent practicable.
(h) A consular officer shall
provisionally determine visa eligibility
based on a review of the visa
application, submitted supporting
documents, and the provisionally
approved petition. In so doing, the
consular officer shall follow all
procedures required to adjudicate the
visa to the extent possible in light of the
degree of compliance with §§ 42.62–
42.67. If it appears, based on the
available information, that the child
would not be ineligible under INA
section 212 or other applicable law to
receive a visa, the consular officer shall
so annotate the visa application. If
evidence of an ineligibility is discovered
during the review of the visa
application, the prospective adoptive
parents shall be informed of the
ineligibility and given an opportunity to
establish that it will be overcome. If the
visa application cannot be annotated,
the consular officer shall deny the visa
in accordance with § 42.81, regardless of
whether the application has yet been
executed in accordance with § 42.67(a).
If in addition the consular officer comes
to know or have reason to believe that
the petition is not approvable as
provided in § 42.43, the consular officer
shall return the petition to DHS
pursuant to that section.
(i) If the petition has been
provisionally approved, the visa
application has been annotated in
accordance with subparagraph (h), and
the consular officer is aware of no
grounds that would preclude the entry
of the child into the United States
following the adoption or grant of
custody, the consular officer shall notify
the country of origin that the steps
required by Article 5 of the Convention
have been taken.
(j) After the consular officer has
received appropriate notification from
the country of origin that the adoption
or grant of custody has occurred and
any remaining requirements established
by DHS or §§ 42.61–42.67 have been
fulfilled, the consular officer, if satisfied
that the requirements of the IAA and the
Convention have been met with respect
to the adoption or grant of custody, shall
affix to the adoption decree or grant of
custody a certificate so indicating. This
certificate shall constitute the
certification required by IAA section
301(a) and INA section 204(d)(2). For
purposes of determining whether to
issue a certificate, the fact that a
consular officer notified the country of
E:\FR\FM\22JNP1.SGM
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35852
Federal Register / Vol. 71, No. 120 / Thursday, June 22, 2006 / Proposed Rules
origin pursuant to paragraph (i) that the
steps required by Article 5 of the
Convention had been taken shall
constitute prima facie evidence of
compliance with the Convention and
the IAA.
(k) If the consular officer is unable to
issue the certificate described in
paragraph (j) of this section, the
consular officer shall notify the country
of origin of the consular officer’s
decision.
(l) After the consular officer
determines whether to issue the
certificate described in paragraph (j) of
this section, the consular officer shall
finally adjudicate the petition and visa
application in accordance with standard
procedures.
(m) If the consular officer is unable to
give final approval to the visa
application or the petition, then the
consular officer shall, as appropriate,
return the petition to DHS for
appropriate action in accordance with
applicable DHS procedures and/or
refuse the visa application in
accordance with § 42.43 or § 42.81. The
consular officer shall notify the country
of origin that the visa has been refused.
Dated: June 9, 2006.
Maura Harty,
Assistant Secretary for Consular Affairs,
Department of State.
[FR Doc. E6–9596 Filed 6–21–06; 8:45 am]
BILLING CODE 4710–06–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[CGD07–06–019]
RIN 1625–AA09
Drawbridge Operation Regulations;
New River and New River South Fork
Bridges, Ft. Lauderdale, FL
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
mstockstill on PROD1PC68 with PROPOSALS
ACTION:
SUMMARY: The Coast Guard proposes to
change the regulations governing the
operation of the S.E. Third Avenue, S.
Andrews Avenue and Marshal (Seventh
Avenue) Bridges across the New River at
miles 1.4, 2.3, and 2.7 respectively, and
the regulation governing the operation
of the Davie Boulevard (S.W. Twelfth
Street) Bridge across the New River,
South Fork, mile 0.9, Fort Lauderdale,
Broward County, Florida.
DATES: Comments and related material
must reach the Coast Guard on or before
August 21, 2006.
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15:29 Jun 21, 2006
Jkt 208001
You may mail comments
and related material to Commander
(dpb), Seventh Coast Guard District, 909
S.E. 1st Ave, Suite 432, Miami, FL
33131–3050. Commander (dpb)
maintains the public docket for this
rulemaking. Comments and material
received from the public, as well as
documents indicated in the preamble as
being available in the docket, will
become part of this docket and will be
available for inspection or copying at
the Bridge Branch, Seventh Coast Guard
District, between 8 a.m. and 4:30 p.m.,
Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael Lieberum, Project Manager,
Seventh Coast Guard District, Bridge
Branch, 305–415–6744.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
Third Avenue Bride and the Davie
Boulevard Bridge open on signal, except
that from 7:30 a.m. to 8:30 a.m. and 4:30
p.m. to 5:30 p.m. Monday through
Friday, the draws need not be opened
for the passage of vessels; and the
Andrews Avenue and Marshal Bridges
open on signal, however the Andrews
Avenue draw need not be opened for
upbound vessels when the draw of the
Florida East Coast Railroad Bridge is in
the closed position.
The proposed regulations for these
bridges, which state that the draws need
not be opened for the passage of vessels
from 7:30 a.m. through 9 a.m. and from
4:30 p.m. through 6 p.m., Monday
through Friday, except Federal holidays,
will help alleviate the existing vehicle
traffic delays.
Public Meeting
We do not plan to hold a public
meeting. But you may submit a request
for a meeting by writing to the Bridge
Branch, Seventh Coast Guard District, at
the address under ADDRESSES explaining
why one would be beneficial. If we
determine that one would aid this
rulemaking, we will hold one at a time
and place announced by a later notice
in the Federal Register.
Discussion of Proposed Rule
The Coast Guard proposes to change
the operating regulations of the S.E.
Third Avenue Bridge, mile 1.4, the S.
Andrews Avenue Bridge, mile 2.3, the
Marshal (Seventh Avenue) Bridge, mile
2.7, and the Davie Boulevard (S.W.
Twelfth Street) Bridge, mile 0.9, across
the New River and South Fork of the
New River. The draw shall open on
signal, except that, from 7:30 a.m. to 9
a.m. and 4:30 p.m. to 6 p.m., Monday
through Friday, the draw need not be
opened for the passage of vessels. Public
vessels of the United States, regularly
scheduled cruise vessels, tugs with
tows, and vessels in distress shall be
passed as necessary.
The proposed rule change would
impact automobile traffic crossing the
New River and New River, South Fork
Bridges, as well as boat operators
traversing the New River and New
River, South Fork. Broward County
commuters would gain one additional
half hour each morning and evening
during rush-hour in which to cross the
Bridges without interruption due to
vessel traffic. Vessel operators on the
river would only have an additional
half-hour each morning and evening in
which they would have to wait for the
draw to open.
Background and Purpose
The City of Fort Lauderdale has
requested that the Coast Guard change
the current operating regulations of four
bridges on the New River and New
River South Fork by adding an
additional half-hour to the morning and
afternoon no-draw hours to the S.E.
Third Avenue Bridge, the Davie
Boulevard (S.W. Twelfth Street) Bridge,
and the operating regulations of the S.
Andrews Avenue and Marshal (Seventh
Avenue) Bridges to include these same
non-draw periods. Currently, the S.E.
Regulatory Evaluation
This proposed rule is not a
‘‘significant regulatory action’’ under
section 3(f) of Executive Order 12866,
Regulatory Planning and Review, and
does not require an assessment of
potential costs and benefits under
section 6(a)(3) of that Order. The Office
of Management and Budget has not
reviewed it under that Order. It is not
‘‘significant’’ under the regulatory
policies and procedures of the
Department of Homeland Security
(DHS).
Request for Comments
We encourage you to participate in
this rulemaking by submitting
comments and related material. If you
do so, please include your name and
address, identify the docket number for
this rulemaking [CGD07–06–019],
indicate the specific section of this
document to which each comment
applies, and give the reason for each
comment. Please submit all comments
and related material in an unbound
format, no larger than 81⁄2 by 11 inches,
suitable for copying. If you would like
to know they reached us, please enclose
a stamped, self-addressed postcard or
envelope. We will consider all
comments and material received during
the comment period. We may change
this proposed rule in view of them.
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]]>Agencies
[Federal Register Volume 71, Number 120 (Thursday, June 22, 2006)]
[Proposed Rules]
[Pages 35847-35852]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-959]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 42
[Public Notice 5445]
RIN 1400-AC17
Hague Convention on Intercountry Adoption; Intercountry Adoption
Act of 2000; Consular Officer Procedures in Convention Cases
AGENCY: State Department.
ACTION: Proposed Rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This proposed rule amends U.S. Department of State regulations
to provide for intercountry adoptions that will occur pursuant to the
Hague Convention on Protection of Children
[[Page 35848]]
and Co-operation in Respect of Intercountry Adoption (hereinafter the
``Convention'') and the Intercountry Adoption Act of 2000 (hereinafter
the ``IAA'') This proposed rule addresses consular officer processing
of immigration petitions, visas, and Convention certificates in cases
of children immigrating to the United States in connection with an
adoption subject to the Convention.
DATES: Written comments must be submitted on or before July 24, 2006.
ADDRESSES: You may submit comments, identified by any of the following
methods:
E-mail: visaregs@state.gov. You must include the RIN
number in the subject line of your message.
Mail: Chief, Legislation and Regulations Division, Visa
Office, U.S. Department of State, 2401 E Street, NW., Washington DC
20520-0106.
Fax: 202-663-3898. You must include the RIN number in the
subject line of your message.
Persons with access to the Internet may also view this document and
provide comments by going to the regulations.gov Web site at: https://
www.regulations.gov/index.cfm.
FOR FURTHER INFORMATION CONTACT: Barbara J. Kennedy, Legislation and
Regulations Division, Visa Services, U.S. Department of State, 2401 E
Street, NW., Room L-603, Washington, DC 20520-0106; telephone 202-663-
1206 or e-mail KennedyBJ@state.gov.
SUPPLEMENTARY INFORMATION:
Background
The Hague Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption (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 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 at issue. It also provides for
recognition of adoptions that occur pursuant to the Convention. In the
United States, the implementing legislation for the Hague Convention is
the Intercountry Adoption Act of 2000 (IAA). To implement the
Convention, the IAA makes two significant changes to the Immigration
and Nationality Act (INA): (1) It creates a new definition of child
applicable in Convention adoption cases, INA 101(b)(1)(G) (``Hague
child''), that roughly parallels the current ``orphan'' definition, INA
101(b)(1)(F), but that applies only to children being adopted from
Convention parties. (2) It incorporates Hague procedures into the
immigration process for children covered by INA 101(b)(1)(G), most
directly by precluding approval of an immigration petition under this
classification until the Department has certified that the child was
adopted in accordance with the Convention and the IAA. Separately, the
IAA requires domestic entities to recognize adoptions that have been so
certified by the Department.
The Department of Homeland Security will be issuing separate but
complementary regulations relating to the immigration process for Hague
children. Additional regulations will implement other aspects of the
Convention and the IAA, such as on the accreditation/approval of
adoption service providers to perform adoption services in cases
covered by the Convention (22 CFR Part 96), preservation of records (22
CFR Part 98), and certificate issuance with respect to U.S. court
proceedings (22 CFR Part 97). Further background on the Convention and
IAA is provided in the Preamble to the Final Rule on the Accreditation
of Agencies and Approval of Persons under the Intercountry Adoption Act
of 2000, Sections III and IV, 71 FR 8064-8066 (February 15, 2006).
The Proposed Regulation
This proposed rule establishes new procedures that consular
officers will follow in adjudicating Hague child cases. Although much
of the petition and visa processes will be similar to the current
orphan case procedures, there are important changes. Perhaps most
significantly, U.S. authorities will perform the bulk of petition and
visa adjudication work much earlier than under current practice. This
early review will enable U.S. authorities to make the determination
required by Article 5 of the Convention that the child will be eligible
to enter and reside permanently in the receiving state prior to the
adoption or grant of custody. The regulation also provides that, once
the country of origin has provided appropriate notification that the
adoption or custody grant has occurred, the consular officer will issue
a certificate to the U.S. adoptive or prospective adoptive parent if
the officer is satisfied that the requirements of the Convention and
IAA have been met, and only if so will the consular officer approve the
immigration petition and complete visa processing. To streamline the
process, the regulation departs from current practice by allowing
consular officers to approve Hague child petitions regardless of
whether the petition was originally filed with the Department or DHS.
Paragraph (a) of the proposed Sec. 42.24 sets forth short forms
and abbreviations of terms used in this section that do not appear in
the general definitions for 22 CFR Part 42.
Paragraph (b) clarifies that INA 101(b)(1)(G) is the only
definition of child applicable to adoptions subject to the Convention.
Children who are immigrating to the United States from a Convention
country in connection with an adoption will not be classifiable under
INA 101(b)(1)(F). The Convention obligates Contracting Parties to apply
the Convention in all cases that fall within its scope. Continuing to
allow children to qualify under INA 101(b)(1)(F), which provides for
children to enter the United States as part of the intercountry
adoption process, but which does not incorporate Hague procedures,
would be inconsistent with this mandate. (Note, however, that it may
still be possible for a child adopted in a Hague country to qualify for
a visa pursuant to INA 101(b)(1)(E). INA 101(b)(1)(E) is designed to
allow immigration of an adopted child who is an established part of an
existing family. It generally requires that the child have been in the
legal custody of, and have resided with, the adoptive parent(s) for at
least two years. Unlike INA 101(b)(1)(F), INA 101(b)(1)(E) is not
targeted at children habitually resident abroad being adopted by
parents habitually resident in the United States, but rather at
adoptive families formed while both parents and child were habitually
resident abroad. A subsequent move to the United States would not
trigger U.S. procedural obligations under the Convention.
Paragraph (c) provides that the provisions of Sec. 42.24 will
govern the operations of consular officers in processing Hague child
cases. It also incorporates the Secretary's non-delegable authority to
waive any requirement of the IAA or these regulations in a particular
case in the interests of justice or to prevent grave physical harm to
the child, to the extent consistent with the Convention. This authority
is granted in IAA section 502. The Department does not anticipate that
the Secretary will exercise this authority, which would require her
personal consideration of the matter, except in the most rare and
unusual of circumstances.
Paragraph (d) states the general rules that will govern the
adoption process in Hague child cases and the division of functions
between DHS and the Department. To qualify as a Hague
[[Page 35849]]
child, a DHS or consular officer must review and provisionally approve
an immigration petition for the child (I-600) and a consular officer
must review and annotate the child's visa application prior to the
foreign adoption or custody proceeding. A consular officer will give
final approval to the petition and visa application only after the
adoption or custody proceeding, and before a visa may be issued to the
child.
This procedure reflects a significant shift in timing of consular
processing of adoption cases that is effectively mandated by the
Convention. Under current practices, the determination of whether the
child will be permitted to enter the United States is generally made
only after the adoption or custody proceeding has been completed.
Article 5 of the Convention requires that the receiving country make
such a determination much earlier in the process. Pursuant to this
Article, the adoption may not take place until the competent
authorities of the receiving State have (1) Determined that the
prospective adoptive parents are eligible and suited to adopt; (2)
ensured that the prospective adoptive parents have been counseled as
may be necessary; and (3) determined that the child is or will be
authorized to enter and reside permanently in that State. These
requirements effectively mean that U.S. authorities must provisionally
review the child's case before an adoption or custody proceeding under
the Convention takes place abroad.
Paragraph (e) sets forth the procedures a consular officer will
follow if a petition is filed abroad with a consular officer. Consular
officers are instructed to follow DHS requirements in making a decision
on provisional approval of the petition. Based on consultations with
DHS, the Department anticipates that before providing provisional
approval, a consular or DHS officer will need to establish that DHS has
granted I-600A approval (concluding that prospective adoptive parents
are eligible and suitable to adopt). In addition, a consular or DHS
officer will need to determine whether, but for the absence of a final
adoption or custody order, the proposed adoption or custody grant
complies with all Convention requirements and whether the child falls
within the Hague child definition. In some cases, as is current
practice, DHS will carry out an initial review of classification but
request that a consular officer do additional reviews, determinations
or investigations. The regulation makes clear that the consular officer
will provide this service to DHS so that it can decide whether to grant
provisional approval of the petition.
Paragraph (f) instructs consular officers to approve a petition
provisionally if, in accordance with applicable DHS requirements, it
appears the child will be classifiable as a Hague child and that the
proposed adoption or grant of custody will be in compliance with the
Convention. If a consular officer knows or has reason to believe the
petition is not provisionally approvable, the consular officer must
return the petition to DHS for processing in accordance with existing
procedures for consular officer suspension of action in petition cases,
which are set forth in Sec. 42.43.
Paragraph (g) requires an immigrant visa application for the child,
together with supporting documentation identified in 42.63 (Application
forms and other documentation) and 42.65 (Supporting documents) and any
required fees, to be submitted to a U.S. consular officer located in
the consular district in which the child's visa will be processed (as
determined by Sec. 42.61) for a provisional review of visa
eligibility. Paragraph (g) also requires visa applicants to comply with
the remainder of the requirements normally applicable to persons filing
an immigrant visa petition to the extent practicable to do so: Sec.
42.62 (personal appearance and interview of applicant), Sec. 42.64
(passport requirements), Sec. 42.66 (medical examination) and Sec.
42.67 (execution of application, registration, and fingerprinting).
Because conclusions drawn at this stage of processing will be critical
to the determination of the child's eligibility to enter and reside
permanently in the United States, it will be important for the consular
officer to make as comprehensive a review of visa eligibility as
possible. In some cases, however, it will not be practicable to satisfy
all visa processing requirements prior to the adoption or custody
grant, in particular with respect to requirements that require actions
to be taken by the applicant child. For example, it may not be
practicable for a child to travel a considerable distance to be
examined by a panel physician or be interviewed by a consular officer
until the adoption or custody proceeding has taken place. Thus the
regulation does not require applicants to comply with Sec. 42.62,
Sec. 42.64, Sec. 42.66 or Sec. 42.67 at the provisional review stage
if it is not practicable to do so.
Paragraph (h) instructs the consular officer to determine visa
eligibility provisionally based on the information provided. The
consular officer must follow all procedures that would normally be
required to adjudicate an immigrant visa, except to the extent the
consular officer cannot because the applicant has not provided the
necessary input. For example, the consular officer does not need to
examine a panel physician's report if the applicant has not undergone a
panel physician exam. If there is other information in the record
before the consular officer indicating that the child may have a
disease that would result in a medical ineligibility, however, the
consular officer will have to take this information into account as
part of the provisional review process.
If it appears that the child will not be ineligible for a visa, the
consular officer will so annotate the visa application. If it appears
the child will be ineligible for a visa, the rule requires the consular
officer to inform the prospective adoptive parents of the ineligibility
and give them an opportunity to show that it will be overcome. If,
after the prospective adoptive parents have had such an opportunity,
the child continues to appear ineligible, the consular officer will be
required to deny the visa in accordance with the normal procedures set
forth in Sec. 42.81. Although these procedures normally apply only to
executed visa applications, this proposed rule will authorize consular
officers to follow the procedures set forth in Sec. 42.81 even if the
application has not been executed. This adjustment to normal procedures
is required because in at least some cases the applicant may not have
complied with Sec. 42.67 (execution of application, registration, and
fingerprinting). If, in the course of reviewing the visa-related
materials, the consular officer comes to know or have reason to believe
that the petition is not approvable, the consular officer will be
required to return the petition to DHS for processing in accordance
with existing procedures for consular officer suspension of action in
petition cases, set forth in Sec. 42.43.
Paragraph (i) provides that, if both the petition and visa
provisional reviews are concluded favorably, and the consular officer
is aware of no grounds that would preclude the entry of the child into
the United States, the consular officer will notify the country of
origin that the steps required under Article 5 have been taken, so that
the adoption or custody proceeding may proceed. The Department intends
that, in general, the consular officer's notification will be
transmitted to the country of origin through the relevant adoption
service provider.
Paragraph (j) provides that, once the country of origin has
notified the consular officer that the adoption or grant of custody has
occurred and once any remaining petition or visa-related
[[Page 35850]]
requirements have been met, the consular officer will reexamine the
case. (Thus, for example, if it was not practicable for the child to
submit to a panel physician's exam at the provisional review stage, the
exam must be done prior to this final stage of consular officer
review.) If, upon review of additionally submitted information, the
consular officer is satisfied that the Convention and IAA requirements
have been met, the consular officer will affix a certificate so
indicating to the adoption decree or grant of custody. This certificate
will meet the requirements of INA section 204(d)(2), which mandates
certification by the Department prior to petition approval, as well as
the requirements of IAA section 301(a), which addresses certificate
issuance by the Department to parents. Paragraph (j) also instructs
consular officers that, for purposes of deciding whether to issue a
certificate, the fact that a consular officer previously provided
notification to the country of origin pursuant to paragraph (i) (i.e.,
the Article 5 notification) with respect to the case is prima facie
evidence of compliance with the Convention and IAA. The earlier
provisional approval of the petition, and Article 5 notification, will
have required a finding of Convention and IAA compliance on every
matter except the existence of a final adoption or custody decree.
Thus, following appropriate notification from the country of origin
regarding completion of the adoption or custody proceedings, and
compliance with all remaining visa and petition requirements, the prior
determinations should be considered a sufficient basis on which to
issue a certificate except in very unusual cases in which a consular
officer becomes aware of information calling into question Convention
and IAA compliance.
Paragraph (k) instructs consular officers to notify the country of
origin in those rare cases for which they are unable to certify
Convention and IAA compliance as provided in paragraph (j). For
example, new information may be discovered that reveals that
birthparent consent was fraudulently obtained. Article 24 of the
Convention provides that recognition of an adoption may be refused by a
Contracting State if the adoption is manifestly contrary to its public
policy, taking into account the best interests of the child. The
country of origin is notified so that it can be involved in determining
appropriate next steps in the case.
Following the determination of whether to issue the certificate
described in paragraph (j), paragraph (l) instructs the consular
officer to perform a final adjudication of the petition and visa
application in accordance with standard procedures.
There may also be circumstances in which, although the adoption is
certified as being in compliance with the Convention and the IAA, a
visa cannot be issued to the child, at least in the immediate term. For
example, if the panel physician medical exam is not performed prior to
Article 5 notification, completion of that exam may reveal that the
child has a medical ineligibility. Such cases will usually be resolved
through treatment of an illness or through the use of Department and
DHS waiver authorities in appropriate cases.
Paragraph (m) instructs consular officers unable to give final
approval to the petition at this stage to follow standard procedures in
handling such cases, which include returning the petition to DHS for
possible revocation, pursuant to Sec. 42.43, and denial of the visa
pursuant to Sec. 42.81. If the petition is approvable but the visa
application is not, the visa must be refused in accordance with Sec.
42.81.
Regulatory Findings
Administrative Procedure Act
In accordance with provisions of the Administrative Procedure Act
governing rules promulgated by federal agencies that affect the public
(5 U.S.C. 552), the Department is publishing this proposed rule and
inviting public comment.
Regulatory Flexibility Act/Executive Order 13272: Small Business
The Department of State, in accordance with the Regulatory
Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) and Executive Order
13272, section 3(b), has evaluated the effects of this action of 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.
The Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA),
Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires
agencies to prepare a statement before proposing any rule that may
result in an annual expenditure of $100 million or more by State,
local, or tribal governments, or by the private sector. This rule would
not result in any such expenditure, nor would it significantly or
uniquely affect small governments.
The 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, Public Law 104-
121. This 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, innovation, or on the ability of United States-based
companies to compete with foreign based companies in domestic and
export markets.
Executive Order 12866
The Department of State does not consider this rule to be a
``significant regulatory action'' within the scope of section 3(f)(1)
of Executive Order 12866. Nonetheless, the Department has reviewed the
rule to ensure its consistency with the regulatory philosophy and
principles set forth in the Executive Order.
Executive Orders 12372 and 13132: Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. Nor will the rule have federalism
implications warranting the application of Executive Orders No. 12372
and No. 13132.
Executive Order 12988: Civil Justice Reform
The Department has reviewed the regulations in light of sections
3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements subject to the Paperwork Reduction Act (PRA), 44 U.S.C.
Chapter 35. The Department plans for applicants for visas for children
adopted under the Hague Convention to use visa application forms that
have already been approved by OMB. The forms related to the petition
process, such as the I600 and I600A, are DHS forms, and DHS would be
responsible for compliance with the PRA, where it applies, with respect
to any changes in those forms. We currently anticipate that the
certificates to be issued by
[[Page 35851]]
consular officers will not involve the collection of additional
information not already collected. Moreover, Section 503(c) of the IAA
exempts from the PRA any information collection ``for use as a
Convention record as defined'' in the IAA. Information collected on
Convention adoptions in connection with the visa, petition, and
certificate processes would relate directly to specific Convention
adoptions (whether final or not), and therefore would fall within this
exemption. Accordingly, the Department has concluded that this
regulation will not involve an ``information collection'' under the
Paperwork Reduction Act.
List of Subjects in 22 CFR Part 42
Immigration, Passports, Visas, Intercountry adoption, Convention
certificates.
In view of the foregoing, 22 CFR part 42 would be amended as
follows:
PART 42--VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION
AND NATIONALITY ACT, AS AMENDED
1. The authority citation for part 42 is revised to read as
follows:
Authority: 8 U.S.C. 1104 and 1182; Pub. L. 107-56, sec 421; The
Convention on Protection of Children and Cooperation 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, Pub. L.
106-279.
2. Add a new Sec. 42.24 to subpart C to read as follows:
Sec. 42.24 Adoption under the Hague Convention on Protection of
Children and Cooperation in Respect of Intercountry Adoption and the
Intercountry Adoption Act of 2000.
(a) For purpose of this section, the following definitions apply:
Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption done at The Hague on May
29, 1993.
DHS means the 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.
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.
(b) A child habitually resident in a country with which the
Convention is in force with the United States who is traveling to the
United States in connection with an adoption must qualify for visa
status under the provisions of INA section 101(b)(1)(G) as provided in
this section. Such a child shall not be accorded status under INA
section 101(b)(1)(F).
(c) The provisions of this section govern the operations of
consular officers in processing cases involving children for whom
classification is sought under INA section 101(b)(1)(G), unless the
Secretary has personally waived any requirement of the IAA or these
regulations in a particular case in the interests of justice or to
prevent grave physical harm to the child, to the extent consistent with
the Convention.
(d) An alien child shall only be classifiable under INA section
101(b)(1)(G) if, before the child is adopted or legal custody for the
purpose of adoption is granted, (1) A petition for the child has been
received and provisionally approved by a DHS officer or, where
authorized by DHS, by a consular officer, and (2) a visa application
for the child has been received and annotated in accordance with
paragraph (h) of this section by a consular officer. No alien child
shall be issued a visa pursuant to INA section 101(b)(1)(G) unless the
petition and visa application are finally approved by a consular
officer.
(e) If a petition for a child under INA section 101(b)(1)(G) is
received by a consular officer, the consular officer will review the
petition for the purpose of determining whether the petition can be
provisionally approved in accordance with applicable DHS requirements.
If a petition for a child under INA section 101(b)(1)(G) is received by
a DHS officer, the consular officer will conduct any reviews,
determinations or investigations requested by DHS with regard to the
petition and classification determination in accordance with applicable
DHS procedures.
(f) A petition shall be provisionally approved by the consular
officer if, in accordance with applicable DHS requirements, it appears
that the child will be classifiable under INA 101(b)(1)(G) and that the
proposed adoption or grant of custody will be in compliance with the
Convention. If the consular officer knows or has reason to believe the
petition is not provisionally approvable, the consular officer shall
return it to DHS pursuant to Sec. 42.43.
(g) After a petition has been provisionally approved, a completed
visa application form, any supporting documents required pursuant to
Sec. 42.63 and Sec. 42.65, and any required fees must be submitted to
the consular officer in accordance with Sec. 42.61 for a provisional
review of visa eligibility. The requirements in Sec. 42.62, Sec.
42.64, Sec. 42.66 and Sec. 42.67 shall also be satisfied to the
extent practicable.
(h) A consular officer shall provisionally determine visa
eligibility based on a review of the visa application, submitted
supporting documents, and the provisionally approved petition. In so
doing, the consular officer shall follow all procedures required to
adjudicate the visa to the extent possible in light of the degree of
compliance with Sec. Sec. 42.62-42.67. If it appears, based on the
available information, that the child would not be ineligible under INA
section 212 or other applicable law to receive a visa, the consular
officer shall so annotate the visa application. If evidence of an
ineligibility is discovered during the review of the visa application,
the prospective adoptive parents shall be informed of the ineligibility
and given an opportunity to establish that it will be overcome. If the
visa application cannot be annotated, the consular officer shall deny
the visa in accordance with Sec. 42.81, regardless of whether the
application has yet been executed in accordance with Sec. 42.67(a). If
in addition the consular officer comes to know or have reason to
believe that the petition is not approvable as provided in Sec. 42.43,
the consular officer shall return the petition to DHS pursuant to that
section.
(i) If the petition has been provisionally approved, the visa
application has been annotated in accordance with subparagraph (h), and
the consular officer is aware of no grounds that would preclude the
entry of the child into the United States following the adoption or
grant of custody, the consular officer shall notify the country of
origin that the steps required by Article 5 of the Convention have been
taken.
(j) After the consular officer has received appropriate
notification from the country of origin that the adoption or grant of
custody has occurred and any remaining requirements established by DHS
or Sec. Sec. 42.61-42.67 have been fulfilled, the consular officer, if
satisfied that the requirements of the IAA and the Convention have been
met with respect to the adoption or grant of custody, shall affix to
the adoption decree or grant of custody a certificate so indicating.
This certificate shall constitute the certification required by IAA
section 301(a) and INA section 204(d)(2). For purposes of determining
whether to issue a certificate, the fact that a consular officer
notified the country of
[[Page 35852]]
origin pursuant to paragraph (i) that the steps required by Article 5
of the Convention had been taken shall constitute prima facie evidence
of compliance with the Convention and the IAA.
(k) If the consular officer is unable to issue the certificate
described in paragraph (j) of this section, the consular officer shall
notify the country of origin of the consular officer's decision.
(l) After the consular officer determines whether to issue the
certificate described in paragraph (j) of this section, the consular
officer shall finally adjudicate the petition and visa application in
accordance with standard procedures.
(m) If the consular officer is unable to give final approval to the
visa application or the petition, then the consular officer shall, as
appropriate, return the petition to DHS for appropriate action in
accordance with applicable DHS procedures and/or refuse the visa
application in accordance with Sec. 42.43 or Sec. 42.81. The consular
officer shall notify the country of origin that the visa has been
refused.
Dated: June 9, 2006.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. E6-9596 Filed 6-21-06; 8:45 am]
BILLING CODE 4710-06-P
