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[Federal Register: September 15, 2003 (Volume 68, Number 178)]
[Proposed Rules]               
[Page 54119-54122]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se03-30]                         

-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 98

RIN 1400-AB-69

[Public Notice 4467]

 
Intercountry Adoption--Preservation of Convention Records

AGENCY: Department of State.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of State (the Department) is proposing new 
regulations to implement the records preservation requirements 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). The IAA requires that the Department 
issue rules to govern the preservation of Convention records held by 
the Department and the Department of Homeland Security (DHS). These 
proposed rules require the Department and DHS to maintain Convention 
records for 75 years.

DATES: Written or electronic comments must reach the Department on or 
before November 14, 2003.

ADDRESSES: Commenters may send hard copy submissions or comments in 
electronic format. Commenters sending only hard copies must send an 
original and two copies referencing docket number State/AR-01/98 to: 
U.S. Department of State, CA/OCS/PRI, Adoption Regulations Docket Room, 
SA-29, 2201 C Street NW., Washington, DC 20520. Hard copy comments may 
also be sent by overnight courier services to: U.S. Department of 
State, CA/OCS/PRI, Adoption Regulations Docket Room, 2201 C Street NW., 
Washington DC 20520. Do not personally hand deliver comments to the 
Department of State.
    Comments referencing the docket number State/AR-01/98 may be 
submitted electronically to adoptionregs@state.gov. Two hard copies of 
the comments submitted electronically must be mailed under separate 
cover as well. The electronic comments or the hard copy comments must 
be received by the date noted above in the date section of this 
proposed rule. Comments must be made in the text of the message or 
submitted as a Word file avoiding the use of any form of encryption or 
use of special characters. If you submit comments by hard copy rather 
than electronically, include a disk with the submission if possible. 
Hard copy submissions without an accompanying disk file, however, will 
be accepted.

FOR FURTHER INFORMATION CONTACT: For further information on submitting 
comments on the regulations, contact Anna Mary Coburn or Edward 
Betancourt at 202-647-2826. 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: As noted, comments may be submitted 
electronically to: adoptionregs@state.gov. Public comments and 
supporting materials are available for viewing at the Adoption 
Regulations Docket Room. To review docket materials, members of the 
public must make an appointment by calling Delilia Gibson-Martin at 
202-647-2826. The public may copy a maximum of 100 pages at no charge. 
Additional copies cost $0.25 a page. The Department of State will keep 
the official record for this action in paper form. Accordingly, the 
official administrative file is the

[[Page 54120]]

paper file maintained at the Adoption Regulations Docket Room, United 
States Department of State. The Department of State's responses to 
public comments, whether the comments are received in written or 
electronic format, will be published in the Federal Register, and no 
immediate responses will be provided. General information about 
intercountry adoptions is available on the Department of State's Web 
site at http://travel.state.gov/adopt.html. Background information 
about the development of these regulations is provided at http://www.hagueregs.org
.

I. Legal Authority

    The Hague Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. 105-51 
(1998); 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)), 32 I.L.M. 1134 
(1993); Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954.

II. Preservation of Convention Records

    The Convention governs intercountry adoptions between countries 
that are parties to the Convention. The IAA provides for U.S. 
implementation of the Convention. The Convention's main purpose is to 
establish safeguards to ensure that an intercountry adoption takes 
place in the best interests of the child. The IAA's purpose is 
primarily to ensure that adoptions between the United States and other 
countries party to the Convention take place in accordance with the 
Convention. Together, the Convention and the IAA seek to protect the 
rights of children, birth families, and adoptive parents involved in 
adoptions (or prospective adoptions) covered by the Convention. Another 
purpose of the IAA is to improve the ability of the Federal government 
to assist United States citizens seeking to adopt children from 
Convention countries and residents of Convention countries seeking to 
adopt children from the United States. More detailed information about 
the Convention and the IAA may be found in the Supplementary 
Information published in the proposed rules for part 96 of title 22 of 
the Code of Federal Regulations (CFR), which are published today as 
well in the Federal Register.
    Both the Convention and the IAA contain specific provisions 
requiring that competent authorities preserve records concerning a 
child's intercountry adoption. The purpose of this proposed regulation 
is to enable the Department and DHS (the successor agency to the 
Immigration and Naturalization Service (INS)) to comply with the 
Convention and the IAA requirements for the preservation of Convention 
records. (The Secretary of DHS will assume certain functions vested in 
the Attorney General and the INS by the IAA relating to the Immigration 
and Naturalization Service's responsibilities, pursuant to the Homeland 
Security Act of 2002, Public Law 107-296, Nov. 25, 2002, as amended by 
section 105 of the Homeland Security Act Amendments of 2003. (See 
Consolidated Appropriations Resolution, Public Law 108-7, Feb. 20, 
2003)). This Preamble uses terms, such as the Secretary, the Department 
of Homeland Security, Case Registry, Convention, Convention country, 
adoption record, agency, person, and public body that are defined in 
Sec.  96.2 of the proposed regulations for part 96 of title 22 of the 
CFR, which as noted are also being published on the same day as this 
proposed rule in the Federal Register. This proposed rule defines 
Convention records, and carries forward for the convenience of the 
public the same definition of Convention contained in the proposed 
regulations for part 96.
    Article 30 of the Convention generally requires that each 
Convention country ensure that information concerning any child whose 
adoption is subject to the Convention be preserved. The IAA mandates 
that the Department issue regulations to comply with the Convention's 
requirement that a child's records be preserved. Specifically, section 
401(a) of the IAA requires that the Department, in consultation with 
INS (now part of DHS), issue regulations that establish procedures and 
requirements for the preservation of Convention records. As required by 
the IAA, the Department has consulted with DHS to prepare this 
regulation.
    The term Convention record is defined in these proposed regulations 
as including only records pertaining to adoptions under the Convention 
that are generated or received by two Federal agencies--the Department 
or DHS. The term Convention record does not include records generated 
or received by adoption service providers or State public bodies. The 
definition for Convention record in part 98 thus mirrors the IAA 
definition for the same term.
    The Convention also imposes an obligation for the preservation of 
adoption records. The term adoption record, rather than the term 
Convention record, is used to cover records generated or received by 
agencies or persons or State public bodies. The term adoption record is 
defined in Sec.  96.2 of the proposed regulations for part 96 of title 
22 of the CFR. The proposed regulations on the preservation of adoption 
records--that is, records held by non-Federal entities, including 
agencies, persons, and State public bodies--are contained in the 
proposed regulations for part 96 of title 22 of the CFR. The retention 
of such records is not addressed by this proposed new rule for part 98. 
Nor does this proposed regulation address access to adoption records. 
State law will continue, entirely unaffected by part 98, to govern 
access to adoption records held by agencies, persons, or public bodies 
including State courts as provided for by section 401(c) of the IAA.\1\
---------------------------------------------------------------------------

    \1\ The report of the Senate Committee on Foreign Relations, S. 
Rep. No. 106-276 (2000) at page 11 contains a statement with regard 
to section 401(c) of the IAA that includes the following:
    [T]he Committee does not intend this legislation to affect the 
scope of access to adoption records under existing Federal or State 
law. Under current law, Federal records that contain information 
regarding intercountry adoptions are subject to Federal laws 
regarding disclosure and access to information maintained by the 
Federal Government (primarily the Privacy Act and the Freedom of 
Information Act). Records regarding intercountry adoptions held by 
States or in the files of adoption agencies are governed by any 
State law that may apply to such records. * * * Under section 401, 
Federal records will continue to be governed by applicable Federal 
law, while non-Federal records, including records of adoption 
proceedings conducted in the United States, will continue to be 
governed by applicable State law. No State is required by this 
provision to change its laws regarding access to, and disclosure of, 
adoption records.
    The report of the House Committee on International Relations, 
H.R. Rep. No. 106-691(2000) at page 30, contains almost identical 
language relating to section 401(c).
---------------------------------------------------------------------------

    As required by section 401(a) of the IAA, the proposed regulations 
in part 98 address the preservation of Convention records generated or 
received by the Department and DHS. The proposed regulations are not 
required to, and do not, address access by birth parents, adoptive 
parents, or adoptees to Convention records. Access to Convention 
records retained by the Department or DHS will be controlled by Federal 
law governing access to records held by Federal agencies, particularly 
by the Freedom of Information of Act (5 U.S.C. 552 (1966)) and the 
Privacy Act (5 U.S.C. 552(a) (1974)).
    Because the Convention is not yet in force for the United States, 
no records currently held by the Federal government pertain to a 
Convention adoption. Once the Convention has entered into force for the 
United States, there will be Convention records. A Convention record 
will include DHS's ``A'' files and may include other records held by 
the Department and DHS, including entries in the planned Case Registry.

[[Page 54121]]

    The proposed rule adopts a minimum period of 75 years for the 
preservation of Convention records. Promulgation of this rule will 
further compliance with Article 30(1) of the Convention, which requires 
that provision be made for the preservation of information about a 
child's origin, including the identity of the child's parents and about 
the child's medical history. While such information will primarily be 
in the child's adoption record, some may also be in a child's 
Convention record. The 75-year period is consistent with the current 
record preservation period for records held by the Department and DHS 
that are similar to Convention records. The preservation requirement 
will extend to Convention records regarding three kinds of adoptions 
covered by the Convention:
    (1) Adoptions involving a child immigrating to the United States;
    (2) Adoptions involving a child emigrating from the United States; 
and
    (3) Adoptions involving two other countries party to the 
Convention.
    A minimum period of 75 years was considered adequate to ensure the 
availability of Convention records during the lifetime of the adopted 
person, when matters for which the records may be needed are likely to 
arise. At the same time, the 75-year period should ensure that the 
costs and paperwork burden of retaining records are not incurred 
unnecessarily by retaining them beyond their likely usefulness.
    The 75-year period will begin to run (for all three kinds of 
adoptions covered by the Convention) on the date that the first 
document or entry specifically related to the adoption is included in 
the Convention record. Additional subsequent entries to the record will 
thus be subject to a slightly shorter retention period than the first 
entry, but the difference is not likely to be significant in a typical 
adoption case in which most of the records would be entered within the 
first one or two years of the adoption.
    This proposed rule will also create and reserve a new part 97 of 
title 22 of the CFR. The Department anticipates using part 97 to 
establish regulations governing adoptions under the Convention.

III. Regulatory Review

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

    The Department of State has reviewed this regulation, in accordance 
with the Regulatory Flexibility Act, 5 U.S.C. 601-612, and, pursuant to 
5 U.S.C. 605(b), certifies that it will not have a significant economic 
impact on a substantial number of small entities. Executive Order 13272 
therefore is inapplicable.

B. Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed 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. The rule will not result in an annual effect on the economy of 
$100 million or more, a major increase in costs or prices, or 
significant adverse effects on competition, employment, investment, 
productivity, or innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

C. 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, 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 legislation necessary for implementation of treaty 
obligations. The IAA falls within this exclusion because it is the 
implementing legislation for the Convention. In any event, this rule 
will 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 will 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.

D. Executive Order 13132: Federalism

    A rule has federalism implications under Executive Order 13132 if 
it has a substantial direct effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
This regulation will not have such effects, and therefore does not have 
sufficient federalism implications to require consultations or to 
warrant the preparation of a federalism summary impact statement under 
section 6 of Executive Order 13132.

E. Executive Order 12866: Regulatory Review

    Under section 3(f) of Executive Order 12866, proposed regulations 
that meet the definition of ``significant regulatory action'' generally 
must be submitted to OMB for review. Section 3 of Executive Order 12866 
exempts from this requirement ``rules that pertain to a military or 
foreign affairs function of the United States, other than procurement 
regulations and regulations involving the import or export of non-
defense articles and services.'' This rule, through which the 
Department provides for the implementation of the Convention, directly 
pertains to foreign affairs functions of the United States. Although 
the Department does not consider this rule to be a ``significant 
regulatory action'' within the meaning of the Executive Order 12866, 
the Department has consulted with the INS (now part of DHS) during the 
formulation of the rule. The rule was sent for review to OMB.

F. Executive Order 12988: Civil Justice Reform

    The Department has reviewed these proposed regulations 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.

G. The Paperwork Reduction Act (PRA) of 1995

    Under the PRA, 42 U.S.C. 3501 et seq., agencies are generally 
required to submit to OMB for review and approval collection of 
information requirements imposed on ``persons'' as defined in the PRA. 
These regulations impose retention requirements only on the Department 
of State and DHS, and do not impose any information collection 
requirements on ``persons.'' Therefore, the requirements of the PRA do 
not apply.

List of Subjects in 22 CFR Part 98

    Adoption and foster care; International agreements; reporting and 
record-keeping requirements.

    Accordingly, the Department propses to add a new part 98 of title 
22 of the CFR, chapter 1, subchapter J, to read as follows:

PART 98--INTERCOUNTRY ADOPTION/CONVENTION RECORD PRESERVATION

Sec.
98.1 Definitions

[[Page 54122]]

98.2 Preservation of Convention Records

    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.  98.1  Definitions.

    As used in this part:
    (a) Convention means the Convention on Protection of Children and 
Co-operation in Respect of Intercountry Adoption, done at The Hague on 
May 29, 1993.
    (b) Convention record means any item, collection, or grouping of 
information contained in an electronic or physical document, an 
electronic collection of data (including the information contained in 
the Case Registry), 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 adoption 
covered by the Convention (regardless of whether the adoption was made 
final) that has been generated or received by the Secretary or DHS. 
Convention record includes a record, generated or received by the 
Secretary or DHS, about a specific adoption case involving two 
Convention countries other than the United States in connection with 
which the Secretary or DHS performs a Central Authority function.
    (c) Such other terms as are defined in 22 CFR 96.2 shall have the 
meaning given to them therein.


Sec.  98.2  Preservation of Convention records.

    Once the Convention has entered into force for the United States, 
the Secretary and DHS will preserve, or require the preservation of, 
Convention records generated or received by the Secretary or DHS in 
connection with adoptions and placements for adoption covered by the 
Convention for a period of not less than 75 years. For Convention 
records involving a child who is immigrating to the United States and 
Convention records involving a child who is emigrating from the United 
States, the 75-year period shall start on the date that the Secretary 
or DHS generates the first document or entry or receives the first 
document in any Convention record related to the adoption of the child. 
For an intercountry adoption or placement for adoption involving two 
Convention countries other than the United States, the 75-year period 
shall start on the date that the Secretary or DHS generates the first 
document or entry or receives the first document for a Convention 
record in connection with the performance of a Central Authority 
function.

    Dated: August 27, 2003.
Richard Armitage,
Deputy Secretary of State, Department of State.
[FR Doc. 03-22651 Filed 9-12-03; 8:45 am]
BILLING CODE 4710-06-P




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