Intercountry Adoption-Department Issuance of Certifications in Hague Convention Adoption Cases, 64451-64458 [E6-18507]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 71, Number 212 (Thursday, November 2, 2006)]
[Rules and Regulations]
[Pages 64451-64458]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-18507]


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DEPARTMENT OF STATE

22 CFR Part 97

[Public Notice 5602]
RIN 1400-AC19


Intercountry Adoption--Department Issuance of Certifications in 
Hague Convention Adoption Cases

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State (the Department) is issuing a final 
rule to implement the certification and declaration provisions of the 
1993 Hague Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption (the Convention) and the Intercountry 
Adoption Act of 2000 (the IAA) with respect to adoption and custody 
proceedings taking place in the United States, after review of public 
comments received in response to the Department's June 16, 2006 
issuance of a proposed rule. This final rule governs the application 
process for Hague Adoption Certificates and Hague Custody Declarations 
in cases involving emigration of a child from the United States. It 
also establishes a process for seeking certification, for purposes of 
Article 23 of the Convention, that an adoption done in the United 
States following a grant of custody in a Convention country of origin 
was done in accordance with the Convention.

DATES: This rule is effective December 4, 2006. Information about the 
date the Convention will enter into force is provided in 22 CFR 96.17.

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

SUPPLEMENTARY INFORMATION:

I. Background

    The Convention is a multilateral treaty that provides a framework 
for the

[[Page 64452]]

adoption of children habitually resident in one country party to the 
Convention by persons habitually resident in another country party to 
the Convention. It was developed under the auspices of the 
intergovernmental organization known as the Hague Conference on Private 
International Law (the Hague Conference).
    The United States signed the Convention on March 31, 1994, and the 
President subsequently transmitted the Convention to the Senate for its 
advice and consent. On September 20, 2000, the Senate gave its advice 
and consent to the ratification of the Convention and, at about the 
same time, Congress enacted the implementing legislation for the 
Convention--the Intercountry Adoption Act (the IAA), Public Law 106-
279, 42 U.S.C. 14901-14952. Consistent with U.S policy on ratification 
of treaties and the Senate's advice and consent to ratification, the 
United States will not ratify the Convention until the United States is 
able to carry out its obligations under the Convention. (See Senate 
Declaration for Convention Article 22(2) (146 Cong. Rec. S8866 (daily 
ed. Sept. 20, 2000). Although this final rule is effective in 30 days, 
parties are not required to comply with the provisions of 22 CFR part 
97 until the Convention enters into force for the United States (three 
months after the United States ratifies it).
    This final rule establishes procedures for issuing certifications 
in Convention adoptions involving the emigration of a child from the 
United States (outgoing cases) and for seeking certifications regarding 
adoptions in incoming cases. In response to its issuance of the 
proposed rule, the Department received insightful public comments that 
are posted on the Department's Web site at https://www.travel.state.gov. 
The Department is issuing the rule as final with minor changes, taking 
into account the comments received.
    Section 303(c) of the IAA gives the Department responsibility for 
issuing an official certification that a child resident in the United 
States has been adopted, or a declaration that custody for the purpose 
of adoption has been granted, in accordance with the Convention and the 
IAA. The IAA assigns to State courts with jurisdiction over matters of 
adoption, or custody for purposes of adoption, the responsibility for 
receiving and verifying documents required under the Convention, making 
certain determinations required of the country of origin by the 
Convention, and determining that the placement is in the best interests 
of the child. With certain limited exceptions, the Convention requires 
all Convention parties to recognize adoptions, if the adoption is 
certified by the country of adoption as having been made in accordance 
with the Convention. This final rule also establishes a separate, 
discretionary, procedure pursuant to which the Department may certify 
that an incoming case finalized in the United States (i.e., a case in 
which custody was granted abroad but the adoption was done by a U.S. 
court) was done in accordance with the Convention. The Department may 
issue this certification if an issue arises concerning recognition of 
the adoption pursuant to Article 23 of the Convention.
    Further background on the Convention and the IAA is provided in the 
Preamble to the Proposed Rule on Issuance of Hague Convention 
Certificates and Declarations in Convention Adoption Cases, Section I, 
71 FR 34857-34858 (June 16, 2006); the Preamble to the Final Rule on 
the Accreditation and Approval of Agencies and Persons under the IAA, 
Section I and II, 71 FR 8064-8066 (February 15, 2006); and the Preamble 
to the Proposed Rule on the Accreditation of Agencies and Approval of 
Persons under the Intercountry Adoption Act of 2000, Sections III and 
IV, 68 FR 54065-54073 (September 15, 2003).

II. Section-by-Section Discussion of Comments

    This section provides a detailed discussion of comments received on 
the proposed rule and describes changes made to the proposed rule. 
Three general points should be kept in mind in reading this discussion. 
First, we refer generally to actions of the ``Department'' pursuant to 
the rule. The rule itself refers to actions of the ``Secretary,'' as 
the official named in the IAA, but the day-to-day exercise of the 
Secretary's functions has been delegated (Delegation of Authority 261, 
68 FR 56372, September 30, 2003) to the Assistant Secretary for 
Consular Affairs. Second, this rule directly imposes Federal 
requirements on State courts to the extent consistent with the IAA. 
Specifically, the IAA assigns to State courts with jurisdiction over 
matters of adoption, or custody for purpose of adoption, the 
responsibility for receiving and verifying documents required under the 
Convention, making certain determinations required of the country of 
origin by the Convention, and determining that the placement is in the 
best interests of the child. In keeping with current U. S. domestic law 
and philosophy of treaty application in the context of a federalist 
system, we have imposed the Convention requirements on outgoing cases, 
which are governed mainly by State law, when the IAA has expressly 
imposed such Convention requirements. Finally, the Department has 
changed the title of the proposed rule to clarify that the rule covers 
both incoming and outgoing case certifications. The title change is not 
indicative of any substantive changes to the final rule.

Section 97.1 Definitions

    No comments on the definitions were received, and no changes to 
97.1 have been made. One commenter did recommend that throughout the 
rule the term ``adoptable'' child be removed because, according to the 
commenter, the term has historically implied that children are a 
marketable commodity. Although the Convention itself uses the term 
``adoptable'' despite similar objections at the time of drafting, we 
have changed the word ``adoptable'' to ``eligible for adoption'' 
whenever possible.

Section 97.2 Application for a Hague Adoption Certificate (HAC) or a 
Hague Custody Declaration (HCD) (Outgoing Case)

    1. Comment: Some commenters are concerned about how long the 
process to obtain a HAC or a HCD will take and that any delays could 
negatively affect a child waiting for an adoptive placement. One 
commenter recommends that specific timeframes be added to the rule, 
such as requiring the Department to issue a HAC or HCD in three 
business days, to ensure that families who had traveled to adopt a 
child living the United States did not have to wait too long for a HAC 
or HCD once the relevant State court issued the final adoption decree 
or custody decree.
    Response: We agree that the HAC or HCD should be swiftly issued. 
The Department, however, is not including a specific timeframe in the 
rule. Our goal nonetheless is to issue a HAC or HCD as soon as 
possible, provided the supporting documentation required under Sec.  
96.3 has been submitted.
    2. Comment: One commenter urges the Department to accept all 
materials, including applications and supporting documents by fax or e-
mail, and to encourage other Central Authorities (CAs) to do the same. 
The commenter also asks that the Department encourage the CAs of 
receiving countries to provide any necessary approvals within 24 hours 
of request, noting that the Netherlands issues approvals within 24 
hours.
    Response: The Department intends to accept applications and 
supporting materials via fax and e-mail to the extent practicable. We 
will encourage

[[Page 64453]]

other CAs to accept communications by fax and e-mail as well. We also 
plan to urge other CAs to act expeditiously to send any necessary 
approvals to relevant State courts for a Hague outgoing case.
    3. Comment: One commenter requests that fee payments be permitted 
by credit card submission via Internet, phone, or fax.
    Response: If a fee is charged for issuance of a HAC or HCD, we will 
make the methods of payment easy and consistent with other federal 
agency requirements covering payment of fees.
    4. Comment: One commenter asks which part of the Department will be 
responsible for issuing HACs and HCDs and where its office will be 
located.
    Response: The Office of Children's Issues in the Bureau of Consular 
Affairs will issue HACs and HCDs out of its central office in 
Washington, DC.
    5. Comment: One commenter asks what type of training will be 
provided to the staff responsible for adjudicating applications for 
HACs or HCDs and requests information on how this function will be 
staffed.
    Response: The Department plans to train the Office of Children's 
Issues case officers thoroughly by using Foreign Affairs Manual (FAM) 
materials and formal classroom training. With respect to staffing, we 
do not yet know the number of outgoing cases and thus cannot determine 
how many officers will be assigned this critical CA function.
    6. Comment: One commenter requests clarification of the parties 
that may apply for a HAC or HCD and asks specifically whether 
birthparent(s) may apply for a HAC or HCD. The commenter also asks 
whether the citizenship of the adoptive parent(s) or prospective 
adoptive parent(s) will affect their ability to obtain a HAC or a HCD.
    Response: The adoptive parent(s) or prospective adoptive parent(s), 
who will be habitual residents of the receiving country and typically 
will not be U.S. citizens, will most likely be the parties to apply for 
a HAC or a HCD. Despite being non-U.S. citizen adoptive parent(s) or 
prospective adoptive parent(s), they will be able to apply for and 
obtain a HAC or HCD. The rule states that ``any party'' to an adoption 
or custody proceeding may apply for a HAC or HCD; thus, if a 
birthparent was a party to the adoption or custody proceeding, he or 
she may apply for a HAC or HCD. Likewise, the adopted child may apply 
for a HAC or HCD. If various parties to the adoption or custody 
proceeding apply for HACs or HCDs, more than one copy of the HAC or HCD 
may be issued. The Department's goal is to provide a HAC or HCD to any 
party to the adoption or custody proceeding who may need it to obtain 
recognition and acceptance of the adoption decree or custody for 
purpose of adoption decree from other Convention countries or from U.S. 
authorities.
    7. Comment: Some commenters request clarification of the 
application process for HACs and HCDs. In particular, commenters want 
to know if a HAC or HCD is automatically issued even if no party 
applies. Similarly, other commenters believe that the Department should 
always issue a HAC or HCD after a State court grants an adoption or 
custody for purpose of adoption decree. Others are concerned that many 
parties will be unaware that for outgoing cases involving Convention 
adoptions, the receiving country is obligated not to permit the child's 
entry unless the Department (as CA of the country of origin) has issued 
a HAC or HCD for the child.
    Response: Unless there is an application from a party or other 
interested person, in accordance with Sec.  97.2(a), the Department 
will not sua sponte issue a HAC or HCD. The Department must be 
notified, via the application process, for the HAC or HCD to be issued. 
We expect that the adoption service provider working with the family 
would inform the prospective adoptive parent(s) of any necessary 
requirements, including the need for a HAC or HCD. In any case, a party 
or interested person may apply for a HAC or HCD at any time.
    Once a party applies for a HAC or HCD, the Department, in its role 
as CA, must adjudicate the request to determine if the child has been 
adopted or custody of the child for purposes of adoption has been 
granted in accordance with the Convention and (except as provided in 
Sec.  97.4(b)) the IAA. Specifically, section 303(c) of the IAA 
provides that the Department shall issue a HAC or HCD on receipt and 
verification of the required material and information. The Department 
may thus not issue a HAC or HCD for all cases.
    The rule mirrors the IAA statutory requirements and is not changed 
in response to the comment. The parties must first apply to a State 
court to make the needed findings, all derived from the Convention or 
the IAA, so that the proceeding is Hague-compliant. The Department then 
reviews the State court findings to adjudicate the application before 
issuing a HAC or HCD. The Department may not assume that every adoption 
or custody for purpose of adoption case will automatically conform with 
the Convention and the IAA, as implemented through Sec.  97.3, and 
issue a HAC or HCD without adjudicating the application.
    We understand that some parties to intercountry adoptions may be 
unaware of the Convention and the IAA and consequently may not submit 
to the State court the information the court needs to make the findings 
required under Sec.  97.3. The Department plans to continue its 
extensive outreach efforts to inform interested persons about the 
Convention, the IAA, and the applicable regulations. To date, we have 
conducted numerous outreach events with State court judges, public 
domestic authorities, and adoption service providers.
    8. Comment: One commenter suggests that the Department is 
withholding recognition of the State court adoption or custody decree 
if it declines to issue the HAC or HCD.
    Response. By verifying compliance with Sec.  97.3 before issuing a 
HAC or HCD, the Department is acting in accordance with Article 23 of 
the Convention. The Department's verification that all steps in the 
adoption and/or custody process complied with the Convention, the IAA, 
and the regulations implementing the IAA ensures that U.S. children 
leaving the United States are protected in accordance with the 
Convention.
    9. Comment: One commenter requests that the rule include language 
on the legal effect of a HAC or HCD similar to the language in Section 
302(b) of the IAA with respect to incoming cases (i.e., cases in which 
a child is immigrating to the United States).
    Response: Article 23 of the Convention requires other Convention 
countries to recognize an adoption that has been certified by the 
competent authority of the State of the adoption. Therefore, Convention 
countries must recognize any adoption for which the Department has 
issued a HAC. Including a requirement in U.S. regulations is therefore 
unnecessary. In addition, the United States has no authority to 
regulate the receiving countries.
    As for the HCD, Article 19 of the Convention provides that the 
transfer of the child to the receiving country may be carried out only 
if the requirements of Article 17 have been satisfied. The HCD 
demonstrates to the receiving country that the United States, as the 
country of origin, has agreed that the child may be entrusted to the 
prospective adoptive parent(s) and that the adoption may proceed in the 
receiving country. The Department expects that the receiving countries 
will

[[Page 64454]]

recognize the HCD as evidence that the Article 17 requirements have 
been met. In any event, as noted, the United States may not regulate 
another Convention country.

Section 97.3 Requirements Subject to Verification in an Outgoing 
Convention Case

    1. Comment: Several commenters request that the reasonable efforts 
requirement to locate a placement for the child in the United States in 
Sec.  97.3(c) not apply when birthparent(s) directly identify 
prospective parent(s) outside the United States. One commenter suggests 
that such contacts be permitted as long as an accredited, temporarily 
accredited, or approved adoption service provider is involved in the 
case.
    Response: This provision cross-references 22 CFR 96.54(a), which 
specifically excludes from the reasonable efforts requirement cases in 
which the birthparent(s) have identified specific prospective adoptive 
parent(s) or in other special circumstances accepted by the State 
court.
    2. Comment: One commenter recommends that the rule specify more 
clearly the steps that must be completed for a reasonable efforts 
finding to be made by the State court.
    Response: As noted above, this provision cross-references 22 CFR 
96.54(a), which sets forth the placement standards in outgoing cases, 
including the reasonable efforts requirement. Specifically, reasonable 
efforts to find a timely placement for the child in the United States 
include: (1) Disseminating information on the child and his or her 
availability for adoption through print, media, and internet resources 
designed to communicate with potential prospective adoptive parent(s) 
in the United States; (2) Listing information about the child on a 
national or State adoption exchange or registry for at least sixty 
calendar days after the birth of the child; (3) Responding to inquiries 
about adoption of the child; and (4) Providing a copy of the child 
background study to potential U.S. prospective adoptive parent(s).
    3. Comment: One commenter objects to the sixty-day period for 
listing information about the child on a national or State adoption 
exchange or registry because research shows that delays in placement 
negatively impact a child's emotional well-being.
    Response: This comment goes to 22 CFR part 96 and was addressed in 
the context of that rule. Part 96 is now a final rule and no longer 
open for comment.
    4. Comment: One commenter asks if the provision in 97.3(f), which 
limits contacts between the prospective adoptive parent(s) and the 
child's birthparent(s) or any other person who has care of the child 
before the adoption, prevents birthparent(s) from identifying 
prospective adoptive parent(s) via such methods as reviewing parent 
profiles provided by an attorney for the prospective adoptive 
parent(s), or provided by an attorney for the birthparent(s), or 
provided by an agency, or made available online. The commenter also 
asks if birthparent(s) may identify prospective adoptive parent(s) via 
referrals from non-relatives or by responding to advertisements placed 
in newspapers.
    Response: Section 97.3(j) implements the requirements in Article 29 
of the Convention. Article 29's prohibition on prior contact applies 
unless the adoption takes place within a family or the contact is in 
compliance with the conditions established in the country of origin, in 
this case the United States. For this reason, Sec.  97.3(j) permits 
contacts when a ``relevant State or public domestic authority has 
established conditions under which such contact may occur and any such 
contact occurred in accordance with such conditions.'' The answers to 
the commenter's questions thus depend on local law and regulations.
    A State or a public domestic authority may establish conditions on 
direct contacts between birthparent(s) and prospective adoptive 
parent(s). If such conditions are set, then contacts that comply with 
those conditions may occur. If a State has no laws or conditions on 
direct contacts, then such contacts may not occur because the 
Convention intends that such contacts be either barred or subject to 
regulation.
    If these principles are applied to the commenter's questions, then 
the answer to what direct contacts are permitted will necessarily 
depend on the State where the birthparent(s) are residing. If the State 
where the birthparent(s) reside permits them to review prospective 
adoptive parent(s) profiles before the referral or adoption or consider 
non-relative referrals, then the practice is not per se prohibited, but 
must comply with any specific State requirements, such as those on who 
may present the information (attorney for prospective adoptive 
parent(s) or birthparent(s) or adoption service provider). If State 
requirements are completely silent, then direct contact practices are 
not allowed. Likewise, if the State permits birthparent(s) to locate 
prospective adoptive parent(s) through media such as newspapers or Web 
sites, then such contacts may occur in States which expressly permit 
such contacts and prescribe the conditions under which such contacts 
may occur.
    5. Comment: Another commenter asks if States that allow ``open 
adoptions'' in which the birthparent(s) and prospective adoptive 
parents(s) meet and establish a trusting relationship before the 
adoption must change their laws. The commenter notes that oftentimes 
the open contacts continue throughout the child's life and that current 
psychological research supports the conclusion that such bonds are 
beneficial to the adoptee in the long-run.
    Response: These regulations do not require States to change their 
laws with respect to contacts. As discussed above, pre-birth contacts 
are permitted in Convention cases if they are allowed by the relevant 
State law or public domestic authority and the contacts occurred in 
accordance with required conditions.
    6. Comment: One commenter asks if the no direct contacts provision 
of the rule applied to the U.S. government-sponsored https://
www.AdoptUSKids.org photo listing service. The commenter explains that 
public domestic authorities put a photo and information about a child 
eligible for adoption (usually a child or sibling group that has been 
waiting a long time for a permanent family placement) on the web-based 
service and families from all over the world may express an interest in 
the child to the public domestic authority, submit a home study, and 
then social workers for the public domestic authority determine if a 
referral and subsequent match are in the best interests of the child. 
If so, then the public domestic authority undertakes the subsequent 
steps to complete an adoption, including in some cases, supervising 
meetings with the birthparent(s), the child, and the prospective 
adoptive parent(s).
    Response: Public domestic authorities must comply with 22 CFR part 
97. As discussed above, contacts are generally prohibited, unless the 
relevant State or public domestic authority has established conditions 
under which such contact may occur and any such contact occurred in 
accordance with such conditions. Presumably, because the public 
domestic authority is coordinating the adoption, it has established 
procedures on the contacts. If the conditions for the contacts have 
been enumerated, then the contacts may continue even for Hague cases as 
long as the contacts comply with the procedures that the public 
domestic authority established. Thus, if a State or

[[Page 64455]]

its public domestic authorities permit birthparent(s) and the child to 
meet with the prospective adoptive parent(s) then this contact would be 
permitted. As for the question about the photo-listing service, unless 
State law prohibits photo-listings of children eligible for adoption, 
States may continue to post information about such children on the 
federally-funded national Web site.

Section 97.5 Certification of Hague Convention Compliance in an 
Incoming Convention Case Where Adoption Occurs in the United States

    1. Comment: Two commenters are concerned that the certification 
procedure in Sec.  97.5 means that adoptions of children immigrating to 
the United States (incoming cases) that are completed in the United 
States (as receiving country) after the country of origin granted 
custody for purposes of adoption are not entitled to recognition under 
Convention Article 23.
    Response: Article 23 of the Convention requires other Convention 
countries to recognize an adoption that has been certified as having 
been made in accordance with the Convention by the competent authority 
of the State of the adoption. If custody for purpose of adoption is 
granted in a Convention country of origin and the prospective adoptive 
parent(s) subsequently obtain a final adoption decree in a State court, 
the adoption is entitled to recognition under the Convention, provided 
that the State court decree is based on a certificate issued by a 
consular officer pursuant to 22 CFR 42.24(j) certifying that the grant 
of custody of the child occurred in compliance with the Convention or 
on the court's determination that the requirements of Article 17 of the 
Convention have been met. This is true regardless of whether the 
parent(s) or child apply for the additional certification under Sec.  
97.5 because, as pointed out by the commenters, the recognition of the 
adoption takes place by operation of law with or without subsequent 
certification by the Department. The U.S. adoption would necessarily be 
recognized in all U.S. territory, but if the parent(s) or other persons 
need documentation to show that the Convention adoption finalized in 
the United States was done in accordance with the Convention, they may 
seek the certification as outlined in Sec.  97.5. In addition, they may 
rely on the State court adoption order. We have added a paragraph to 
Sec.  97.5 to make clear that the final State court order shall 
constitute the certification under Article 23 of the Convention.
    2. Comment: One commenter requests that the rule be changed to 
require prospective adoptive parent(s) who have been granted custody 
for purpose of adoption by the country of origin (in incoming cases) to 
complete adoptions in the United States.
    Response: The Department is not modifying the rule as requested. 
Although the prospective adoptive parent(s) failure to finalize the 
adoption is problematic, the IAA does not require prospective adoptive 
parent(s) to obtain a final adoption decree in a U.S. State court when 
only custody for purpose of adoption was granted in the country of 
origin. Moreover, this rule relates to certifications of adoptions 
pursuant to the Convention.
    We nevertheless share the commenter's concern about adoptions that 
are not finalized. The Department currently has experience with a few 
such cases in which the prospective adoptive parent(s) are granted 
custody for purpose of adoption in the country of origin, bring the 
child to the United States, and never finalize the adoption. The family 
is typically intact and the child is benefiting from an ongoing 
permanent placement so there is no basis for the State to remove the 
child. Yet, there is no final adoption, the child does not acquire U.S. 
citizenship under The Child Citizenship Act, and remains a legal 
permanent resident, subject to deportation under certain limited 
circumstances. Similarly, the child does not have all the additional 
benefits of a full legal parent-child relationship. Despite these 
issues, there is no current authority or new authority in the IAA 
granting the Department or the Department of Homeland Security (DHS) 
the authority to compel finalization of the adoption. We plan to 
continue our outreach and communication efforts to stress to families 
and adoption service provider(s) the critical importance of finalizing 
the adoption in both Convention and non-Convention cases.
    3. Comment: Some commenters request that the rule be changed to 
mandate that the Department always issue a certification under Sec.  
97.5 after the parent(s) complete the final adoption in the United 
States. One commenter was concerned that a person requesting the 
certification must show a need for it, including a showing that the 
child would be traveling overseas.
    Response. The Department is not modifying the rule in response to 
this request. The Department cannot issue a certification under 97.5 
absent a request because it has no means to know when a State court 
issues an adoption decree. However, the intent of Sec.  97.5 was not to 
limit the issuance of these certifications solely to instances where 
there is a showing of exceptional need or if the child would be 
traveling. We have deleted Sec.  97.5(3) that required parties to 
submit a signed statement explaining the need for such a certification.
    4. Comment: One commenter is concerned that countries of origin 
expect copies of the Article 23 certification to be sent in every case 
where the adoption is completed by a final adoption order in the United 
States and cite Articles 7, 20, and 23, and of the Convention for 
support.
    Response: The Department believes that its rule on Convention 
Article 23 certifications is consistent with the Convention provisions 
cited and implements the Convention. Specifically, as noted above, the 
IAA does not require that families finalize the adoptions or notify the 
Department when the adoptions are final. We will use all other 
available means to obtain information on the final adoption of the 
child for the child's country of origin, including relying on 22 CFR 
96.50(h)(2), which requires accredited agencies, temporarily accredited 
agencies, and approved persons, to notify the Department of the 
finalization of the adoption within thirty days of the entry of the 
final adoption order. We believe that through 22 CFR 96.50(h)(2) 
combined with the final rule in Sec.  97.5(e), making clear that the 
State court final adoption decree may serve as the Convention Article 
23 certification, the United States will fulfill its Convention 
obligations.

Regulatory Review

A. Administrative Procedures Act

    This rule, through which the Department provides for implementation 
of the Convention, which focuses on issuance of documents to facilitate 
cross-border recognition of adoptions done under the Convention, 
involves a foreign affairs function of the United States and therefore 
pursuant to 5 U.S.C. 553(a)(1) is not subject to the procedures 
required by 5 U.S.C. 553 and 554. Nonetheless, the Department published 
the proposed rule and received public comment on it.

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

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

[[Page 64456]]

economic impact on a substantial number of small entities.

C. Small Business Regulatory Enforcement Fairness Act of 1996

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

D. The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Pub. L. 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires agencies 
to prepare a statement, including cost-benefit and other analyses, 
before proposing any rule that may result in an annual expenditure of 
$100 million or more by State, local, or tribal governments, or by the 
private sector. Section 4 of UFMA, 2 U.S.C. 1503, excludes regulations 
necessary for implementation of treaty obligations. This rule falls 
within this exclusion because it would implement the Convention. In any 
event, this rule would not result in the expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any year. Moreover, because this rule would not 
significantly or uniquely affect small governments, section 203 of the 
UFMA, 2 U.S.C. 1533, does not require preparation of a small government 
agency plan in connection with it.

E. Executive Order 13132: Federalism

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

F. Executive Order 12866: Regulatory Review

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

G. Executive Order 12988: Civil Justice Reform

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

H. The Paperwork Reduction Act (PRA) of 1995

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

List of Subjects in 22 CFR Part 97

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


0
Accordingly, the Department adds new part 97 to title 22 of the CFR, 
chapter I, subchapter J, to read as follows:

[[Page 64457]]

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

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

     Authority: Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption (done at The Hague, 
May 29, 1993), S. Treaty Doc. 105-51 (1998); 1870 U.N.T.S. 167 (Reg. 
No. 31922 (1993)); Intercountry Adoption Act of 2000, 42 U.S.C. 
14901-14954.


Sec.  97.1  Definitions.

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


Sec.  97.2  Application for a Hague Adoption Certificate or a Hague 
Custody Declaration (Outgoing Convention Case).

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


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

    (a) Preparation of Child Background Study. An accredited agency, 
temporarily accredited agency, or public domestic authority must 
complete or approve a child background study that includes information 
about the child's identity, adoptability, background, social 
environment, family history, medical history (including that of the 
child's family), and any special needs of the child.
    (b) Transmission of Child Data. A U.S. authorized entity must 
conclude that the child is eligible for adoption and, without revealing 
the identity of the birth mother or the birth father if these 
identities may not be disclosed under applicable State law, transmit to 
a foreign authorized entity the background study, proof that the 
necessary consents have been obtained, and the reason for its 
determination that the proposed placement is in the child's best 
interests, based on the home study and child background study and 
giving due consideration to the child's upbringing and his or her 
ethnic, religious, and cultural background.
    (c) Reasonable Efforts to find Domestic Placement. Reasonable 
efforts pursuant to 22 CFR 96.54 must be made to actively recruit and 
make a diligent search for prospective adoptive parent(s) to adopt the 
child in the United States and a timely adoptive placement in the 
United States not found.
    (d) Preparation and Transmission of Home Study. A U.S. authorized 
entity must receive from a foreign authorized entity a home study on 
the prospective adoptive parent(s) prepared in accordance with the laws 
of the receiving country, under the responsibility of a foreign Central 
Authority, foreign accredited body, or public foreign authority, that 
includes:
    (1) Information on the prospective adoptive parent(s)' identity, 
eligibility, and suitability to adopt, background, family and medical 
history, social environment, reasons for adoption, ability to undertake 
an intercountry adoption, and the characteristics of the children for 
whom they would be qualified to care;
    (2) Confirmation that a competent authority has determined that the 
prospective adoptive parent(s) are eligible and suited to adopt and has 
ensured that the prospective adoptive parent(s) have been counseled as 
necessary; and
    (3) The results of a criminal background check.
    (e) Authorization to Enter. The Central Authority or other 
competent authority of the receiving country must declare that the 
child will be authorized to enter and reside in the receiving country 
permanently or on the same basis as the adopting parent(s).
    (f) Consent by Foreign Authorized Entity. A foreign authorized 
entity or competent authority must declare that it

[[Page 64458]]

consents to the adoption, if its consent is necessary under the law of 
the relevant foreign country for the adoption to become final.
    (g) Guardian Counseling and Consent. Each person, institution, and 
authority (other than the child) whose consent is necessary for the 
adoption must be counseled as necessary and duly informed of the 
effects of the consent (including whether or not an adoption will 
terminate the legal relationship between the child and his or her 
family of origin); must freely give consent expressed or evidenced in 
writing in the required legal form without any inducement by 
compensation of any kind; and consent must not have been subsequently 
withdrawn. If the consent of the mother is required, it may be given 
only after the birth of the child.
    (h) Child Counseling and Consent. As appropriate in light of the 
child's age and maturity, the child must be counseled and informed of 
the effects of the adoption and the child's views must be considered. 
If the child's consent is required, the child must also be counseled 
and informed of the effects of granting consent, and must freely give 
consent expressed or evidenced in writing in the required legal form 
without any inducement by compensation of any kind.
    (i) Authorized Entity Duties. A U.S. authorized entity must:
    (1) Ensure that the prospective adoptive parent(s) agree to the 
adoption;
    (2) Agree, together with a foreign authorized entity, that the 
adoption may proceed;
    (3) Take all appropriate measures to ensure that the transfer of 
the child takes place in secure and appropriate circumstances and, if 
possible, in the company of the adoptive parent(s) or the prospective 
adoptive parent(s), and arrange to obtain permission for the child to 
leave the United States; and
    (4) Arrange to keep a foreign authorized entity informed about the 
adoption process and the measures taken to complete it, as well as 
about the progress of the placement if a probationary period is 
required; to return the home study and the child background study to 
the authorities that forwarded them if the transfer of the child does 
not take place; and to be consulted in the event a new placement or 
alternative long-term care for the child is required.
    (j) Contacts. Unless the child is being adopted by a relative, 
there may be no contact between the prospective adoptive parent(s) and 
the child's birthparent(s) or any other person who has care of the 
child prior to the competent authority's determination that the 
prospective adoptive parent(s) are eligible and suited to adopt and the 
adoption court's determinations that the child is eligible for 
adoption, that the requirements in paragraphs (c) and (g) of this 
section have been met, and that an intercountry adoption is in the 
child's best interests, provided that this prohibition on contacts 
shall not apply if the relevant State or public domestic authority has 
established conditions under which such contact may occur and any such 
contact occurred in accordance with such conditions.
    (k) Improper financial gain. No one may derive improper financial 
or other gain from an activity related to the adoption, and only costs 
and expenses (including reasonable professional fees of persons 
involved in the adoption) may be charged or paid.


Sec.  97.4  Issuance of a Hague Adoption Certificate or a Hague Custody 
Declaration (Outgoing Convention Case).

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


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

    (a) Once the Convention has entered into force for the United 
States, any person may request the Secretary to certify that a 
Convention adoption in an incoming case finalized in the United States 
was done in accordance with the Convention.
    (b) Persons seeking such a certification must submit the following 
documentation:
    (1) A copy of the certificate issued by a consular officer pursuant 
to 22 CFR 42.24(j) certifying that the granting of custody of the child 
has occurred in compliance with the Convention;
    (2) An official copy of the adoption court's order granting the 
final adoption; and
    (3) Such additional documentation and information as the Secretary 
may request at the Secretary's discretion.
    (c) If a person seeking the certification described in paragraph 
(a) of this section fails to submit all the documentation and 
information required pursuant to paragraph (b) of this section within 
120 days of the Secretary's request, the Department may consider the 
request abandoned.
    (d) The Secretary may issue the certification if the Secretary, in 
the Secretary's discretion, is satisfied that the adoption was made in 
compliance with the Convention. The Secretary may decline to issue a 
certification, including to a party to the adoption, in the Secretary's 
discretion. A certification will not be issued to a non-party requestor 
unless the requestor demonstrates that the certification is needed to 
obtain a legal benefit or for purposes of a legal proceeding, as 
determined by the Secretary in the Secretary's discretion.
    (e) A State court's final adoption decree, when based upon the 
certificate issued by a consular officer pursuant to 22 CFR 42.24(j), 
certifying that the grant of custody of the child has occurred in 
compliance with the Convention, or upon its determination that the 
requirements of Article 17 of the Convention have been met constitutes 
the certification of the adoption under Article 23 of the Convention.


Sec.  97.6-97.7  [Reserved]

    Dated: October 12, 2006.
Maura Harty,
Assistant Secretary, Bureau of Consular Affairs, Department of State.
[FR Doc. E6-18507 Filed 11-1-06; 8:45 am]
BILLING CODE 4710-06-P