Memorandum of Agreement Between the U.S. Department of State and the Council on Accreditation Regarding Performance of Duties as an Accrediting Entity Under the Intercountry Adoption Act of 2000, 40771-40775 [E6-11362]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 71, Number 137 (Tuesday, July 18, 2006)]
[Notices]
[Pages 40771-40775]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-11362]


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DEPARTMENT OF STATE

[Public Notice 5467]


Memorandum of Agreement Between the U.S. Department of State and 
the Council on Accreditation Regarding Performance of Duties as an 
Accrediting Entity Under the Intercountry Adoption Act of 2000

AGENCY: Department of State.

ACTION: Notice.

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SUMMARY: The Department of State (the Department) is the lead Federal 
agency for implementation 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 (IAA). Among 
other things, the IAA gives the Secretary of State responsibility for 
the accreditation of agencies and approval of persons to provide 
adoption services under the Convention. The IAA requires the Department 
to enter into agreements with one or more qualified entities under 
which such entities will perform the tasks of accrediting agencies and 
approving persons, monitoring compliance of such agencies and persons 
with applicable requirements, and other related duties set forth in 
section 202(b) of the IAA. This notice is to inform the public that on 
July 12, 2006, the Department exercised its authority under the IAA and 
entered into a Memorandum of Agreement (MOA) with the Council on 
Accreditation under which the Department designated the Council on 
Accreditation as an accrediting entity. In its role as an accrediting 
entity, the Council on Accreditation will be accrediting or approving 
qualified agencies and persons throughout the United States in 
accordance with the procedures and standards set forth in 22 CFR Part 
96 to enable them to provide adoption services in cases subject to the 
Convention once the Convention enters into force for the United States. 
The Department will monitor the performance of the Council on 
Accreditation and approve fees charged by it as an accrediting entity. 
The text of the MOA, signed on July 12, 2006 by Maura Harty, Assistant 
Secretary for Consular Affairs, U.S. Department of State and signed on 
July 6, 2006 by Richard Klarberg, President and Chief Executive 
Officer, Council on Accreditation, is included at the end of this 
Notice.

FOR FURTHER INFORMATION CONTACT:  Mikiko Stebbing at 202-736-9086. 
Hearing or speech-impaired persons

[[Page 40772]]

may use the Telecommunications Devices for the Deaf (TDD) by contacting 
the Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: The Department, pursuant to section 202(a) 
of the IAA, must enter into an agreement with at least one qualified 
entity and designate it as an accrediting entity. Accrediting entities 
may be (1) Nonprofit private entities with expertise in developing and 
administering standards for entities providing child welfare services; 
or (2) State adoption licensing bodies that have expertise in 
developing and administering standards for entities providing child 
welfare services and that accredit only agencies located in that State. 
Both nonprofit accrediting entities and state accrediting entities must 
meet any other criteria that the Department may by regulation 
establish. The Council on Accreditation is a nonprofit private entity 
with expertise in developing and administering standards for entities 
providing child welfare services throughout the United States. The 
final rule on accreditation of agencies and approval of persons (22 CFR 
Part 96) was published in the Federal Register (71 FR 8064-8066, 
February 15, 2006). The final rule contains the Department's additional 
criteria for designation as an accrediting entity. The final rule also 
establishes the regulatory framework for the accreditation and approval 
function and provides the standards that the designated accrediting 
entities will follow in accrediting or approving adoption service 
providers.

Memorandum of Agreement Between the Department of State Bureau of 
Consular Affairs and the Council on Accreditation

Parties and Purpose of the Agreement

    The Department of State, Bureau of Consular Affairs (Department) 
and the Council on Accreditation (COA), with its principal office 
located at 120 Wall Street, 11th floor, New York, NY 10005, hereinafter 
the ``Parties'', are entering into this agreement for the purpose of 
designating COA as an accrediting entity under the Intercountry 
Adoption Act of 2000 (IAA), Public Law 106-279 and 22 CFR Part 96.

Authorities

    The Department enters into this agreement pursuant to Sections 202 
and 204 of the IAA, 22 CFR Part 96, and Delegation of Authority 261. 
COA has full authority to enter into this MOA pursuant to a resolution 
passed by its Board of Trustees dated June 30, 2006, a copy of which is 
attached hereto as Attachment 1, which resolution authorizes Richard 
Klarberg to execute this agreement on behalf of COA.

Definitions

    For purposes of this memorandum of agreement, terms used here that 
are defined in 22 CFR 96.2 shall have the same meaning as they have in 
22 CFR 96.2. In addition, the terms ``transitional application 
deadline'' (TAD) and ``date of initial accreditation or approval'' 
(DIAA) shall have the meaning given them in 22 CFR 96.19 and ``uniform 
notification date'' (UND) shall have the meaning given it in 22 CFR 
96.58.
    The Parties agree as follows:
Article 1--Designation of the Accrediting Entity
    The Department hereby designates COA as an accrediting entity and 
thereby authorizes it to accredit (including temporarily accredit) 
agencies and approve persons to provide adoption services in Convention 
adoption cases, in accordance with the procedures and standards set 
forth in 22 CFR Part 96, and to perform all of the accrediting entity 
functions set forth in 22 CFR 96.7(a).
Article 2--Accreditation Responsibilities and Duties of the Accrediting 
Entity
    (1) COA agrees to perform all accrediting entity functions set 
forth in 22 CFR 96.7(a) and to perform its functions in accordance with 
the Convention, the IAA, Part 96 of 22 CFR and any other applicable 
regulations, and as additionally specified in this agreement. In 
performing these functions, COA will operate under policy direction 
from the Department regarding U.S. obligations under the Convention and 
regarding the functions and responsibilities of an accrediting entity.
    (2) COA will take appropriate staffing, funding, and other measures 
to allow it to carry out all of its functions and fulfill all of its 
responsibilities, and will use the adoptions tracking system and the 
Hague complaint registry (ATS/HCR) as directed by the Department, 
including by updating required data fields in a timely fashion.
    (3) In carrying out its accrediting entity functions COA will:
    (a) Prepare to accept applications by the TAD by expending its own 
funds and other resources for materials development, staff training, 
travel and meeting attendance in advance of receiving any fees for its 
services as an accrediting entity;
    (b) Make decisions on accreditation and approval in accordance with 
the procedures set forth in 22 CFR Part 96 and using only the standards 
in subpart F of 22 CFR Part 96 and the substantial compliance weighting 
system approved by the Department pursuant to para. 5, Article 3 below;
    (c) Make decisions on temporary accreditation in accordance with 
the procedures and standards in subpart N of 22 CFR Part 96 and the 
procedures presented to the Department pursuant to para. 3, Article 3 
below;
    (d) Charge applicants for accreditation, approval, or temporary 
accreditation only fees approved by the Department pursuant to para. 4, 
Article 3 below;
    (e) Consistent with 22 CFR 96.19 and 96.97, use its best efforts to 
evaluate and decide by the DIAA all applications for accreditation, 
temporary accreditation, or approval that were submitted by the TAD;
    (f) Review complaints, including complaints regarding conduct 
alleged to have occurred abroad, in accordance with subpart J of 22 CFR 
Part 96 and the additional procedures approved by the Department 
pursuant to paragraphs 3(c) and 3(d) in Article 3, below. COA will 
exercise its discretion in determining which methods are most 
appropriate to review complaints regarding conduct alleged to have 
occurred abroad.
    (g) Take adverse actions against accredited agencies, temporarily 
accredited agencies, and approved persons in accordance with subparts K 
and N of 22 CFR Part 96, and cooperate with the Department in any case 
in which the Department considers exercising its adverse action 
authorities because the accrediting entity has failed or refused after 
consultation with the Department to take what the Department considers 
to be appropriate enforcement action.
    (h) Assume full responsibility for defending adverse actions in 
court proceedings, if challenged by the adoption service provider or 
the adoption service provider's board or officers;
    (i) Refer an adoption service provider to the Department for 
debarment if, but only if, it concludes after investigation that the 
adoption service provider's conduct meets the standards for action by 
the Secretary set out in 22 CFR 96.85;
    (j) Promptly report any change in the accreditation (including 
temporary accreditation) or approval status of an adoption service 
provider to the relevant state licensing authority.
    (k) Maintain and use only the required procedures approved by the 
Department and those procedures

[[Page 40773]]

presented to the Department pursuant to Article 3 of this agreement 
whenever they apply.
Article 3--Preparatory Tasks (Tasks Preceding the Transitional 
Application Deadline)
    (1) Accreditation Materials and Training: In coordination with the 
Department and any other designated accrediting entities, by a date 
agreed upon by the Parties, COA will:
    (a) Develop forms, training materials, and evaluation practices;
    (b) Determine whether joint training of evaluators or other 
personnel is practical, and, if so, assist in conducting or participate 
in any joint training sessions;
    (c) Develop explanatory guidance to assist applicants for 
accreditation, temporary accreditation, and approval in achieving 
substantial compliance with the applicable standards.
    (2) Development of Internal Review Procedure: COA will develop and 
present to the Department for approval, by a date agreed upon by the 
Parties, procedures that it will maintain and use to determine whether 
to terminate adverse actions against an accredited agency or approved 
person on the grounds that the deficiencies necessitating the adverse 
action have been corrected.
    (3) Development of Other Procedures: COA will develop and present 
to the Department, by a date agreed upon by the Parties, procedures 
that it will maintain and use:
    (a) To evaluate whether a candidate for temporary accreditation 
meets the applicable eligibility requirements set forth in 22 CFR 
96.96;
    (b) To carry out its annual monitoring duties;
    (c) To review thoroughly complaints or information referred to it 
through the Hague Complaint Registry or from the Department directly, 
including procedures for obtaining complete and accurate information 
about conduct alleged to have occurred abroad;
    (d) To review complaints that it receives about its own actions as 
an accrediting entity for Hague adoption service providers;
    (e) To make the public disclosures required by 22 CFR 96.91; and
    (f) To ensure the reasonableness of charges for the travel and 
maintenance of its site evaluators, such as for travel, meals and 
accommodations, which charges shall be in addition to the fees charged 
under 22 CFR 96.8.
    (4) Fee Schedule Development:
    (a) COA will develop a fee schedule for accreditation, temporary 
accreditation, and approval services that meets the requirements of 22 
CFR 96.8. Fees will be set based on the principle of recovering no more 
than the full cost, as defined in OMB Circular A-25 paragraph 6(d)(1), 
of accreditation, temporary accreditation, and approval services. COA 
will submit a fee schedule developed using this methodology together 
with comprehensive documentation justifying the proposed fees to the 
Department for approval by a date agreed by the Parties.
    (b) The approved fee schedule can be amended with the approval of 
the Department.
    (5) Substantial Compliance Weighting Systems Development:
    (a) COA will develop a substantial compliance weighting system as 
described in 22 CFR 96.27, and will submit it to the Department for 
approval by a date agreed upon by the Parties.
    (b) COA will develop a separate substantial compliance weighting 
system to be used in evaluating temporarily accredited agencies that 
incorporates the performance standards in 22 CFR 96.104 and will submit 
it to the Department for approval by a date agreed upon by the Parties.
    (c) In developing the systems described in paragraphs (a) and (b) 
of this section, COA will coordinate with any other accrediting 
entities, and consult with the Department to ensure consistency between 
the systems used by accrediting entities. These systems can be amended 
with the approval of the Department.
Article 4--Initial Accreditation (Including Temporary Accreditation) 
and Approval Tasks
    (1) The Department will consult with COA and all other accrediting 
entities before establishing the transitional application deadline 
(TAD), the uniform notification date (UND), and the deadline for 
initial accreditation or approval (DIAA).
    (2) Within an agreed number of days following the TAD, COA will 
make public the names and addresses of agencies and persons that have 
applied to be accredited (including temporarily accredited) or 
approved, provide a mechanism for the public to comment on applicants, 
and consider comments received from the public in its decisions on 
applicants. With respect to additional applications received prior to 
entry into force of the Convention, COA will make the names of such 
applicants public within an agreed number of days following receipt. 
COA will consider any public comments in its decisions on the 
additional applicants.
    (3) In conformity with 22 CFR 96.58, COA will not release its 
accreditation (including temporary accreditation) and approval 
decisions prior to the UND. COA will prepare the list of decisions to 
be announced on the UND and transmit the information as directed by the 
Department. COA will immediately notify the Department of any 
corrections, so that the Department may rely upon this list in 
compiling the list of initially accredited and approved adoption 
service providers that it will deposit with the Permanent Bureau of the 
Hague Conference on Private International Law.
Article 5--Data Collection, Reporting and Records
    (1) Adoptions Tracking System/Hague Complaint Registry (ATS/HCR):
    (a) COA will maintain and fund a computer and internet connection 
for use with the ATS/HCR that meets system requirements set by the 
Department;
    (b) The Department will provide software or access tokens needed by 
individuals for secure access to the ATS/HCR and facilitate any 
necessary training in use of the ATS/HCR;
    (2) Annual Report: COA will report on dates agreed upon by the 
Parties, in a mutually agreed upon format, the information required in 
22 CFR 96.93 as provided in that section through ATS/HCR.
    (3) Additional Reporting: COA will provide any additional status 
reports or data as reasonably required by the Department, and in a 
mutually agreed upon format.
    (4) Accrediting Entity Records: COA will retain all records related 
to its accreditation functions and responsibilities in printed or 
electronic form in accordance with the electronic recordkeeping policy 
that applies to Federal acquisition contracts under Federal Acquisition 
Regulation 4.703 for a minimum of six years after their creation, or 
until any litigation, claim or audit related to the records filed or 
noticed within the six year period is finally terminated, whichever is 
longer.
Article 6--Department Oversight and Monitoring
    (1) To facilitate oversight and monitoring by the Department, COA 
will:
    (a) Provide copies of its forms and other materials to the 
Department and give Department personnel the opportunity to participate 
in any training sessions for its evaluators or other personnel;
    (b) Allow the Department to inspect all records relating to its 
accreditation

[[Page 40774]]

functions and responsibilities and provide to the Department copies of 
such records as requested or required for oversight, including to 
evaluate renewal or maintenance of the accrediting entity's 
designation, and for purposes of transferring adoption service 
providers to another accrediting entity;
    (c) Submit to the Department by a date agreed upon by the Parties 
an annual declaration signed by the President and Chief Executive 
Officer confirming that COA is complying with the IAA, 22 CFR Part 96, 
any other applicable regulations, and this agreement in carrying out 
its functions and responsibilities;
    (d) Make appropriate senior-level officers available to attend a 
yearly performance review meeting with the Department;
    (e) Immediately report to the Department events which have a 
significant impact on its ability to perform its functions and 
responsibilities as an accrediting entity, including financial 
difficulties, changes in key personnel or other staffing issues, legal 
or disciplinary actions against the organization, and conflicts of 
interest;
    (f) Notify the Department of any requests for information relating 
to its role as an accrediting entity under the IAA or Department 
functions or responsibilities that it receives from Central Authorities 
of other Hague signatories, or any other foreign government authorities 
(except for routine requests concerning accreditation, temporary 
accreditation, or approval status or other information publicly 
available under subpart M of Part 96) , and consult with the Department 
before releasing such information;
    (g) Consult immediately with the Department about any issue or 
event that may affect compliance with the IAA or U.S. compliance with 
obligations under the Convention.
    (2) Departmental Approval Procedures: In all instances in which the 
Department must approve a policy, system, fee schedule, or procedure 
before COA can bring it into effect or amend it, COA will submit the 
policy, system, fee schedule, or procedure or amendment in writing to 
the Department's AE Liaison via email where possible. The AE Liaison 
will be responsible for coordinating the Department's approval process 
and arranging any necessary meetings or telephone conferences with COA. 
Formal approval by the Department will be conveyed in writing by the 
Deputy Assistant Secretary for Overseas Citizens Services or her or his 
designee.
    (3) Suspension or Cancellation: When the Department is considering 
suspension or cancellation of COA's designation:
    (a) The Department will notify COA in writing of the identified 
deficiencies in its performance and the time period in which the 
Department expects correction of the deficiencies;
    (b) COA will respond in writing to either explain the actions that 
it has taken or plans to take to correct the deficiencies or to 
demonstrate that the Department's concerns are unfounded within 10 
business days;
    (c) Upon request, the Department will also meet with the 
accrediting entity by teleconference or in person;
    (d) If the Department, in its sole discretion, is not satisfied 
with the actions or explanation of COA, it will notify COA in writing 
of its decision to suspend or cancel COA's designation and this 
agreement;
    (e) COA will stop or suspend its actions as an accrediting entity 
as directed by the Department in the notice of suspension or 
cancellation, and cooperate with any Departmental instructions in order 
to transfer adoption service providers it accredits (including 
temporarily accredits) or approves to another accrediting entity, 
including by transferring fees collected by COA for services not yet 
performed.
    (4) By a date agreed upon by the Parties, the Parties will agree 
upon procedures for handling complaints against the accrediting entity 
received by the Department or referred to the Department because the 
complainant was not satisfied with the accrediting entity's resolution 
of the complaint. These complaint procedures may be incorporated into 
the Department's general procedures for handling instances in which the 
Department is considering whether a deficiency in the accrediting 
entity's performance may warrant suspension or cancellation of its 
designation.
Article 7--Other Issues Agreed by the Parties
    (1) Conflict of interest provisions:
    (a) COA shall disclose to the Department the name of any 
organization of which it is a member that also has as members 
intercountry adoption service providers. COA shall demonstrate to the 
Department that it has procedures in place to prevent any such 
membership from influencing its actions as an accrediting entity and 
shall maintain and use these procedures.
    (b) COA shall identify for the Department all members of its board 
of directors or other governing body, employees, and site evaluators 
who also serve as officers, directors, employees, or owners of adoption 
service providers. COA shall demonstrate it has procedures in place to 
ensure that any such relationships will not influence any accreditation 
(including temporary accreditation) or approval decisions, and shall 
maintain and use these procedures.
    (c) COA shall disclose to the Department any other situation or 
circumstance that may create the appearance of a conflict of interest.
    (2) Liability: COA agrees to maintain sufficient resources to 
defend challenges to its actions as an accrediting entity, including by 
maintaining adequate liability insurance for its actions as an 
accrediting entity brought by agencies and/or persons seeking to be 
accredited or approved or who are accredited or approved, and to inform 
the Department immediately of any events that may affect its ability to 
defend itself (e.g., change in or loss of insurance coverage, change in 
relevant state law). COA agrees that it will consult with the 
Department immediately if it becomes aware of any other legal 
proceedings related to its acts as an accrediting entity, or of any 
legal proceedings not related to its acts as an accrediting entity that 
may threaten its ability to continue to function as an accrediting 
entity.
Article 8--Liaison Between the Department and the Accrediting Entity
    (1) COA's principal point of contact for communications relating to 
its functions and duties as an accrediting entity will be the Standards 
Associate. The Department's principal point of contact for 
communication is the Accrediting Entity Liaison officer in the Office 
of Children's Issues, Bureau of Consular Affairs, U.S. Department of 
State.
    (2) The parties will keep each other currently informed in writing 
of the names and contact information for their principal points of 
contact. As of the signing of this Agreement, the respective principal 
points of contact are as set forth in Attachment 1.
Article 9--Certifications and Assurances
    (1) COA certifies that it will comply with all requirements of 
applicable State and Federal law.
Article 10--Agreement, Scope, and Period of Performance
    (1) Scope:
    (a) This agreement is not intended to have any effect on any 
activities of COA that are not related to its functions as an 
accrediting entity for adoption service

[[Page 40775]]

providers providing adoption services in intercountry adoptions under 
the Hague Convention.
    (b) Nothing in this agreement shall be deemed to be a commitment or 
obligation to provide any Federal funds. The Department, consistent 
with the IAA, may not provide any funds to the accrediting entity for 
the performance of accreditation and approval functions.
    (c) All accrediting entity functions and responsibilities 
authorized by this agreement are to occur only during the duration of 
this agreement.
    (d) Nothing in this agreement shall release COA from any legal 
requirements or responsibilities imposed on the accrediting entity by 
the IAA, 22 CFR Part 96, or any other applicable laws or regulations.
    (2) Duration: COA's designation as an accrediting entity and this 
agreement shall remain in effect for 5 years from signature, unless 
terminated earlier by the Department in conjunction with the suspension 
or cancellation of the designation of COA. The Parties may mutually 
agree in writing to extend the designation of the accrediting entity 
and the duration of this agreement. If either Party does not wish to 
renew the agreement, it must provide written notice no less than one 
year prior to the termination date, and the Parties will consult to 
establish a mutually agreed schedule to transfer adoption service 
providers to another accrediting entity, including by transferring a 
reasonable allocation of collected fees for the remainder of the 
accreditation or approval period of such adoption service providers.
    (3) Changed Circumstances: If unforeseen circumstances arise that 
will render COA unable to continue to perform its duties as an 
Accrediting Entity, COA will immediately inform the Department of 
State. The Parties will consult and make an effort to find a solution 
that will enable COA to continue to perform until the end of the 
contract period. If no such solution can be reached, the contract may 
be terminated on a mutually agreed date or, if mutual agreement can not 
be reached, on not less than 14 months written notice from COA.
    (4) Severability: To the extent that the Department determines, 
within its reasonable discretion, that any provision of this agreement 
is inconsistent with the Convention, the IAA, the regulations 
implementing the IAA or any other provision of law, that provision of 
the agreement shall be considered null and void and the remainder of 
the agreement shall continue in full force and effect as if the 
offending portion had not been a part of it.
    (5) Entirety of Agreement: This agreement is the entire agreement 
of the Parties and may be modified only upon written agreement of the 
Parties.

Attachment 1--Resolution Unanimously Adopted by the Board of Trustees 
of the Council on Accreditation

June 30, 2006.
    ``Be it resolved, that Richard Klarberg is authorized to execute 
a Memorandum of Agreement by and between the Council on 
Accreditation (COA) and the Department of State, Bureau of Consular 
affairs pursuant to which COA is designated as an accrediting entity 
under the Intercountry Adoption Act of 2000 (IAA), Public Law 106-
279 and 22 C.F.R. Part 96.''

    Dated: July 12, 2006.
Maura Harty,
Assistant Secretary, Bureau of Consular Affairs, Department of State.
 [FR Doc. E6-11362 Filed 7-17-06; 8:45 am]
BILLING CODE 4710-06-P