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[Federal Register: September 15, 2003 (Volume 68, Number 178)]
[Proposed Rules]               
[Page 54063-54119]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se03-29]                         


[[Page 54063]]

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

Part II





Department of State





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



22 CFR Parts 96 and 98



Hague Convention on Intercountry Adoption; Intercountry Adoption Act of 
2000; Accreditation of Agencies; Approval of Persons; Preservation of 
Convention Records; Proposed Rules


[[Page 54064]]


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

DEPARTMENT OF STATE

22 CFR Part 96

[Public Notice 4466]
RIN 1400-AA-88

 
Hague Convention on Intercountry Adoption; Intercountry Adoption 
Act of 2000; Accreditation of Agencies; Approval of Persons; 
Preservation of Convention Records

AGENCY: Department of State.

ACTION: Proposed rule.

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

SUMMARY: The Department of State (the Department) is proposing 
regulations to implement 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 
Convention and the IAA require that adoption service providers be 
accredited or approved to provide adoption services for intercountry 
adoptions involving two countries party to the Convention. These 
proposed rules establish procedures that the Department will use to 
designate accrediting entities for the purpose of evaluating agencies 
and persons and determining if they may be granted accreditation or 
approval. These proposed rules also contain procedures and standards to 
accredit agencies and approve persons to provide adoption services in 
Convention cases. These rules will ensure that, when the Convention 
enters into force for the United States, there will be accredited 
agencies and approved persons to provide adoption services for 
Convention adoptions.

DATES: 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-01/96 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-01/96 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: Edward Betancourt or Anna Mary Coburn 
at 202-647-2826 or Jessica Rosenbaum at 202-312-9717. 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 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 and the Department of 
Homeland Security Web site at http://www.immigration.gov. Background 
information about the development of these regulations is provided at 
http://www.hagueregs.org.

Preamble Table of Contents

I. Legal Authority
II. Introduction
III. The 1993 Hague Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption
    A. Development of the Hague Convention on Intercountry Adoption
    B. U.S. Ratification of the Convention
    C. Use of Private, Accredited Adoption Service Providers
    D. Ability of U.S. Accredited Agencies and Approved Persons to 
Operate in Other Convention Countries
    E. Timing of Implementation
IV. The Intercountry Adoption Act of 2000 (IAA)
    A. Passage of the IAA
    B. Overview of Substantive Provisions
    C. Distinction between ``Agency'' and ``Person''
    D. Federalism Issues
    E. Economic Impact/Effect on Small Entities
    F. The IAA Exemptions to the Paperwork Reduction Act
V. The Proposed Implementing Regulations on Accreditation and 
Approval
    A. Public Input on the Proposed Regulations
    B. The Department's Preparation of the Proposed Regulations
    C. Overview of the Proposed Regulations
    1. Subpart A--General Provisions
    2. Subpart B--Selection, Designation, and Duties of Accrediting 
Entities
    3. Subpart C--Accreditation and Approval Requirements for the 
Provision of Adoption Services
    4. Subpart D--Application Procedures for Accreditation and 
Approval
    5. Subpart E--Evaluation of Applicants for Accreditation and 
Approval
    6. Subpart F--Standards for Convention Accreditation and 
Approval
    7. Subpart G--Decisions on Applications for Accreditation and 
Approval
    8. Subpart H--Renewal of Accreditation and Approval
    9. Subpart I--Routine Oversight by Accrediting Entities
    10. Subpart J--Oversight through Review of Complaints
    11. Subpart K--Adverse Action by Accrediting Entities
    12. Subpart L--Oversight of Accredited Agencies and Approved 
Persons by the Secretary
    13. Subpart M--Dissemination and Reporting of Information by 
Accrediting
    Entities
    14. Subpart N--Procedures and Standards Relating to Temporary 
Accreditation
VI. Regulatory Review
    A. Regulatory Flexibility Act/Executive Order 13272: Small 
Business
    B. The Small Business Regulatory Enforcement Fairness Act of 
1996
    C. The Unfunded Mandates Reform Act of 1995
    D. Executive Order 13132: Federalism
    E. Executive Order 12866: Regulatory Review
    F. Executive Order 12988: Civil Justice Reform
    G. The Paperwork Reduction Act of 1995
    H. The Treasury and General Government Appropriations Act of 
1999--Assessment of Federal Regulations and Policies on Families

I. Legal Authority

    The Hague Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption, May 29, 1993,

[[Page 54065]]

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. Introduction

    Regulations to implement the 1993 Hague Convention on Protection of 
Children and Co-operation in Respect of Intercountry Adoption (the 
Convention) and the recently enacted Intercountry Adoption Act of 2000 
(the IAA), Public Law 106-279, 42 U.S.C. 14901-14954 (herein referred 
to as the IAA or Public Law 106-279), are being proposed for the first 
time. These regulations will be added as part 96 of title 22 of the 
Code of Federal Regulations (CFR). The purpose of these regulations is 
to enable the United States to become a party to the Convention. The 
Convention governs intercountry adoptions between countries that are 
parties to the Convention (``Convention adoptions''). The IAA is the 
U.S. implementing legislation for the Convention. Once the Convention 
enters into force for the United States, all Convention adoptions must 
comply with the Convention, the IAA, and these regulations.
    These regulations address the accreditation of agencies (non-profit 
adoption service providers) and the approval of persons (for-profit and 
individual adoption service providers) to provide adoption services in 
Convention cases. The regulations also set forth the process for 
designating one or more accrediting entities to perform the 
accreditation and approval functions, the procedures for conferring and 
renewing accreditation and approval, the procedures for monitoring 
compliance with accreditation or approval standards, the rules for 
taking adverse action against accredited agencies and approved persons, 
and the standards for accreditation and approval. The regulations also 
address which agencies and persons are required to adhere to these 
standards, and what adoption-related activities are exempted from the 
accreditation and approval requirements. Finally, the regulations set 
forth the procedures and requirements for temporary accreditation under 
section 203(c) of the IAA. (Pub. L. 106-279, section 203(c)).
    These regulations do not address how the Department and the 
Department of Homeland Security (herein referred to as DHS until the 
Department of Homeland Security identifies which DHS bureau will assume 
the functions delegated to the Immigration and Naturalization Service 
(INS) under the IAA will implement the provisions of the Convention and 
the IAA that govern procedures for completing and recognizing 
Convention adoptions. The regulations on intercountry adoption 
procedures for Convention adoptions will become part 97 of title 22 of 
the CFR and will be published at a later date. Also published in 
today's Federal Register is the proposed rule for part 98 of title 22 
of the CFR. Part 97 is reserved, and part 98 provides the proposed rule 
on the Department and DHS's retention of Convention records.
    The IAA designates the U.S. Department of State as the Central 
Authority for the United States. The Secretary of State is designated 
as the head of the Central Authority. For purposes of this Preamble, 
the shorthand term ``the Department'' is generally used rather than the 
Secretary of State or the Department of State. Certain Central 
Authority functions are delegable outside of the Department and the 
Federal government and will effectively be delegated either to the 
accrediting entities or to the accredited agencies, temporarily 
accredited agencies, or approved persons, as appropriate, pursuant to 
these regulations. The IAA specifically provides that the Department 
may ``authorize public or private entities to perform appropriate 
central authority functions for which the [Department] is responsible, 
pursuant to regulations or under agreements published in the Federal 
Register.'' (Pub. L. 106-279, section 102(f)(1)).
    As Central Authority, the Department will be responsible for: 
Acting as liaison with other Central Authorities; assisting U.S. 
citizens seeking to adopt children from abroad and to residents of 
other Convention countries seeking to adopt children from the United 
States; exchanging information; overseeing the accreditation and 
approval of adoption service providers; monitoring and facilitating 
individual cases involving U.S. citizens; and, jointly with the 
Attorney General (presumably now the Secretary of Homeland Security), 
establishing a Case Registry with information on intercountry adoptions 
with Convention and non-Convention countries.
    This Preamble is intended to facilitate understanding of the 
background and purpose underlying the regulations. The Preamble should 
not be considered a substitute for the text of the regulations 
themselves. The Preamble is designed to provide an overview of the 
proposed regulations; however, it will not become part of the final 
regulations when they are published in the CFR. Accrediting entities, 
as well as accredited agencies and approved persons, and those working 
under the supervision and responsibility of accredited agencies and 
approved persons, will be held responsible for compliance with the 
regulations that apply to them.

III. The 1993 Hague Convention on Protection of Children and 
Cooperation in Respect of Intercountry Adoption

A. Development of the Hague Convention on Intercountry Adoption

    A copy of the Convention is available on the Hague Conference Web 
site at http://www.hcch.net. The Convention is a multilateral treaty 
developed under the auspices of the intergovernmental organization 
known as the Hague Conference on Private International Law (Hague 
Conference). The Convention provides a framework of safeguards for 
protecting children and families involved in intercountry adoption, 
while still being acceptable to, and capable of being implemented by, 
diverse sending and receiving countries. This Convention is one of the 
most widely embraced and broadly accepted conventions developed by the 
Hague Conference.
    The Convention is the first international instrument to recognize 
that intercountry adoption could ``offer the advantage of a permanent 
home to a child for whom a suitable family cannot be found in his or 
her state of origin.'' (S. Treaty Doc. 105-51, at 1). Some countries 
involved in the multilateral negotiations on the Convention sought to 
prohibit intercountry adoptions even for those children eligible for 
adoption for whom a permanent family placement in the child's country 
of origin could not be arranged. On the other hand, proponents of 
intercountry adoption at the Hague Conference believed that the best 
interests of a child would not be served by arbitrarily prohibiting a 
child in need of a permanent family placement from being matched with 
an adoptive family simply because the family resided in another 
country. The Convention reflects a consensus that an intercountry 
adoption may well be in an individual child's best interests.
    If a country becomes a party to the Convention, intercountry 
adoptions--incoming and outgoing--with other party countries must 
comply with the requirements of the Convention. The objectives of the 
Convention are: First, to establish safeguards to ensure that 
intercountry adoptions take place in the best interests of the child 
and with respect for the child's fundamental rights as recognized in 
international law; second, to establish a system of cooperation among 
contracting states to ensure that those safeguards are

[[Page 54066]]

respected and thereby prevent the abduction, sale of, or traffic in 
children; and third, to secure the recognition in contracting states of 
adoptions made in accordance with the Convention. The Convention also 
requires all parties to act expeditiously in the process of adoption. 
The Convention's norms and principles apply whether the party country 
is acting as a sending country or as a receiving country.
    To accomplish its goals, the Convention makes a number of 
significant modifications to current intercountry adoption practice, 
including three particularly important changes. First, the Convention 
mandates close coordination between the governments of contracting 
countries through a Central Authority in each Convention country. In 
its role as a coordinating body, the Central Authority is responsible 
for sharing information about the laws of its own and other Convention 
countries and monitoring individual cases. Second, the Convention 
requires that each country involved make certain determinations before 
an adoption may proceed. The sending country must determine in advance 
that the child is eligible to be adopted, that it is in the child's 
best interests to be adopted internationally, that the consent of birth 
parents, institutions, or authorities that are necessary under the law 
of the country of origin have been obtained freely and in writing, and 
that the consent of the child, if required, has been obtained. The 
sending country must also prepare a child background study that 
includes the medical history of the child as well as other background 
information.
    Concurrently, the receiving country must determine in advance that 
the prospective adoptive parent(s) are eligible and suited to adopt, 
that they have received counseling, and that the child will be eligible 
to enter and reside permanently in the receiving country. The receiving 
country must also prepare a home study on the prospective adoptive 
parent(s). These advance determinations and studies are designed to 
ensure that the child is protected and that there are no obstacles to 
completing the adoption.

B. U.S. Ratification of the Convention

    The United States signed the Convention on March 31, 1994, with the 
intent to ratify it in due course. On September 20, 2000, the Senate 
gave its advice and consent to ratification. The Senate's advice and 
consent to the Convention were subject to the following declaration: 
``The President shall not deposit the instrument of ratification for 
the Convention until such time as the Federal law implementing the 
Convention is enacted and the United States is able to carry out all 
the obligations of the Convention, as required by its implementing 
legislation.'' (146 Cong. Rec. S8866 (daily ed. Sept. 20, 2000)). Thus, 
the Convention will not actually come into force and govern 
intercountry adoptions between the United States and other party 
countries until the United States is able to carry out its obligations. 
These regulations are essential in enabling the United States to meet 
its Convention obligations.
    The United States strongly supports the Convention's purposes and 
principles and believes that U.S. ratification will further the 
critical goal of protecting children and families involved in 
intercountry adoptions. The United States is a major participant in 
intercountry adoption, primarily as a receiving country but also as a 
sending country. Many U.S. citizens adopt children eligible for 
adoption from another country, and in those cases the United States is 
acting as a receiving country. From October 1999 to September 2002, a 
total of 59,079 children were issued orphan visas to immigrate to the 
United States in connection with their adoption. As a sending country, 
the United States also places children abroad for adoption. There are 
no reliable statistics at the Federal level on the number of U.S. 
children adopted annually by persons resident in a foreign country.
    Advocates for ratification of the Convention argued that many 
Convention countries would eventually refuse to permit intercountry 
adoptions by U.S. citizens unless the United States ratified the 
Convention (Hearing on the Convention and IAA Before the Senate Comm. 
on Foreign Relations, 106th Cong. (October 5, 1999)). The Department in 
fact has seen such developments. The Department wishes to complete 
preparations for implementation as rapidly as possible to ensure that 
U.S. families and the children they adopt have the advantage of the 
Convention's protections and that U.S. prospective adoptive parent(s) 
will be able to adopt children from Convention countries, particularly 
if those countries prohibit adoptions vis-[agrave]-vis countries that 
are not party to the Convention. The Department also wants to ensure 
that U.S. children who are adopted by parents from other countries are 
protected under the Convention and the IAA as well.

C. Use of Private, Accredited Adoption Service Providers

    One particularly controversial issue that arose during Convention 
negotiations was whether private adoption service providers would be 
permitted to perform Central Authority functions. Some countries wanted 
all parties to rely exclusively on public or governmental authorities 
to perform Central Authority functions. Other countries, including the 
United States, advocated for parties to have the option of using 
private adoption service providers to complete Convention tasks. In the 
United States, private, non-profit adoption service providers currently 
handle the majority of U.S. intercountry adoption cases. In its final 
form, the Convention permits party countries to choose to use private, 
Convention-accredited adoption service providers to perform Central 
Authority tasks. Specifically, Article 22 permits private, non-profit 
adoption service providers instead of Central Authorities to complete 
certain Central Authority functions required by the Convention. As 
discussed below, however, private, for-profit providers may perform 
such functions only as authorized under Article 22(2), which imposes 
limitations that do not apply to private, non-profit providers.
    By including a provision allowing non-governmental bodies to 
provide adoption services, the Convention recognized the critical role 
private bodies play--and historically have played--in the intercountry 
adoption process. In the United States, for example, the number of 
intercountry adoptions from 1989 to 2001 totaled 147,021, and private, 
non-profit adoption service providers handled most of those adoptions. 
Recognizing, also, the role of private, for-profit adoption service 
providers in the United States, the Senate gave its advice and consent 
to the ratification of the Convention subject to a declaration, 
pursuant to Article 22(2) of the Convention, that U.S. Central 
Authority functions under Articles 15 to 21 of the Convention may be 
performed by approved private, for-profit adoption service providers. 
(146 Cong. Rec. S8866 (daily ed. Sept. 20, 2000)).
    Consistent with Article 22 of the Convention and the declaration 
just discussed, the IAA establishes a system to accredit private non-
profit, and to approve for-profit, adoption service providers and 
outlines specific standards the private providers must meet in order to 
become accredited agencies (in the case of non-profits) or approved 
persons (in the case of for-

[[Page 54067]]

profits and private individuals). The proposed regulations focus 
exclusively on this essential process of accrediting agencies and 
approving persons that wish to offer or provide adoption services in 
Convention cases.\1\ These regulations contain detailed and 
comprehensive standards intended to ensure that the United States 
complies with the Convention, which requires that accredited agencies 
and approved persons be directed and staffed by persons qualified by 
their ethical standards and by training or experience to work in the 
field of intercountry adoption, and be subject to supervision by 
competent authorities of the Convention country as to their 
composition, operation, and financial situation. Accredited agencies 
and approved persons must also comply with the requirements of Article 
32 of the Convention, which provides that no one shall derive improper 
financial or other gain from activity related to an intercountry 
adoption; only costs and expenses, including reasonable professional 
fees of persons involved in the adoption, may be charged or paid; and 
the key personnel of the agencies and persons involved in an adoption 
shall not receive remuneration which is unreasonably high in relation 
to services rendered. These proposed regulations reflect those 
Convention requirements.
---------------------------------------------------------------------------

    \1\ The Convention uses the terms private accredited bodies and 
bodies or persons to refer to adoption service providers. The IAA 
uses the terms agency and person and accredited agency and approved 
person to encompass such providers. The IAA terms--agency or person 
and accredited agency or approved person--will be used from this 
point forward in the Preamble and are defined in subpart A of part 
96.
---------------------------------------------------------------------------

D. Ability of U.S. Accredited Agencies and Approved Persons To Operate 
in Other Convention Countries

    Once accredited or approved, an agency or person may offer or 
provide adoption services in the United States in Convention cases. 
However, under Article 12 of the Convention, a private body accredited 
in one Convention country may act in another Convention country only if 
the competent authorities of both countries have authorized it to do 
so. Thus, U.S. accredited agencies and approved persons are not 
automatically entitled to operate in other Convention countries. In 
practice, this means that even if a U.S. agency or person is accredited 
or approved in the United States, another Convention country may choose 
to work with only certain U.S. accredited agencies or approved persons.
    Currently some Convention (and non-Convention) countries require 
U.S. agencies and persons to be accredited under the laws and standards 
of that Convention country. This practice may well continue. The 
Department is hopeful that, to avoid duplicative accreditation 
processes, and as permitted by Article 12 of the Convention, other 
Convention countries will recognize the accreditation or approval 
granted by the United States and permit U.S. accredited agencies and 
approved persons to act inside the other Convention country without 
requiring any further accreditation. The Department is mindful, 
however, that some U.S. agencies or persons, especially those that work 
in more than one Convention country, may well have to go through 
several costly accreditation processes. One of the rationales for 
drafting comprehensive, stringent standards for U.S. accreditation and 
approval is to encourage other Convention countries to accept U. S. 
accreditation or approval and not require further accreditation or 
approval.

E. Timing of Implementation

    In accordance with the U.S. Senate's conditions for ratification, 
the Convention will not actually come into force for the United States 
until the United States is able to meet its obligations under the 
Convention and the U.S. instrument of ratification is deposited. Once 
the instrument of ratification is deposited, the Convention will come 
into force for the United States on the first day of the month 
following the expiration of three months after the deposit (thus, after 
a period of not less than three months and not more than four months).
    Practically speaking, the United States must have accredited bodies 
ready to provide adoption services before the Convention enters into 
force for the United States. Thus, the regulations contemplate that the 
accrediting entities will be able to use the standards in subpart F of 
the regulations to begin accrediting agencies and approving persons 
before the Convention enters into force for the United States. This 
process of accrediting agencies or approving persons prior to the 
actual entry into force of the Convention is necessary so that there 
are agencies and persons legally permitted to provide adoption services 
as of the date the Convention first enters into force for the United 
States.
    These regulations, therefore, will be effective prior to the date 
the Convention comes into force for the United States to enable the 
Department and its designated accrediting entities to perform the time-
consuming task of accrediting and approving private bodies. Certain 
sections of these proposed regulations will not be operative, however, 
until the Convention enters into force for the United States. The 
proposed regulation by its own terms makes these sections effective 
only after entry into force of the Convention. For example, the 
provision that requires all agencies and persons to be accredited or 
approved will become effective on the date that the Convention enters 
into force. This approach is consistent with section 505(a)(2) of the 
IAA, which provides that the IAA mandatory accreditation and approval 
requirement take effect upon the entry into force of the Convention for 
the United States. The Department will announce the entry into force 
date for the Convention in the Federal Register. Until the Convention 
enters into force for the United States, agencies and persons may 
continue to provide adoption services without accreditation or 
approval, even for adoptions involving other countries that are parties 
to the Convention, if permitted by such Convention countries.
    In summary, the steps taken prior to ratification of the Convention 
are: (1) The Department, after publication of these proposed 
regulations open to notice and comment, publishes the final 
regulations; (2) The Department identifies and retains accrediting 
entities; (3) The designated accrediting entities begin the process of 
evaluating those agencies and persons that applied by the 
``transitional application date'' (see Section C, Subpart D--
Application Procedures for Accreditation and Approval in this 
Preamble); (4) The Department will set and announce a ``deadline for 
initial accreditation and approval'' depending upon a number of 
factors, including the number of agencies and persons that apply by the 
transitional application date and the time the accrediting entities 
require to evaluate these first applicants for accreditation and 
approval; (5) The accrediting entities will send to the Department a 
list of agencies and persons that have been accredited or approved by 
the deadline for initial accreditation and approval; (6) The Department 
will deposit the instrument of ratification and identify those agencies 
and persons that are accredited or approved to provide adoption 
services for Convention adoptions. The Convention does not come into 
force for the United States until three to four months after the 
instrument of ratification is deposited.
    In addition, section 505(b)(1) and (2) of the IAA provides special 
transition

[[Page 54068]]

rules for adoption cases that are pending when the Convention enters 
into force for the United States. For immigrating children, the 
Convention and the IAA will not apply where a petition regarding 
adoption was filed with DHS before the Convention entered into force 
for the United States. For emigrating children, the Convention and the 
IAA do not apply if the prospective adoptive parent(s) have filed the 
appropriate application to initiate the adoption process in their 
country of residence before the Convention entered into force for the 
United States. The regulations elaborating on these IAA transition 
rules for Convention cases are not covered in this set of proposed 
regulations on accreditation and approval. Rather, the regulations for 
section 505(b)(1) and (2) of the IAA will be in part 97, which will 
cover intercountry adoption procedures and will be proposed in a future 
rulemaking.

IV. The Intercountry Adoption Act of 2000 (IAA)

A. Passage of the IAA

    The IAA implements the Convention in the United States. In 2000, 
Congress considered and passed the IAA during approximately the same 
time period that the Senate was considering the Convention. The 
President transmitted the Convention to the Senate for its advice and 
consent on June 11, 1998. (S. Treaty Doc. 105-51 at III (1998)). The 
treaty was read for the first time and then transferred to the Senate 
Committee on Foreign Relations. To accompany the Convention, the 
Department, with the involvement of the INS (now part of DHS) and the 
Department of Health and Human Services (HHS), had drafted and 
transmitted to both houses of Congress proposed implementing 
legislation--entitled the Intercountry Adoption Act. That legislative 
proposal was not introduced in Congress but influenced the implementing 
legislation that was eventually introduced. On March 23, 1999, Senators 
Helms and Landrieu and other co-sponsors introduced the Intercountry 
Adoption Convention Implementation Act of 1999. (S. 682, 106th Cong. 
1st Sess. (1999)). (A companion bill, identical to S. 682, was 
introduced in the House by Congressman Burr (H.R. 2342, 106th Cong. 1st 
Sess. (1999)). On September 22, 1999, Congressman Gilman, along with 36 
co-sponsors, introduced the Intercountry Adoption Act of 1999. (H.R. 
2909, 106th Cong. 1st Sess. (1999)). The Senate Foreign Relations 
Committee held hearings on October 5, 1999, and also issued a committee 
report on S. 682 (Report of the Senate Committee on Foreign Relations 
on the Intercountry Adoption Act of 2000, 106th Cong. 2nd Sess., S. 
Rep. No.106-276 (2000)). The House International Relations Committee 
held hearings on H.R. 2909 on October 29, 1999, and also issued a 
committee report. (Report of the House Committee on International 
Relations on the Intercountry Adoption Act, 106th Cong. 2nd Sess., H.R. 
Rep. No.106-691 (2000)).
    S. 682/H.R. 2342 and H.R. 2909 differed in some major provisions. 
In particular, S. 682 provided for the Department to have 
responsibility for oversight of the accreditation and approval process. 
In contrast, H.R. 2909 designated HHS as the Federal oversight agency, 
as proposed by the Administration. Ultimately, the Department was given 
the responsibility for establishing and overseeing the accreditation 
and approval process. A consensus was reached on other controversial 
issues and H.R. 2909, as amended, was passed by both the House and the 
Senate. It was signed by the President on October 6, 2000, and became 
Public Law No. 106-279.

B. Overview of Substantive Provisions

    The IAA's purposes reflect and complement those of the Convention. 
They are: To protect the rights of, and prevent abuses against, 
children, birth families, and adoptive parents involved in adoptions 
(or prospective adoptions) subject to the Convention, and to ensure 
that such an adoption is in a child's best interests; and to improve 
the ability of the Federal government to assist U.S. citizens seeking 
to adopt children from abroad and residents of other countries party to 
the Convention seeking to adopt children from the United States. To 
accomplish these goals, the IAA provisions: (1) Set forth minimum 
standards and requirements for accreditation and approval; (2) make 
substantive changes to the Immigration and Nationality Act (INA) with 
respect to Convention adoptions; (3) set requirements for completing 
individual adoptions; and (4) confer specific responsibilities on the 
Department and other government entities for carrying out the mandates 
of the Convention and the IAA.
    The IAA designates the Department as the Central Authority for the 
United States. As Central Authority, the Department has a number of 
important programmatic responsibilities, including: Acting as liaison 
with other Central Authorities; coordinating activities under the 
Convention; monitoring and facilitating individual cases involving U.S. 
citizens, where necessary; and establishing and managing a Case 
Registry of intercountry adoptions. Some important functions related to 
the Convention are also vested in the Department of Justice, DHS, and 
State courts. The Secretary of Homeland Security 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). The Department expects 
that the Attorney General will retain responsibility for enforcement of 
the criminal and civil penalties imposed by section 404 of the IAA. 
Once DHS has identified the specific bureau that will assume the 
functions delegated to the Attorney General or the INS under the IAA, 
the Department will provide that information.
    Most relevant to these regulations, the IAA confers on the 
Department the authority and responsibility for establishing and 
overseeing a system for accrediting agencies and approving persons that 
wish to provide adoption services in Convention cases. Consistent with 
the Convention's acceptance of the use of private bodies, the IAA 
authorizes the use of accredited agencies and approved persons to 
complete certain case-specific Central Authority functions, rather than 
relying exclusively on Federal or State entities. The IAA provides 
detailed requirements for accreditation and approval. Rather than 
mandating direct Federal accreditation of agencies and persons, the IAA 
authorizes the Department to designate one or more accrediting entities 
to accredit agencies and to approve persons that meet the requirements 
for such entities set forth in these regulations.
    The Convention and the IAA dramatically change the use of 
accreditation in the adoption field. Traditionally, accreditation has 
been a voluntary credentialing process used to encourage sound and 
ethical practices. Under the IAA, accreditation or approval pursuant to 
these regulations is now mandatory for agencies and persons that 
provide certain adoption services in Convention cases.
    To enforce this mandatory accreditation and approval requirement, 
the IAA establishes civil and criminal penalties. (Pub. L. 106-279, 
section 404). With limited exceptions set forth in section 201(b) of 
the IAA and in subpart C of these regulations,

[[Page 54069]]

individuals or agencies that offer or provide adoption services in 
connection with a Convention adoption without either (a) becoming 
accredited or approved in accordance with these regulations, or (b) 
acting under the supervision and responsibility of an accredited agency 
or approved person are subject to civil money penalties of $50,000 for 
the first violation and $100,000 for succeeding violations under 
section 404(a) of the IAA. Under section 404(c), the knowing or willful 
failure to become accredited or approved or to act under supervision 
and responsibility, as required, carries a penalty of imprisonment for 
not more than five years or fines of up to $250,000, or both. In 
promulgating these regulations, the Department believes that it is 
critical to alert all agencies and persons that the failure to obtain 
accreditation or approval or to act under the supervision and 
responsibility of an accredited agency or approved person could cause 
the imposition of the IAA's severe civil or criminal penalties. Subpart 
C of the regulations, which contains the rules on who must meet the 
accreditation and approval requirements and incorporates the narrow 
statutory exemptions from accreditation or approval, should be 
consulted and carefully studied for guidance.

C. Distinction Between ``Agency'' and ``Person''

    The Convention effectively differentiates between non-profit bodies 
and for-profit entities and individuals. The Convention favors the use 
of non-profit bodies, and Article 11 of the Convention requires that 
``accredited'' bodies ``pursue only non-profit objectives''--a 
requirement incorporated into these regulations by reference to non-
profit tax treatment under section 501(c)(3) of the Internal Revenue 
Code or relevant State law. Notwithstanding this preference, the 
Convention in Article 22 also permits other bodies and persons--herein 
referred to as ``for-profits''--to provide Convention adoption 
services. Persons (for-profit entities and individuals) must, however, 
meet the requirements of Article 22(2) of the Convention, which are not 
applicable to non-profit agencies. Article 22(2) requires persons to 
have the integrity, professional competence, experience, 
accountability, ethical standards, and training or experience to work 
in the field of intercountry adoption. Moreover, Article 22(4) of the 
Convention explicitly allows party states to declare that the adoption 
of their children may take place only if the functions of Central 
Authorities are performed by public authorities or accredited agencies 
(effectively, for U.S. purposes, private non-profits) and not by 
approved persons (effectively, for U.S. purposes, ``for-profits'').
    These regulations reflect the Convention distinction by utilizing 
different terms to describe non-profit agencies versus for-profit 
entities and individuals. Under these regulations, agency means a 
private, non-profit organization licensed to provide adoption services 
in at least one State. It does not include individuals or for-profit 
entities. Person means an individual or for-profit entity (including a 
corporation, company, association, firm, partnership, society, or joint 
stock company) providing adoption services--consistent with the 
definition in section 3(14) of the IAA. To be consistent with the 
Convention's requirement that only non-profit agencies be accredited, 
the IAA provides for the accreditation solely of agencies and uses a 
different term--approval--to describe the status of individuals and 
for-profit entities. (See Pub. L. 106-279, section 203). Therefore, 
under the IAA's rubric, agencies are eligible to seek accreditation 
while persons (individuals and for-profit entities) are eligible only 
to seek approval.
    The Department has made every attempt within the given statutory 
framework to ensure that persons adhere to the same requirements as 
non-profit agencies. Thus, the standards in subpart F of part 96 (with 
limited exceptions to recognize the special circumstances of private 
individuals) apply both to agencies seeking accreditation and to 
persons seeking approval. Sections 96.31 and 96.35 also contain 
provisions unique to persons seeking approval. They mainly provide 
standards tailored to the different corporate structures used by such 
persons or contain more rigorous provisions than those applicable to 
agencies in light of the additional Article 22(2) provisions on 
professional competence that apply only to persons. Also, the 
Convention allows only accredited agencies, not persons, to assume 
responsibility for preparing a home study or a child background study. 
The proposed rules, therefore, provide that, when an approved person or 
a non-accredited agency, rather than an accredited agency, completes a 
home study or child background study, it must have the home study or 
child background study approved by an accredited agency. The approval 
requirement is included so as to comply with Article 22(5) of the 
Convention which requires that home studies and child background 
studies be prepared under the responsibility of accredited agencies or 
public authorities.
    Although the IAA allows approved persons to provide adoption 
services in Convention cases, some State laws do not. These regulations 
are not intended to affect any State laws that may prohibit such 
persons--either individuals or for-profit entities--from providing 
adoption services in a particular State. If a State does not allow 
persons (whether the prohibition is against individuals or for-profits 
or both) to operate in a particular State, these regulations do not in 
any way preempt such State law. The Department welcomes comments on the 
interplay between State law and the IAA provision for approval of 
persons. The Department's goal is to follow the IAA and allow persons 
to be approved without preempting State laws that may prohibit 
individuals or for-profit entities from providing adoption services in 
a particular State.
    Persons seeking approval should note that these regulations require 
them to be licensed or otherwise authorized to provide adoption 
services in at least one State. If in the future all States were to 
prohibit for-profit entities from providing adoption services, then no 
for-profits could become approved under these regulations. Similarly, 
if in the future all States prohibited individuals from providing 
adoption services, then no individuals could become approved under 
these regulations.
    According to Article 22(4) of the Convention, Convention countries 
may declare that adoptions of children habitually resident in their 
territory may take place only if the functions of the Central Authority 
in the receiving country are performed by public authorities or by non-
profit accredited bodies. Thus, individual Convention countries may 
refuse altogether to work with approved persons and may be willing to 
work only with accredited agencies.

D. Federalism Issues

    The Convention and the IAA for the first time require Federal 
regulation of agencies and persons for purposes of intercountry 
adoptions. Historically, State law alone regulated agencies and 
persons. The IAA contains a specific provision disfavoring preemption 
of State law unless State law provisions are inconsistent with the 
Convention or the IAA. (Pub. L. 106-279, section 503(a)). The 
Department throughout the regulations has been careful to defer to 
State law, especially in the case of U.S. emigrating children whose 
adoptions will continue to be covered mainly by

[[Page 54070]]

State law, even when not explicitly required by the IAA. In particular, 
the regulations require agencies and persons to comply with any 
applicable licensing and other laws and regulations in the States in 
which they operate, and do not supplant existing State licensing and 
other laws and regulations. For example, when a State requirement 
exceeds a standard in subpart F of part 96, the agency or person must 
also comply with the State requirement as necessary to ensure that it 
maintains its State license. Similarly, when the IAA standard for 
accreditation or approval is more stringent than a State requirement, 
the agency or person must meet the IAA standard as well as the State 
standard. Also, the regulations utilize State law definitions whenever 
possible. For example, the regulations defer to State law to define 
``best interests of the child'' instead of developing a Federal 
definition that would replace existing State law definitions. Finally, 
a number of the standards, such as those relating to internet use, 
expressly require observance of State as well as Federal law.
    The impact of the Convention and the IAA is clearest in cases of 
U.S. children emigrating from the United States to a Convention country 
in connection with their adoption. Previously, State law alone governed 
cases of children emigrating for adoption, whereas there has been 
Federal involvement (through the immigration laws) in incoming cases. 
Now adoptions involving emigration to Convention countries must comply 
with the procedures and safeguards of the Convention (such as those of 
Convention Articles 4 and 17) and the IAA, which include requirements 
that may not currently exist in State law. Under these regulations, the 
burden of making the majority of the Convention and the IAA 
determinations for emigrating children is unavoidably placed on State 
courts. The Department assumes that these determinations generally will 
be made in the context of adoption or placement proceedings that would 
occur in any event, and that the States may charge fees to cover the 
costs of these services. Nevertheless, the Department is sensitive 
about imposing additional burdens on States; therefore, the regulations 
do not call for State court action other than as strictly required to 
permit an adoption under the Convention or the IAA. States that do not 
wish to undertake even those minimal requirements may refrain from 
permitting Convention adoptions or placements in their jurisdictions.
    Also, throughout the preliminary input phase, State agencies were 
asked to submit comments on the draft regulations and such input was 
used in the drafting of the proposed regulations. The Department 
welcomes comments from State and local agencies and tribal governments 
on the proposed regulations and in particular seeks comment on the 
standards covering cases in which a child is emigrating from the United 
States in Sec. Sec.  96.53, 96.54, and 96.55 of subpart F.

E. Economic Impact/Effect on Small Entities

    One of the most challenging issues facing the Department was how 
comprehensive and stringent these standards should be, bearing in mind 
the desirability of minimizing the cost and burden on agencies and 
persons, especially on small entities. The Department throughout the 
development of the proposed regulations considered the economic burden 
of this completely new Federal level of regulation. Some groups called 
for extensive Federal regulation of agencies and persons without 
acknowledging the added costs such standards would entail. The 
Department has sought to strike a balance--using the IAA statutory 
standards as guidance--between the need to avoid costly over-regulation 
of what traditionally has been an area regulated almost exclusively by 
State law and the need to have comprehensive standards designed to 
ensure that Convention and IAA requirements are met and to improve the 
quality of services provided to birth families, adoptive families, and 
children. The Department believes that the overall economic impact of 
the proposed regulations has been minimized using this approach; 
therefore, there is not sufficient impact to warrant preparation of a 
regulatory impact analysis (RIA) under Executive Order 12866 or other 
similar mandates. In particular, the Department has analyzed the 
proposed regulations and concluded that they will not have an annual 
effect on the economy of $100 million or more or adversely affect in 
any material way the economy, jobs, productivity, the environment, 
public safety, or health.
    The Department arrived at this conclusion based on the information 
provided from adoption service providers, accrediting entities, and 
others in the adoption community during the preliminary consultation 
process. The Department also relied on its statistics regarding the 
number of intercountry adoptions per year and the number of 
intercountry adoptions per year with other Convention countries. The 
Department used the data on the number of intercountry adoptions for FY 
2002, FY2001, and FY 2000. Using the information on the range of costs 
of providing adoption services gathered during the consultative process 
and the Department's data on the number of intercountry adoptions per 
year, the Department was able to make some estimates about the current 
economic status of the non-profit, adoption service provider sector of 
the economy.
    For FY October 2001 to September 2002, U.S. citizens adopted 21,378 
children from other countries. For FY October 2000 to September 2001, 
U.S. citizens adopted 19,224 children from other counties. For FY 
October 1999 to September 2000, U.S. citizens adopted 18,477 children 
from other countries. Thus, using this historical data, the Department 
assumed that the typical number of intercountry adoptions per year is 
20,000. The cost for intercountry adoption and related services to 
parents may range from $20,000 to $30,000 per case. Assuming 20,000 
intercountry adoption cases per year, the Department estimates that the 
total expenditures for adoption services and related costs and the 
total annual gross revenues for non-profit adoption service providers 
could range from between $400 to $600 million per year (an estimate 
that includes the costs of travel and accommodations as well as charges 
imposed by the sending countries on the adoptive parents). The total 
costs of providing adoption services could vary from year to year 
depending upon the number of intercountry adoptions as well as other 
factors. However, even if the Department uses adoption services cost 
estimates that include travel and local services, the current total 
size for the non-profit sector to be regulated is small--that is, 
between $400 to $600 million.
    Additionally, in intercountry adoption cases, a significant portion 
of the reported costs of providing services in a particular adoption 
case may include the costs of travel and accommodations for the parents 
and child during the adoption process as well as local costs imposed by 
the sending country. These costs are incurred directly by the adoptive 
parents or are charged by the adoption service provider as fees and 
passed on to the public or other entities in the sending country. The 
cost of providing intercountry adoption services, excluding the cost of 
travel and accommodations and the costs of local services, varies 
widely depending on the provider as well as the country of origin for 
the child. The travel and local services costs are unlikely to be 
affected by the implementation of this proposed

[[Page 54071]]

rule. The Department estimates that the cost of providing intercountry 
adoption services, excluding travel and local services costs, may be 
from 25% to 80% lower than the estimated range of $20,000 to $30,000 
per adoption case. If it is assumed that the costs would be 25% less 
than the estimated range, then the costs of providing adoption services 
may range from between $15,000 to $22,500 per adoption case. If it is 
assumed that the costs would be 80% less than the estimated range, then 
the costs of providing adoption services may range from $4,000 to 
$6,000 per adoption case. It is this segment of adoption services costs 
(which excludes travel and local in-country services costs) that is 
most likely to be affected by the proposed rule. Thus, the total size 
of the non-profit sector to be regulated, rather than ranging from $400 
to $600 million, may be viewed as ranging from $80 million to $450 
million.
    At least initially, the number of agencies and persons affected by 
the proposed rule is likely to be small because the current number of 
cases subject to the Convention is small. Currently, most intercountry 
adoptions to the United States are from non-Convention countries. For 
example, for FY 2002, the number of cases with Convention countries was 
1,433; for FY 2001, the number of cases with Convention countries was 
1,680; for FY 2000, the number of cases with Convention countries was 
2,025. (The number of intercountry adoption cases from Convention 
countries to the United States to date has changed from year to year 
for a variety of reasons, including because new countries ratify or 
accede to the Convention, or sometimes a Convention country declares a 
moratorium on intercountry adoptions.) In future years, any increase in 
the cost of the rule may be incremental, as new countries join the 
Convention and agencies and persons that assist with adoptions in those 
countries are required to come into compliance.
    Using the data on the number of adoptions from Convention 
countries, the Department notes as follows: For FY 2002, the percentage 
of Convention cases out of a total of 21,378 was 6.7%; for FY 2001, the 
percentage of Convention cases out of a total of 19,224 was 8.7%; for 
FY 2000, the percentage of Convention cases out of a total of 18,477 
was 11.0%. It is only those agencies and persons who will be providing 
adoption services in cases where the other country is a party to the 
Convention that will have to comply immediately with the requirement to 
become accredited or approved. Therefore, intercountry adoptions with 
countries party to the Convention account for adoption services costs 
in the range of $28.6 million to $43.0 million when estimated travel/
accommodations and local services costs are included in the cost of 
providing adoption services in a case. Similarly, intercountry 
adoptions with countries party to the Convention account for adoption 
services revenues in the range of $5.7 million to $32.3 million when 
estimated travel/accommodations and local services costs are excluded. 
Under this analysis, the Department's estimates show that the total 
costs for adoption services provided (which could range from $5.7 
million to $43.0 million) in the number of cases immediately subject to 
the proposed rule is very likely to be less than the $100 million 
Executive Order 12866 threshold.
    Furthermore, the Department expects the total cost burden of the 
rule to be substantially less than the current total estimated cost of 
providing adoption services regardless of which analysis is used to 
calculate the total yearly costs associated with providing adoption 
services. During the consultation process thus far, the Department has 
not received any information that would indicate that the cost to the 
adoption community of compliance with the proposed regulations would be 
near the current cost of providing adoption services. Rather, all 
indications are that the cost to comply will be a fraction increase in 
the current cost of providing adoption services. Therefore, the 
Department considers the total cost of adoptions to be a reasonable 
upper limit on the possible cost of the proposed rule. The Department, 
however, requests comments on its cost estimates and in particular 
requests that commenters address the following questions: (1) How many 
agencies are likely to seek full accreditation in accordance with 
subpart F rather than temporary accreditation under subpart N? (2) What 
are accrediting entities likely to charge the agencies and persons for 
the accreditation and approval process? (3) Is the estimated cost of 
providing adoption services(estimated to range from $20,000 to $30,000) 
in a particular case a current reasonable estimate? (4) What proportion 
of the costs of rendering adoption services are pass-through costs 
forwarded to foreign entities providing local services in the sending 
country? (5) What proportion of the costs for adoption services in a 
particular case is for the costs of travel and accommodations? (6) How 
many persons (for-profits and individuals) plan to seek approval? (7) 
What are the estimated costs agencies and persons will have to expend 
to comply with the standards in subpart F? Specifically, commenters 
should provide information on the costs of obtaining insurance coverage 
as required by the standards in Sec.  96.45 and Sec.  96.46; the costs 
of retaining personnel that meet the professional and educational 
requirements in Sec.  96.37; and the costs of providing the mandatory 
training to prospective adoptive parent(s) in Sec.  96.48. Comments or 
concerns about the cost impact of any other standard in subpart F or 
subpart N are welcome. It would be helpful if commenters supply 
information and data to support any comments on these enumerated 
issues.
    The Department also considered the potential impact of these 
regulations on small entities, as required by the Regulatory 
Flexibility Act and Executive Order 13272. The Department has sought to 
ensure that the standards do not unnecessarily or adversely affect the 
currently sound practices of small agencies and persons, especially 
since almost all of the agencies and persons covered would meet a Small 
Business Administration (SBA) definition of a small entity for this 
type of non-profit service provider. Concerns about minimizing any 
increases in the cost of intercountry adoption and any unnecessary 
adverse impact of these regulations on small entities were of utmost 
importance in the Department's decision-making process, and great care 
was taken to address these concerns while still seeking to ensure 
compliance with the Convention and the IAA mandate for comprehensive 
regulation of adoption service providers. To minimize the impact on 
small entities, the Department developed regulations that are 
performance-based accreditation standards (see subpart F) as opposed to 
design-oriented, licensing criteria. Consistent with the IAA, the 
regulations also provide a special tiering set-up and a different 
implementation timetable for small agencies by allowing for a temporary 
accreditation process (see subpart N). Also, again consistent with the 
IAA, the regulations contain exemptions for small providers, such as 
home study preparers, and permit agencies and persons to act as 
supervised providers rather than requiring them to complete the full 
accreditation or approval process (see subpart C).
    The Department is cognizant that the cost of providing adoption 
services is closely related to the level and type of regulation. The 
Department is aware that ultimately the costs of accreditation and 
approval will be passed on to

[[Page 54072]]

adoptive parents and may increase the cost of providing services in 
each individual adoption. Moreover, the Department also weighed the 
difficulties for families of absorbing additional costs for adoption 
services against the requests, often from adoptive families, for better 
services and more public information about agencies and persons, so 
that families could compare providers before selecting an adoption 
service provider. The Department also took into consideration the 
relevant assistance available to families, such as the Federal adoption 
tax credit, to offset increased costs of services. Therefore, the 
Department sought at all times to strike the appropriate balance among 
competing objectives. The Department understands, however, that 
revision of these standards may be necessary after further public 
comment and particularly welcomes comment on the effect of these 
regulations on both non-profit and for-profit small entities. The 
Department requests that agencies or persons who submit such proposals 
provide information on their size, non-profit or for-profit status, and 
identify what specific standards should be added, modified, or deleted, 
and include justifications for any such suggestions.

F. The IAA Exemptions to the Paperwork Reduction Act

    Pursuant to 44 U.S.C. 3506(c), 3507, and 3512, which were enacted 
by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, 
agencies normally are required to submit to OMB for review and approval 
new ``collections of information,'' including any collections of 
information inherent in a final rule. Information collections under the 
PRA are defined, in 44 U.S.C. 3502(3), to include ``obtaining, causing 
to be obtained, soliciting, or requiring the disclosure to third 
parties or the public, of facts or opinions by or for an agency, 
regardless of form or format, calling for * * * answers to identical 
questions posed to, or identical reporting or recordkeeping 
requirements imposed on, ten or more persons.'' OMB has interpreted 
this definition to include information collections regardless of 
whether they are ``mandatory, voluntary, or required to obtain or 
retain a benefit.'' (5 CFR 1320.3(c)).
    Section 503(c) of the IAA specifically exempts sections 104, 
202(b)(4), and 303(d) of the IAA from these PRA requirements. (Pub. L. 
106-279, section 503(c)). Given these statutory exemptions to the PRA, 
the Department has determined that the collections of information in 
this proposed rule are exempt from PRA requirements, with the exception 
of the collections in Sec. Sec.  96.91 and 96.92 of subpart M, which 
are discussed in the PRA analysis in the Regulatory Review portion of 
the Preamble (Part VI, Section G).
    The implications of the PRA exemptions in section 503(c) of the IAA 
are that, with respect to the exempted information collections, the 
Department is not required to follow the procedures established by 44 
U.S.C. 3506(c) for reviewing information collections, allowing public 
comment on them, and then certifying that they meet the requirements 
set forth in that section. In addition, the exemption from 44 U.S.C. 
3507 means that the Department may sponsor the exempted collections of 
information without complying with 44 U.S.C. 3506, and that the 
Department is not required to obtain a control number from OMB 
indicating its approval of the collections. Nor are the exempted 
information collections subject to the three-year validity period 
limitation imposed by 44 U.S.C. 3507(g), after which covered 
information collections must be revalidated. Finally, the exemption 
from 44 U.S.C 3512 means that the Department may require compliance 
with the exempted information collections, and may impose penalties for 
failing to comply, even though the collections will not display an OMB 
control number. Consistent with the IAA's accreditation and approval 
scheme, the consequences of failing to provide or retain information, 
or of otherwise failing to comply with the requirements of an exempted 
information collection, will be felt through the accreditation and 
approval process itself (including, when appropriate, through denial of 
accreditation or approval or the imposition of adverse actions which 
can result in loss of accreditation or approval).
    The IAA exemptions from the PRA were sought by the Department 
because of concerns that application of the normal PRA requirements 
would have been largely inconsistent or incompatible with the 
accreditation/approval and oversight framework established by the IAA. 
First, the IAA mandates a number of reporting requirements, some of 
which are driven by the need to ensure U.S. compliance with the 
Convention. Without an exemption, the PRA and its three-year limitation 
on collections of information would have interposed a periodic 
justification process that would have been unnecessary in view of the 
IAA's permanent and very specific statutory reporting requirements and 
that could have impeded collection of information necessary to meet our 
Convention obligations.
    Second, the IAA leaves much of the responsibility for accreditation 
and approval to the private sector and adopts a private sector model 
for accreditation/approval that is fundamentally inconsistent with the 
information collection controls imposed by the PRA. An accreditation 
process by its nature requires the preparation and presentation of 
documentation to an accrediting entity to demonstrate qualifications. 
This process alone typically takes a year or more in existing 
accreditation contexts. Monitoring by an accrediting entity once 
accreditation or approval is granted, to determine whether 
accreditation or approval can be maintained, similarly requires the 
retention and sometimes the preparation of records for inspection by an 
accrediting entity. Consistent with an accreditation model, and with 
the decision to rely heavily on the private sector to implement the 
Convention in the United States, the IAA requires adoption services 
providers to be accredited or approved by a private, non-profit 
accrediting entity (or if so designated as an accrediting entity, by a 
State public body). The IAA, however, also ensures appropriate Federal 
oversight and compliance with the Convention by requiring any 
accrediting entity to act pursuant to regulations, including 
accreditation/approval standards, promulgated by the Department. As in 
other accreditation contexts, the IAA clearly contemplates an extended 
start-up period in which providers demonstrate to any one of the 
designated accrediting entities that they meet the standards for 
accreditation/approval. The IAA also specifically provides that the 
accreditation/approval period will be three-to five-years, and that 
there will be continuous monitoring of accredited agencies and approved 
persons by an accrediting entity in light of the standards during their 
period of accreditation or approval.
    Imposition of the PRA requirements on this process could have 
burdened it to the point where it could not function. It would be 
difficult to adapt the PRA process in a meaningful way to the IAA's 
accreditation/approval process, which fundamentally involves the 
ongoing measurement of performance against standards through document 
review. The PRA's provision for the expiration of collections of 
information after three years, unless reviewed and renewed, would also 
have directly interfered with the need for settled procedures and 
standards that both the accrediting entities and the providers could be 
sure would remain in effect

[[Page 54073]]

during both the period of application and any selected period of 
accreditation or approval. (Under the IAA, the Secretary may select an 
accreditation/approval period of three, four, or five years.)
    The IAA exemptions from the requirements of the PRA must be 
understood in this context. The Department understands that the 
exemptions were intended to be construed broadly to facilitate 
implementation of an accreditation/approval process as envisioned by 
the IAA. At the same time, however, the IAA expressly requires that 
these regulations, including the standards for accreditation and 
approval, be published for notice and comment under the Administrative 
Procedure Act (APA). Thus, the IAA ensures public participation in the 
creation of all elements of these regulations, including those that 
could have effects of the kind normally addressed through PRA review.
    As noted, the three provisions of the IAA exempt from the PRA 
provisions discussed above are sections 104, 202(b)(4), and 303(d). The 
following explains how these exemptions relate to the proposed 
regulations, to the extent that they include ``information 
collections'' under the PRA:
    Section 104 of the IAA. Section 104 of the IAA requires the 
Department to make annual reports on intercountry adoptions to several 
congressional committees. The IAA lists the information and data that 
must be collected and conveyed annually to Congress. To ensure the 
availability of this information to the Secretary, the proposed 
regulations include standards addressing the information accredited 
agencies and approved persons must be prepared to provide to their 
accrediting entity and the information the accrediting entity must in 
turn provide to the Secretary. Within subpart F, Sec.  96.43 of the 
regulations requires the agencies and persons to provide to the 
accrediting entity the information listed in section 104 of the IAA. 
Section 96.93 of subpart M of these regulations similarly mirrors the 
statutory requirements and mandates that the accrediting entity obtain 
the information from the agencies and persons.
    Section 202(b)(4) of the IAA. Section 202(b)(4) of the IAA provides 
that the accrediting entity's responsibilities shall include 
``[c]ollection of data, maintenance of records, and reporting to the 
Secretary, the United States central authority, State courts, and other 
entities (including on persons and agencies granted or denied approval 
or accreditation), to the extent and in the manner that the Secretary 
requires'' (emphasis added). The Department understands the concept of 
``collection of data'' by the accrediting entity ``to the extent and in 
the manner that the Secretary requires'' to encompass the Secretary's 
decisions regarding what data must be provided by the adoption service 
providers to the accrediting entities and what data may be collected by 
the accrediting entities in the course of performing any of their 
duties under the IAA, including deciding whether an adoption service 
provider can be accredited or approved, conducting oversight 
activities, and taking enforcement actions. (Pub. L. 106-279, section 
202(b)(1)-(3)). The Department, as the lead agency responsible for 
interpreting the IAA and the IAA's exemptions to the PRA, believes that 
the IAA's expansive discretionary language (that is, information may be 
collected ``to the extent and manner required by the Secretary'') 
demonstrates that Congress intended the scope of this exemption to the 
PRA to be broad.
    Thus, as developed in these regulations, the exemption covers 
determining the provider's compliance with the standards for 
accreditation/approval in subpart F (or, in the case of temporarily 
accredited agencies, in subpart N). It also covers obtaining 
information from adoption service providers as they apply for 
accreditation or approval and in the course of monitoring their 
performance under the standards. The exemption in section 202(b)(4) of 
the IAA also extends to information the accrediting entity is required 
to provide to the Secretary, any entity acting on behalf of the 
Secretary (including the Complaint Registry, to the extent that it will 
assist the Secretary in addition to the accrediting entities), and to 
law enforcement officials and State courts. The exemption thus extends 
to the portions of these regulations that require such disclosures or 
that otherwise are intended to ensure that the Department is able to 
perform its oversight responsibilities under the IAA. As a result of 
this exemption, the Department has determined that all of the 
information collections established by these regulations that are not 
covered by the exemption of IAA sections 104 (discussed above) and 
303(d) (discussed below) are covered by the exemption in section 
202(b)(4) of the IAA, with the exception of certain collections 
required under subpart M, as discussed below.
    Section 303(d) of the IAA. Section 102(e) of the IAA requires the 
Secretary and the Attorney General to establish a case registry of all 
incoming and outgoing intercountry adoption cases, regardless of 
whether they occur under the Convention. In furtherance of this 
requirement, section 303(d) of the IAA requires that all agencies and 
persons providing adoption services in connection with an ``outgoing'' 
intercountry adoption not subject to the Convention file certain 
information with the Case Registry as required by the Secretary and the 
Attorney General through joint regulations. (The Department expects 
these functions of the Attorney General to be assumed by the Secretary 
of Homeland Security.) The standards for accreditation/approval in 
these proposed regulations include standards in subpart F at Sec.  
96.43 and, for supervised providers, at Sec. Sec.  96.45(b)(11) and 
96.46(b)(11), relating to compliance with the joint regulations 
contemplated by section 303(d). (The joint regulations have not yet 
been proposed.) Because IAA section 503(c) exempts section 303(d) from 
the PRA requirements, these proposed standards, which are designed to 
promote observance of the requirement of section 303(d), are exempt.

V. The Proposed Implementing Regulations on Accreditation and Approval

A. Public Input on the Proposed Regulations

    In the IAA itself, Congress explicitly required the Department, 
when developing these regulations, to consider the views of the 
adoption community. Specifically, the IAA provides:

    [T]he Secretary shall consider any standards or procedures 
developed or proposed by, and the views of, individuals and entities 
with interest and expertise in international adoptions and family 
social services, including public and private entities with 
experience in licensing and accrediting adoption agencies. (Pub. L. 
106-279, section 203(a)(2)).

    The Department took this mandate very seriously and considered the 
views of the adoption community before drafting this proposed 
regulation. While a number of changes to current practice will be 
necessary and desirable to come into compliance with the Convention and 
the IAA, the Department looked to the adoption community for ideas as 
to how it should implement its responsibilities. In particular, to 
comply with the section 203(a)(2) mandate in the IAA, the Department 
issued a Scope of Work to identify a consulting firm with expertise in 
accreditation and intercountry adoption. After considering proposals 
from interested consultants, the Department retained the private firm 
of Acton Burnell, which undertook

[[Page 54074]]

consultations with the public and formulated suggestions for the 
proposed accreditation regulations in the form of an initial draft. 
Acton Burnell undertook extensive research and consultation that 
included review of current, private accreditation standards, analysis 
of applicable State regulations, and solicitation of input from members 
of the adoption community, including adoption service providers, 
professional membership organizations, advocacy groups, coalition 
groups, birth parents, adoptive parents, adoptees, legal, medical, and 
social work professionals, Federal and State public bodies, and 
standard-setting and regulatory professionals.
    The Department requested that Acton Burnell establish a multi-
disciplinary team of experts in accreditation and intercountry adoption 
and use an open process designed to ensure that all segments of the 
adoption community had a full opportunity to provide input at public 
meetings and to articulate their opinions and concerns. In response, 
Acton Burnell set up an interactive Web site to keep the public 
informed about the project. It also created and disseminated two 
surveys in conjunction with the public meetings--one for agencies and 
persons and one for prospective adoptive parents, adoptive parents, 
birth parents, and adoptees. Acton Burnell then announced and convened 
a public meeting on April 2, 2001, to gather input for the regulations. 
Any person was permitted to send in statements or other material prior 
to the first meeting, and copies of such statements were made available 
to attendees. Additionally, all interested persons were welcome to 
attend and had the opportunity to address the Acton Burnell team and 
other attendees. Acton Burnell received considerable public input, 
including actual proposed standards from various coalition groups as 
well as statements from adoption research organizations and input from 
other advocacy groups. It considered the input from all of these 
sources and used it to produce draft proposed regulations that were 
made available to the public on a Web site at http://www.hagueregs.org.
    After publishing an initial draft of the regulations, Acton Burnell 
convened a second set of public meetings on June 18 and 19, 2001, and 
invited all interested persons to submit written statements. Department 
personnel attended these meetings. Submitted statements were circulated 
amongst the attendees and those that had been provided in electronic 
form were posted on the Web site. After considering all of the input 
provided, including, but not limited to, the information from the 
surveys, the content from written statements sent, and the oral 
statements given at the public meetings, Acton Burnell produced another 
draft of the regulations which it submitted to the Department on July 
31, 2001. The Acton Burnell team then engaged in extensive 
consultations with the Department and produced further revised 
recommended draft regulations. The Department permitted the revised 
draft regulations to be posted on the Web site in October and December 
of 2001. The revised draft regulations were posted on the Web site for 
informational purposes, but not for additional public comment. The 
multiple draft regulations produced by Acton Burnell and posted on its 
Web site were not subject to the notice and comment provisions of the 
APA, 5 U.S.C. 553, because it was understood that the Department would 
use the Acton Burnell product to formulate its own version of the 
proposed regulations, which would be subject to APA notice and comment.

B. The Department's Preparation of the Proposed Regulations

    The Department has considered all of the public input and the 
substantive recommendations and proposed draft regulations published by 
Acton Burnell and submitted to the Department for review. The 
Department also relied heavily upon the standards for accreditation and 
approval listed in section 203(b) of the IAA to determine what 
performance and organizational standards to include in the regulations. 
It also looked to the legislative history of the IAA, as appropriate, 
and consulted with interested congressional staff. Most important, the 
Department looked to the guiding principles provided by the Convention. 
Where the Convention delineates certain tasks that must be completed 
for an adoption to proceed, the regulations set a standard governing 
how accredited agencies and approved persons must complete those tasks.
    The Department also tried to ensure that the regulations fully 
reflect the Federal government's obligations under the Convention and 
the IAA. Further, the Department crafted the regulations to facilitate 
practical implementation. The Department also sought to ensure that the 
regulations protected birth parents, adoptive parents, and children 
involved in a Convention adoption. In particular, the regulations 
address certain undesirable and problematic practices that the 
Department has observed through its current work with intercountry 
adoptions.
    Also, when considering the regulations applicable to accrediting 
entities, the Department kept in mind the need to find competent and 
willing accrediting entities. The Department did not want to create 
inflexible regulations that would discourage any accrediting entity 
from seeking to be designated. Therefore, the Department examined the 
current practices of accrediting entities and attempted to create 
uniform procedures without completely modifying current practice. As a 
variety of organizations, including State entities, may seek 
designation, the regulations are intended to be as flexible as feasible 
to encourage many entities to seek designation. The Department would 
prefer to have a number of accrediting entities, in order to expedite 
the initial accreditation and approval phase, to avoid a bottleneck of 
applicants, and to ensure geographical diversity and competition with 
respect to fees and services.
    The Department recognizes that by proposing to regulate accrediting 
entities, in addition to entering into the anticipated Agreements 
between the Department and the accrediting entities, the Department is 
binding potential accrediting entities to certain practices in advance 
of their designation. Potential accrediting entities should be aware 
that they will be bound by the final regulations and that the 
Department's flexibility in negotiating Agreements will be limited by 
the final regulations. The Department is mindful that these procedures 
may be different from the practices that prospective accrediting 
entities use in other, non-Convention contexts. The Department welcomes 
public comment on the substance and level of the regulation of 
accrediting entities and the tasks expected of them, especially from 
any potential private accrediting entities or State entities that are 
considering becoming designated accrediting entities.
    Finally, the Department considered the views of all members of the 
adoption community. The Department recognizes that there are many areas 
of consensus within the adoption community as well as a number of 
critical issues on which some elements of the community remain divided. 
The regulations had to draw a number of difficult compromises that are 
likely to evoke comment or dissent from one or more segments of the 
adoption community. While preparing the proposed regulations, the 
Department has tried to balance all the input received and also craft 
proposed regulations that are consistent with the Convention and the 
IAA. Also, the

[[Page 54075]]

Department had to adapt the work product of Acton Burnell into a 
Federal regulatory format and to address a number of issues that had 
not been raised or addressed during the preliminary public input phase. 
These regulations are now published for notice and comment under the 
APA, 5 U.S.C. 553, as required by the IAA.

C. Overview of the Proposed Regulations

    These regulations contain the following sections: Subpart A 
contains the definitions governing the use of defined terms throughout 
these regulations. Subpart B sets forth the process by which the 
Department will designate one or more accrediting entities to perform 
the accreditation and approval functions and describes the authority 
and responsibilities of accrediting entities. Subpart C articulates the 
accreditation and approval requirements of the IAA by describing which 
entities are covered by the IAA's requirements, delineating the 
exceptions to those requirements, and addressing the responsibilities 
of public bodies that provide adoption services in Convention cases. 
Subparts D and E describe the process for seeking and being evaluated 
for accreditation or approval. Subpart F sets forth in detail the 
standards for accreditation and approval, including the parameters and 
requirements for working with entities or individuals in the United 
States or in other Convention countries that are not accredited or 
approved but will act under the supervision and responsibility of an 
agency or person accredited or approved in the United States. Subparts 
G and H address notification of accreditation and approval decisions 
and the process for renewing accreditation or approval. Subparts I, J, 
K, and L cover monitoring of and complaints against accredited agencies 
and approved persons, adverse actions against accredited agencies or 
approved persons by the accrediting entity, and suspension, 
cancellation, or debarment of accredited agencies or approved persons 
by the Secretary. Subpart M addresses how and under what circumstances 
the accrediting entities will disseminate and report information about 
accredited agencies and approved persons to the public and to the 
Secretary. Finally, subpart N sets forth the procedures and standards 
for temporary accreditation.
1. Subpart A--General Provisions
    Subpart A contains the definitions for part 96. Most of the 
definitions are taken directly from the IAA. If a specific definition 
substantially affects a particular provision in the proposed 
regulation, the definition typically is addressed below in the context 
of discussion of that provision. The IAA definition of Convention 
adoption, however, has ramifications throughout the regulations, and 
thus is addressed in this introductory section.
    The definition for Convention adoption was difficult to draft 
because the Convention and the IAA contain differently worded rules for 
when the Convention will apply to a particular intercountry adoption. 
Article 2 of the Convention, provides: ``the Convention shall apply 
where a child habitually resident in one Contracting State (`the State 
of origin') has been, is being, or is to be moved to another 
Contracting State (`the receiving State') either after his or her 
adoption in the State of origin by spouses or a person habitually 
resident in the receiving State, or for the purposes of such an 
adoption in the receiving State or in the State of origin.'' (S. Treaty 
Doc. 105-51, Art. 2). Under the IAA, however, a Convention adoption is 
defined as an adoption of a child resident in a foreign country party 
to the Convention by a U.S. citizen, or an adoption of a child resident 
in the United States by an individual residing in another Convention 
country. (Pub. L. 106-279, 3(10)).
    The regulations attempt to clarify the IAA definition of Convention 
adoption and to harmonize the Convention and the IAA definitions. The 
IAA definition of Convention adoption, taken literally, would include 
every adoption in a Convention country by a U.S. citizen. For example, 
the definition would include children outside the United States adopted 
in accordance with a country's adoption procedures by a U.S. citizen 
parent who did not intend to move the child back to the United States. 
In such situations, the country of origin usually does not treat the 
adoption as an intercountry adoption covered by the Convention and thus 
requiring the use of accredited agencies or approved persons. The 
Department does not believe that the intent of the IAA or the 
Convention was to treat all adoptions of children in a Convention 
country by a U.S. citizen parent as intercountry adoptions covered by 
the Convention. Therefore, the definition of Convention adoption in 
Sec.  96.2 construes the IAA definition of Convention adoption by 
specifying the requirement that the child, in connection with his or 
her adoption, must have moved, or there must be an intent to move the 
child, from one Convention country to another Convention country. This 
interpretation of the IAA definition of Convention adoption is intended 
to make clear that adoptions by a U.S. citizen residing abroad, even in 
a country party to the Convention, are not always automatically 
intercountry adoptions covered by the Convention where the adopting 
parent is a U.S. citizen. The Department welcomes comment on the 
definition of Convention adoption, especially from those organizations 
or agencies and persons who assist U.S. citizens residing abroad with 
adoptions and from prospective and adoptive parents living abroad as 
well.
2. Subpart B--Selection, Designation, and Duties of Accrediting 
Entities
    Subpart B addresses the Department's designation of accrediting 
entities. The Department will designate one or more private, non-profit 
organizations or State-based authorities to act as accrediting entities 
and enter into agreements with them for this purpose. Such entities 
will have responsibility for: Evaluating the eligibility of agencies 
and persons for accreditation or approval and granting or denying 
accreditation or approval; determining whether to renew accreditation 
or approval; monitoring and addressing complaints against accredited 
agencies and approved persons; taking adverse action against accredited 
agencies and approved persons; and disseminating and reporting 
information about accredited agencies and approved persons. Subpart B 
sets forth the eligibility criteria for designation as an accrediting 
entity, additional requirements for designation, the authorities and 
responsibilities of accrediting entities, the general content of the 
Agreement, and what actions the Department may take against an 
accrediting entity that fails to fulfill its responsibilities as set 
forth in these regulations or the Agreement.
    Subpart B also sets forth the procedures and requirements 
accrediting entities must follow when setting a fee schedule. 
Accrediting entities may only charge fees on a cost-recovery basis, and 
the Department must approve the fee schedule. Additionally, an 
accrediting entity must make such fee schedules available to the public 
upon request and specify the fees to be charged to an applicant in a 
contract between the accrediting entity and the applicant.
    Several aspects of the proposed regulations relating to fees 
deserve particular note. First, the Secretary may require a portion of 
the fee to cover the Complaint Registry. Second, applicants will pay a 
single fee that will cover both the pre- and post-accreditation/
approval work of any accrediting entity. The fee will be non-refundable 
even if an application is denied.

[[Page 54076]]

    The Department seeks comments from all parties, especially from 
potential accrediting entities, on the regulations governing the 
accreditation and approval process. In particular, potential 
accrediting entities should comment on the practical issues these 
regulations may present for them if they seek to become designated as 
accrediting entities.
3. Subpart C--Accreditation and Approval Requirements for the Provision 
of Adoption Services
    (a) Authorized Providers. Subpart C explains what agencies and 
persons are subject to the IAA's accreditation and approval 
requirements and under what conditions they may provide adoption 
services in Convention cases. Section 201 of the IAA mandates that, 
once the Convention enters into force for the United States, no agency 
or person may offer or provide ``adoption services,'' as defined Sec.  
96.2(e), in connection with a Convention adoption in the United States 
unless that agency or person is accredited or temporarily accredited or 
approved pursuant to these regulations. If the agency or person is not 
accredited, temporarily accredited, or approved, it must (1) be 
providing adoption services under the supervision and responsibility of 
an accredited agency, temporarily accredited agency, or approved person 
(``a supervised provider''); (2) be performing an activity that is 
exempted from the accreditation or approval requirements; or (3) or be 
operating as a public body.
    The requirement to be accredited, temporarily accredited, or 
approved applies regardless of the number of adoption cases for which 
the agency or person is offering or providing ``adoption services.'' 
The provision of an adoption service in one Convention adoption case is 
sufficient to trigger this requirement. Conversely, if an agency or 
person does not provide ``adoption services'' in any cases subject to 
the Convention, this requirement does not apply. If an agency or person 
is providing adoption services in bothConvention and non-Convention 
cases, the requirement applies.
    It is critical to note that the requirements pertaining to 
accreditation and approval are triggered when an agency or person 
offers or provides any single one of the six services listed in the 
definition of ``adoption services.'' (Pub. L. 106-279, section 3(3)). 
The IAA's definition, which is adopted by these regulations, lists six 
core, but limited functions, that it calls ``adoption services.'' (Pub. 
L. 106-279, section 3(3)). Services that are not listed in the 
definition given in Sec.  96.2(e) of these regulations are not 
considered ``adoption services'' for the purpose of the IAA and 
therefore do not trigger the requirement that the agency or person 
providing the service be accredited, temporarily accredited, or 
approved or be operating under the supervision and responsibility of an 
accredited agency, temporarily accredited agency, or approved person. 
Therefore, for example, if an agency or person provides only services 
not listed in the definition of adoption services (such as post-
placement counseling, a medical evaluation of a child's records or of a 
video of the child provided by the child's country of residence, pre-
adoptive parent training courses or meetings, or post-adoption services 
for children whose adoptions were dissolved), that agency or person is 
not required to be accredited, temporarily accredited, or approved or 
to operate under the supervision and responsibility of an accredited 
agency, temporarily accredited agency or approved person. Conversely, 
if a service provided by an agency or person is listed as any one of 
the six adoption services in the definition of adoption services, the 
agency or person must be accredited, temporarily accredited, or 
approved or it must act under the supervision and responsibility of an 
accredited agency, temporarily accredited agency, or approved person 
(unless it is a public body or is only performing an exempted service). 
For example, securing necessary consents to termination of parental 
rights and to adoption is one of the defined six adoption services. 
Thus, a lawyer, who may provide this service now as a legal service, 
may not do so in Convention cases unless he or she is approved or is 
doing so as part of an accredited agency, temporarily accredited 
agency, or an approved person or is acting under the supervision and 
responsibility of an accredited agency, temporarily accredited agency, 
or approved person.
    When determining whether an activity is included in the definition 
of adoption services, the reader must pay close attention to the 
language used in the list of services. For example, post-placement 
monitoring, but not post-placement counseling, is included in the 
definition of ``adoption services.'' Therefore, the former triggers the 
requirement, but the latter does not. Similarly, one listed adoption 
service is ``identifying and arranging an adoption.'' An agency or 
person that both identifies a child for adoption and arranges the 
adoption would be covered by the requirement. On the other hand, a 
magazine or TV show or newsletter, which simply posts pictures and 
information about children waiting for adoptive placements on behalf of 
other agencies, persons, or public bodies, would not be covered. These 
media companies are not covered because they are only communicating 
information on a child awaiting placement, rather than both identifying 
a child for adoption and arranging the adoption.
    Although some of the preliminary public input asserted that 
Congress did not intend for each single, named adoption service to 
trigger the accreditation, approval, or supervision requirement, the 
Department has rejected such an interpretation of the IAA. Instead, the 
Department interprets the IAA as mandating that the provision of any 
one of these six adoption services triggers the requirement that an 
agency or person be accredited, temporarily accredited, or approved or 
operate under the supervision and responsibility of an accredited 
agency, temporarily accredited agency, or approved person (unless it is 
a public body or is only performing an exempted service). The 
alternative reading--that the requirement is triggered only when an 
agency or person actually provides all six services--would nullify the 
protective intention, capacity, and effect of the IAA. Such a reading 
would permit an agency or person to decline to provide one of the 
enumerated adoption services and thereby evade the requirement.
    (b) Accreditation and Approval Versus Acting as a Supervised 
Provider. Although the IAA is clear that an agency or person wishing to 
offer or provide adoption services in cases subject to the Convention 
must be accredited, temporarily accredited, or approved or operate 
under the supervision of an accredited agency, temporarily accredited 
agency, or approved person (unless it is a public body or providing 
only an exempted service), it does not provide guidance on how to 
choose between these options. The Department understands that each 
agency or person will face a difficult choice in making this decision 
and is not able to provide specific advice on what is best for each 
individual agency or person. However, the Department believes it is 
helpful to underscore the ramifications of choosing between being 
accredited/approved and being a supervised provider. First, agencies 
and persons that do not become accredited, temporarily accredited, or 
approved must be supervised by an accredited agency, temporarily 
accredited agency, or approved person (unless they are a public body or 
are providing only an exempted service in the case). Second,

[[Page 54077]]

agencies and persons that do not become accredited, temporarily 
accredited, or approved, and instead act as a supervised provider, are 
not subject to all of the standards in subpart F. They are, however, 
subject to the standards contained in Sec.  96.45 (supervised providers 
in the United States) or Sec.  96.46 (supervised providers in other 
Convention countries) of subpart F. Third, agencies and persons that do 
not become accredited, temporarily accredited, or approved cannot 
operate as the primary provider in a Convention case.
    (c) Primary Providers. These regulations establish as a principle 
of accreditation and approval that an accredited agency, temporarily 
accredited agency, or an approved person must identify itself as the 
``primary provider'' in each Convention case. The primary provider must 
be an accredited agency, temporarily accredited agency, or approved 
person. It cannot be a supervised provider. If there is only one 
accredited agency, temporarily accredited agency, or approved person 
among the agencies and persons providing the six adoption services (as 
defined), then that one inherently must act as the primary provider. 
Where more than one accredited agency, temporarily accredited agency, 
or approved person is providing services in the same Convention case, 
and therefore more than one agency or person is eligible to act as the 
primary provider, the agency or person performing the tasks listed in 
Sec.  96.14(a)(1)-(4) must be designated as the primary provider. 
Whether the accredited or temporarily accredited agency or the approved 
person is providing all of the adoption services itself or is using 
supervised providers or other providers to provide the six adoption 
services, the regulations also establish, as a principle of 
accreditation and approval, that all six of the services listed in the 
definition of adoption services must be provided in each Convention 
adoption case.
    The primary provider under the accreditation and approval standards 
has two principal responsibilities. First, the primary provider is 
responsible for ensuring that all six of the adoption services listed 
in the definition of ``adoption services'' are provided in each 
Convention case. Second, the primary provider is responsible for 
supervising non-accredited agencies and non-approved persons that are 
providing adoption services (as defined) in the case. The requirements 
and parameters for providing supervision can be found in Sec. Sec.  
96.45 and 96.46.
    The primary provider principle is appropriate and necessary for a 
number of reasons. Although the IAA is clear that agencies and persons 
providing adoption services in a Convention case must either be 
accredited, temporarily accredited, or approved or supervised, it is 
silent on how supervision will be provided and how providers in the 
same Convention case must coordinate adoption service delivery. These 
regulations provide that framework through the creation of the primary 
provider requirement incorporated into the accreditation and approval 
standards as appropriate. Also, to provide clarity in response to the 
numerous inquiries about the requirement during the preliminary public 
input phase, the primary provider principle appears in the regulations 
as a freestanding provision in Sec.  96.14, which is cross-referenced 
to the definition of primary provider in Sec.  96.2(cc).
    The Department is aware that this principle both reflects and 
changes current practice. This scheme allows agencies and persons, 
especially small agencies and persons, to continue to form the network 
of providers needed to complete each individual intercountry adoption. 
The Department does not want to interfere unnecessarily with how a 
network is formed to provide services in each particular adoption case. 
The Department understands that agencies with an adoption program in 
one country must be able to connect with potentially 50+ other agencies 
or persons because the prospective adoptive parent(s) to be matched 
with a child could be in any one of the 50 States or in other U.S. 
jurisdictions. Conversely, prospective adoptive parent(s) who seek to 
adopt a particular child identified as in need of an adoptive placement 
must be able to connect with an agency or person (which may not be 
located in the State where the prospective adoptive parent(s) resides) 
that has an adoption program in the country of origin from which they 
wish to adopt a child. In deference to the historically important role 
the formation of networks and the use of small agencies and persons 
have played in providing services that match children from many 
different countries of origin with prospective adoptive parent(s) in 
diverse and widely dispersed geographical areas, the Department has 
crafted regulations that allow such relationships among agencies or 
persons to continue. The Department's goal is to mirror current 
practices and to provide regulatory flexibility so that the regulations 
do not negatively affect small agencies and persons and other 
providers.
    The regulations through the accreditation and approval standards do 
require, however, an accredited agency, temporarily accredited agency, 
or approved person in every case be identified as the primary provider 
and formally assume responsibility for supervision of other providers 
in the case, both in the United States and overseas, that are not 
accredited or approved. Another important provision, in Sec. Sec.  
96.45(c) and 96.46(c), is that a primary provider must assume legal 
responsibility for the actions of supervised providers, both in the 
United States and overseas.
    As stated, the Department is not seeking to alter current practice 
unnecessarily, particularly where current practice does not give rise 
to the types of abuses that the Convention and the IAA seek to curtail. 
In this case, however, while the concept of identifying a primary 
provider is not an established practice and is not provided for in the 
IAA, the Department has concluded that it is necessary to have an 
organizing principle to ensure that one agency or person has ultimate 
responsibility for proper and effective service provision. Close 
coordination is particularly important given the Convention's 
requirements that key tasks and determinations be undertaken and made 
before the adoption proceeds to ensure that the adoption is in the best 
interests of the individual child and in compliance with U.S. 
obligations to other Convention countries. The Department also believes 
that the primary provider requirement will improve practice without 
unduly changing the adoption community's current structure for 
providing adoption services. The Department also notes that, consistent 
with the IAA, the regulations provide for regulatory flexibility and 
enable all agencies or persons, including those that are small, to 
choose to become accredited, temporarily accredited, or approved (and 
act as a primary provider in a particular case where necessary) or to 
be supervised providers.
    When acting as the primary provider and using supervised providers, 
the accredited agency, temporarily accredited agency, or approved 
person must comply with Sec.  96.44 (Acting as Primary Provider), Sec.  
96.45 (Using Supervised Providers in the United States), and Sec.  
96.46 (Using Supervised Providers in Other Convention Countries) as 
well as all of the other standards in subpart F.
    The primary provider may work with a variety of entities. In the 
United

[[Page 54078]]

States, the primary provider may work with: (1) Other U.S. accredited 
agencies, temporarily accredited agencies, and approved persons; (2) 
agencies and persons acting under its supervision and responsibility 
(U.S. supervised providers); (3) public bodies; and (4) exempted 
providers. In another Convention country, the primary provider may work 
with: (1) Agencies, persons, or other entities accredited by the other 
Convention country; (2) Convention country public authorities or 
competent authorities; and (3) agencies, persons, or other entities 
acting under the primary provider's supervision and responsibility 
(``foreign supervised providers''). As noted, the conditions on the use 
of these agencies, persons, or other entities, whether domestic or 
foreign, are listed in Sec. Sec.  96.45 and 96.46.
    (d) Supervised Providers. Agencies and persons that do not become 
accredited or approved may provide adoption services in the United 
States in cases subject to the Convention only under the supervision 
and responsibility of the accredited agency, temporarily accredited 
agency, or approved person that is acting as the primary provider in 
the case (unless they are a public body or are only performing an 
exempted service). These agencies or persons are called ``supervised 
providers.'' Supervised providers are not required to be in substantial 
compliance with all of the accreditation and approval standards set 
forth in subpart F. However, these regulations do set forth 
requirements that apply when a primary provider uses a supervised 
provider to provide adoption services in a Convention case. Those 
requirements are set forth in Sec. Sec.  96.45 and 96.46.
    The following entities are not considered supervised providers: (1) 
Agencies or persons that are accredited, temporarily accredited, or 
approved in the United States; (2) public bodies; (3) agencies, 
persons, or entities accredited by other Convention countries; and (4) 
public authorities and competent authorities of other Convention 
countries. Such entities are not required to act as supervised 
providers; that is, they are not required to act under what in these 
regulations is referred to as the supervision and responsibility of the 
primary provider. Primary providers are not required to provide 
supervision and responsibility for them when they provide adoption 
services in a Convention case. Only non-accredited and non-approved 
entities that do not fall into one of these categories are considered 
supervised providers for the purpose of these regulations. While the 
primary provider will have legal responsibility for the work of its 
supervised providers, it will not have legal responsibility for the 
work of other accredited/approved providers; public bodies; agencies, 
persons, or entities accredited by other Convention countries, and 
public authorities and competent authorities of other Convention 
countries, except to the extent that the primary provider must ensure 
that all six adoption services are provided.
    (e) Activities That Do Not Require Accreditation, Approval, or 
Supervision. The IAA highlights four types of activities that, under 
specified circumstances, do not give rise to the requirement that an 
agency or person be accredited, temporarily accredited, or approved or 
operate under the supervision and responsibility of an accredited 
agency, temporarily accredited agency, or approved person. These 
activities are: (1) The completion of a home study or child background 
study; (2) the provision of child welfare services where the agency or 
person is not performing any other adoption service in the case; (3) 
the provision of legal services where the agency or person is not 
performing any adoption service in the case; or (4) activities 
undertaken by prospective adoptive parent(s) acting on their own 
behalf.
    Home Study or Child Background Study. Even though it is listed as 
an adoption service in the IAA definition of adoption services, the 
performance of a home study or child background study, by itself, does 
not require the agency or person to be accredited, temporarily 
accredited, or approved or operate under the supervision and 
responsibility of the primary provider, where the agency or person is 
not performing any other adoption service (as defined) in the case. 
(Pub. L. 106-279, 3(3) and 201(b)(1)). The reader should note that this 
exception only applies where the agency or person is not also providing 
any other service listed as an adoption service in the case. (Pub. L. 
106-279, 201(b)(1)). If the agency or person is performing another 
adoption service in addition to the home study or child background 
study, it must be accredited, temporarily accredited, or approved or it 
must perform the service under the supervision and responsibility of 
the primary provider. Agencies or persons that operate under the home 
study/child background study exemption are called ``exempted 
providers.'' The home study or child background study, as well as any 
related reports or updates, from an exempted provider must be approved 
by an accredited agency or temporarily accredited agency. This approval 
requirement is included to satisfy the requirements of Article 22(5) of 
the Convention and section 201(b)(1) of the IAA.
    A number of practitioners suggested to Acton Burnell that the 
regulations should exempt agencies and persons (both individuals and 
for-profits) that perform both home studies and post-placement 
monitoring from the requirement to be accredited, temporarily 
accredited, or approved or operate under the supervision and 
responsibility of the primary provider. The Department does not read 
the IAA to permit such an expansion of the exemption. The language of 
section 201(b)(1) of the IAA on its face makes clear that providing 
another adoption service in addition to the home study or child 
background study triggers the requirement. Because post-placement 
monitoring (before the legal adoption takes place) is explicitly 
defined as an adoption service, those agencies and persons providing 
both the home study and post-placement monitoring must either be 
accredited, temporarily accredited, or approved, or operate under the 
supervision and responsibility of the primary provider.
    Child Welfare Services and Legal Services. Child welfare services 
and legal services, in accordance with the IAA definitions, are not 
``adoption services.'' Therefore, they do not by themselves trigger the 
requirement that the agency or person be accredited, temporarily 
accredited, or approved or operate under the supervision and 
responsibility of the primary provider. The IAA specifically highlights 
that the provision of child welfare services and legal services does 
not trigger this requirement, so long as the agency or person is not 
also performing in the case a service listed as an adoption service.
    If the agency or person is also providing an adoption service in 
the case, however, it must be accredited, temporarily accredited, 
approved, or supervised. Acton Burnell received some comments arguing 
that the provision of a home study and a child welfare service in the 
same case should not trigger this requirement. The Department 
nevertheless reads the IAA as not allowing the child welfare exemption 
to apply if any one of the adoption services, including the home study, 
in addition to a child welfare service, is provided. Thus, for example, 
if an agency provides post-adoption evaluations but does not provide 
the home study or any of the other six adoption services, it is not 
required to be accredited or supervised. In contrast, if an agency 
provides both the home

[[Page 54079]]

study and the post-adoption evaluations, it must be accredited or 
supervised because the home study is one of the six listed adoption 
services.
    For clarity, the definitions section provides a non-exhaustive list 
of the types of services that would be considered ``child welfare 
services'' or ``legal services.'' This list is simply illustrative, and 
meant to highlight those common child welfare and typical legal 
services provided in an adoption case and to provide reassurance that 
such services do not trigger the requirement that the agency or person 
be accredited, temporarily accredited, approved, or supervised. Since 
only the six services listed in the definition of adoption services 
trigger the requirement to become accredited, temporarily accredited, 
or approved, or to operate under the supervision and responsibility of 
an accredited, temporarily accredited, or approved provider, it is not 
necessary to have an exhaustive list of child welfare or legal 
services. If the service being provided is not one of the six listed in 
the definition of adoption services, the requirement is not triggered.
    Regarding the provision of legal services, some of the preliminary 
public input noted that some States do not permit an individual to 
provide both legal services and adoption services in a case. These 
regulations as proposed are not intended to supplant or alter existing 
State law in this respect; therefore, an individual can only provide 
both adoption services and legal services in a case where not 
prohibited from doing so by the relevant State law. Similarly, some 
State authorities asked whether attorneys for public bodies must be 
approved persons. Under the proposed regulations, attorneys who are 
providing adoption services as part of their employment with public 
bodies are not required to be approved or to operate under the 
supervision and responsibility of a primary provider.
    Prospective Adoptive Parent(s) Acting on Their Own Behalf. 
Prospective adoptive parent(s) may act on their own behalf without 
becoming approved or operating under the supervision of an accredited 
agency, temporarily accredited agency, or approved person, as long as 
acting on their own behalf is not prohibited by State law or the law of 
the other Convention country involved. More specifically, in a case 
where the child is immigrating to the United States, the conduct must 
be permissible under the laws of the State in which the prospective 
adoptive parent(s) reside and the laws of the Convention country from 
which the parent(s) seek to adopt. Conversely, in a case where a child 
is emigrating from the United States, the conduct must be permissible 
under the laws of the State where the child resides and the laws of the 
Convention country in which the prospective adoptive parent(s) reside. 
Please note that this provision only provides an exemption from 
requirements related to accreditation and approval. The requirements 
for intercountry adoption procedures will address how prospective 
adoptive parent(s) acting on their own behalf must comply with the 
Convention, the provisions of the IAA, and other applicable laws when 
completing a Convention adoption.
    (f) Public Bodies. Public bodies are not subject to the 
accreditation and approval requirements at all, and no provision is 
made in this regulation for them to seek accreditation voluntarily. 
Therefore, they are not required to be accredited or temporarily 
accredited or to operate under the supervision or responsibility of an 
accredited agency, temporarily accredited agency, or approved person to 
provide adoption services in Convention cases. This exemption for 
public bodies reflects the special status accorded public bodies by the 
Convention. The abuses that partially motivated creation of the 
Convention were attributed in part to malfeasance by private, non-
accredited agencies and persons. Therefore, the Convention did not 
contemplate requiring public bodies to undergo the same evaluation and 
accreditation process. Also, the Department reads sections 3(14) and 
201(a) of the IAA, which provide that persons to be accredited/approved 
shall not include an agency of government, as excluding public bodies 
from the accreditation and approval requirement.
    Public bodies must, however, otherwise comply with the Convention, 
the IAA and other applicable law when providing services in Convention 
cases. As a non-accredited entity, a public body cannot provide 
supervision and responsibility for other entities providing services in 
a Convention case. The IAA and the regulations require that the entity 
providing supervision and responsibility be an accredited agency, 
temporarily accredited agency, or an approved person. Therefore, a 
public body must either provide all adoption services in a Convention 
case itself, or must use only other public bodies or agencies, 
competent authorities, or accredited, temporarily accredited, or 
approved entities to provide adoption services in a Convention case.
4. Subpart D--Application Procedures for Accreditation and Approval
    Subpart D governs applications for full accreditation or approval. 
Full accreditation or approval refers to accreditation or approval 
granted when an agency or person is in substantial compliance with the 
comprehensive and detailed standards in subpart F. The IAA also permits 
small agencies to apply for temporary, as opposed to full, 
accreditation that will be for a period of one or two years after the 
Convention enters into force for the United States. Except as otherwise 
provided, the procedures in subpart D do not apply to applications for 
temporary accreditation. The rules on applications and the standards 
for temporary accreditation are in subpart N.
    Subpart D contains special provisions for agencies and persons that 
seek to be accredited or approved by the time the Convention first 
enters into force for the United States. Such an agency or person must 
apply by what is called the ``transitional application deadline'' 
(TAD). The TAD will be published in the Federal Register. Since the 
Department expects there to be a bottleneck as agencies and persons 
apply for initial accreditation and approval, it established the TAD to 
manage the initial accreditation/approval phase and to ensure that all 
interested agencies and persons are on notice that they must apply by 
the TAD if they are seeking to become accredited or approved by the 
time the Convention enters into force for the United States. After the 
Department learns the number of agencies and persons that applied by 
the TAD, and has an estimate of how long it will take the accrediting 
entities to evaluate each applicant (including conducting site visits), 
it will announce a ``deadline for initial accreditation or approval'' 
(DIA). The DIA will be the date by which an agency or person must 
complete the accreditation or approval process so as to be accredited 
or approved when the Convention enters into force for the United 
States.
    The regulations provide that the accrediting entity must use its 
best efforts to provide a reasonable opportunity for an agency or 
person that applied by the TAD to complete the process by the DIA. Only 
those agencies and persons that are accredited or approved by the DIA 
will be included on the Department's initial list of accredited 
agencies and approved persons sent to The Hague Conference Permanent 
Bureau. If an agency or person is not on this list once the Convention 
enters into force for the United States, it cannot provide

[[Page 54080]]

adoption services in Convention cases until it becomes accredited or 
approved, unless it acts under the supervision and responsibility of 
the primary provider in the case, or is a public body or exempted 
provider. If an agency or person does not comply with this requirement, 
it risks being subject to the civil and criminal penalties provided for 
in the IAA. If an agency or person is not seeking to be on this first 
list, it may submit an application for accreditation and approval at 
any time. Regardless of when an agency or person submits its 
application, a designated accrediting entity must evaluate the 
applicant in a timely fashion.
    The regulations also cover how an agency or person selects a 
designated accrediting entity. The agency or person must apply to a 
designated accrediting entity with jurisdiction over its application. 
The Department, after evaluating potential accrediting entities, will 
designate selected accrediting entities and define their jurisdiction. 
An accrediting entity's jurisdiction may be limited by geography, type 
of applicant (agency or person), or other conditions determined by the 
Department.
    The Department is aware that some agencies and persons have 
previously undergone voluntary accreditation. If the entity that 
granted such voluntary accreditation is eventually designated as an 
accrediting entity by the Department, any agency or person that has 
previously obtained voluntary accreditation from that entity may apply 
to that same entity for Convention accreditation under these 
regulations, but is not required to do so.\2\ When an applicant applies 
for accreditation or approval for the first time under these 
regulations, an applicant may apply to any accrediting entity with 
jurisdiction over its application. Subsequent applications for 
accreditation or approval are subject to different rules that are also 
described in subpart D.
---------------------------------------------------------------------------

    \2\ Throughout this Preamble and regulations, accreditation and 
approval refer to accreditation and approval under these 
regulations, not to any other system of accreditation. Acton Burnell 
received substantial comments in favor of a ``deeming'' mechanism, 
which would permit agencies that have already been voluntarily 
accredited under a different accreditation system to meet via 
``deeming'' these new Federal regulatory standards when the 
standards are the same. The Department has decided not to permit 
deeming. The standards developed in subpart F differ substantially 
from the standards currently used by potential accreditors. The 
standards in this proposed regulation focus mainly on intercountry 
adoption practices and compliance with the Convention and IAA 
requirements rather than general corporate governance practices and 
quality assurance systems. These requirements are derived from newly 
enacted mandates, and currently used accreditation standards do not 
yet have this same focus. Therefore, the Department has concluded 
that its regulatory standards differ substantially from other 
standards and that the use of a ``deeming'' mechanism would have 
little practical utility and not ensure adequate compliance with the 
Convention and the IAA. In addition, deeming could give an advantage 
in the start-up phase to some providers over others. The Department 
welcomes public comment on this issue, especially from potential 
accreditors as well as agencies that have been voluntarily 
accredited. The Department requests that commenters in favor of 
deeming identify any current, non-regulatory standards that are 
sufficiently similar to particular standards in subpart F of this 
proposed regulation to warrant an automatic finding of compliance on 
the ``matching'' standard.
---------------------------------------------------------------------------

5. Subpart E--Evaluation of Applicants for Accreditation and Approval
    Subpart E governs how accrediting entities must evaluate applicants 
for full accreditation or approval. The Department recognizes that 
accrediting entities currently use a variety of methods for voluntary 
accreditation of all types of social service providers, including 
adoption service providers. However, the Department chose in these 
regulations to mandate specific requirements so as to ensure that the 
processes used to scrutinize agencies and persons for compliance are 
fair and can be uniformly applied to all agencies and persons.
    For example, the regulations require accrediting entities to do the 
following: (1) Use at least two qualified evaluators to assess an 
agency or person; (2) review all documentation submitted; (3) verify 
the information submitted; and (4) conduct appropriate site visits. The 
regulations also describe how site visits must be conducted, and 
include a requirement that at least one evaluator participate in the 
site visit. Before making its final decision, the accrediting entity 
may, in its discretion, advise an agency or person of any deficiencies 
that could prevent accreditation or approval. The accrediting entity 
may defer a final decision to allow the agency or person to correct the 
deficiencies.
    The regulations also discuss how the accrediting entity must 
protect the information and documents disclosed to it at any stage of 
the accreditation and approval process. Specifically, the regulations 
address the protection of information from unauthorized disclosure, 
proper use of the information received, maintenance of accurate 
records, and safeguards for protecting identifying information from 
unauthorized use and disclosure. The regulations also require that the 
accrediting entity's officers, employees, contractors, and evaluators 
who have access to an agency's or person's documents or information 
sign a non-disclosure agreement.
    (a) Substantial Compliance. Section 96.27(a) mandates substantial 
compliance, not absolute compliance, with the standards in subpart F. 
There was considerable disagreement in the adoption community about 
which of the standards in subpart F--if any--should be made absolute. 
Some advocated that all the standards should be subject to strict 
compliance; others advocated that particular standards, but not others, 
should be subject to strict compliance. The Department believes that 
the use of an accreditation system based on substantial compliance and 
the opportunity to improve, rather than a strict licensing scheme, to 
regulate the agencies and persons is more consistent with the 
regulatory approach contemplated by the IAA. Thus, after careful 
deliberation, the Department has decided to mandate substantial 
compliance with all of the standards.
    There are three additional reasons for the decision to use 
substantial compliance as the standard. First, in the absence of 
consensus among the experts, it was impossible to delineate which 
individual requirements should always be mandatory. Second, a number of 
these standards address a wide range of ethical and sound social work 
practices, rather than just Convention or IAA requirements. One-time 
failures to comply with such social work practice standards, which 
inherently are evolving, though unfortunate, should not form the sole 
basis for the imposition of the severe types of adverse action such as 
cancellation of accreditation or approval. Third, the Department 
considers it essential to give sufficient discretion to accrediting 
entities, which will be selected based on their expertise, to decide 
when non-compliance warrants denial of accreditation or approval or 
adverse action.
    The Department recognizes that adherence to certain key individual 
standards is critical to protecting children and families and 
comporting with the requirements of the Convention and the IAA. 
Therefore, the regulations require that the standards or elements of 
certain standards will be assigned points by the accrediting entity. 
The accrediting entities will develop a scoring or weighting system 
that determines how a calculation is completed to determine if an 
agency or person is in substantial compliance with the standards. The 
Department has considered but rejected the idea of defining the scoring 
methods and listing the weighting criteria in this proposed rule. 
Instead, the Department intends to oversee the designated accrediting 
entities so that they may arrive at a

[[Page 54081]]

uniform and consistent method of assigning points and weighting 
different standards. The Department and the accrediting entities will 
consult on a point system and methods to weight the standards to ensure 
that certain standards are given greater weight than others as 
appropriate. The weighting of standards is typical of and consistent 
with current accreditation practice. The Department, however, did not 
think it was advisable to begin the process of having any accrediting 
entities ascribe points and weight the standards in subpart F when both 
the number and content of the standards may change subject to comments 
provided during the public comment period. Also, because the point 
system and the weighting criteria will be developed by the accrediting 
entities as internal procedures, the criteria will not be subject to 
the notice and comment rulemaking. Applicants will be advised of the 
system, however, when provided with application materials.
    (b) Consideration of Capacity or Actual Performance. The Department 
anticipates that when evaluating an agency or person for initial 
accreditation or approval, the accrediting entity may not be able to 
evaluate actual compliance because the agency or person will not yet 
have had an opportunity to comply with the stated requirements. 
Therefore, the regulations permit the accrediting entity, when 
evaluating an initial application for accreditation or approval, to 
evaluate the capacity of the agency or person to achieve substantial 
compliance with the standards rather than the agency's or person's 
actual performance when evidence of actual performance is not yet 
available. Once the agency or person has been accredited or approved, 
however, the accrediting entity generally will, for the purposes of 
reapplication after adverse action, renewal, monitoring and 
enforcement, consider the agency's or person's actual performance when 
deciding whether it is in substantial compliance with the standards. In 
special, limited circumstances it may be necessary for the accrediting 
entity to continue to evaluate capacity, but in the absence of such 
special circumstances the accrediting entity will evaluate actual 
performance.
    (c) Use of IAA Standards. Accrediting entities may use only the 
standards in subpart F. Accrediting entities may not impose standards 
that are not included in these regulations. Although the accrediting 
entity is limited to the standards in subpart F when determining 
whether to grant or maintain accreditation or approval, there are three 
instances when other considerations may be taken into account. First, 
if an agency or person has been previously denied accreditation or 
approval under these regulations, has withdrawn its application in 
anticipation of denial, has had its temporary accreditation withdrawn, 
or is reapplying for accreditation or approval after certain adverse 
actions, the accrediting entity may take the circumstances of such 
actions into account when making its determination. The Department 
considers such past behavior relevant in accreditation or approval 
decisions. Second, if any agency or person that has an ownership or 
control interest in the applicant has been previously debarred, the 
accrediting entity may take the circumstances of the debarment into 
consideration when making its determination. The purpose of this 
provision is to prevent an agency or person that has been debarred from 
bypassing the debarment by merely reconstituting itself as another 
entity. Finally, a failure to provide information to the accrediting 
entity may be grounds for denial or other adverse action.
6. Subpart F--Standards for Convention Accreditation and Approval
    (a) Overview of Standards. Subpart F contains the standards for 
accrediting and approving agencies and persons. The standards include 
the basic requirements necessary to comply with the IAA and the 
Convention, detailed standards addressing issues of particular concern 
to the adoption community, and generally recognized standards for sound 
and ethical practice in the intercountry adoption field.
    The standards contained in subpart F are applicable at all stages 
of accreditation or approval. Specifically, the accrediting entity will 
use these standards: (1) When an agency or person applies for 
accreditation or approval; (2) during monitoring by the accrediting 
entity; (3) at the time renewal of accreditation or approval is sought; 
(4) during the investigation of complaints lodged against the agency or 
person; and (5) when the accrediting entity or the Department 
contemplates taking adverse action against the agency or person. If at 
any time an agency or person is believed to be out of substantial 
compliance with these standards, the client or other interested party 
may file a complaint. The accrediting entity will investigate the 
complaint in accordance with subpart J and, if non-compliance is 
established, take adverse action as appropriate in accordance with 
subpart K.
    The standards in subpart F do not apply to agencies seeking 
temporary accreditation, except as otherwise provided in subpart N 
(Procedures and Standards Relating to Temporary Accreditation). Subpart 
N contains separate performance standards for small entities that wish 
to become temporarily accredited agencies under the IAA.
    (b) Review of Certain Specific Standards. The Department does not 
believe it is necessary in this Preamble to review the contents of 
every standard in subpart F. However, there are a number of 
requirements that are specifically highlighted because the preliminary 
public input on such standards has been conflicting. For those 
standards, the Department believes that further explanation is 
warranted.
    Section 96.33: Budget, Audit, Insurance, and Risk Assessment 
Requirements: The appropriate treatment of liability and insurance is 
one of the issues that elicited a range of intense comments during the 
development of the proposed regulation. Concerns centered in particular 
on the ability of an aggrieved party to seek redress from a single 
agency or person in the United States that would be responsible for the 
adoption. Input from congressional staff called for the regulations to 
assign civil liability to the accredited/approved provider for the acts 
of its U.S. supervised providers and its foreign supervised providers. 
To address these concerns, the regulations mandate in Sec. Sec.  
96.45(c), and Sec.  96.46(c) that any accredited agency, temporarily 
accredited agency, or approved person acting as the primary provider 
assume legal responsibility vis-a-vis the adoptive parents for the acts 
of other agencies and persons in the United States or abroad acting 
under its supervision and responsibility, in addition to its own acts 
in connection with an adoption. The intent of this provision is to give 
the adoptive parents legal recourse against a single entity so far as 
is reasonable. The primary provider may, however, seek indemnification 
from its supervised providers for any liability it incurs vis-a-vis the 
adoptive parent. (No effort is made, however, to make the primary 
provider responsible for the acts of other accredited agencies or 
approved persons with which it handles an adoption.)
    The Department recognizes that this provision may raise the costs 
of liability insurance for accredited agencies and approved persons and 
have an effect on civil litigation. The Department is satisfied, 
however, that it is consistent with the intent and overall purpose of

[[Page 54082]]

the IAA. As noted, the Department has concluded that there must be a 
single ``primary provider'' for each Convention adoption. Thus, under 
these regulations, if a supervised provider violates the standards, the 
primary provider's accreditation, temporary accreditation, or approval 
may be in jeopardy. It seems also appropriate that, in tort, contract, 
or similar legal action in which the performance of an adoption service 
provider is challenged, the primary provider should assume legal 
responsibility for the acts of the supervised providers (domestic and 
foreign) that it has chosen to work with. The Department believes that 
the primary provider will do a better job of supervising if it is 
deemed automatically to be legally responsible for the acts of its 
supervised providers in both the accreditation and approval context and 
with respect to tort, contract, and similar civil claims.
    Through Acton Burnell and others, the Department has heard concerns 
that agencies and persons carry sufficient liability insurance to cover 
the risks of providing adoption services. The regulations require the 
agency or person to have a professional assessment of the risks it 
assumes, including the risk of assuming legal responsibility for its 
supervised providers in the United States and abroad, and to carry an 
amount of insurance that is reasonably related to that risk but in no 
event less than one million dollars per occurrence or claim. In 
addition, to protect against financial irregularities, the Chief 
Executive Officer, Chief Financial Officer, and all other officers and 
employees who have direct responsibility for financial transactions or 
financial management of the agency or person must be bonded.
    The Department recognizes that these standards allocating legal 
risk, mandating insurance coverage, and setting the floor amount of one 
million dollars for insurance coverage are sensitive and will require 
changes in current practice. The Department welcomes public comment, 
including from insurance experts, actuaries, associations, and agencies 
and persons, on these issues. Agencies and persons may specifically 
wish to encourage their insurance providers to comment on these 
proposed regulations.
    The Department also wishes to call special attention to the 
standard relating to cash reserves in Sec.  96.33(e). A standard of a 
reserve of three months is proposed. Commenters may wish to address 
whether this period is too long or too short.
    Section 96.35: Suitability of Agencies and Persons to Provide 
Adoption Services Consistent with the Convention: An agency or person 
must demonstrate to the accrediting entity that it provides adoption 
services ethically and in accordance with the Convention's goals of 
ensuring that intercountry adoptions take place in the best interests 
of children and preventing the abduction, exploitation, sale of, or 
trafficking in children. To permit the accrediting entity to evaluate 
the suitability of an agency or person for accreditation or approval, 
the agency or person must disclose the specified information about 
itself and about its directors, officers, and employees. The Department 
believes that it is critical for the accrediting entity to have full 
information about the applicant before making a final decision. Because 
suitability is a matter of ongoing concern, the agency or person must 
also update the information required by this section within thirty 
business days of learning of a change in the information.
    The standards do not require automatic disqualification of an 
agency or person for any particular behavior, activity, or event. 
Instead, consistent with the accreditation scheme employed, the 
standards give the accrediting entity the discretion and flexibility to 
examine the factual circumstances underlying the conduct and to 
determine whether accreditation or approval is appropriate. Where an 
agency or person has committed an egregious or illegal act, or has 
engaged in a pattern of behavior that is inconsistent with protecting 
the best interests of children, accreditation or approval is likely to 
be inappropriate. Yet it is impossible for the Department to list every 
type of non-conforming or unethical behavior that would fall into this 
category. Therefore, in addition to specific disclosures, the standards 
mandate disclosure of any other businesses or activities currently 
carried out by the agency or person, affiliate organizations, or any 
entity in which it has an ownership or control interest that are 
inconsistent with the principles of the Convention. These principles 
include the proposition that in no instance is the abduction, sale, 
exploitation, or trafficking of children permissible. Such activities 
would include, for example, distributing pornography or operating a Web 
site that contains pornography, regardless of whether such activity is 
legal or not, and trafficking in individuals, either into or out of the 
United States, for pernicious purposes.
    Section 96.37: Education and Experience Requirements for Social 
Service Personnel: This section sets forth the required qualifications 
for individuals performing adoption-related social service functions. 
The qualifications are divided into categories that correspond to the 
individual's function, role, and position. These standards 
substantially upgrade the requirements for social workers, both 
supervisors and non-supervisors, performing certain tasks by requiring 
them in many cases to have a master's degree from an accredited program 
of social work education or to meet other educational or work 
experience requirements. The required qualifications for individuals 
performing home studies or child background studies differ from those 
for individuals performing other social service functions. All 
individuals performing home studies or child background studies are 
subject to the requirements in Sec.  96.37, unless they are exempt 
pursuant to Sec.  96.13. The standards exceed the current 
qualifications required for home study preparers under the regulations 
for the INA (see 8 CFR 204.3(b) (home study preparer)). Specifically, 
the new rules as proposed require individuals performing home studies 
or child background studies to have a minimum of a master's degree in 
social work education.
    Section 96.40: Fee Policies and Procedures: The standards in this 
section address fee practices. The preliminary public comment included 
complaints about the charging of large fees, last-minute fee changes 
that were not disclosed to clients in advance and practices that 
require prospective adoptive parent(s) to travel abroad with large 
amounts of cash to pay for adoption services to be rendered in the 
country of origin. In addition, frustrations were expressed with 
differences in the ways that fees are categorized, which makes it 
impossible for clients to compare fees for similar services.
    The standards impose a number of requirements to address these 
concerns. In particular, they require prior disclosure of fees and 
provide guidelines for how and when fees may be charged. These 
standards help to ensure that agencies and persons disclose how fees 
are disbursed. There are also specific provisions governing when and 
how additional fees may be assessed beyond the original fee, and how 
unexpended fees must be refunded. The standards also require the agency 
or person to have a mechanism in place for transferring funds to other 
Convention countries whenever the financial institutions of that 
country so permit so that direct cash transactions by prospective 
adoptive parent(s) are

[[Page 54083]]

unnecessary. The Department is aware that many of the fees charged by 
public authorities in other Convention countries--for example, for 
passports, birth certificates, adoption certificates, or court 
documents--must be paid in currency. Therefore, these regulations 
strike a balance that takes into consideration the reliability and 
feasibility of using non-cash transactions in a particular Convention 
country, but requires agencies and persons to use available methods so 
that the need for direct cash transactions by prospective adoptive 
parent(s) is minimized.
    Section 96.41: Procedures for Responding to Complaints and 
Improving Service Delivery: The Department recognizes that the handling 
of complaints against agencies and persons is one of the areas of 
greatest concern in the adoption community. To address this concern, 
the regulations provide for the Department to establish a Complaint 
Registry that may be funded in whole or in part by accreditation and 
approval fees or fees paid to the Department. The Complaint Registry's 
responsibilities and functions are described in subpart J of these 
regulations. In addition, the standards address requirements for the 
handling of complaints by agencies and persons. In particular, the 
standards require agencies and persons to have written complaint 
policies and procedures that are provided to clients at the time the 
adoption contract is signed. The procedures must permit any birth 
parent, prospective adoptive parent, or adoptee to lodge a complaint 
about services and activities that he or she believes are inconsistent 
with the Convention, the IAA, or the regulations implementing the IAA. 
The regulations also set forth time frames for responding to 
complaints. Some prospective adoptive parent(s) also indicated that 
fear of retaliation or other adverse action hampered their ability to 
make complaints about wrongful behavior. Thus, the regulations also 
explicitly prohibit retaliatory action or other conduct that would 
discourage clients from registering complaints.
    Section 96.42: Retention, Preservation, and Disclosure of Adoption 
Records: This section addresses preservation of and access to adoption 
records. Adoption records are defined as the records held by agencies 
or persons or State public bodies and do not include records held by 
Federal government agencies. Records held by Federal government 
agencies are called Convention records, and will be addressed in a 
separate regulation to be published in part 98 of title 22 of the CFR. 
The proposed rule for part 98 is also published in a separate 
rulemaking document in today's Federal Register.
    The Department recognizes the wide range of views on access to 
records sealed in accordance with State law. Both the Senate and House 
committee reports on the IAA contain almost identical language stating 
that there was no intent to change current State law governing access 
to birth parent identifying information in adoption records. (See 
Report of the Senate Committee on Foreign Relations, S. Rep. No. 106-
276 at 11 (2000); Report of the House Committee on International 
Relations, H.R. Rep. No. 106-691 at 30 (2000)). Moreover, section 
401(c) of the IAA expressly states that access to adoption records that 
are not Convention records will be governed by applicable State law. 
Therefore, the standards in this section mirror the IAA's neutral 
position on access to adoption records and simply provide that agencies 
and persons follow applicable State law regarding access to identifying 
information.
    On the issue of the preservation of adoption records, the 
Convention requires that a child's social and medical information be 
preserved, but it does not set a specific retention period. In response 
to the Convention's requirements, the regulations require that an 
agency or person preserve adoption records, including personal effects, 
for any period of time required by applicable State law. The Department 
seeks comment on the adoption records preservation standard. Commenters 
should address the issue of whether or not a uniform Federal time frame 
for the retention of adoption records should be included in the 
standards. Commenters should provide suggestions on what the adoption 
records preservation standard should be and provide information on the 
costs and burden of maintaining adoption records, including personal 
items, for a period of time that they believe would be appropriate.
    Section 96.43: Case Tracking, Data Management, and Reporting: This 
section addresses the IAA's extensive reporting requirements. The 
Department is required to report to Congress all of the information 
contained in this section. Some of this information, as indicated, is 
required for both incoming and outgoing cases, and for both Convention 
and non-Convention cases. There also is a provision requiring agencies 
and persons to provide information directly to the Department about 
outgoing cases to non-Convention countries, even though those cases are 
not subject to the Convention.
    Sections 96.45 and 96.46: Using Supervised Providers in the United 
States; Using Supervised Providers in Other Convention Countries: The 
standards in Sec. Sec.  96.45 and 96.46 apply when a primary provider 
is using a supervised provider to provide services in a Convention 
case. As is noted earlier, such supervised providers are not required 
to be accredited or approved, and hence need not be in substantial 
compliance with all of the accreditation and approval standards set 
forth in subpart F. However, Sec. Sec.  96.45 and 96.46 do set forth 
specific procedures and requirements that must be followed when a 
primary provider uses a supervised provider. Non-compliance by the 
supervised provider with these requirements may jeopardize the 
accreditation or approval status of the primary provider.
    As is noted above, if public bodies, public authorities, competent 
authorities, or agencies, persons, or other entities accredited or 
approved by the United States or another Convention country are used to 
provide services, the primary provider is not required to comply with 
Sec. Sec.  96.45 and 96.46 for those entities or individuals. The IAA 
does not require such supervision and primary providers cannot 
practically supervise these entities, especially those in another 
Convention country. For this reason, these regulations do not make the 
primary provider responsible for the acts of these entities for the 
purposes of accreditation or approval or legal responsibility to the 
client. This distinction is particularly important where the primary 
provider is required by the other Convention country to use its public 
authorities, competent authorities, or accredited bodies. Because the 
primary provider has no control over these entities, it is appropriate 
to exclude them from the supervision and responsibility rubric. 
Problems originating from public or competent authorities or from 
bodies accredited by the other Convention countries may, of course, be 
addressed by the Department, as U.S. Central Authority, with other 
Central Authorities as appropriate.
    On the other hand, supervised providers, while not subject to all 
of the accreditation and approval standards listed in subpart F, 
nevertheless must provide adoption services in Convention cases in a 
manner that is consistent with the principles of the Convention, the 
IAA, and sound and ethical practice. The Department has heard 
significant concerns about the behavior of individuals and 
organizations used by adoption service providers to assist them in 
providing

[[Page 54084]]

services. The concerns were especially acute about service providers in 
other countries.
    The Department shares these concerns but at the same time 
recognizes that the ability to work with providers in other countries 
to obtain services that must be rendered abroad is a critical and 
essential part of intercountry adoption practice. Moreover, many such 
providers do provide sound and ethical services. The Department does 
not wish to render it overly difficult to work with these providers, or 
unnecessarily to penalize those providers that are not the object of 
these complaints. Furthermore, the Department recognizes that there are 
limits to its ability to monitor and control the practice of entities 
abroad not governed by our laws.
    To address these issues, the regulations set forth specific 
requirements governing the use of supervised providers in Convention 
cases. The primary provider may work with one or more other entities 
that will act under its supervision and responsibility; however, such 
work is conditioned on compliance with the requirements in Sec.  96.45 
(Using Supervised Providers in the United States) and Sec.  96.46 
(Using Supervised Providers in Other Convention Countries). This 
Preamble does not review all of the requirements contained in these 
sections, but generally the primary provider must: (1) Screen 
supervised providers to ensure that they have a general understanding 
of the Convention and do not engage in practices inconsistent with its 
principles and requirements; (2) before entering into an agreement for 
the provision of adoption services, obtain information about the 
supervised provider's history of practice and suitability to provide 
services consonant with the Convention; and (3) enter into a written 
agreement that binds the supervised provider to adhere to a range of 
specified performance standards.
    The requirements on supervised providers are bifurcated into two 
sections--Sec.  96.45 and Sec.  96.46--so that the standards for 
foreign supervised providers can be tailored to address specific 
concerns. This bifurcation is useful for three reasons. First, some of 
the requirements for domestic supervised providers simply are not 
apposite for service providers operating in other countries and had to 
be modified accordingly. Second, the requirements for foreign 
supervised providers include specific provisions for the types of 
services those entities are most likely to provide (for example, in 
cases of immigrating children, the provision of medical records). 
Third, and most important, the requirements for foreign supervised 
providers reflect the heightened concern expressed by some members of 
the adoption community about problematic practices by foreign 
providers.
    The primary provider is responsible for ensuring that the 
supervised providers with whom it chooses to work comply with these 
requirements. Failure to do so may be grounds for adverse action 
against the primary provider and may jeopardize its accreditation or 
approval status.
    Sections 96.47 and 96.53: Preparation of Home Studies in Incoming 
Cases; Background Studies on the Child and Consents in Outgoing Cases: 
These sections address the home study and child background study 
requirements. The Department wishes to highlight that all U.S. home 
studies and child background studies that are not prepared in the first 
instance by an accredited agency or temporarily accredited agency must 
be reviewed and approved by an accredited agency or temporarily 
accredited agency. It is not sufficient for the home study or child 
background study to be reviewed and approved by an approved person. 
Home studies or child background studies done by an exempted provider 
or by an approved person must be reviewed and approved by an accredited 
agency or temporarily accredited agency.
    The reason that it is not sufficient for an approved person to 
approve the home study or child background study is that Article 22(5) 
of the Convention requires the home study or child background study to 
be prepared in every case by or under the responsibility of the Central 
Authority, public authorities, or by an accredited body. The Department 
recognizes that the IAA only requires that a home study or child 
background study prepared by an exempted provider be approved by an 
accredited agency or temporarily accredited agency. However, the 
Convention requires that in every case the preparation of the home 
study or child background study be performed or supervised by an 
accredited agency. Therefore, the regulations require all home studies 
or child background studies to be prepared or approved by an accredited 
agency or temporarily accredited agency.
    Section 96.49: Provision of Medical and Social Information in 
Incoming Cases: The Department recognizes that the provision of 
accurate medical records on the child is one of the most important 
issues facing birth parents, prospective adoptive parent(s) and 
adoptees and that current practice has often been unsatisfactory. The 
Department in this standard tried to balance the need for more detailed 
and accurate medical information on a particular child against the 
difficulties inherent in obtaining such information in many foreign 
countries.
    The Department considered the following issues: First, the 
Department is aware that in many, if not most, Convention countries, 
given current practices and the limited resources of the public 
authorities or competent authorities, it is extremely difficult for 
such authorities to obtain all information that may exist on a child 
prior to an adoption. Second, some members of the public pointed out 
that, under Article 16 of the Convention, responsibility for preparing 
the child background study, which must include the medical history of 
the child, including any special needs of the child, is with the 
Central Authority of the child's country of origin (or its accredited 
bodies), rather than with the receiving country. Third, the Department 
is aware that, because the health care provided to many children in 
public care has historically been inadequate, medical care may not have 
been provided to a particular child, or care may have been provided but 
the medical records simply may not have been created or may not provide 
the same types of information available in the United States. Fourth, 
the Department is concerned that any impractical standards in this area 
will negatively affect the adoption of children with medical problems 
or special needs because agencies and persons will be less likely to 
assume the risks of placing such children absent extensive information, 
which typically is difficult to obtain. On the other hand, the 
Department received input that agencies and persons: (1) Do not 
aggressively push the public authorities or competent authorities in 
the child's country of origin to produce what records they do have; or 
(2) withhold medical information that they do obtain.
    Resolving all these issues in a way that would meet the concerns of 
the diverse members of the adoption community was not possible. The 
Department has thus written several compromises into the regulations. 
The regulations require that all available medical information be 
forwarded in a timely fashion. In particular, agencies and persons must 
make all reasonable efforts to provide all of the listed information 
and, if such information cannot be provided, document all efforts made 
to obtain the information and explain why it is not obtainable. The 
standards also require the provision of contact information for the 
physician in

[[Page 54085]]

the country of origin who provided the information. The standards also 
mandate that, when a summary of a medical record is sent, the agency or 
person must ask the public or competent authority or other entity that 
provided the summary to produce a copy of the original medical record 
on which the summary is based. Additionally, the standards set time 
requirements for the advance provision of medical information to 
prospective adoptive parent(s). In accordance with the IAA, the child's 
medical records must be provided at least two weeks before either the 
adoption or the date on which the prospective adoptive parent(s) 
commence travel to the country of origin for the adoption, whichever is 
earlier. Finally, to ensure that prospective adoptive parent(s) have 
adequate time to consider such records, the standards require the 
agency or person to give the prospective adoptive parent(s) at least 
one week--unless there are extenuating circumstances involving the 
child's best interests that require a more expedited decision--to 
consider the records before a referral can be withdrawn.
    (c) Review of Standards Related to Performance of Central Authority 
Functions in Incoming and Outgoing Cases. There are a number of 
sections that include standards with which agencies and persons must 
comply when performing Central Authority functions in either incoming 
or outgoing cases. The standards for incoming cases are in Sec. Sec.  
96.47 through 96.52. The standards for outgoing cases are in Sec. Sec.  
96.53 through 96.55. These standards are intended to ensure that 
agencies and persons are evaluated on their performance of those 
Convention tasks for which they are responsible. The Department will 
not review in the Preamble the content of each of these sections but 
wishes to highlight that these sections do not necessarily require the 
agency or person to perform the stated function in every case. Some of 
these functions may not be required in a case because the function is 
being performed by a public body, public authority, or competent 
authority, because the function is not applicable in the other 
Convention country, or because the factual circumstances of the case 
make the function unnecessary. For the purpose of accreditation and 
approval, the agency or person must further demonstrate that, when such 
functions have been performed, performance has been in accordance with 
the standards.
7. Subpart G--Decisions on Applications for Accreditation and Approval
    Subpart G addresses how the accrediting entity must make and 
communicate decisions about accreditation and approval. Most important, 
for agencies or persons who applied by the TAD and who were accredited 
or approved by the DIA, the accrediting entity must notify such 
agencies and persons in writing on a ``uniform notification date'' 
(UND) to be set by the Department. The regulations state that the 
accrediting entity is not to provide any information on the agency's or 
person's status to the public or to the agency or person in question 
until the UND.
    The Department has adopted this special procedure to ensure that no 
particular agency or person in this initial accreditation and approval 
phase gains any advantage by being notified earlier than other 
applicants. The accrediting entity or entities, which will have a 
limited number of evaluators to review applications and documents and 
conduct site visits, will necessarily finish evaluating some agencies 
or persons early and other agencies or persons closer to the DIA. The 
Department seeks to prevent those first qualifying from prematurely 
seeking acceptance by other Convention countries or from soliciting 
clients by using positive accreditation or approval decisions before 
the others have had an opportunity to complete the process during this 
start-up phase. The UND is designed to create an equitable starting 
point for all agencies and persons that applied by the TAD.
    This regulation on communication during the start-up phase does not 
prohibit an accrediting entity from communicating with agencies or 
persons that applied by the TAD about their status for the sole purpose 
of affording them an opportunity to correct deficiencies before the 
DIA. Likewise, the Department may obtain interim status information 
from the accrediting entity.
    Similarly, the regulations deal with the problem that all the 
agencies and persons that were accredited or approved during this 
start-up phase could come due for renewal at the same time. To avoid an 
ever-repeating bottleneck, the regulation provides that the accrediting 
entity, in consultation with the Secretary, may accredit or approve 
some agencies and persons that applied by the TAD for a period of 
three, four, or five years for just the first accreditation or approval 
cycle. The Secretary must approve the criteria used to assign 
accreditation or approval periods to such agencies or persons.
    Also in subpart G, the Department selects a four-year accreditation 
or approval period. The IAA provides that the accreditation or approval 
period should not be less than three years and not more than five 
years. (Pub. L. 106-279, section 203(b)(3)). The Department weighed the 
costs and benefits of different periods and chose the period of four 
years. There was substantial public concern about the recurring fees 
accrediting entities would charge for each renewal cycle and the costs 
incurred internally when agencies and persons must make changes in 
staffing, training, and other operations to comply with the standards 
set by the regulations. There was also public concern that these costs 
would be passed along to prospective adoptive parent(s) and could make 
the cost of adoption services beyond the reach of many families. On the 
other hand, others in the public were eager to ensure that the 
compliance of agencies and persons was checked often. Therefore, the 
Department selected the four-year cycle to balance the desire to 
minimize costs while ensuring sufficiently frequent renewal 
evaluations, which will be more extensive than the routine monitoring 
required during the accreditation or approval period.
8. Subpart H--Renewal of Accreditation and Approval
    Subpart H, which mainly regulates the accrediting entities, governs 
the renewal of accreditation or approval. To determine whether to renew 
accreditation or approval, the accrediting entity must evaluate the 
agency or person to determine if it is in substantial compliance with 
the standards in subpart F. Before making a renewal decision, the 
accrediting entity in its discretion may advise the agency or person of 
any deficiencies that may hinder or prevent its renewal and defer a 
decision to allow the agency or person to correct the deficiencies. The 
accrediting entity must process the renewal application in a timely 
fashion.
    Agencies or persons in good standing may apply for renewal from a 
different accrediting entity than the one that handled its prior 
application. If an agency or person decides not to seek renewal, it 
must notify the accrediting entity and take the necessary steps to 
transfer its pending Convention adoption cases and adoption records 
appropriately.

[[Page 54086]]

9. Subpart I--Routine Oversight by Accrediting Entities
    Subpart I covers routine oversight of accredited agencies and 
approved persons. The accrediting entity is expected to take a more 
assertive role than is typically the case in the current, purely 
voluntary accreditation process in monitoring accredited agencies and 
approved persons. For example, the accrediting entity must monitor the 
accredited agencies and approved persons at least annually to ensure 
that they may maintain their accreditation or approval. The accrediting 
entity must also investigate complaints in accordance with subpart J. 
As part of its oversight, the accrediting entity may conduct random 
site visits and consider any information that becomes available about 
the agency's or person's compliance.
10. Subpart J--Oversight Through Review of Complaints
    Subpart J sets out extensive procedures for making complaints about 
accredited agencies or approved persons. Subpart J was added to the 
regulations specifically in response to requests from elements of the 
adoption community asking for more avenues to express complaints about 
unsatisfactory practices and to reduce the potential for litigation by 
giving parties a complaint resolution mechanism. The Department 
recognizes that the handling of complaints against agencies and persons 
is a major concern to some members of the adoption community. The 
Department has heard claims that State-licensing authorities and 
accrediting entities do not respond adequately to complaints about 
intercountry adoption practices and that current complaint processes 
are not sufficiently transparent. The Department has been urged to 
establish a mechanism through which the Department would itself, 
outside of the IAA-mandated accreditation and approval process, 
investigate complaints and penalize unacceptable conduct.
    The IAA does not give the Department the authority to set up an 
entirely separate enforcement scheme with non-statutory remedies 
outside of the accreditation and approval process and use of adverse 
action and the IAA civil and criminal penalties. In particular, the IAA 
specifically developed a structure under which the Department for the 
most part would not directly regulate agencies or persons. Instead, it 
relies on private or State-based accrediting entities to regulate 
agencies and persons using the standards developed by the Department. 
Where those entities do not act, the IAA provides for the Department to 
suspend or cancel accreditation or approval by acting directly. 
Furthermore, the IAA permits the Department temporarily or permanently 
to debar agencies or persons.
    These enforcement devices, along with the adverse actions that may 
be imposed by the accrediting entity, are sufficient to enforce the 
standards without creating a duplicative process. In any event, the 
Department could not manage such additional proposed responsibilities 
given its primary mission as a foreign affairs agency responsible for 
the conduct of diplomatic and consular relations. Moreover, the funding 
for such a major, non-statutorily mandated role for the Department 
would be uncertain. The Department lacks the capacity to create and 
assume such a role in dispute resolution and imposition of remedies. 
The Department therefore believes that the enforcement scheme 
established in the IAA should be given a chance to work.
    The Department does, however, take the community's request for a 
complaint process very seriously. Thus, the regulations adopt a 
suggestion that the Department establish a complaint service to 
receive, screen, and monitor action on complaints. Specifically, the 
regulations provide for the establishment of a Complaint Registry, 
which may be funded in whole or in part by fees collected by the 
accrediting entities or the Department. The Complaint Registry will 
record complaints that are not resolved through the internal processes 
of the service providers and ensure that they are brought to the 
attention of the accrediting entities or others as appropriate. The 
accrediting entity is obligated to report the outcome of complaints it 
receives to the Complaint Registry so that the Department can monitor 
whether and how the accrediting entity is addressing complaints. The 
Complaint Registry will also be charged with identifying any patterns 
of complaints and other egregious behavior and reporting them as 
appropriate for further action. The precise functions of the Complaint 
Registry will be detailed in an agreement between the Department and 
the Complaint Registry.
    The regulations prescribe how the complaint process will work. 
Generally, complaining parties, other than Federal agencies, public 
bodies, law enforcement or licensing authorities, or foreign Central 
Authorities must first file their complaints with the agency or person 
providing adoption services and, if the agency or person is a 
supervised provider, with the primary provider in the case. If the 
complaint is not resolved at this level, then the complaint may be 
filed with the Complaint Registry, which will screen and record the 
complaints and refer them, as appropriate, to the accrediting entity or 
other authorities. Federal agencies, public bodies, law enforcement or 
licensing authorities, or foreign Central Authorities may make 
complaints directly to the Complaint Registry or the accrediting 
entity. The accrediting entity must investigate the complaint and may 
conduct a site visit if necessary. If an accrediting entity determines 
that the agency or person is out of compliance, it must take adverse 
action pursuant to subpart K. When an accrediting entity has completed 
its investigation, it must provide written notification to the 
complainant, the Complaint Registry, and any other entity that referred 
the complaint and include information on the outcome and any actions 
taken. The accrediting entity must also establish written procedures to 
respond to complaints. Finally, the accrediting entity must refer 
certain types of substantiated complaints to the Secretary or 
appropriate law enforcement authorities. The regulations prescribe the 
standard for determining when to make such referrals.
    The Department believes that one critical benefit of these 
complaint procedures will be to promote the resolution of complaints 
about adoption service providers in a way that will minimize, if not 
eliminate, the need for an accrediting entity or the Department to take 
adverse action, which may be challenged by an affected agency or person 
in Federal court. Thus, the procedures may also have the effect of 
reducing litigation.
11. Subpart K--Adverse Action by Accrediting Entities
    Subpart K describes how and when an accrediting entity may impose 
an adverse action. To enforce the accreditation and approval standards 
in subpart F, the IAA gives both designated accrediting entities and 
the Department the power to impose adverse actions. An accrediting 
entity is authorized to take certain actions against agencies and 
persons. The Department has the authority to take some of the same 
adverse actions as an accrediting entity, along with the additional 
authority to temporarily or permanently debar an agency or person. The 
Department's enforcement authorities are addressed in subpart L.
    An accrediting entity, whether it is a private, non-profit 
accrediting entity or

[[Page 54087]]

a State entity, may impose the following adverse actions: Suspend 
accreditation or approval; cancel accreditation or approval; refuse to 
renew accreditation or approval; require specific corrective action to 
improve deficiencies; or impose other sanctions. Under the IAA, these 
specific adverse actions are not subject to any type of administrative 
review (i.e., they are not subject to review by the Department), and 
the regulations reinforce this point. The IAA does provide, however, 
that these specific adverse actions are subject to judicial review in a 
United States district court.
    Denial of an agency's or person's initial request for accreditation 
or approval is not listed as an adverse action in the IAA. (Pub. L. 
106-279, 202(3)). Clearly, however, there is the possibility that 
agencies and persons will be denied accreditation or approval. Thus, 
the regulations permit the accrediting entity to deny accreditation or 
approval and make clear that, because denial is not listed as an 
adverse action under section 202(3) of the IAA, it is subject to 
neither judicial review nor administrative review. This approach is 
consistent with the Department's understanding that the IAA 
distinguishes, intentionally, between agencies and persons actively 
providing Convention adoption services pursuant to accreditation or 
approval, on the one hand, and agencies and persons not so engaged. 
Adverse actions imposed on the former are, in effect, sanctions, 
whereas denial to the latter is not a sanction, but merely a decision 
that certain standards have not been met, leaving open the possibility 
that they will be met later. The former have interests in preserving 
their ability to continue their work, and the IAA protects these 
interests by providing judicial review of the enumerated adverse 
actions. The IAA does not similarly protect the interests of agencies 
and persons in the second category, i.e., those not engaged in 
providing Convention adoption services pursuant to accreditation or 
approval. To permit agencies and persons judicial review of denial 
decisions would significantly add to the costs of accreditation and 
approval. Limiting access to judicial review to agencies and persons 
that have already been accredited or approved, and that have developed 
the resources to provide adoption services, will conserve the 
accrediting entity's limited resources. This limitation will enable the 
accrediting entity to focus on and monitor the performance of agencies 
and persons actually providing adoption services on an ongoing basis 
rather than devoting its resources to defending in time-consuming 
litigation its decisions to deny accreditation or approval. This 
limitation will also reduce the number of cases in this new area of 
Federal regulation subject to the jurisdiction of the Federal courts. 
The regulations, however, do permit the agency or person to petition 
the accrediting entity for reconsideration of the denial, pursuant to 
the accrediting entity's internal review procedures.
    Denial of a reapplication for accreditation or approval after 
cancellation or refusal to renew is treated the same as denial of an 
initial application. In both instances, the applicant will not be 
currently engaged in providing Convention adoption services pursuant to 
accreditation or approval, and thus will not have the kind of interest 
in providing continued services that the IAA protects by making 
judicial review available. In contrast, an accrediting entity may 
cancel or refuse to renew the accreditation or approval of an agency or 
person, but the agency or person in that case has an interest in 
providing continued services and, under the IAA, may seek judicial 
review of the cancellation or the refusal to renew. Altenatively, that 
agency or person, instead of seeking judicial review of the 
cancellation or refusal to renew, may choose to reapply for 
accreditation or approval. If the accrediting entity denies that 
reapplication for accreditation or approval, the denial is not subject 
to administrative or judicial review. Again, the regulations permit the 
agency or person to petition the accrediting entity for reconsideration 
of the denial, pursuant to the accrediting entity's internal review 
procedures.
    In summary, all adverse actions (suspension, cancellation, refusal 
to renew, corrective action, or other sanction) are subject to judicial 
review, consistent with the fact that all affect an accredited agency 
or approved person with an interest in continuing the provision of 
Convention adoption services pursuant to previously granted 
accreditation or approval. Prior to seeking judicial review and 
consistent with the normal requirements for judicial review under the 
APA, the regulations require agencies and persons to exhaust non-
judicial remedies before the accrediting entity. Specifically, the 
agency or person must petition the accrediting entity to terminate the 
adverse action on the grounds that the deficiencies necessitating the 
adverse action have been corrected. If the deficiencies that led to the 
adverse action have been corrected, the accrediting entity may 
terminate the adverse action. It is only when the accrediting entity 
does not terminate the adverse action that the agency or person may 
seek judicial review.
    If an agency or person challenges cancellation of or refusal to 
renew its accreditation or approval in Federal court, its only remedy 
if the court denies its petition is to reapply to an accrediting entity 
for accreditation or approval. Permission to reapply, however, is not 
automatic. The accrediting entity may grant such permission only if the 
agency or person demonstrates that the specific deficiencies that led 
to the cancellation or refusal to renew have been corrected. Any denial 
of these re-applications, as noted previously, is not subject to 
judicial review.
    If an agency or person is challenging the imposition of a 
suspension, corrective action, or other sanction by an accrediting 
entity in Federal court, it has no avenue for reversing such action 
other than review by a United States district court, which must review 
any challenged adverse actions in accordance with the APA, 5 U.S.C. 
706. For purposes of judicial review, the accrediting entity will be 
treated as a Federal agency as defined in 5 U.S.C. 701.
12. Subpart L--Oversight of Accredited Agencies and Approved Persons by 
the Secretary
    The Department may impose the following adverse actions: 
suspension, cancellation, or temporary or permanent debarment. Under 
the IAA, these specific adverse actions are not subject to any type of 
administrative review by the Department or otherwise, and the 
regulations reinforce this point. Under the IAA, these final adverse 
actions are subject to judicial review in a United States district 
court.
    The IAA administrative enforcement scheme provides, in section 
204(b)(1) of the IAA, that the Department may suspend or cancel 
accreditation or approval when the accrediting entity has failed or 
refused to act. The IAA does not give the Secretary a role in reviewing 
or changing the adverse action decisions or denial actions actually 
imposed by the accrediting entity. The Department must, however, 
suspend or cancel the accreditation or approval granted by the 
accrediting entity when the Department finds that agency or person is 
substantially out of compliance with the standards in subpart F and the 
accrediting entity has failed or refused, after consultation with the 
Department, to take action. (Pub. L. 106-279, section 204(b)(1)).

[[Page 54088]]

    In addition to this IAA statutory requirement, the Department has 
included in the proposed regulation another basis for suspension or 
cancellation by the Department. The Department may suspend or cancel 
accreditation or approval when such action will further U.S. foreign 
policy or national security interests, protect the ability of U.S. 
citizens to adopt children under the Convention, or protect the 
interests of children. The Department believes that this additional 
basis for suspending or canceling a particular agency's or person's 
accreditation or approval is a natural corollary of the Department's 
foreign affairs authority and is consistent with the IAA because it 
will enable the Department in specific situations to meet two of the 
stated IAA goals, which are:

    [T]o protect the rights of, and prevent abuses against, 
children, birth families, and adoptive parents involved in adoptions 
(or prospective adoptions) subject to the Convention, and to ensure 
that such adoptions are in the children's best interests; and
    [T]o improve the ability of the Federal Government to assist 
United States citizens seeking to adopt children from abroad and 
residents of other countries party to the Convention seeking to 
adopt children from the United States. (Pub. L. 106-279, 2(b)(2) and 
2(b)(3)).

    This authority could be used, for example, if the practices of a 
particular accredited agency were to cause a Convention country to 
undertake action that could adversely affect the ability of United 
States citizens generally to adopt children from the country in 
question.
    To obtain relief from the Department's suspension or cancellation, 
an agency or person must demonstrate to the Secretary that the 
deficiencies or circumstances that led to the adverse action have been 
corrected or are no longer applicable. In the case of suspension, the 
Department may terminate the suspension. In the case of cancellation, 
the Department may give the agency or person permission to reapply to 
the accrediting entity for accreditation or approval.
    The Department, at its discretion, may also temporarily or 
permanently debar an agency or person on the Department's own 
initiative, at the request of DHS, or at the request of an accrediting 
entity. The standard for debarment is drawn directly from section 
204(c) of the IAA and requires that there be substantial evidence that 
the agency or person is out of compliance and that there has been a 
pattern of serious, willful, or grossly negligent failures to comply, 
or other aggravating circumstances indicating that continued 
accreditation or approval would not be in the best interests of the 
children and families concerned.
    In the case of temporary debarment, the Department's order, as 
required by the IAA, may not be for less than three years. The order 
must state the time frame for the temporary debarment and list the date 
on which the agency or person may petition the Department for 
withdrawal of the temporary debarment. If the Department withdraws the 
temporary debarment, the agency or person may then apply for 
accreditation or approval to an accrediting entity. In the case of 
permanent debarment, the agency or person is not permitted to petition 
the Department for withdrawal and may not apply for accreditation or 
approval again.
    As provided in the IAA, a United States district court may review 
any challenged final adverse action of the Secretary in accordance with 
the APA, 5 U.S.C. 706.
13. Subpart M--Dissemination and Reporting of Information by 
Accrediting Entities
    Subpart M requires the accrediting entity to make information about 
accredited agencies and approved persons publicly available. The 
provisions of subpart M on public disclosure of information will take 
effect only after the Convention enters into force for the United 
States. Specifically, the accrediting entity must disclose the name, 
address, and contact information for each accredited agency or approved 
person, and the names of agencies and persons denied accreditation or 
approval. It must also provide the names of those who have been subject 
to withdrawal of temporary accreditation, suspension, cancellation, 
refusal to renew, or debarment.
    The accrediting entity must also make certain other information 
available to the public upon specific request. This includes confirming 
whether an agency or person has a pending application and the status of 
that application. It also includes indicating whether an agency or 
person has been subject to withdrawal of temporary accreditation, 
suspension, cancellation, refusal to renew, or debarment and providing 
a brief statement of the reasons for the action. Most important, the 
accrediting entity must make available a summary of the accreditation 
or approval study for each accredited agency or approved person in a 
format to be approved by the Department.
    The accrediting entity must also maintain and disseminate certain 
information about complaints. In particular, when a complaint is filed, 
the accrediting entity must maintain a written record of it and must 
verify certain information about the complaint upon request. The 
accrediting entity must have procedures for disclosing information 
about complaints that are substantiated and not substantiated.
    The Department is placing these additional burdens on the 
accrediting entity in response to suggestions that such information 
should be made accessible so that parents can compare the performance 
of agencies and persons. The Department realizes that requiring the 
accrediting entity to perform this additional task will add to the 
costs of accreditation and approval and that these costs will 
ultimately be passed on to parents. There will be a substantial 
benefit, however, to parents in having available information that 
allows them to make informed decisions when selecting a service 
provider. The publication and dissemination of this information will 
also give agencies and persons another incentive to meet the standards 
set in subpart F.
    The Department also intends to convene a working group that will 
include the accrediting entity(s) and other Federal government bodies, 
including DHS. The working group will meet on a regular basis to 
facilitate the exchange of information about the accreditation and 
approval process and to discuss how the agencies and persons are 
complying with these regulations.
14. Subpart N--Procedures and Standards Relating to Temporary 
Accreditation
    The IAA permits the temporary accreditation of small agencies for a 
one- or two-year period starting on the date that the Convention enters 
into force for the United States. Agencies, but not persons, may apply 
to become temporarily accredited. The regulations in subpart N apply 
only to temporary accreditation.
    To be eligible for temporary accreditation, an agency must show 
that it has provided adoption services in fewer than 100 intercountry 
adoption cases in the calendar year preceding the year in which the TAD 
falls (see subpart D for an explanation of the ``transitional 
application deadline''). An agency may be eligible for a one- or two-
year period of accreditation, depending upon the number of intercountry 
adoptions the agency has handled. An agency that has provided adoption 
services in 50-99 intercountry adoptions in the calendar year preceding 
the year in which the TAD falls may apply for a one-year period of 
temporary accreditation. An agency that has provided adoption services 
in fewer than 50 intercountry

[[Page 54089]]

adoptions in the calendar year preceding the year in which the TAD 
falls may apply for a two-year period of temporary accreditation. Both 
the one- and the two-year periods commence on the date that the 
Convention enters into force for the United States.
    To become temporarily accredited, an agency must demonstrate that: 
(1) It is a non-profit agency licensed by State law to provide adoption 
services in at least one State; (2) it is, and, for the last three 
years prior to the TAD has been providing intercountry adoption 
services; (3) it has the capacity to comply with the Department's and 
the accrediting entity's reporting requirements; and (4) it has not 
been involved in any improper conduct related to providing intercountry 
adoption services. To prove that it has not been involved in any prior 
improper conduct, the agency must provide evidence that it has 
continually maintained its State license without suspension or 
cancellation for misconduct and it has not been subject to any fault or 
liability decisions or criminal findings of fraud or financial 
misconduct for the three years preceding the TAD. The agency also must 
demonstrate that it has a comprehensive and realistic plan for 
achieving full accreditation and is actively taking steps to execute 
that plan.
    To maintain temporary accreditation, the agency must: (1) Follow 
all applicable licensing and regulatory requirements; (2) refrain from 
any improper conduct, including but not limited to, maintaining its 
State license; (3) avoid any findings of fault or liability in any 
administrative or judicial action; (4) ensure that it is not subject to 
any criminal findings of fraud or financial misconduct; (5) adhere to 
the prohibition against child-buying in Sec.  96.36; (6) respond to 
complaints in accordance with Sec.  96.41; (7) comply with the 
maintenance of records requirements in Sec.  96.42; (8) provide data in 
accordance with Sec.  96.43; (9) comply with the home study, child 
background study, and consents requirements in Sec. Sec.  96.47 and 
96.53; and (10) plan for the transfer of its cases when necessary. 
Furthermore, when acting as the primary provider using supervised 
providers, the agency must comply with the requirements on primary 
providers in Sec. Sec.  96.44, 96.45, and 96.46. When performing 
Convention functions in either incoming or outgoing cases, it must 
adhere to the standards in Sec. Sec.  96.52 (incoming cases) and 96.55 
(outgoing cases). These standards and others are listed in Sec.  
96.104.
    These standards for obtaining or maintaining temporary 
accreditation (subpart N) are much less comprehensive than the 
standards for full accreditation (Subpart F). The reason for this 
difference is that the IAA mandates that small agencies, which 
initially might be unable to meet the more detailed standards 
applicable to full accreditation, be allowed to provide services during 
an initial phase-in period for Convention implementation while 
developing the resources to comply with the accreditation standards. 
The temporary accreditation provisions are designed to avoid 
prematurely disqualifying small, community-based agencies from 
providing Convention adoption services. These regulations take into 
account the concern that, if too many small, non-profit agencies were 
unable to meet the standards and consequently stopped providing 
adoption services, then parents and children in some geographical areas 
of the United States would find it difficult to obtain services. On the 
other hand, the Department also considered the goal of ensuring that 
temporarily accredited agencies could provide satisfactory adoption 
services to families served. Thus, the Department struck a balance 
between these competing concerns and developed a list of performance-
based standards applicable to temporarily accredited agencies, but also 
incorporated by reference certain key standards from the accreditation 
provisions in subpart F.
    Moreover, some of the accrediting entity's procedures for 
evaluating an agency for temporary accreditation differ from the 
procedures for evaluating an agency for full accreditation. For 
example, an accrediting entity must conduct a site visit before 
granting full accreditation; however, for temporary accreditation, an 
accrediting entity may, in its discretion, conduct a site visit if 
necessary. The costs for site visits for full accreditation will be 
wrapped into the initial accreditation fee disclosed to the agency. 
Only if the accrediting entity decides to conduct a site visit for 
temporary accreditation, however, will it then assess the agency 
additional fees for the site visit costs. Also, the accrediting entity 
must monitor the agency's progress in implementing the plan for full 
accreditation and require the agency to make continual progress toward 
completing the process of obtaining full accreditation. These are just 
a few examples of the special procedures applicable to temporary 
accreditation. The reader is encouraged to consult subpart N for a 
detailed listing.
    Finally, an accrediting entity may deny temporary accreditation, or 
withdraw temporary accreditation after it is granted, when the agency 
is not in substantial compliance with the applicable standards. Under 
the regulations, there is no administrative or judicial review of an 
accrediting entity's decision to deny temporary accreditation. This is 
consistent with the fact that the IAA does not treat denial as an 
adverse action. The Department believes, however, that withdrawal of 
temporary accreditation is an adverse action subject to judicial review 
under the IAA. Withdrawal of temporary accreditation is similar to 
cancellation and other adverse actions that are subject to judicial 
review in that an agency or person that was already permitted to 
provide adoption services under the Convention will lose the ability to 
provide such services. An agency whose temporary accreditation has been 
withdrawn may continue to seek full accreditation or may withdraw its 
pending application and apply for full accreditation at a later time. 
The circumstances of the withdrawal of its temporary accreditation may 
be taken into account when evaluating the agency for full 
accreditation.

VI. Regulatory Review

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

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires an 
agency to prepare a regulatory flexibility analysis of any rule subject 
to notice and comment rulemaking requirements under the APA or any 
other statute unless the agency certifies, pursuant to 5 U.S.C. 605(b), 
that the rule will not have a significant economic impact on a 
substantial number of small entities. An initial regulatory flexibility 
analysis is required to ``describe the impact of the proposed rule on 
small entities.'' (5 U.S.C. 603(a)). ``Small entities'' include ``small 
organizations,'' which the RFA defines as any non-profit enterprise 
that is independently owned and operated and not dominant in its field. 
(5 U.S.C. 601(4), 601(6)).
    This proposed rule directly affects all adoption service providers, 
whether agencies or persons, who are providing intercountry adoption 
services in cases involving other Convention countries. The estimate of 
the number of such entities, which are mainly non-profits, is between 
410 and 600. The Department estimates that the vast majority of these 
adoption service providers are small entities under the RFA; therefore, 
the Department has determined that this proposed rule will

[[Page 54090]]

have an impact on a substantial number of small entities.
    The Department also has determined, however, that the impact on 
small entities affected by the proposed rule will not be significant. 
First, the effect of the proposed rule will be to allow agencies and 
persons the flexibility to choose to be accredited or approved or to 
act as supervised providers. Supervised providers are not required to 
become accredited or approved and thus they can largely avoid the 
economic impact of becoming accredited or approved. Second, certain 
types of very small providers, specifically home study and child 
background study preparers, are exempt. Third, the IAA and the 
regulations provide for a tiering system that includes a special 
temporary accreditation procedure just for small agencies (defined in 
the IAA as agencies providing services in less than 100 intercountry 
adoption cases a year). Small agencies eligible for temporary 
accreditation will pay less in accreditation fees than applicants for 
full accreditation and will not be required to meet the standards for 
full accreditation. Fourth, the IAA and the regulations use an 
accreditation model, and a substantial compliance structure that 
provides agencies and persons with ample opportunity to correct 
deficiencies before accreditation or approval is denied. Thus, the 
accreditation model used in this proposed rule allows for the majority 
of the standards to be performance-based. Substantial compliance, which 
is typical of regulations based on an accreditation scheme, inherently 
provides for regulatory flexibility because entities are not required 
to comply perfectly with every single standard. Overall, these four 
features of the proposed regulations minimize the burden on small 
entities.
    Finally, the Department notes that failing to establish an 
accreditation/approval process under the Convention and the IAA could 
adversely affect small entities by closing off opportunities for 
intercountry adoptions with countries party to the Convention. Thus, 
there are major benefits for adoption service providers, as well as 
birth parents, adoptive parents, and children, from an accreditation 
and approval process designed to comply with the Convention. Many 
members of the public advocated during the preliminary input phase that 
the Department should complete these proposed regulations as quickly as 
possible to minimize the risk of other Convention countries refusing to 
work with U.S. adoption service providers to place children with U.S. 
parents.
    Accordingly, the Department hereby certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities. Although the Department does not think these regulations will 
have a significant economic impact on a substantial number of small 
entities, it would like to solicit comment from the public on the 
following questions: (1) Will most small agencies be eligible for 
temporary accreditation under the criteria provided in subpart N? (2) 
How many agencies are likely to seek temporary accreditation rather 
than full accreditation? (3) What are accrediting entities likely to 
charge the agencies for the temporary accreditation process? (4) What 
are the estimated costs agencies will have to expend to comply with the 
standards in Subpart N? (5) Will small agencies be negatively impacted 
if they are unable to qualify for temporary accreditation? It would be 
helpful if commenters supply information and data to support their 
comments on these enumerated issues.
    Under Executive Order 13272, an agency must notify the SBA of draft 
rules that may have a significant economic impact on a substantial 
number of small entities. These proposed rules were submitted to the 
Office of Advocacy for the SBA for review and comment prior to 
publication of the rules, as required by Executive Order 13272.

B. The Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C 804, for 
purposes of congressional review of agency rulemaking under the Small 
Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-
121. This rule 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, innovation, or on the ability of United States-based 
companies to compete with foreign based companies in domestic and 
import 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. 
The federalism implications of the proposed regulation in light of the 
requirements of the IAA are discussed in Section IV paragraph (D) of 
the Preamble. In light of that analysis, the Department finds that this 
regulation will not have 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. Therefore, the Department has determined that this rule 
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 import or export of non-defense 
articles and services.'' These rules, through which the Department 
provides for the conduct of U.S. Central Authority responsibilities 
under the Convention, directly pertain to foreign affairs functions of 
the United States. On the other hand, they were expressly made subject 
to notice and comment rulemaking requirements under the APA by section 
203(a)(3) of the IAA.

[[Page 54091]]

    After reviewing the proposed rule under the criteria listed in 
section 3(f) of the Executive Order, the Department has determined that 
the regulations will not have a cumulative annual effect of $100 
million or more on the economy. They will not create a serious 
inconsistency or otherwise interfere with any action taken or planned 
by another agency, because no other Federal agency has overlapping 
authority with respect to the subject matter of the regulation. They 
will not materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof, because they have no implications for recipients of 
such Federal funding. Also, the Department believes that the 
regulations do not raise novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in Executive Order 12866. Accordingly, the proposed rules are not a 
``significant regulatory action'' within the meaning of the Executive 
Order 12866. The Department recognizes, however, that these regulations 
do address matters of considerable public interest. Therefore, although 
the Department does not consider this rule to be a ``significant 
regulatory action,'' the Department consulted with DHS, HHS, and the 
SBA during the formulation of the rule. The rule was sent for review to 
OMB and SBA.

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 of 1995

    As noted above in the Preamble (Part IV, Section F), the Department 
has determined that Sec.  96.91 and Sec.  96.92 of subpart M, which 
cover dissemination of information about agencies and persons to the 
general public, constitute the type of ``third-party disclosures to the 
general public'' that are ``information collections'' covered by the 
PRA. The Department has concluded that these sections are not covered 
by the IAA exemptions to the PRA. Accordingly, the Department will 
submit an information collection request to OMB for review and 
clearance in conjunction with this notice of proposed rulemaking, as 
required by 44 U.S.C. 3507(d) and 5 CFR 1320.11.
    Section 96.91--Dissemination of Information to the Public about 
Accreditation and Approval Status--requires the accrediting entity to 
disseminate information on an agency's or person's accreditation/
approval status. Section 96.92--Dissemination of Information to the 
Public About Complaints Against Accredited Agencies and Approved 
Persons--requires the accrediting entity to disseminate information on 
complaints about agencies and persons. The requirements of these 
sections specifically include:

--Requiring an accrediting entity to make available the names of 
agencies and persons that have been granted or denied accreditation or 
approval and those that have been subject to enforcement actions by the 
accrediting entity or the Department.
--Requiring an accrediting entity to provide information about agencies 
and persons that have pending applications for accreditation or 
approval.
--Requiring an accrediting entity to provide a summary of the 
accreditation/approval study on the agency or person.
--Requiring an accrediting entity to identify those agencies or persons 
that have been the subject of an enforcement action and provide a brief 
statement of the reasons for the action.
--Requiring an accrediting entity to verify information about the 
status of complaints received against accredited agencies or approved 
persons and identify whether the complaint was substantiated or not.

    These proposed rules are intended to improve significantly the 
amount and type of information on adoption agencies and persons 
available to prospective adoptive parent(s) when they are in the 
process of selecting an adoption service provider. They are neither 
required nor expressly authorized by the IAA, but the Department 
believes that they are in furtherance of the oversight and enforcement 
functions of accrediting entities provided for in IAA subsections 
202(b)(2) and (3). Accrediting entities may provide the information in 
any format, including using a Web site to publish such information 
about accredited agencies or approved persons.
    The Department is seeking a three-year approval for these 
collections. The Department requests written comments and suggestions 
from the public and affected accrediting entities concerning this 
proposed collection of information. Comments are being solicited to 
permit the Department to:

    (1) Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden 
of the proposed collection of information, including the validity of 
the methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information 
to be collected;
    (4) Minimize the burden of the collection of the information, 
including through the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques.

    Overview of this information collection:
    Type of Information Collection: New.
    Title: Accrediting Entity Dissemination of Information About 
Accredited Agencies and Approved Persons to the Public.
    Affected Public & Abstract: Designated Accrediting Entities (non-
profit institutions or State public bodies).
    The IAA requires that the Department designate accrediting entities 
to accredit agencies or approve persons to provide adoption services 
for intercountry adoptions covered under the Convention. This 
information collection requires any such designated accrediting 
entities to disseminate information to prospective adoptive parent(s) 
and the public on the accreditation/approval status of agencies and 
persons. This information collection requires accrediting entities to 
disclose to prospective adoptive parent(s) and the public information 
on complaints filed against accredited agencies and approved persons. 
This third-party disclosure requirement is in furtherance of section 
202(b) of the IAA, which charges accrediting entities with 
responsibility for oversight and review of complaints against 
accredited agencies and approved persons.
    An Estimate of the Number of Respondents and the Amount of Time 
Required to Comply: The number of accrediting entities to be designated 
by the Department after publication of the final rule is unknown. The 
Department estimates that the number of designated accrediting entities 
is likely to be less than 10, but may constitute all or a substantial 
majority of the relevant accrediting industry. (See 5 CFR 
1320.3(c)(4)(ii)).
    Burden and an Estimate of the Total of Public Burden (in hours) Per 
Year Associated with the Collection: 60

[[Page 54092]]

minutes multiplied by 365 days; approximately 365 burden hours per 
accrediting entity; for an estimated annualized total of 3,285 hours.
    We request and welcome comments on the accuracy of the estimates. 
Comments on the collection of information should be sent to OMB, Attn: 
Desk Officer for the Department of State, Office of Information and 
Regulatory Affairs, Room 10202, New Executive Office Building, 
Washington, DC 20503 who may be reached on 202-395-3897; also send 
copies to Department of State at the address provided for in the 
Addresses section of this preamble. OMB is required to make a decision 
concerning the collection of information between 30 and 60 days after 
publication of this proposed rule. Consequently, a comment to OMB is 
best assured of having its full effect if OMB receives it within 30 
days after publication of this proposed rule.

H. The Treasury and General Government Appropriations Act of 1999--
Assessment of Federal Regulations and Policies on Families

    In light of the subject matter of these proposed regulations, and 
section 654 of the Treasury and General Government Appropriations Act 
of 1999, Public Law 105-277, 112 Stat. 2681 (1998), the Department has 
assessed the impact of these proposed regulations on family well-being 
in accordance with section 654(c) of that act. This rule implements the 
Convention and the IAA requirements related to the accreditation and 
approval of adoption service providers who provide adoption services to 
families involved in an intercountry adoption. This proposed rule will 
promote child safety, child and family well-being, and stability for 
children in need of a permanent family placement through intercountry 
adoption. The rule will help to ensure that adoption service providers 
are taking appropriate steps to protect children and to strengthen and 
support families involved in the intercountry adoption process.

List of Subjects in 22 CFR Part 96

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

    Accordingly, the Department proposes to add new part 96 to title 22 
of the CFR, chapter I, subchapter J to read as follows:

PART 96--ACCREDITATION OF AGENCIES AND APPROVAL OF PERSONS UNDER 
THE INTERCOUNTRY ADOPTION ACT OF 2000 (IAA)

Subpart A--General Provisions
Sec.
96.1 Purpose.
96.2 Definitions.
96.3 [Reserved]
Subpart B--Selection, Designation, and Duties of Accrediting Entities
96.4 Designation of accrediting entities by the Secretary.
96.5 Requirement that accrediting entity be a non-profit or public 
entity.
96.6 Performance criteria for designation as an accrediting entity.
96.7 Authorities and responsibilities of an accrediting entity.
96.8 Fees charged by accrediting entities.
96.9 Agreement between the Secretary and the accrediting entity.
96.10 Suspension or cancellation of the designation of an 
accrediting entity by the Secretary.
96.11 [Reserved]
Subpart C--Accreditation and Approval Requirements for the Provision of 
Adoption Services
96.12 Authorized adoption service providers.
96.13 Activities that do not require accreditation, approval, or 
supervision.
96.14 Providing adoption services using supervised providers, 
exempted providers, public bodies, or public authorities.
96.15 Public bodies.
96.16 Effective date of accreditation and approval requirements.
96.17 [Reserved]
Subpart D--Application Procedures for Accreditation and Approval
96.18 Scope.
96.19 Special provisions for agencies and persons seeking to be 
accredited or approved at the time the convention enters into force 
for the United States.
96.20 First-time application procedures for accreditation and 
approval.
96.21 Choosing an accrediting entity.
96.22 [Reserved]
Subpart E--Evaluation of Applicants for Accreditation and Approval
96.23 Scope.
96.24 Procedures for evaluating applicants for accreditation or 
approval.
96.25 Access to information and documents requested by the 
accrediting entity.
96.26 Protection of information and documents by the accrediting 
entity.
96.27 Substantive criteria for evaluating applicants for 
accreditation or approval.
96.28 [Reserved]
Subpart F--Standards for Convention Accreditation and Approval
96.29 Scope.

Licensing and Corporate Governance

96.30 State licensing.
96.31 Corporate structure.
96.32 Internal structure and oversight.

Financial and Risk Management

96.33 Budget, audit, insurance, and risk assessment requirements.
96.34 Compensation.

Ethical Practices and Responsibilities

96.35 Suitability of agencies and persons to provide adoption 
services consistent with the Convention.
96.36. Prohibition on child buying.

Professional Qualifications and Training for Employees

96.37 Education and experience requirements for social service 
personnel.
96.38 Training requirements for social service personnel.

Information Disclosure, Fee Practices, and Quality Control Policies and 
Practices

96.39 Information disclosure and quality control practices.
96.40 Fee policies and procedures.

Responding to Complaints and Records and Reports Management

96.41 Procedures for responding to complaints and improving service 
delivery.
96.42 Retention, preservation, and disclosure of adoption records.
96.43 Case tracking, data management, and reporting.

Service Planning and Delivery

96.44 Acting as primary provider.
96.45 Using supervised providers in the United States.
96.46 Using supervised providers in other Convention countries.

Standards for Cases in Which a Child is Immigrating to the United 
States

96.47 Preparation of home studies in incoming cases.
96.48 Preparation and training of prospective adoptive parent(s) in 
incoming cases.
96.49 Provision of medical and social information in incoming cases.
96.50 Placement and post-placement monitoring until final adoption 
in incoming cases.
96.51 Post-adoption services in incoming cases.
96.52 Performance of Hague Convention communication and coordination 
functions in incoming cases.

Standards for Cases in Which a Child is Emigrating From the United 
States

96.53 Background studies on the child and consents in outgoing 
cases.
96.54 Placement standards in outgoing cases.
96.55 Performance of Hague Convention communication and coordination 
functions in outgoing cases.
96.56 [Reserved]
Subpart G--Decisions on Applications for Accreditation or Approval
96.57 Scope.

[[Page 54093]]

95.58 Notification of accreditation and approval decisions.
96.59 Review of decisions to deny accreditation or approval.
96.60 Length of accreditation or approval period.
96.61 [Reserved]
Subpart H--Renewal of Accreditation or Approval
96.62 Scope.
96.63 Renewal of accreditation or approval.
96.64 [Reserved]
Subpart I--Routine Oversight by Accrediting Entities
96.65 Scope.
96.66 Oversight of accredited agencies and approved persons by the 
accrediting entity.
96.67 [Reserved]
Subpart J--Oversight Through Review of Complaints
96.68 Scope.
96.69 Filing of complaints against accredited agencies and approved 
persons.
96.70 Review of complaints about accredited agencies and approved 
persons by the Complaint Registry.
96.71 Review of complaints against accredited agencies and approved 
persons by the accrediting entity.
96.72 Referral of complaints to the Secretary and other authorities.
96.73 [Reserved]
Subpart K--Adverse Action by the Accrediting Entity
96.74 Scope.
96.75 Adverse action against accredited agencies or approved persons 
not in substantial compliance.
96.76 Procedures governing adverse action by the accrediting entity.
96.77 Responsibilities of the accredited agency, approved person, 
and accrediting entity following adverse action by the accrediting 
entity.
96.78 Petitions to terminate adverse action by the accrediting 
entity.
96.79 Administrative or judicial review of adverse action by the 
accrediting entity.
96.80 [Reserved]
Subpart L--Oversight of Accredited Agencies and Approved Persons by the 
Secretary
96.81 Scope.
96.82 The Secretary's response to actions by the accrediting entity.
96.83 Suspension or cancellation of accreditation or approval by the 
secretary.
96.84 Reinstatement of accreditation or approval after suspension or 
cancellation by the Secretary.
96.85 Temporary and permanent debarment by the Secretary.
96.86 Length of debarment period and reapplication after temporary 
debarment.
96.87 Responsibilities of the accredited agency, approved person, 
and accrediting entity following suspension, cancellation, or 
debarment by the Secretary.
96.88 Review of suspension, cancellation, or debarment by the 
Secretary.
96.89 [Reserved]
Subpart M--Dissemination and Reporting of Information by Accrediting 
Entities
96.90 Scope.
96.91 Dissemination of information to the public about accreditation 
and approval status.
96.92 Dissemination of information to the public about complaints 
against accredited agencies and approved persons.
96.93 Reports to the Secretary about accredited agencies and 
approved persons and their activities.
96.94 [Reserved]
Subpart N--Procedures and Standards Relating to Temporary Accreditation
96.95 Scope.
96.96 Eligibility requirements for temporary accreditation.
96.97 Application procedures for temporary accreditation.
96.98 Length of temporary accreditation period.
96.99 Converting an application for temporary accreditation to an 
application for full accreditation.
96.100 Procedures for evaluating applicants for temporary 
accreditation.
96.101 Notification of temporary accreditation decisions.
96.102 Review of temporary accreditation decisions.
96.103 Oversight by accrediting entities.
96.104 Performance standards for temporary accreditation.
96.105 Adverse action against a temporarily accredited agency by an 
accrediting entity.
96.106 Review of the withdrawal of temporary accreditation by an 
accrediting entity.
96.107 Adverse action against a temporarily accredited agency by the 
Secretary.
96.108 Review of the withdrawal of temporary accreditation by the 
Secretary.
96.109 Effect of the withdrawal of temporary accreditation by the 
accrediting entity or the Secretary.
96.110 Dissemination and reporting of information about temporarily 
accredited agencies.
96.111 Fees charged for temporary accreditation.

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

Subpart A--General Provisions


Sec.  96.1  Purpose.

    This part provides for the accreditation and approval of adoption 
service providers pursuant to the Intercountry Adoption Act of 2000 
(Pub. L. 106-279, 42 U.S.C. 14901-14954). Subpart B of this part 
provides for the procedures for the selection and designation of 
accrediting entities to perform the accreditation and approval 
functions. Subparts C through H establish the general procedures and 
standards for accreditation and approval of adoption service providers 
(including renewal of accreditation or approval). Subparts I through M 
address the oversight of accredited or approved adoption service 
providers. Subpart N establishes special rules relating to small 
adoption service providers that wish to seek temporary accreditation.


Sec.  96.2  Definitions.

    As used in this part, the term:
    Accredited agency means an agency that has been accredited by an 
accrediting entity, in accordance with the standards in subpart F of 
this part, to provide adoption services in the United States in cases 
subject to the Convention. It does not include a temporarily accredited 
agency.
    Accrediting entity means an entity designated by the Secretary to 
accredit agencies (including temporarily accredit) and/or to approve 
persons for purposes of providing adoption services in the United 
States in cases subject to the Convention.
    Adoption means the formal act that establishes the legal parent-
child relationship between a minor and an adult who is not already the 
minor's legal parent, so that as a result of the formal act the 
adoptive parent is the adoptive child's legal parent for all purposes 
and the legal parent-child relationship between the adoptive child and 
any former parent(s) is terminated.
    Adoption record means any record, information, or item related to a 
specific Convention adoption of a child received or maintained by an 
agency, person, or public body, including, but not limited to, 
photographs, videos, correspondence, personal effects, medical and 
social information, and any other information about the child. An 
adoption record does not include a record generated by an agency, 
person, or a public body to comply with the requirement to file 
information with the Case Registry on adoptions not subject to the 
Convention pursuant to section 303(d) of the IAA (Pub. L. 106-279, 
303(d), 42 U.S.C. 14932(d)).
    Adoption service means any one of the following six services:
    (1) Identifying a child for adoption and arranging an adoption;
    (2) Securing the necessary consent to termination of parental 
rights and to adoption;
    (3) Performing a background study on a child or a home study on a 
prospective

[[Page 54094]]

adoptive parent(s), and reporting on such a study;
    (4) Making non-judicial determinations of the best interests of a 
child and the appropriateness of an adoptive placement for the child;
    (5) Monitoring a case after a child has been placed with 
prospective adoptive parent(s) until final adoption; or
    (6) When necessary because of a disruption before final adoption, 
assuming custody and providing (including facilitating the provision 
of) child care or any other social service pending an alternative 
placement.
    Agency means a private, non-profit organization licensed to provide 
adoption services in at least one State. (For-profit entities and 
individuals that provide adoption services are considered ``persons'' 
as defined in this section.)
    Approved home study means a review of the home environment of a 
child's prospective adoptive parent(s) that has been:
    (1) Completed by an accredited agency or temporarily accredited 
agency; or
    (2) A home study that has been completed by an approved person or 
exempted provider and approved by an accredited agency or a temporarily 
accredited agency.
    Approved person means a person that has been approved, in 
accordance with the standards in subpart F of this part, by an 
accrediting entity to provide adoption services in the United States in 
cases subject to the Convention.
    Best interests of the child shall have the meaning given to it by 
the law of the State with jurisdiction to decide whether a particular 
adoption or adoption-related action is in a child's best interests.
    Case Registry means the tracking system jointly established by the 
Secretary and DHS to comply with section 102(e) of the IAA (Pub. L. 
106-279, section 102(e), 42 U.S.C 14912).
    Central Authority means the entity designated as such under Article 
6(1) of the Convention by any Convention country (in the case of the 
United States, the United States Department of State).
    Central Authority function means any duty required under the 
Convention to be carried out, directly or indirectly, by a Central 
Authority.
    Child welfare services means services, other than those defined as 
``adoption services'' in this section, that are designed to promote and 
protect the well-being of a family or child. Such services include, but 
are not limited to, recruiting and identifying adoptive parent(s) in 
cases of disruption (but not assuming custody of the child), arranging 
or providing temporary foster care for a child in connection with a 
Convention adoption, or providing educational, social, cultural, 
medical,psychological assessment, mental health, or other health-
related services for a child or family in a Convention adoption case.
    Competent authority means a court or governmental authority of a 
foreign country that has jurisdiction and authority to make decisions 
in matters of child welfare, including adoption.
    Complaint Registry means the entity established by the Secretary 
pursuant to Sec.  96.70 as responsible for receiving complaints about 
accredited agencies, temporarily accredited agencies, and approved 
persons and performing such other services as the Secretary may 
determine.
    Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption done at The Hague on May 
29, 1993.
    Convention adoption means the adoption of a child resident in 
another Convention country by a United States citizen, or an adoption 
of a child resident in the United States by an individual or 
individuals residing in another Convention country when, in connection 
with the adoption, the child has moved or will move from one Convention 
country to another Convention country.
    Convention country means a country that has become a party to the 
Convention and with which the Convention has come into force for the 
United States.
    Country of origin means the country in which a child is resident 
and from which a child is emigrating in connection with his or her 
adoption.
    Debarment means the loss of accreditation or approval by an agency 
or person as a result of an order of the Secretary under which the 
agency or person is temporarily or permanently barred from 
accreditation or approval.
    Department of Homeland Security encompasses the former Immigration 
and Naturalization Service (INS) or any successor agency entity 
designated by the Secretary of Homeland Security to assume the 
functions vested in the Attorney General by the IAA relating to the 
Immigration and Naturalization Service's responsibilities.
    Disruption means the interruption of a placement for adoption 
before the adoption has become final.
    Dissolution means the termination of an adoption after it has 
become final.
    Exempted provider means a social work professional or organization 
that performs a home study on prospective adoptive parent(s) or a child 
background study in connection with a Convention adoption (including 
any reports or updates), but that does not provide any other adoption 
service in the case.
    IAA means the Intercountry Adoption Act of 2000, Public Law 106-279 
(2000) (42 U.S.C. 14901-14954).
    Legal custody means having legal responsibility for a child under 
the order of a court of law, a public body, competent authority, public 
authority, or by operation of law.
    Legal services means services, other than those defined as 
``adoption services'' in this section, that relate to the provision of 
legal advice and information and to the drafting of legal instruments. 
Such services include, but are not limited to, drawing up contracts, 
powers of attorney, and other legal instruments; providing advice and 
counsel to adoptive parent(s) on completing DHS or Central Authority 
forms; and providing advice and counsel to accredited agencies, 
temporarily accredited agencies, approved persons, or prospective 
adoptive parent(s) on how to comply with the Convention, the IAA, and 
the regulations implementing the IAA.
    Person means an individual or a private, for-profit entity 
(including a corporation, company, association, firm, partnership, 
society, or joint stock company) providing adoption services. It does 
not include public bodies or public authorities.
    Primary provider means the accredited agency, temporarily 
accredited agency, or approved person that is identified pursuant to 
Sec.  96.14 as responsible for ensuring that all six adoption services 
are provided and for supervising and being responsible for supervised 
providers where used.
    Public authority means an authority operated by a national or 
subnational government of a Convention country.
    Public body means a body operated by a State, local, or tribal 
government within the United States.
    Secretary means the Secretary of State, the Assistant Secretary of 
State for Consular Affairs, or any other Department of State official 
exercising the Secretary of State's authority under the Convention, the 
IAA, or any regulations implementing the IAA, pursuant to a delegation 
of authority.
    State means the fifty States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, and the U.S. Virgin Islands.
    Supervised provider means an agency, person, or other non-
governmental entity, including a foreign entity, that is providing one 
or more adoption services

[[Page 54095]]

in a Convention case under the supervision and responsibility of the 
accredited agency, temporarily accredited agency, or approved person 
that is acting as the primary provider in the case.
    Temporarily accredited agency means an agency that has been 
accredited on a temporary basis by an accrediting entity, in accordance 
with the standards in subpart N of this part, to provide adoption 
services in the United States in cases subject to the Convention. It 
does not include an accredited agency.


Sec.  96.3  [Reserved]

Subpart B--Selection, Designation, and Duties of Accrediting 
Entities


Sec.  96.4  Designation of accrediting entities by the Secretary.

    (a) The Secretary will solicit applications from eligible private 
non-profit and public entities for designation as an accrediting entity 
through a request for statements of interest that will be publicly 
announced. Announcements soliciting statements of interest will be 
published on the Department of State's Web site, at http://www.state.gov.
 The Secretary will designate one or more entities that 
meet the criteria set forth in Sec.  96.5 to perform the accreditation 
(including temporary accreditation) and/or approval functions. Each 
accredited entity's designation will be set forth in an Agreement 
between the Secretary and the accrediting entity that will govern the 
entity's operations. The Agreement will be published in the Federal 
Register.
    (b) The Secretary's designation may authorize an accrediting entity 
to accredit (including temporarily accredit) agencies, to approve 
persons, or to both accredit agencies and approve persons. The 
designation may also limit the accrediting entity's geographic 
jurisdiction or impose other limits on the entity's jurisdiction.
    (c) A public entity may only be designated to accredit agencies and 
approve persons that are located in the public entity's State.


Sec.  96.5  Requirement that accrediting entity be a non-profit or 
public entity.

    An accrediting entity must qualify as either:
    (a) An organization described in section 501(c)(3) of the Internal 
Revenue Code of 1986, as amended, that has expertise in developing and 
administering standards for entities providing child welfare services; 
or
    (b) A public entity (other than a Federal entity), including, but 
not limited to, any State or local government or governmental unit or 
any political subdivision, agency, or instrumentality thereof, that is 
responsible for licensing adoption agencies in a State and that has 
expertise in developing and administering standards for entities 
providing child welfare services.


Sec.  96.6  Performance criteria for designation as an accrediting 
entity.

    An entity that seeks to be designated as an accrediting entity must 
demonstrate to the Secretary:
    (a) That it has a governing structure, the human and financial 
resources, and systems of control adequate to ensure its reliability;
    (b) That it is capable of performing the accreditation or approval 
functions or both on a timely basis and of administering any renewal 
cycle selected by the Secretary;
    (c) That it can monitor the performance of agencies it has 
accredited and persons it has approved to ensure their continued 
compliance with the Convention, the IAA, and the regulations 
implementing the IAA;
    (d) That it has the capacity to take appropriate adverse actions 
against agencies it has accredited and persons it has approved and 
appropriate enforcement action against agencies to which it has granted 
temporary accreditation;
    (e) That it can perform the required data collection, reporting, 
and other similar functions;
    (f) Except in the case of a public entity, that it operates 
independently of any agency or person that provides adoption services, 
and of any membership organization that includes agencies or persons 
that provide adoption services;
    (g) That it has the capacity to conduct its accreditation, 
temporary accreditation, and approval functions fairly and impartially; 
and
    (h) That it can comply with any conflict-of-interest prohibitions 
set by the Secretary in the request for statements of interest.


Sec.  96.7  Authorities and responsibilities of an accrediting entity.

    (a) An accrediting entity may be authorized by the Secretary to 
perform some or all of the following functions:
    (1) Determining whether agencies are eligible for accreditation 
and/or temporary accreditation;
    (2) Determining whether persons are eligible for approval;
    (3) Overseeing accredited agencies, temporarily accredited 
agencies, and/or approved persons by monitoring their compliance with 
applicable requirements;
    (4) Investigating and responding to complaints about accredited 
agencies, temporarily accredited agencies, and approved persons;
    (5) Taking adverse action against an accredited agency, temporarily 
accredited agency, or approved person, and/or referring an accredited 
agency, temporarily accredited agency, or approved person for possible 
action by the Secretary;
    (6) Determining whether the accredited agencies and approved 
persons that it oversees are eligible for renewal of their 
accreditation or approval on a cyclical basis consistent with Sec.  
96.60;
    (7) Collecting data from accredited agencies, temporarily 
accredited agencies, and approved persons, maintaining records, and 
reporting information to the Secretary, State courts, and other 
entities; and
    (8) Assisting as required by the Secretary in transferring adoption 
cases and adoption records of agencies or persons that cease to provide 
or are no longer permitted to provide adoption services in Convention 
cases.
    (b) The Secretary may require an accrediting entity:
    (1) To enter into an agreement with the Complaint Registry for 
services in screening complaints and performing other services relevant 
to the accrediting entity's functions; and
    (2) Pursuant to such agreement, to remit to the Complaint Registry 
a portion of the accrediting entity's fees collected under its approved 
schedule of fees, to cover the costs of such services. Any such 
agreement between the accrediting entity and the Complaint Registry and 
the portion of accreditation/approval fees to be remitted to the 
Complaint Registry shall be subject to the approval of the Secretary.
    (c) An accrediting entity must perform these responsibilities in 
accordance with the Convention, the IAA, the regulations implementing 
the IAA, and its Agreement with the Secretary.


Sec.  96.8  Fees charged by accrediting entities.

    (a) An accrediting entity may charge fees for accreditation or 
approval services under this part only in accordance with a schedule of 
fees approved by the Secretary. Before approving a schedule of fees 
proposed by an accrediting entity, or subsequent proposed changes to an 
approved schedule, the Secretary will require the accrediting entity to 
demonstrate:
    (1) That its proposed schedule of fees reflects appropriate 
consideration of the relative size and geographic location

[[Page 54096]]

and volume of Convention cases of the agencies and persons it expects 
to serve;
    (2) That the total fees the accrediting entity expects to collect 
under the schedule of fees will not exceed the full costs of 
accreditation and approval under this part (including, but not limited 
to, costs for completing the accreditation or approval process, 
complaint review and investigation, routine oversight and enforcement, 
and other data collection and reporting activities).
    (b) The schedule of fees must: (1) Establish separate non-
refundable fees for Convention accreditation and Convention approval;
    (2) Include in each fee for full Convention accreditation or 
approval the costs of all activities associated with the accreditation 
or approval cycle, including but not limited to, costs for completing 
the accreditation or approval process, complaint review and 
investigation, routine oversight and enforcement, and other data 
collection and reporting activities, except that separate fees based on 
actual costs incurred may be charged for the travel and maintenance of 
evaluators; and
    (3) If the accrediting entity provides temporary accreditation 
services, include fees as required by Sec.  96.111 for agencies seeking 
temporary accreditation under subpart N of this part.
    (c) An accrediting entity must make its approved schedule of fees 
available to the public, including prospective applicants for 
accreditation or approval, upon request. At the time of application, 
the accrediting entity must specify the fees to be charged to the 
applicant in a contract between the parties and must provide notice to 
the applicant that no portion of the fee will be refunded if the 
applicant fails to become accredited or approved.
    (d) Nothing in this section shall be construed to provide a private 
right of action to challenge any fee charged by an accrediting entity 
pursuant to a schedule of fees approved by the Secretary.


Sec.  96.9  Agreement between the Secretary and the accrediting entity.

    An accrediting entity must perform its functions pursuant to a 
written Agreement with the Department of State that will be published 
in the Federal Register. The Agreement will address:
    (a) The responsibilities and duties of the accrediting entity;
    (b) The method by which the costs of delivering the accreditation, 
temporary accreditation, and approval services may be recovered through 
the collection of fees from those seeking accreditation, temporary 
accreditation, or approval, and how the entity's schedule of fees will 
be approved;
    (c) How the accrediting entity will address complaints about 
accredited agencies, temporarily accredited agencies, approved persons, 
and the accrediting entity itself;
    (d) Data collection requirements;
    (e) Matters of communication and accountability between both the 
accrediting entity and the applicant(s) and between the accrediting 
entity and the Secretary; and
    (f) Other matters upon which the parties have agreed.


Sec.  96.10  Suspension or cancellation of the designation of an 
accrediting entity by the Secretary.

    (a) The Secretary will suspend or cancel the designation of an 
accrediting entity if the Secretary concludes that it is substantially 
out of compliance with the Convention, the IAA, the regulations 
implementing the IAA, other applicable laws, or the Agreement with the 
Secretary. Complaints regarding the performance of the accrediting 
entity may be submitted to the Department of State, Bureau of Consular 
Affairs. The Secretary will consider complaints in determining whether 
an accrediting entity's designation should be suspended or canceled.
    (b) An accrediting entity may be considered substantially out of 
compliance under circumstances that include, but are not limited to:
    (1) Failing to act in a timely manner when presented with evidence 
that an accredited agency or approved person is substantially out of 
compliance with the standards in subpart F of this part or a 
temporarily accredited agency is substantially out of compliance with 
the standards in Sec.  96.104;
    (2) Accrediting or approving significant numbers of agencies or 
persons whose performance results in intervention of the Secretary for 
the purpose of suspension, cancellation, or debarment;
    (3) Failing to perform its responsibilities fairly and objectively;
    (4) Violating prohibitions on conflicts of interest;
    (5) Failing to meet its reporting requirements;
    (6) Failing to protect information or documents that it receives in 
the course of performing its responsibilities; and
    (7) Failing frequently and carefully to monitor the compliance of 
accredited agencies, temporarily accredited agencies, and approved 
persons with the home study requirements of the Convention, section 
203(b)(1)(A)(ii) of the IAA (Pub. L. 106-279, 42 U.S.C. 
14923(b)(1)(A)(ii)), and Sec.  96.47 of these regulations.
    (c) An accrediting entity that is subject to a final action of 
suspension or cancellation may petition the United States District 
Court for the District of Columbia or the United States district court 
in the judicial district in which the accrediting entity is located to 
set aside the action as provided in section 204(d) of the IAA (Pub. L. 
106-279, 42 U.S.C. 14924(d)).


Sec.  96.11  [Reserved]

Subpart C--Accreditation and Approval Requirements for the 
Provision of Adoption Services


Sec.  96.12  Authorized adoption service providers.

    Once the Convention has entered into force for the United States, 
an agency or person may not offer, provide, or facilitate the provision 
of any adoption service in the United States in connection with a 
Convention adoption unless it is:
    (a) An accredited agency, a temporarily accredited agency, or an 
approved person;
    (b) A supervised provider;
    (c) An exempted provider; or
    (d) A public body.


Sec.  96.13  Activities that do not require accreditation, approval, or 
supervision.

    (a) Home studies and child background studies. A social work 
professional or organization that is performing a home study on the 
prospective adoptive parent(s) or a child background study (including 
any reports or updates) in connection with a Convention adoption but is 
not providing any other adoption service in the case is an ``exempted 
provider.'' Exempted providers do not have to be accredited, 
temporarily accredited, approved, or operate as a supervised provider. 
If the agency or person provides another adoption service in the case 
in addition to the home study or child background study, it must be 
accredited, temporarily accredited, approved, or operate as a 
supervised provider. The home study or child background study prepared 
by an exempted provider must be submitted to an accredited agency or 
temporarily accredited agency, not an approved person, for review and 
approval. An accredited agency or temporarily accredited agency must 
approve an exempted provider's home study in accordance with Sec.  
96.47(c) and an exempted provider's child background study in 
accordance with Sec.  96.53(b).
    (b) Child welfare services. An agency or person does not need to be

[[Page 54097]]

accredited, temporarily accredited, approved, or operate as a 
supervised provider if it is providing only child welfare services, and 
not providing any adoption services, in connection with a Convention 
adoption. If the agency or person provides both a child welfare service 
and any one of the six ``adoption services'' defined in Sec.  96.2 in a 
Convention adoption case (including a home study or child background 
study), it must be accredited, temporarily accredited, or approved or 
operate as a supervised provider.
    (c) Legal services. An agency or person does not need to be 
accredited, temporarily accredited, approved, or operate as a 
supervised provider if it is providing only legal services, and not 
providing any adoption services, in connection with a Convention 
adoption. If the agency or person provides both legal services and any 
one of the six ``adoption services'' defined in Sec.  96.2 in a 
Convention adoption case (including a home study or child background 
study), it must be accredited, temporarily accredited, approved, or 
operate as a supervised provider. Nothing in this part shall be 
construed:
    (1) To permit an attorney to provide both legal services and 
adoption services in an adoption case where doing so is prohibited by 
State law, or
    (2) To require any attorney who is providing one or more adoption 
services as part of his or her employment by a public body to be 
accredited or approved or operate as a supervised provider.
    (d) Prospective adoptive parent(s) acting on own behalf. 
Prospective adoptive parent(s) may act on their own behalf unless 
acting on their own behalf is prohibited by State law or the law of the 
Convention country. In the case of a child immigrating to the United 
States in connection with his or her adoption, such conduct must be 
permissible under the laws of the State in which the prospective 
adoptive parent(s) reside and the laws of the Convention country from 
which the parent(s) seek to adopt. In the case of a child emigrating 
from the United States in connection with his or her adoption, such 
conduct must be permissible under the laws of the State where the child 
resides and the laws of the Convention country in which the parent(s) 
reside.


Sec.  96.14  Providing adoption services using supervised providers, 
exempted providers, public bodies, or public authorities.

    (a) Accreditation, temporary accreditation, and approval under this 
part requires that, in each Convention adoption case, an accredited 
agency, a temporarily accredited agency, or an approved person will be 
identified and act as the primary provider. If one accredited agency, 
temporarily accredited agency, or approved person is providing all six 
``adoption services'' listed in Sec.  96.2 by itself, it must act as 
the primary provider. If just one accredited agency, temporarily 
accredited agency, or approved person is involved in providing some of 
the six ``adoption services'' listed in Sec.  96.2, and the other 
providers are supervised providers, public bodies, public authorities, 
or exempted providers, the sole accredited agency, temporarily 
accredited agency, or approved person must act as the primary provider. 
If adoption services in the Convention case are being provided by more 
than one accredited agency, temporarily accredited agency, or approved 
person, the agency or person that has child placement responsibility, 
as evidenced by the following, must act as the primary provider 
throughout the case:
    (1) Entering into placement contracts with prospective adoptive 
parent(s) to provide child referral and placement;
    (2) Accepting custody from a birth parent or other legal custodian 
in another Convention country for the purpose of placement for 
adoption;
    (3) Assuming responsibility for liaison with another Convention 
country's Central Authority or its designees with regard to arranging 
an adoption; or
    (4) Receiving from or sending to another Convention country 
information about a child that is under consideration for adoption, 
unless acting as a local service provider that conveys such information 
to parent(s) on behalf of the primary provider.
    (b) Pursuant to Sec.  96.44, in the case of accredited agencies or 
approved persons, and Sec.  96.104(g), in the case of temporarily 
accredited agencies, the primary provider may only use the following to 
provide adoption services in the United States:
    (1) An accredited agency, temporarily accredited agency, or 
approved person;
    (2) An exempted provider if the exempted provider's home study or 
child background study will be reviewed and approved by an accredited 
agency or temporarily accredited agency;
    (3) A supervised provider; or
    (4) A public body.
    (c) Pursuant to Sec.  96.44, in the case of accredited agencies or 
approved persons, and Sec.  96.104(g), in the case of temporarily 
accredited agencies, the primary provider may only use the following to 
provide adoption services in another Convention country:
    (1) A competent authority, a public authority, or an entity 
accredited by that Convention country to provide services under the 
Convention; or
    (2) An agency, person, or other entity that will act under the 
primary provider's supervision and responsibility (a foreign supervised 
provider).
    (d) The primary provider is not required to provide supervision or 
assume responsibility for:
    (1) Public bodies and agencies and persons accredited or approved 
in the United States pursuant to subpart F of this part; and
    (2) Competent authorities and public authorities of other 
Convention countries, and entities accredited by other Convention 
countries.
    (e) Public bodies, competent authorities, public authorities, and 
accredited agencies and approved persons are not required to operate 
under the supervision and responsibility of the primary provider.
    (f) The primary provider must adhere to the standards contained in 
Sec.  96.45 (U.S. supervised providers) when using supervised providers 
in the United States and the standards contained in Sec.  96.46 
(foreign supervised providers) when using supervised providers in other 
Convention countries.


Sec.  96.15  Public bodies.

    Public bodies are not required to become accredited to be able to 
provide adoption services in Convention adoption cases, but must comply 
with the Convention, the IAA, and other applicable law when providing 
services in a Convention adoption case.


Sec.  96.16  Effective date of accreditation and approval requirements.

    The Secretary will publish a document in the Federal Register 
announcing the date on which the Convention will enter into force for 
the United States. As of that date, the regulations in subpart C of 
this part will govern Convention adoptions between the United States 
and other Convention countries, and agencies or persons providing 
adoption services must comply with Sec.  96.12 and applicable Federal 
regulations. The Secretary will maintain for the public a current 
listing of Convention countries.


Sec.  96.17  [Reserved]

Subpart D--Application Procedures for Accreditation and Approval


Sec.  96.18  Scope.

    (a) Agencies are eligible to apply for ``accreditation'' or 
``temporary accreditation.'' Persons are eligible to apply for 
``approval.'' Temporary accreditation is governed by the

[[Page 54098]]

provisions in subpart N of this part. Unless otherwise provided in 
subpart N, the provisions of this subpart do not apply to agencies 
seeking temporary accreditation. Applications for full accreditation 
rather than temporary accreditation will be processed in accordance 
with Sec.  96.20 and Sec.  96.21.
    (b) An agency or person seeking to be accredited or approved at the 
time the Convention enters into force for the United States, and to be 
included on the initial list of accredited agencies and approved 
persons that the Secretary will deposit with the Permanent Bureau of 
the Hague Conference on Private International Law, must follow the 
special provisions contained in Sec.  96.19.
    (c) If an agency or person is reapplying for accreditation or 
approval following cancellation of its accreditation or approval by an 
accrediting entity or refusal by an accrediting entity to renew its 
accreditation or approval, it must comply with the procedures in Sec.  
96.78.
    (d) If an agency or person that has been accredited or approved is 
seeking renewal, it must comply with the procedures in Sec.  96.63.


Sec.  96.19  Special provisions for agencies and persons seeking to be 
accredited or approved at the time the Convention enters into force for 
the United States.

    (a) The Secretary will establish and announce, by public notice in 
the Federal Register, a ``transitional application deadline.'' An 
agency or person seeking to be accredited or approved at the time the 
Convention enters into force for the United States must submit an 
application to an accrediting entity, with the required fee(s), by the 
transitional application deadline. The Secretary will subsequently 
establish and announce a date by which such agencies and persons must 
complete the accreditation or approval process in time to be accredited 
or approved at the time the Convention enters into force for the United 
States (``deadline for initial accreditation or approval'').
    (b) The accrediting entity must use its best efforts to provide a 
reasonable opportunity for an agency or person that applies by the 
transitional application deadline to complete the accreditation or 
approval process by the deadline for initial accreditation or approval. 
Only those agencies and persons that are accredited or approved by the 
deadline for initial accreditation or approval will be included on the 
initial list of accredited agencies and approved persons that the 
Secretary will deposit with the Permanent Bureau of the Hague 
Conference on Private International Law.
    (c) The accrediting entity may, in its discretion, permit an agency 
or person that fails to submit an application by the transitional 
application deadline to attempt to complete the accreditation or 
approval process in time to be included on the initial list; however, 
such an agency or person is not assured an opportunity to complete the 
accreditation or approval process in time to be included on the initial 
list. The accrediting entity must give priority to applicants that 
filed by the transitional application deadline. If such an agency or 
person succeeds in completing the accreditation or approval process in 
time to be included on the initial list, it will be treated as an 
agency or person that applied by the transitional application deadline 
for the purposes of Sec.  96.58 and Sec.  96.60(b).


Sec.  96.20  First-time application procedures for accreditation and 
approval.

    (a) Agencies or persons seeking accreditation or approval for the 
first time may submit an application at any time, with the required 
fee(s), to an accrediting entity with jurisdiction to evaluate the 
application. If an agency or person seeks to be accredited or approved 
by the deadline for initial accreditation or approval, an agency or 
person must comply with the procedures in Sec.  96.19.
    (b) The accrediting entity must establish and follow uniform 
application procedures and must make information about those procedures 
available to agencies and persons that are considering whether to apply 
for accreditation or approval. The accrediting entity must evaluate the 
applicant for accreditation or approval in a timely fashion.


Sec.  96.21  Choosing an accrediting entity.

    (a) An agency that seeks to become accredited must apply to an 
accrediting entity that is designated to provide accreditation services 
and that otherwise has jurisdiction over its application. A person that 
seeks to become approved must apply to an accrediting entity that is 
designated to provide approval services and otherwise has jurisdiction 
over its application. The agency or person may apply to only one 
accrediting entity at a time.
    (b)(1) If the agency or person is applying for accreditation or 
approval pursuant to this part for the first time, it may apply to any 
accrediting entity with jurisdiction over its application. However, the 
agency or person must apply to the same accrediting entity that handled 
its prior application when it next applies for accreditation or 
approval, if the agency or person:
    (i) Has been denied accreditation or approval;
    (ii) Has withdrawn its application in anticipation of denial;
    (iii) Has had its accreditation or approval cancelled by an 
accrediting entity or the Secretary;
    (iv) Has been temporarily debarred by the Secretary; or
    (v) Has been refused renewal of its accreditation or approval by an 
accrediting entity.
    (2) If the prior accrediting entity is no longer providing 
accreditation or approval services, the agency or person may apply to 
any accrediting entity with jurisdiction over its application.


Sec.  96.22  [Reserved]

Subpart E--Evaluation of Applicants for Accreditation and Approval


Sec.  96.23  Scope.

    The provisions in this subpart govern the evaluation of agencies 
and persons for accreditation or approval. Temporary accreditation is 
governed by the provisions in subpart N of this part. Unless otherwise 
provided in subpart N, the provisions in this subpart do not apply to 
agencies seeking temporary accreditation.


Sec.  96.24  Procedures for evaluating applicants for accreditation or 
approval.

    (a) The accrediting entity must designate at least two evaluators 
to evaluate an agency or person for accreditation or approval. The 
accrediting entity's evaluators must have expertise in intercountry 
adoption or standards evaluation and must also meet any additional 
qualifications required by the Secretary in the Agreement with the 
accrediting entity.
    (b) To evaluate the agency's or person's eligibility for 
accreditation or approval, the accrediting entity must:
    (1) Review the agency's or person's written application and 
supporting documentation;
    (2) Verify the information provided by the agency or person by 
examining underlying documentation; and
    (3) Conduct site visit(s).
    (c) The site visit(s) may include, but need not be limited to, 
interviews with birth parents, adoptive parent(s), prospective adoptive 
parent(s), and adult adoptee(s) served by the agency or person, 
interviews with the agency's or person's employees, and interviews with 
other individuals knowledgeable about the agency's or person's 
provision of adoption services. It may also include a review of on-site 
documents. The accrediting entity must, to the extent

[[Page 54099]]

practicable, advise the agency or person in advance of the type of 
documents it wishes to review during the site visit. The accrediting 
entity must require at least one of the evaluators to participate in 
each site-visit. The accrediting entity must determine the number of 
evaluators that participate in a site visit in light of factors such as 
the agency's or person's size, the number of adoption cases it handles, 
the number of sites the accrediting entity decides to visit, and the 
number of individuals working at each site.
    (d) Before deciding whether to accredit an agency or approve a 
person, the accrediting entity may, in its discretion, advise the 
agency or person of any deficiencies that may hinder or prevent its 
accreditation or approval and defer a decision to allow the agency or 
person to correct the deficiencies.


Sec.  96.25  Access to information and documents requested by the 
accrediting entity.

    (a) The agency or person must give the accrediting entity access to 
all information and documents, including case files and proprietary 
information, that it requires to evaluate an agency or person for 
accreditation or approval and to perform its oversight, enforcement, 
renewal, data collection, and other functions. The agency or person 
must also cooperate with the accrediting entity by making employees 
available for interviews upon request.
    (b) If an agency or person fails to provide requested documents or 
information, or to make employees available as requested, the 
accrediting entity may deny accreditation or approval or, in the case 
of an accredited agency, temporarily accredited agency, or approved 
person, take appropriate adverse action against the agency or person 
solely on that basis.


Sec.  96.26  Protection of information and documents by the accrediting 
entity.

    (a) The accrediting entity must protect from unauthorized use and 
disclosure all documents and information about the agency or person it 
receives including, but not limited to, documents and proprietary 
information about the agency's or person's finances, management, and 
professional practices received in connection with the performance of 
its accreditation or approval, oversight, enforcement, renewal, data 
collection, and other functions under its Agreement and this part. 
Unless otherwise authorized by the agency or person in writing, or 
required pursuant to subpart M of this part, the documents and 
information received may not be disclosed to the public and may be used 
only for the purpose of performing the accrediting entity's 
accreditation and approval and related functions under its Agreement 
and this part, or to provide information to the Secretary, the 
Complaint Registry, or an appropriate Federal, State, or local agency 
or law enforcement entity.
    (b) Unless the names and other information that identifies birth 
parent(s), prospective adoptive parent(s), and adoptee(s) is requested 
by the accrediting entity for an articulated reason, the agency or 
person may withhold from the accrediting entity such information and 
substitute individually assigned codes in the documents it provides. 
The accrediting entity must have appropriate safeguards to protect from 
unauthorized use and disclosure any information in its files that 
identifies birth parent(s), prospective adoptive parent(s), and 
adoptee(s). The accrediting entity must ensure that its officers, 
employees, contractors, and evaluators who have access to information 
or documents provided by the agency or person have signed a non-
disclosure agreement reflecting the requirements of Sec.  96.26(a) and 
(b). The accrediting entity must maintain an accurate record of the 
agency's or person's application, the supporting documentation, and the 
basis for its decision.


Sec.  96.27  Substantive criteria for evaluating applicants for 
accreditation or approval.

    (a) The accrediting entity may not grant an agency accreditation or 
a person approval, or permit an agency's or person's accreditation or 
approval to be maintained, unless the agency or person demonstrates to 
the satisfaction of the accrediting entity that it is in substantial 
compliance with the standards in subpart F of this part.
    (b) When the agency or person makes its initial application for 
accreditation or approval under the standards contained in subpart F of 
this part, the accrediting entity may measure the capacity of the 
agency or person to achieve substantial compliance with these standards 
where relevant evidence of its actual performance is not yet available. 
Once the agency or person has been accredited or approved pursuant to 
this part, the accrediting entity must, for the purposes of monitoring, 
renewal, enforcement, and reapplication after adverse action, consider 
the agency's or person's actual performance in deciding whether the 
agency or person is in substantial compliance with the standards 
contained in subpart F of this part, unless the accrediting entity 
determines that it is still necessary to measure capacity because 
adequate evidence of actual performance is not available.
    (c) The standards contained in subpart F of this part apply during 
all stages of accreditation and approval, including, but not limited 
to, when the accrediting entity is evaluating an applicant for 
accreditation or approval, when it is determining whether to renew an 
agency's or person's accreditation or approval, when it is monitoring 
the performance of an accredited agency or approved person, and when it 
is taking adverse action against an accredited agency or approved 
person. Except as provided in Sec.  96.25 and paragraphs (e) and (f) of 
this section, the accrediting entity may only use the standards 
contained in subpart F of this part when determining whether an agency 
or person may be granted or permitted to maintain Convention 
accreditation or approval.
    (d) The accrediting entity will assign points to each different 
standard, or to each element of a standard, depending on the relative 
importance of the particular standard (or element) to compliance with 
the Convention and the IAA. The points to be given to the standard, or 
to elements of the standard, must be determined by the accrediting 
entity in consultation with the Secretary. The accrediting entity must 
advise applicants of the points assigned to the standards (or elements 
of the standards) at the time it provides them with the application 
materials.
    (e) If an agency or person has previously been denied accreditation 
or approval, has withdrawn its application in anticipation of denial, 
has had its temporary accreditation withdrawn, or is reapplying for 
accreditation or approval after cancellation, refusal to renew, or 
temporary debarment, the accrediting entity may take the reasons 
underlying such actions into account when evaluating the agency or 
person for accreditation or approval, and may deny accreditation or 
approval on the basis of the previous action.
    (f) If an agency or person that has an ownership or control 
interest in the applicant, as that term is defined in section 
1124(a)(3) of the Social Security Act (42 U.S.C. 1320(a)(3)), has been 
debarred pursuant to Sec.  96.85, the accrediting entity may take into 
account the reasons underlying the debarment when evaluating the agency 
or person for accreditation or approval, and may deny accreditation or 
approval or refuse to renew accreditation or approval on the basis of 
the debarment.
    (g) The standards contained in subpart F of this part do not 
eliminate the need for an agency or person to comply fully with the 
laws of the

[[Page 54100]]

jurisdictions in which it operates. An agency or person must provide 
adoption services in Convention cases consistent with the laws of any 
State in which it operates and with the Convention and the IAA. Persons 
that are approved to provide adoption services may only provide such 
services in States that do not prohibit persons from providing adoption 
services. Nothing in the application of the standards in subparts E and 
F should be construed to require a State to allow persons to provide 
adoption services if State law does not permit them to do so.


Sec.  96.28  [Reserved]

Subpart F--Standards for Convention Accreditation and Approval


Sec.  96.29  Scope.

    The provisions in this subpart provide the standards for 
accrediting agencies and approving persons. Temporary accreditation is 
governed by the provisions in subpart N of this part. Unless otherwise 
provided in subpart N of this part, the provisions in subpart F of this 
part do not apply to agencies seeking temporary accreditation.

Licensing and Corporate Governance


Sec.  96.30  State licensing.

    (a) The agency or person is properly licensed or otherwise 
authorized by State law to provide adoption services in at least one 
State.
    (b) The agency or person follows applicable State licensing and 
regulatory requirements in all jurisdictions in which it provides 
adoption services.
    (c) If it provides adoption services in a State in which it is not 
itself licensed or authorized to provide such services, the agency or 
person does so only through agencies, persons, or other entities that 
are licensed or authorized by State law to provide adoption services in 
that State.
    (d) In the case of a person, the individual or for-profit entity is 
not prohibited by State law from providing adoption services in any 
State where it is providing adoption services, and does not provide 
adoption services in Convention countries that prohibit individuals or 
for-profit entities from providing adoption services.


Sec.  96.31  Corporate structure.

    (a) The agency qualifies for non-profit tax treatment under section 
501(c)(3) of the Internal Revenue Code of 1986, as amended, or for non-
profit status under the laws of any State.
    (b) The person is an individual or is a for-profit entity organized 
as a corporation, company, association, firm, partnership, society, or 
joint stock company, or other legal entity under the laws of any State.


Sec.  96.32  Internal structure and oversight.

    (a) The agency or person has a chief executive officer or 
equivalent official who is qualified by education, adoption service 
experience, and management credentials to ensure effective use of 
resources and coordinated delivery of the services provided by the 
agency or person, and has authority and responsibility for management 
and oversight of the staff in carrying out the adoption-related 
functions of the organization. This standard does not apply where the 
person is an individual practitioner.
    (b) The agency or person has a board of directors or similar 
governing body that establishes and approves its mission, policies, 
budget, and programs; provides leadership to secure the resources 
needed to support its programs; and appoints and oversees the 
performance of its chief executive officer or equivalent official. This 
standard does not apply where the person is an individual practitioner.
    (c) The agency or person keeps permanent records of the meetings 
and deliberations of its governing body and of its major decisions 
affecting the delivery of adoption services.

Financial and Risk Management


Sec.  96.33  Budget, audit, insurance, and risk assessment 
requirements.

    (a) The agency or person operates under a budget approved by its 
governing body, if applicable, for management of its funds.
    (b) The agency's or person's finances are subject to independent 
annual audits.
    (c) The agency or person submits copies of each audit, as well as 
any accompanying management letter or qualified opinion letter, for 
inspection by the accrediting entity.
    (d) The agency or person meets the financial reporting requirements 
of Federal and State laws and regulations.
    (e) The agency's or person's balance sheets show that it operates 
on a sound financial basis and generally maintains sufficient cash 
reserves or other financial resources to meet its operating expenses 
for three months, taking into account its projected volume of cases.
    (f) If it accepts donations, the agency or person has safeguards in 
place to ensure that such donations do not influence child placement 
decisions in any way.
    (g) The agency or person uses an independent professional 
assessment of the risks it assumes as the basis for determining the 
type and amount of professional, general, directors' and officers', and 
other liability insurance to carry. The risk assessment includes an 
evaluation of the risks of using supervised providers as provided for 
in Sec.  96.45 and Sec.  94.46 and of providing adoption services to 
clients who, consistent with Sec.  96.39(d), will not sign blanket 
waivers of liability.
    (h) The agency or person maintains insurance in amounts reasonably 
related to its exposure to risk, including the risks of providing 
services through supervised providers, but in no case in an amount less 
than $1,000,000 per occurrence.
    (i) The agency's or person's chief executive officer, chief 
financial officer, and other officers or employees with direct 
responsibility for financial transactions or financial management of 
the agency or person are bonded.


Sec.  96.34  Compensation.

    (a) The agency or person does not compensate any individual 
providing intercountry adoption services with incentive fees for each 
child placed for adoption or on a similar contingent fee basis.
    (b) The agency or person compensates its directors, officers, 
employees, and supervised providers who provide intercountry adoption 
services only for services actually rendered and only on a fee-for-
service, hourly wage, or salary basis rather than a contingent fee 
basis.
    (c) The agency or person does not make any payments, promise 
payment, or give other consideration to any individual directly or 
indirectly involved in provision of adoption services in a particular 
case, except for salaries or fees for services actually rendered and 
reimbursement for costs incurred. This does not prohibit an agency or 
person from providing in-kind or other donations not intended to 
influence or affect a particular adoption.
    (d) The fees, wages, or salaries paid to the directors, officers, 
and employees of the agency or person are not unreasonably high in 
relation to the services actually rendered, taking into account the 
location, number, and qualifications of staff, workload requirements, 
budget, and size of the agency or person, and available norms for 
compensation within the intercountry adoption community.
    (e) Any other compensation paid to the agency's or person's 
directors or members of its governing body is not unreasonably high in 
relation to the services rendered, taking into account the same factors 
listed in paragraph (d)

[[Page 54101]]

of this section and its for-profit or non-profit status.

Ethical Practices and Responsibilities


Sec.  96.35  Suitability of agencies and persons to provide adoption 
services consistent with the Convention.

    (a) The agency or person provides adoption services ethically and 
in accordance with the Convention's principles of:
    (1) Ensuring that intercountry adoptions take place in the best 
interests of children; and
    (2) Preventing the abduction, exploitation, sale, or trafficking of 
children.
    (b) In order to permit the accrediting entity to evaluate the 
suitability of an agency or person for accreditation or approval, the 
agency or person discloses to the accrediting entity the following 
information relating to the agency or person under its current or any 
former names:
    (1) Any instances in which the agency or person has permanently 
lost the right to provide adoption services in any State or a country, 
including the basis for such action(s);
    (2) Any instances in which the agency or person was debarred or 
otherwise denied the authority to provide adoption services, including 
the basis and disposition of such action(s);
    (3) Any licensing suspensions for cause or other negative sanctions 
by oversight bodies against the agency or person, including the basis 
and disposition of such action(s);
    (4) For the prior ten-year period, any disciplinary action(s) 
against the agency or person by a licensing or accrediting body, 
including the basis and disposition of such action(s);
    (5) For the prior ten-year period, any written complaint(s) against 
the agency or person, relating to the provision of adoption-related 
services, including the basis and disposition of such complaint(s);
    (6) For the prior ten-year period, any past or pending 
investigation(s) by Federal or State authorities, criminal charge(s), 
child abuse charge(s), malpractice complaint(s), or lawsuit(s) against 
the agency or person, related to the provision of adoption-related 
services, and the basis and disposition of such action(s);
    (7) Any instances where the agency or person has been found guilty 
of any crime under Federal, State, or foreign law or any civil or 
administrative violations under Federal, State, or foreign law 
involving financial irregularities;
    (8) For the prior five-year period, any instances where the agency 
or person has filed for bankruptcy; and
    (9) Descriptions of any businesses or activities that are 
inconsistent with the principles of the Convention and that are 
currently carried out by an agency or person, affiliate organizations, 
or by any entity in which the agency or person has an ownership or 
control interest.
    (c) In order to permit the accrediting entity to evaluate the 
suitability of an agency or person for accreditation or approval, the 
agency or person also discloses to the accrediting entity the following 
information about its individual directors, officers, and employees:
    (1) For the prior ten-year period, any conduct by any such 
individual related to the provision of adoption-related services that 
was subject to external disciplinary proceeding(s);
    (2) Any convictions or current investigations of any such 
individual who is in a senior financial management position for acts 
involving financial irregularities;
    (3) The results of a State criminal background check and a child 
abuse clearance for any such individual in the United States in a 
senior management position or who works directly with parent(s) and/or 
children (unless such checks have been included in the State licensing 
process); and
    (4) A completed FBI Form FD-258 for each such individual in the 
United States in a senior management position or who works directly 
with parent(s) and/or children, which the agency or person must keep on 
file in case future allegations warrant submission of the form for a 
Federal criminal background check of any such individual.
    (5) Descriptions of any businesses or activities that are 
inconsistent with the principles of the Convention and that are 
currently carried out by individual directors, officers, or employees 
of the agency or person.
    (d) In order to permit the accrediting entity to evaluate the 
suitability of a person who is an individual practitioner for approval, 
the individual does as follows:
    (1) Provides the results of a State criminal background check and a 
child abuse clearance to the accrediting entity;
    (2) Completes and retains a FBI Form FD-258 on file in case future 
allegations warrant submission of the form for a Federal criminal 
background check; and
    (3) If the individual is a lawyer, for every jurisdiction in which 
he or she has ever been admitted to the Bar, provides a certificate of 
good standing or an explanation of why he or she is not in good 
standing, accompanied by any relevant documentation.
    (e) Any disciplinary action considered by a State Bar Association, 
including consideration of an action to disbar an attorney, must 
immediately be reported by the attorney to the accrediting entity, 
regardless of whether the action relates to intercountry adoption.
    (f) In order to permit the accrediting entity to monitor the 
suitability of an agency or person, the agency or person must disclose 
any changes in the information required by Sec.  96.35 within thirty 
business days of learning of the change.


Sec.  96.36  Prohibition on child buying.

    (a) The agency or person prohibits its employees and agents from 
giving money or other consideration, directly or indirectly, to a 
child's parent(s), other individual(s), or an entity as payment for the 
child or as an inducement to release the child. If permitted or 
required by the child's country of origin, an agency or person may 
remit reasonable payments for activities related to the adoption 
proceedings, pre-birth and birth medical costs, the care of the child, 
the care of the birth mother while pregnant and immediately following 
birth of the child, or the provision of child welfare and child 
protection services generally. Permitted or required contributions 
shall not be remitted as payment for the child or as an inducement to 
release the child.
    (b) The agency or person has written policies and procedures in 
place reflecting the prohibitions in paragraph (a) of this section and 
reinforces them in its employee training programs.

Professional Qualifications and Training for Employees


Sec.  96.37  Education and experience requirements for social service 
personnel.

    (a) The agency or person only uses employees with appropriate 
qualifications and credentials to perform, in connection with a 
Convention adoption, adoption-related social service functions that 
require the application of clinical skills and judgment (home studies, 
child background studies, counseling, parent preparation, post-
placement, and other similar services).
    (b) The agency's or person's employees meet any State licensing or 
regulatory requirements for the services they are providing.
    (c) The agency's or person's executive director, the supervisor 
overseeing a case, or the social service employee providing adoption-
related social services that require the application of

[[Page 54102]]

clinical skills and judgment (home studies, child background studies, 
counseling, parent preparation, post-placement, and other similar 
services) have experience in the professional delivery of intercountry 
adoption services.
    (d) Supervisors. The agency's or person's social work supervisors 
have prior experience in family and children's services, adoption, or 
intercountry adoption and either:
    (1) A master's degree from an accredited program of social work 
education;
    (2) A master's degree (or doctorate) in a related human service 
field, including, but not limited to, psychology, psychiatry, 
psychiatric nursing, counseling, rehabilitation counseling, or pastoral 
counseling; or
    (3) In the case of a social work supervisor who is or was an 
incumbent at the time the Convention enters into force for the United 
States, the supervisor has significant skills and experience in 
intercountry adoption and has regular access for consultation purposes 
to an individual with the qualifications listed in paragraph (d)(1) or 
paragraph (d)(2) of this section.
    (e) Non-supervisory employees. The agency's or person's non-
supervisory employees providing adoption-related social services that 
require the application of clinical skills and judgment other than home 
studies or child background studies:
    (1) Have a master's degree from an accredited program of social 
work education or in another human service field; or
    (2) Have a bachelor's degree from an accredited program of social 
work education; a combination of a bachelor's degree in another human 
service field and prior experience in family and children's services, 
adoption, or intercountry adoption; or a bachelor's degree in any field 
and extensive experience in intercountry adoption. Additionally, the 
non-supervisory employees are supervised by an employee of the 
accredited agency or approved person who meets the requirements for 
supervisors in paragraph (d) of this section.
    (f) Home studies. The agency's or person's employees who conduct 
home studies:
    (1) Have a minimum of a master's degree from an accredited program 
of social work education or a master's degree (or doctorate) in a 
related human service field, including, but not limited to, psychology, 
psychiatry, psychiatric nursing, counseling, rehabilitation counseling, 
or pastoral counseling;
    (2) Are authorized to complete a home study under the laws of the 
State of the child's proposed residence; and
    (3) Meet the INA requirements for home study preparers in 8 CFR 
204.3(b) covering home studies in Convention cases.
    (g) Child background studies. The agency's or person's employees 
who prepare child background studies have a minimum of a master's 
degree from an accredited program of social work education or a 
master's degree (or doctorate) in a related human service field, 
including, but not limited to, psychology, psychiatry, psychiatric 
nursing, counseling, rehabilitation counseling, or pastoral counseling.


Sec.  96.38  Training requirements for social service personnel.

    (a) The agency or person provides newly hired employees who have 
adoption-related responsibilities involving the application of clinical 
skills and judgment (home studies, child background studies, counseling 
services, parent preparation, post-placement and other similar 
services) with a comprehensive orientation to intercountry adoption 
that includes training on:
    (1) The requirements of the Convention, the IAA, the regulations 
implementing the IAA, and other applicable Federal regulations;
    (2) The INA regulations applicable to the immigration of children 
adopted from a Convention country;
    (3) The adoption laws of any Convention country where the agency or 
person provides adoption services;
    (4) Relevant State laws;
    (5) Prohibitions on child-buying;
    (6) The agency's or person's goals, ethical and professional 
guidelines, organizational lines of accountability, policies, and 
procedures; and
    (7) The cultural diversity of the population(s) served by the 
agency or person.
    (b) The agency or person provides initial training to employees who 
provide adoption-related social services that involve the application 
of clinical skills and judgment (home studies, child background 
studies, counseling services, parent preparation, post-placement and 
other similar services) that addresses:
    (1) The factors in the countries of origin that lead to children 
needing adoptive families;
    (2) Feelings of separation, grief, and loss experienced by the 
child with respect to the family of origin;
    (3) Attachment and post-traumatic stress disorders;
    (4) Psychological issues facing children who have experienced abuse 
or neglect and/or whose parents' rights have been terminated because of 
abuse or neglect;
    (5) The impact of institutionalization on child development;
    (6) Outcomes for children placed for adoption internationally, and 
the most frequent medical and psychological problems experienced by 
children from the countries of origin served by the agency or person;
    (7) The process of developing emotional ties to an adoptive family;
    (8) Acculturation and assimilation issues, including those arising 
from factors such as race, ethnicity, religion, and culture and the 
impact of having been adopted internationally; and
    (9) Child, adolescent, and adult development.
    (c) The agency or person ensures that employees who provide 
adoption-related social services that involve the application of 
clinical skills and judgment (home studies, child background studies, 
counseling services, parent preparation, post-placement and other 
similar services) also receive, in addition to the orientation and 
initial training described in paragraphs (a) and (b) of this section, 
no less than 20 hours of training each year, or more if required by 
State law, on current and emerging adoption practice issues through 
participation in seminars, conferences, and other similar programs.
    (d) The agency or person exempts employees from elements of the 
orientation and training required in paragraphs (a) and (b) of this 
section only where the employee has prior experience with intercountry 
adoption and knowledge of the Convention and the IAA.

Information Disclosure, Fee Practices, and Quality Control Policies and 
Practices


Sec.  96.39  Information disclosure and quality control practices.

    (a) The agency or person fully discloses in writing to the general 
public upon request and to prospective client(s) upon initial contact:
    (1) Its adoption service policies and practices, including general 
eligibility criteria, fees, and the mutual rights and responsibilities 
of clients and the agency or person;
    (2) A sample of a contract substantially like the one that the 
prospective client(s) will be expected to sign should they proceed; and
    (3) The entities with whom the prospective client(s) can expect to 
work in the United States and in the child's country of origin and the 
usual costs associated with their services.

[[Page 54103]]

    (b) The agency or person maintains and makes available upon request 
to client(s) and prospective client(s) information on:
    (1) The number of its adoption placements per year for the prior 
three calendar years, and the number and percentage of those placements 
that remain intact, are disrupted, or have been dissolved as of the 
time the information is provided;
    (2) The number of parents who apply to adopt on a yearly basis, 
based on data for the prior three calendar years; and
    (3) The number of children awaiting adoption, when available.
    (c) The agency or person does not give preferential treatment to 
its board members, contributors, volunteers, employees, agents, 
consultants, or independent contractors with respect to the placement 
of children for adoption and has a written policy to this effect.
    (d) The agency or person does not require a client or prospective 
client to sign a blanket waiver of liability in connection with the 
provision of adoption services in Convention cases.
    (e) The agency or person cooperates with reviews, inspections, and 
audits.
    (f) The agency or person uses the internet to place particular 
children for adoption only where:
    (1) Such use is not prohibited by applicable State or Federal law 
or by the laws of the child's country of origin;
    (2) Such use is subject to controls to avoid misuse and links to 
any sites that reflect practices that involve the sale, abduction, 
exploitation, or trafficking of children;
    (3) Such use, if it includes photographs, is designed to identify 
children either who are currently waiting for adoption or who have 
already been adopted or placed for adoption (and who are clearly so 
identified); and
    (4) Such use does not serve as a substitute for the direct 
provision of adoption services, including services to the child, the 
prospective adoptive parent(s), and/or the birth parent(s).


Sec.  96.40  Fee policies and procedures.

    (a) The agency or person provides to all applicants, prior to 
application, a written schedule of estimated fees and expenses and an 
explanation of the conditions under which fees or expenses may be 
charged, waived, reduced, or refunded and of when and how the fees and 
expenses must be paid.
    (b) Before providing any adoption service to prospective adoptive 
parent(s), the agency or person itemizes and discloses in writing the 
following information for each separate category of fees and expenses 
that the prospective adoptive parent(s) will be charged in connection 
with a Convention adoption:
    (1) Home Study. The expected total fees and expenses for home study 
preparation, whether the home study is to be prepared directly by an 
accredited agency or temporarily accredited agency, or prepared by a 
supervised provider, exempted provider, or approved person and reviewed 
and approved by an accredited agency or temporarily accredited agency;
    (2) Adoption expenses in the United States. The expected total fees 
and expenses for all adoption services other than the home study that 
will be provided in the United States. This category includes, but is 
not limited to, personnel costs, administrative overhead, training and 
education, communications and publications costs, and any other costs 
related to providing adoption services in the United States;
    (3) Foreign country program expenses. The expected total fees and 
expenses for all adoption services that will be provided in the child's 
Convention country. This category includes, but it not limited to, 
costs for care of the child prior to adoption, costs for personnel, 
administrative overhead, training, education, and communications, and 
any other costs related to providing adoption services in the child's 
Convention country;
    (4) Translation and document expenses. The expected total fees and 
expenses for obtaining any necessary documents and for any translation 
of documents related to the adoption, along with information on whether 
the prospective adoptive parent(s) will be expected to pay such costs 
directly, either in the United States or in the child's Convention 
country, or through the agency or person. This category includes, but 
is not limited to, costs for obtaining or copying records or documents 
required to complete the adoption, costs for the child's Convention 
court documents, passport, adoption certificate and other documents 
related to the adoption, and costs for notarizations and 
certifications;
    (5) Travel and accommodation expenses. The expected total fees and 
expenses for any travel and accommodation services arranged by the 
agency or person for the prospective adoptive parent(s);
    (6) Contributions. Any fixed contribution amount that the 
prospective adoptive parent(s) will be expected or required to make to 
child protection or child welfare service programs in the child's 
Convention country or in the United States, along with an explanation 
of the intended use of the contribution and the manner in which the 
transaction will be recorded and accounted for; and
    (7) Post-placement and post-adoption reports. The expected total 
fees and expenses for any post-placement or post-adoption reports that 
the agency or person or parent(s) must prepare in light of any 
requirements of the expected country of origin.
    (c) The agency or person also specifies in its written adoption 
contract when and how funds advanced to cover fees or expenses will be 
refunded if adoption services are not provided.
    (d) When the agency or person uses part of its fees to provide 
special services, such as cultural programs for adoptee(s), 
scholarships or other services, it discloses this policy to the 
prospective adoptive parent(s) in advance of providing any adoption 
services and gives the prospective adoptive parent(s) an explanation of 
the use of such funds.
    (e) The agency or person has mechanisms in place for transferring 
funds to Convention countries when the financial institutions of the 
Convention country so permit and for obtaining written receipts for 
such transfers, so that direct cash transactions by the prospective 
adoptive parent(s) to pay for adoption services provided in the other 
Convention country are minimized or unnecessary.
    (f) The agency or person does not customarily charge additional 
fees and expenses beyond those disclosed in the adoption contract and 
has a written policy to this effect. In the event that unforeseen 
additional fees and expenses are incurred in the other Convention 
country, the agency or person charges additional fees and expenses only 
under the following conditions:
    (1) It discloses the fees and expenses in writing to the 
prospective adoptive parent(s);
    (2) It obtains the specific consent of the prospective adoptive 
parent(s) prior to expending any funds in excess of $800 for which the 
agency or person will hold the prospective adoptive parent(s) 
responsible or gives the prospective adoptive parent(s) the opportunity 
to waive the notice and consent requirement in advance. If the 
prospective adoptive parent(s) has the opportunity to waive the notice 
and consent requirement in advance, this policy is reflected in the 
written policies and procedures of the agency or person; and
    (3) It provides written receipts to the prospective adoptive 
parent(s) for fees and expenses paid in the Convention

[[Page 54104]]

country and retains copies of such receipts.
    (g) When its delivery of services is completed, the agency or 
person gives the prospective adoptive parent(s) an accounting of both 
the total fees and expenses incurred within thirty days of the 
completion of the delivery of the services.
    (h) The agency or person returns any funds to which the prospective 
adoptive parent(s) may be entitled at the same time that the agency or 
person provides the accounting required in paragraph (g) of this 
section.

Responding to Complaints and Records and Reports Management


Sec.  96.41  Procedures for responding to complaints and improving 
service delivery.

    (a) The agency or person has written complaint policies and 
procedures that incorporate the standards in paragraphs (b) though (h) 
of this section and provides a copy of such policies and procedures, 
including contact information for the Complaint Registry, to client(s) 
at the time the adoption contract is signed.
    (b) The agency or person permits any birth parent, prospective 
adoptive parent, or adoptee to lodge a complaint or appeal about any of 
the services or activities of the agency or person that he or she 
believes are inconsistent with the Convention, the IAA, or the 
regulations implementing the IAA.
    (c) The agency or person responds in writing to complaints within 
thirty days of receipt, and provides expedited review of complaints 
that are time-sensitive or that involve allegations of fraud.
    (d) The agency or person maintains a written record of each 
complaint and the steps taken to investigate and respond to it and 
makes this record available to the accrediting entity, the Complaint 
Registry, or the Secretary upon request.
    (e) The agency or person does not take any action to discourage a 
client or prospective client from, or retaliate against a client or 
prospective client for, making a complaint, expressing a grievance, 
questioning the conduct of, or expressing an opinion about the 
performance of an agency or person.
    (f) The agency or person provides to the accrediting entity and the 
Complaint Registry, on a quarterly basis, a summary of all complaints 
received during the preceding quarter (including the number of 
complaints received and how each complaint was resolved) and an 
assessment of any discernible patterns in complaints received against 
the agency or person, along with information about what systemic 
changes, if any, were made or are planned by the agency or person in 
response to such patterns.
    (g) The agency or person provides such other information about 
complaints received as may be requested by the accrediting entity, the 
Complaint Registry, or the Secretary.
    (h) The agency or person has a quality improvement program 
appropriate to its size and circumstances through which it makes 
systematic efforts to improve its adoption services as needed. The 
agency or person uses quality improvement methods such as reviewing 
complaint data, using client satisfaction surveys, or comparing the 
agency's or person's practices and performance against the data 
contained in the Secretary's annual reports to Congress on intercountry 
adoptions.


Sec.  96.42  Retention, preservation, and disclosure of adoption 
records.

    (a) The agency or person retains or archives adoption records in a 
retrievable manner for the period of time required by applicable State 
law.
    (b) The agency or person makes readily available to the adoptee or 
the adoptive parent(s) upon request all non-identifying information in 
its custody about the adoptee's health history or background.
    (c) The agency or person preserves and discloses information in its 
custody about the adoptee's origin, social history, and birth parents' 
identity in accordance with applicable State law.
    (d) The agency or person protects the privacy of birth parent(s), 
prospective adoptive parent(s), and adoptee(s) to whom adoption 
services were provided and safeguards sensitive information.
    (e) The agency or person ensures that personal data gathered or 
transmitted in connection with an adoption is used only for the 
purposes for which the information was gathered.
    (f) The agency or person has a plan that is consistent with the 
provisions of this section and applicable State law for transferring 
custody of adoption records that are subject to retention or archival 
requirements to an appropriate custodian, and ensuring the 
accessibility of those adoption records, in the event that the agency 
or person ceases to provide or is no longer permitted to provide 
adoption services under the Convention.
    (g) The agency or person notifies the accrediting entity and the 
Secretary in writing within thirty days of the time it ceases to 
provide or is no longer permitted to provide adoption services and 
provides information about the transfer of its adoption records.


Sec.  96.43  Case tracking, data management, and reporting.

    (a) When acting as the primary provider, the agency or person 
maintains all the data required in this section in a format approved by 
the accrediting entity and provides it to the accrediting entity on an 
annual basis.
    (b) When acting as the primary provider, the agency or person 
routinely generates and maintains reports as follows:
    (1) For cases involving children immigrating to the United States, 
information and reports on the total number of intercountry adoptions 
undertaken by the agency or persom each year in both Convention and 
non-Convention cases and, for each case:
    (i) The Convention country or other country from which the child 
emigrated;
    (ii) The State to which the child immigrated;
    (iii) The State, Convention country, or other country in which the 
adoption was finalized;
    (iv) The age of the child; and
    (v) The date of the child's placement for adoption.
    (2) For cases involving children emigrating from the United States, 
information and reports on the total number of intercountry adoptions 
undertaken by the agency or person each year in both Convention and 
non-Convention cases and, for each case:
    (i) The State from which the child emigrated;
    (ii) The Convention country or other country to which the child 
immigrated;
    (iii) The State, Convention country, or other country in which the 
adoption was finalized;
    (iv) The age of the child; and
    (v) The date of the child's placement for adoption.
    (3) For each disrupted placement involving a Convention adoption, 
information and reports about the disruption, including information on:
    (i) The Convention country from which the child emigrated;
    (ii) The State to which the child immigrated;
    (iii) The age of the child;
    (iv) The date of the child's placement for adoption;
    (v) The reason(s) for and resolution(s) of the disruption of the 
placement for adoption, including information on the child's re-
placement for adoption and final legal adoption;
    (vi) The names of the agencies or persons that handled the 
placement for adoption; and
    (vii) The plans for the child.
    (4) Wherever possible, for each dissolution of a Convention 
adoption, information and reports on the dissolution, including 
information on:

[[Page 54105]]

    (i) The Convention country from which the child emigrated;
    (ii) The State to which the child immigrated;
    (iii) The age of the child;
    (iv) The date of the child's placement for adoption;
    (v) The reason(s) for and resolution(s) of the dissolution of the 
adoption, to the extent known by the agency or person;
    (vi) The names of the agencies or persons that handled the 
placement for adoption; and
    (vii) The plans for the child.
    (5) Information on the shortest, longest, and average length of 
time it takes to complete a Convention adoption, set forth by the 
child's country of origin, calculated from the time the child is 
matched with the prospective adoptive parent(s) until the time the 
adoption is finalized by a court, excluding any period for appeal;
    (6) Information on the range of adoption fees, including the 
lowest, highest, average, and the median of such fees, set forth by the 
child's country of origin, charged by the agency or person for 
Convention adoptions involving children immigrating to the United 
States in connection with their adoption.
    (c) If the agency or person provides adoption services in cases not 
subject to the Convention that involve a child emigrating from the 
United States for the purpose of adoption or after an adoption has been 
finalized, it provides such information directly to the Secretary and 
as required by the Secretary and demonstrates to the accrediting entity 
that it has provided this information.
    (d) The agency or person provides any of the information described 
in paragraphs (a) through (c) of this section to the accrediting entity 
or the Secretary within thirty days of request.

Service Planning and Delivery


Sec.  96.44  Acting as primary provider.

    (a) When required by Sec.  96.14(a), the agency or person acts as 
primary provider and adheres to the provisions in Sec.  96.14(b) 
through (e). When acting as the primary provider, the agency or person 
provides, either directly or through arrangements with other accredited 
agencies, temporarily accredited agencies, approved persons, supervised 
providers, exempted providers, public bodies, competent authorities, or 
public authorities, all six ``adoption services'' listed in Sec.  96.2, 
and develops and implements a service plan for providing all six of the 
required adoption services.
    (b) The agency or person has an organizational structure, financial 
and personnel resources, and policies and procedures in place that 
demonstrate that the agency or person is capable of acting as a primary 
provider in any Convention adoption case and, when acting as the 
primary provider, provides appropriate supervision to supervised 
providers in accordance with Sec. Sec.  96.45 and 96.46.


Sec.  96.45  Using Supervised Providers in the United States.

    (a) The agency or person, when acting as the primary provider and 
using supervised providers in the United States to provide adoption 
services, ensures that each such supervised provider:
    (1) Is in compliance with applicable State licensing and regulatory 
requirements in all jurisdictions in which it provides adoption 
services;
    (2) Does not engage in practices inconsistent with the Convention's 
principles of furthering the best interests of the child and preventing 
the sale, abduction, exploitation, or trafficking of children; and
    (3) Before entering into an agreement with the primary provider for 
the provision of adoption services, discloses to the primary provider 
the suitability information listed in Sec.  96.35.
    (b) The agency or person, when acting as the primary provider and 
using supervised providers in the United States to provide adoption 
services, ensures that each such supervised provider operates under a 
written agreement with the primary provider that:
    (1) Clearly identifies the adoption service(s) to be provided by 
the supervised provider and requires that the service(s) be provided in 
accordance with the applicable service standard(s) for accreditation 
and approval (for example: home study (Sec.  96.47), parent training 
(Sec.  96.48), child background studies and consents (Sec.  96.53));
    (2) Requires the supervised provider to comply with the following 
standards regardless of the type of adoption services it is providing: 
Sec.  96.36 (prohibition on child-buying), Sec.  96.34 (compensation), 
Sec.  96.38(employee training), Sec.  96.39(d) (blanket waivers of 
liability), and Sec.  96.41(a) through (e) (complaints).
    (3) Identifies specifically the lines of authority between the 
primary provider and the supervised provider, the employee of the 
primary provider who will be responsible for supervision, and the 
employee of the supervised provider who will be responsible for 
ensuring compliance with the written agreement;
    (4) Clearly states the compensation arrangement for the services to 
be provided and the fees and expenses to be charged by the supervised 
provider;
    (5) Specifies whether the supervised provider's fees and expenses 
will be billed to and paid by the client(s) directly or billed to the 
client through the primary provider;
    (6) Provides that, if billing the client(s) directly for its 
service, the supervised provider will give the client(s) an itemized 
bill of all fees and expenses to be paid, with a written explanation of 
how and when such fees and expenses will be refunded if the service is 
not completed, and will return any funds collected to which the 
client(s) may be entitled within thirty days of the completion of the 
delivery of services;
    (7) Requires the supervised provider to meet the same personnel 
qualifications as accredited agencies and approved persons, as provided 
for in Sec.  96.37;
    (8) Provides that the primary provider will retain legal 
responsibility for each case in which adoption services are provided, 
as required by paragraph (c) of this section;
    (9) Requires the supervised provider to protect the privacy of the 
individuals it serves, safeguard sensitive information, and ensure that 
personal data gathered or transmitted in connection with an adoption is 
used only for the purposes for which the information was gathered;
    (10) Requires the supervised provider to respond within a 
reasonable period of time to any request for information from the 
primary provider, the Secretary, or the accrediting entity that issued 
the primary provider's accreditation or approval;
    (11) Requires the supervised provider to provide the primary 
provider on a timely basis any data that is necessary to comply with 
the primary provider's reporting requirements;
    (12) Requires the supervised provider to disclose promptly to the 
primary provider any changes in the suitability information required by 
Sec.  96.35;
    (13) Permits suspension or termination of the agreement on 
reasonable notice if the primary provider has grounds to believe that 
the supervised provider is not in compliance with the agreement or the 
requirements of this section.
    (c) The agency or person, when acting as the primary provider and 
using supervised providers in the United States to provide adoption 
services, does the following in relation to risk management:
    (1) Assumes tort, contract, and other civil liability to the 
prospective adoptive parent(s) for the supervised

[[Page 54106]]

provider's provision of the contracted adoption services and its 
compliance with the standards in this subpart F; and
    (2) Maintains a bond, escrow account, or liability insurance in an 
amount sufficient to cover the risks of liability arising from its work 
with supervised providers.
    (d) Nothing in this section shall be construed as prohibiting the 
primary provider from obtaining indemnification or from seeking damages 
or other redress from a supervised provider for breach of contract, or 
from pursuing any other legal claim against such supervised provider 
arising from the provision of contracted adoption services.


Sec.  96.46  Using supervised providers in other Convention countries.

    (a) The agency or person, when acting as the primary provider and 
using foreign supervised providers to provide adoption services in 
other Convention countries, ensures that each such foreign supervised 
provider:
    (1) Is in compliance with the laws of the Convention country in 
which it operates;
    (2) Does not engage in practices inconsistent with the Convention's 
principles of furthering the best interests of the child and preventing 
the sale, abduction, exploitation, or trafficking of children;
    (3) Before entering into an agreement with the primary provider for 
the provision of adoption services, discloses to the primary provider 
the suitability information listed in Sec.  96.35, taking into account 
the authorities in the Convention country that are analogous to the 
authorities identified in that section; and
    (4) Does not have a pattern of licensing suspensions or other 
sanctions and has not lost the right to provide adoption services in 
any jurisdiction for reasons germane to the Convention.
    (b) The agency or person, when acting as the primary provider and 
using foreign supervised providers to provide adoption services in 
other Convention countries, ensures that each such foreign supervised 
provider operates under a written agreement with the primary provider 
that:
    (1) Clearly identifies the adoption service(s) to be provided by 
the foreign supervised provider;
    (2) Requires the foreign supervised provider, if responsible for 
obtaining medical or social information on the child, to comply with 
the standards in Sec.  96.49(d) through (j).
    (3) Requires the foreign supervised provider to prohibit child 
buying by any of its employees and agents; to have a written policy 
prohibiting its employees and agents from giving money or other 
consideration, directly or indirectly, to a child's parent(s), other 
individual(s), or an entity as payment for the child or as an 
inducement to release the child, other than reasonable or required 
payments for activities related to the adoption proceedings, pre-birth 
and birth medical costs, the care of the child, or the provision of 
child welfare and child protection services generally; and to provide 
training to its employees and agents on this policy;
    (4) Requires the foreign supervised provider to compensate its 
directors, officers, and employees who provide intercountry adoption 
services on a fee-for-service, hourly wage, or salary basis, rather 
than based on whether a child is placed for adoption or on a similar 
contingent fee basis;
    (5) Identifies specifically the lines of authority between the 
primary provider and the foreign supervised provider, the employee of 
the primary provider who will be responsible for supervision, and the 
employee of the supervised provider who will be responsible for 
ensuring compliance with the written agreement;
    (6) Clearly states the compensation arrangement for the services to 
be provided and the fees and expenses to be charged by the foreign 
supervised provider;
    (7) Specifies whether the foreign supervised provider's fees and 
expenses will be billed to and paid by the client(s) directly or billed 
to the client through the primary provider;
    (8) Provides that, if billing the client(s) directly for its 
service, the foreign supervised provider will give the client(s) an 
itemized bill of all fees and expenses to be paid, with a written 
explanation of how and when such fees and expenses will be refunded if 
the service is not completed, and will return any funds collected to 
which the client(s) may be entitled within thirty days of the 
completion of the delivery of services;
    (9) Provides that the primary provider will retain legal 
responsibility for each case in which adoption services are provided, 
as required by paragraph (c) of this section;
    (10) Requires the foreign supervised provider to respond within a 
reasonable period of time to any request for information from the 
primary provider, the Secretary, or the accrediting entity that issued 
the primary provider's accreditation or approval;
    (11) Requires the foreign supervised provider to provide the 
primary provider on a timely basis any data that is necessary to comply 
with the primary provider's reporting requirements;
    (12) Requires the foreign supervised provider to disclose promptly 
to the primary provider any changes in the suitability information 
required by Sec.  96.35; and
    (13) Permits suspension or termination of the agreement on 
reasonable notice if the primary provider has grounds to believe that 
the foreign supervised provider is not in compliance with the agreement 
or the requirements of this section.
    (c) The agency or person, when acting as the primary provider and 
using foreign supervised providers to provide adoption services in 
other Convention countries, does the following in relation to risk 
management:
    (1) Assumes tort, contract, and other civil liability to the 
prospective adoptive parent(s) for the foreign supervised provider's 
provision of the contracted adoption services and its compliance with 
the standards in this subpart F; and
    (2) Maintains a bond, escrow account, or liability insurance in an 
amount sufficient to cover the risks of liability arising from its work 
with foreign supervised providers.
    (d) Nothing in this section shall be construed as prohibiting the 
primary provider from obtaining indemnification or from seeking damages 
or other redress from a foreign supervised provider for breach of 
contract, or from pursuing any other legal claim against such 
supervised provider arising from the provision of contracted adoption 
services.

Standards for Cases in Which a Child Is Immigrating to the United 
States (Incoming Cases)


Sec.  96.47  Preparation of home studies in incoming cases.

    (a) The agency or person ensures that a home study on the 
prospective adoptive parent(s) is completed that includes the 
following:
    (1) Information about 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 the prospective adoptive parent(s) would be qualified to care 
(specifying in particular whether they are willing and able to care for 
a child with specialneeds);
    (2) A determination whether the prospective adoptive parent(s) are 
eligible and suited to adopt;
    (3) A statement describing the counseling and training provided to 
the prospective adoptive parents(s);

[[Page 54107]]

    (4) The results of a criminal background check on the prospective 
adoptive parent(s) and any other individual for whom a check is 
required by 8 CFR 204.3(e);
    (5) A full and complete statement of all facts relevant to the 
eligibility and suitability of the prospective adoptive parent(s) to 
adopt a child under any specific requirements identified to the 
Secretary by the Central Authority of the child's country of origin; 
and
    (6) A statement in each copy of the home study that it is a true 
and accurate copy of the home study that was provided to the 
prospective adoptive parent(s) or DHS.
    (b) The agency or person ensures that the home study is performed 
in accordance with 8 CFR 204.3(e), and any applicable State law.
    (c) Where the home study is not performed in the first instance by 
an accredited agency or temporarily accredited agency (that is, it was 
initially prepared by an approved person or an exempted provider), the 
agency or person ensures that the home study is reviewed and approved 
in writing by an accredited agency or temporarily accredited agency. 
The written approval must include a determination that the home study:
    (1) Includes all of the information required by paragraph (a) of 
this section and is performed in accordance with 8 CFR 204.3(e), and 
applicable State law; and
    (2) Was performed by an individual who meets the personnel 
qualifications in Sec.  96.37(f), or, if the individual is an exempted 
provider, ensure that the individual meets the requirements for home 
study providers established by 8 CFR 204.3(b).
    (d) The agency or person takes all appropriate measures to ensure 
the timely transmission of the same home study that was provided to the 
prospective adoptive parent(s) or to DHS (including any supplemental 
statement to the home study) to the Central Authority or other 
competent authority of the child's country of origin.


Sec.  96.48  Preparation and training of prospective adoptive parent(s) 
in incoming cases.

    (a) The agency or person provides prospective adoptive parent(s) 
with at least ten hours (independent of the home study) of preparation 
and training, as described in paragraphs (b) and (c) of this section, 
designed to promote a successful intercountry adoption. The agency or 
person provides such training before the prospective adoptive parent(s) 
travel to adopt the child or the child is placed with the prospective 
adoptive parent(s) for adoption.
    (b) The training provided by the agency or person addresses the 
following topics:
    (1) The intercountry adoption process, the general characteristics 
and needs of children awaiting adoption, and the in-country conditions 
that affect children in the Convention country from which the 
prospective adoptive parent(s) plan to adopt;
    (2) The effects on children of malnutrition, relevant environmental 
toxins, maternal substance abuse, and of any other known genetic, 
health, emotional, and developmental risk factors associated with 
children from the expected country of origin;
    (3) Information about the impact on a child of leaving familiar 
ties and surroundings, as appropriate to the expected age of the child;
    (4) Data on institutionalized children and the impact of 
institutionalization on children, including the effect on children of 
the length of time spent in an institution and of the type of care 
provided in the expected country of origin;
    (5) Information on attachment disorders and other emotional 
problems that institutionalized or traumatized children and children 
with a history of multiple caregivers may experience, before and after 
their adoption;
    (6) Information on the laws and adoption processes of the expected 
country of origin, including foreseeable delays and impediments to 
finalization of an adoption;
    (7) Information on the long-term implications for a family that has 
become multicultural through intercountry adoption; and
    (8) An explanation of any reporting requirements associated with 
Convention adoptions, including any post-placement or post-adoption 
reports required by the expected country of origin.
    (c) The agency or person also provides the prospective adoptive 
parent(s) with training that allows them to be as fully prepared as 
possible for the adoption of a particular child. This includes 
counseling on:
    (1) The child's history and cultural, racial, religious, ethnic, 
and linguistic background;
    (2) The known health risks in the specific region or country where 
the child resides; and
    (3) Any other medical, social, and other data known about the 
particular child.
    (d) The agency or person provides such training through appropriate 
methods, including:
    (1) Collaboration among agencies or persons to share resources to 
meet the training needs of parents;
    (2) Group seminars offered by the agency or person or other 
agencies or training entities;
    (3) Individual counseling sessions;
    (4) Video, computer-assisted, or distance learning methods using 
standardized curricula;
    (5) In cases where training cannot otherwise be provided, an 
extended home study process, with a system for evaluating the 
thoroughness with which the topics have been covered.
    (e) The agency or person provides additional in-person, 
individualized counseling and preparation, as needed, to meet the needs 
of the parent(s) in light of the particular child(ren) to be adopted 
and his or her special needs, and any other training or counseling 
needed in light of the child background study or the home study.
    (f) The agency or person provides the prospective adoptive 
parent(s) with information about print, internet, and other resources 
available for continuing to acquire information about common 
behavioral, medical, and other issues; connecting with parent support 
groups, adoption clinics and experts; and seeking appropriate help when 
needed.
    (g) The agency or person exempts prospective adoptive parent(s) 
from all or part of the training and preparation that would normally be 
required for a specific adoption only where the parent(s) have received 
adequate prior training or have prior experience as parent(s) of 
children adopted from abroad.
    (h) The agency or person records the nature and extent of the 
training and preparation provided to the prospective adoptive parent(s) 
in the adoption record.


Sec.  96.49  Provision of medical and social information in incoming 
cases.

    (a) The agency or person provides a copy of the child's medical 
records to the prospective adoptive parent(s) at least two weeks before 
either the adoption or placement for adoption, or the date on which the 
prospective adoptive parent(s) travel to the other Convention country 
to complete all procedures in such country relating to the adoption or 
placement for adoption, whichever is earlier.
    (b) To the fullest extent practicable, the agency or person 
provides the prospective adoptive parent(s) with a correct and complete 
English-language translation of the records and, where the medical 
records provided pursuant to paragraph (a) of this section are a 
summary or compilation of other

[[Page 54108]]

medical records, the agency or person provides a copy of the original 
medical records used to create that summary or compilation if the 
original medical records are available.
    (c) The agency or person provides the prospective adoptive 
parent(s) with an opportunity to arrange another translation of the 
records, including a translation into a language other than English, if 
needed.
    (d) The agency or person itself uses reasonable efforts, or 
requires its supervised provider or agent in the child's country of 
origin who is responsible for obtaining medical information about the 
child on behalf of the agency or person to use reasonable efforts, to 
obtain available information, including in particular:
    (1) The date that the Convention country or other child welfare 
authority assumed custody of the child and the child's condition at 
that time;
    (2) History of any significant illnesses, hospitalizations, and 
changes in the child's condition since the Convention country or other 
child welfare authority assumed custody of the child;
    (3) Growth data and developmental status at the time of the child's 
referral for adoption; and
    (4) Specific information on the known health risks in the specific 
region or country where the child resides.
    (e) If the agency or person provides medical information to the 
prospective adoptive parent(s) from an examination by a physician or 
from an observation of the child by someone who is not a physician, the 
information includes:
    (1) The name and credentials of the physician who performed the 
examination or the individual who observed the child;
    (2) The date of the examination or observation;
    (3) If the medical information includes references, descriptions, 
or observations made by any individual other than the physician who 
performed the examination or the individual who performed the 
observation, the identity of that individual, the individual's 
training, and information on whether the individual relied on objective 
data or subjective perceptions in drawing his or her conclusions;
    (4) A review of hospitalizations, significant illnesses, and other 
significant medical events, and the reasons for them;
    (5) Information about the full range of any tests performed on the 
child, including tests addressing known risk factors in the child's 
country of origin; and
    (6) Current health information.
    (f) The agency or person itself uses reasonable efforts, or 
requires its supervised provider or agent in the child's country of 
origin who is responsible for obtaining social information about the 
child on behalf of the agency or person to use reasonable efforts, to 
obtain available information, including in particular:
    (1) Information about the child's history and cultural, racial, 
religious, ethnic, and linguistic background; and
    (2) Information about all of the child's past and current 
placements prior to adoption, including information on who assumed 
custody and provided care for the child.
    (g) Where any of the information listed in paragraphs (d) and (f) 
of this section cannot be obtained, the agency or person documents in 
the adoption record the efforts made to obtain the information and why 
it was not obtainable.
    (h) Where available, the agency or person provides information for 
contacting the examining physician or the individual who made the 
observations to any physician engaged by the prospective adoptive 
parent(s), upon request.
    (i) The agency or person ensures that videotapes and photographs of 
the child are identified by the date on which the videotape or 
photograph was recorded or taken.
    (j) Neither the agency or person nor its agents withhold from or 
misrepresent to the prospective adoptive parent(s) any medical, social, 
or other pertinent information concerning the child.
    (k) The agency or person does not withdraw a referral until the 
prospective adoptive parent(s) have had at least a week (unless 
extenuating circumstances involving the child's best interests require 
a more expedited decision) to consider the needs of the child and their 
ability to meet those needs, and to obtain physician review of medical 
information and other descriptive information, including videotapes of 
the child.


Sec.  96.50  Placement and post-placement monitoring until final 
adoption in incoming cases.

    (a) The agency or person takes all appropriate measures to ensure 
that the transfer of the child takes place in secure and appropriate 
circumstances, with properly trained and qualified escorts, if used, 
and, if possible, in the company of the prospective adoptive parent(s).
    (b) After the child is placed with the prospective adoptive 
parent(s) prior to the adoption, the agency or person monitors and 
supervises the child's placement to ensure that the placement remains 
in the best interests of the child, and ensures that at least the 
number of home visits required by State law or by the child's country 
of origin are performed, whichever is greater.
    (c) When a placement for adoption is in crisis, the agency or 
person makes an effort to provide or arrange for counseling by an 
individual with appropriate skills to assist the family in dealing with 
the problems that have arisen.
    (d) When counseling in a placement for adoption that is in crisis 
does not succeed in resolving the crisis and the placement is 
disrupted, the agency or person assuming custody of the child assumes 
responsibility for making another placement of the child.
    (e) The agency or person acts promptly and in accord with any 
applicable legal requirements to remove the child when the placement 
may no longer be in the child's best interests, to provide temporary 
care, to find an eventual adoptive placement for the child, and, in 
consultation with the Secretary, to inform the Central Authority of the 
child's country of origin about any new prospective adoptive parent(s).
    (1) In all cases where removal of a child from a placement is 
considered, the agency or person considers the child's views when 
appropriate in light of the child's age and maturity and, when required 
by State law, obtains the consent of the child prior to removal.
    (2) The agency or person does not return from the United States a 
child placed for adoption in the United States unless the Central 
Authority of the country of origin and the Secretary have approved the 
return in writing.
    (f) The agency or person includes in the written adoption contract 
with the prospective adoptive parent(s) a plan describing the agency's 
or person's responsibilities if a placement for adoption is disrupted. 
This plan addresses:
    (1) Who will have legal and financial responsibility for transfer 
of custody in an emergency or in the case of impending disruption and 
for the care of the child;
    (2) If the disruption takes place after the child has arrived in 
the United States, under what circumstances the child will, as a last 
resort, be returned to the child's country of origin, if that is 
determined to be in the child's best interests;
    (3) How the child's wishes, age, length of time in the United 
States, and other pertinent factors will be taken into account; and

[[Page 54109]]

    (4) How the Central Authority of the child's country of origin and 
the Secretary will be notified.
    (g) The agency or person provides post-placement reports until 
final adoption on a child to the other Convention country when required 
by the other Convention country. Where such reports are required, the 
agency or person:
    (1) Informs the prospective adoptive parent(s) of the requirement 
prior to the referral of the child for adoption;
    (2) Informs the prospective adoptive parent(s) that they will be 
required to provide all necessary information for the report(s); and
    (3) Discloses who will prepare the reports and the fees that will 
be charged.
    (h) The agency or person takes steps to:
    (1) Ensure that an order declaring the adoption as final is sought 
by the prospective adoptive parent(s), and entered in compliance with 
section 301(c) of the IAA (Pub. L. 106-279, section 301(c), 42 U.S.C. 
14931(c)); and
    (2) Notify the Secretary of the finalization of the adoption within 
thirty days of the entry of the order.


Sec.  96.51  Post-adoption services in incoming cases.

    (a) The agency or person takes all appropriate measures to ensure 
that the transfer of the child takes place in secure and appropriate 
circumstances, with properly trained and qualified escorts, if used, 
and, if possible, in the company of the adoptive parent(s).
    (b) The agency or person either informs the prospective adoptive 
parent(s) in the written adoption contract that the agency or person 
will not provide services if an adoption is dissolved or provides a 
plan describing the agency's or person's responsibilities, if any, if 
an adoption is dissolved.
    (c) When post-adoption reports are required by the child's country 
of origin, the agency or person includes a requirement for such reports 
in the adoption contract and makes good-faith efforts to encourage 
adoptive parent(s) to provide such reports.
    (d) The agency or person does not return from the United States an 
adopted child whose adoption has been dissolved unless the Central 
Authority of the country of origin and the Secretary have approved the 
return in writing.
    (e) If the agency or person voluntarily provides post-adoption 
services, it ensures that the individual providing such services has 
knowledge of post-adoption issues and, if possible, of the legal, 
social, cultural, and emotional issues pertinent to the particular 
adoption case in which it is involved.


Sec.  96.52  Performance of Hague Convention communication and 
coordination functions in incoming cases.

    (a) The agency or person keeps the Central Authority of the other 
Convention country and the Secretary 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.
    (b) The agency or person takes all appropriate measures, consistent 
with the procedures of the other Convention country, to:
    (1) Transmit on a timely basis the home study to the Central 
Authority or other competent authority of the child's country of 
origin;
    (2) Obtain the child background study, proof that the necessary 
consents to the child's adoption have been obtained, and the necessary 
determination that the prospective placement is in the child's best 
interests, from the Central Authority or other competent authority in 
the child's country of origin;
    (3) Provide confirmation that the prospective adoptive parent(s) 
agree to the adoption to the Central Authority or other competent 
authority in the child's country of origin; and
    (4) Transmit the determination that the child is or will be 
authorized to enter and reside permanently in the United States to the 
Central Authority or other competent authority in the child's country 
of origin.
    (c) The agency or person takes all necessary and appropriate 
measures, consistent with the procedures of the other Convention 
country, to obtain permission for the child to leave his or her country 
of origin and to enter and reside permanently in the United States.
    (d) Where the transfer of the child does not take place, the agency 
or person returns the home study on the prospective adoptive parent(s) 
and/or the child background study to the authorities that forwarded 
them.
    (e) The agency or person takes all necessary and appropriate 
measures to perform any tasks in a Convention adoption case that the 
Secretary identifies are required to comply with the Convention, the 
IAA, or any regulations implementing the IAA.

Standards for Cases in Which a Child Is Emigrating From the United 
States (Outgoing Cases)


Sec.  96.53  Background studies on the child and consents in outgoing 
cases.

    (a) The agency or person takes all appropriate measures to ensure 
that a child background study is performed 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) Where the child background study is not prepared in the first 
instance by an accredited agency or temporarily accredited agency (that 
is, it was initially prepared by an approved person or exempted 
provider), it ensures that the background study is reviewed and 
approved in writing by an accredited agency or temporarily accredited 
agency. The written approval must include a determination that the 
background study:
    (1) Includes all the information required by paragraph (a) of this 
section;
    (2) Evidences that consents were obtained in accordance with 
paragraph (c) of this section;
    (3) Reflects consideration of the child's wishes and opinions in 
accordance with paragraph (d) of this section; and
    (4) Was prepared either by an exempted provider or by an individual 
who meets the personnel qualifications set forth in Sec.  96.37(g).
    (c) The agency or person takes all appropriate measures to ensure 
that consents have been obtained as follows:
    (1) The persons, institutions, and authorities whose consent is 
necessary for adoption have been counseled as necessary and duly 
informed of the effects of their consent, in particular whether or not 
an adoption will result in the termination of the legal relationship 
between the child and his or her family of origin;
    (2) All such persons, institutions, and authorities have given 
their consents;
    (3) The consents have been expressed or evidenced in writing in the 
required legal form, have been given freely, were not induced by 
payments or compensation of any kind, and have not been withdrawn;
    (4) The consent of the mother, where required, was executed after 
the birth of the child;
    (5) The child, as appropriate in light of his or her age and 
maturity, has been counseled and duly informed of the effects of the 
adoption and of his or her consent to the adoption, including that it 
will result in the child living in another country; and
    (6) The child's consent, where required, has been given freely, in 
the required legal form, and expressed or evidenced in writing and not 
induced by payment or compensation of any kind.
    (d) If the child is ten years of age or older, or as otherwise 
provided by State law, the agency or person gives due

[[Page 54110]]

consideration to the child's wishes or opinions before determining that 
an intercountry placement is in the child's best interests.
    (e) The agency or person takes all appropriate measures to transmit 
to the Central Authority or other competent authority of the other 
Convention country the child background study, proof that the necessary 
consents have been obtained, and the reasons for its determination that 
the placement is in the child's best interests. In doing so, the agency 
or person, as required by Article 16(2) of the Convention, does not 
reveal the identity of the mother or the father if these identities may 
not be disclosed under State law.


Sec.  96.54  Placement standards in outgoing cases.

    (a) Except in the case of adoption by relatives or in the case in 
which the birth parent(s) have identified specific prospective adoptive 
parent(s) or in other special circumstances accepted by the State court 
with jurisdiction over the case, the agency or person makes reasonable 
efforts to find a timely adoptive placement for the child in the United 
States by:
    (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 thirty 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 
prospective adoptive parent(s).
    (b) The agency or person demonstrates to the satisfaction of the 
State court with jurisdiction over the adoption that sufficient 
reasonable efforts to find a timely adoptive placement for the child in 
the United States were made, or that making such reasonable efforts was 
not in the best interests of the child.
    (c) In placing the child for adoption, the agency or person:
    (1) To the extent consistent with State or Federal law, gives 
significant weight to the placement preferences expressed by the birth 
parent(s) in all voluntary placements;
    (2) Makes diligent efforts to place siblings together for adoption 
and, where placement together is not possible, to arrange for contact 
between separated siblings, unless it is in the best interests of one 
of the siblings that such efforts or contact not take place; and
    (3) Complies with all applicable requirements of the Indian Child 
Welfare Act.
    (d) If and as required by State law, the agency or person provides 
the birth parent(s) with independent legal counsel at the expense of 
the agency or person or the prospective adoptive parent(s), and fully 
discloses to the birth parent(s) that the child is to be adopted by 
parent(s) who reside outside the United States.
    (e) The agency or person takes all appropriate measures to give due 
consideration to the child's upbringing and to his or her ethnic, 
religious, and cultural background.
    (f) When particular prospective adoptive parent(s) in another 
Convention country have been identified, the agency or person takes all 
appropriate measures to determine whether the envisaged placement is in 
the best interests of the child, on the basis of the child background 
study and the home study on the prospective adoptive parent(s).
    (g) The agency or person thoroughly prepares the child for the 
transition to the other Convention country, using age-appropriate 
services that address the child's likely feelings of separation, grief, 
and loss and difficulties in making any cultural, religious, racial, 
ethnic, or linguistic adjustment.
    (h) The agency or person takes all appropriate measures to ensure 
that the transfer of the child takes place in secure and appropriate 
circumstances, with properly trained and qualified escorts, if used, 
and, if possible, in the company of the adoptive parent(s) or the 
prospective adoptive parent(s);
    (i) Before the placement for adoption proceeds, the agency or 
person identifies the entity in the receiving country that will provide 
post-placement supervision and reports, if required by State law, and 
ensures that the child's adoption record contains the information 
necessary for contacting that entity.
    (j) The agency or person ensures that the child's adoption record 
includes the order granting the adoption or legal custody for the 
purpose of adoption in the Convention country.
    (k) The agency or person consults with the Secretary before 
arranging for the return to the United States of any child who has 
emigrated to a Convention country in connection with the child's 
adoption.


Sec.  96.55  Performance of Hague Convention communication and 
coordination functions in outgoing cases.

    (a) The agency or person keeps the Central Authority of the other 
Convention country and the Secretary 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.
    (b) The agency or person ensures that:
    (1) Copies of all documents from the State court proceedings, 
including the order granting the adoption or legal custody, are 
provided to the Secretary;
    (2) Any additional information on the adoption is transmitted to 
the Secretary promptly upon request; and
    (3) It otherwise facilitates, as requested, the Secretary's ability 
to provide the certification that the child has been adopted or that 
custody has been granted for the purpose of adoption, in accordance 
with the Convention and the IAA.
    (c) Where the transfer of the child does not take place, the agency 
or person returns the home study on the prospective adoptive parent(s) 
and/or the child background study to the authorities that forwarded 
them.
    (d) The agency or person provides to the State court with 
jurisdiction over the adoption:
    (1) Proof that consents have been given as required in Sec.  
96.53(c);
    (2) An English copy or certified English translation of the home 
study on the prospective adoptive parent(s) in the other Convention 
country, and the determination by the agency or person that the 
placement with the prospective adoptive parent(s) is in the child's 
best interests;
    (3) Evidence that the prospective adoptive parent(s) in the other 
Convention country agree to the adoption;
    (4) Evidence that the child will be authorized to enter and reside 
permanently in the Convention country or on the same basis as that of 
the prospective adoptive parent(s); and
    (5) Evidence that the Central Authority of the other Convention 
country has agreed to the adoption, if such consent is necessary under 
its laws for the adoption to become final.
    (e) The agency or person makes the showing required by Sec.  
96.54(b) to the State court with jurisdiction over the adoption.
    (f) The agency or person takes all necessary and appropriate 
measures to perform any tasks in a Convention adoption case that the 
Secretary identifies are required to comply with

[[Page 54111]]

the Convention, the IAA, or any regulations implementing the IAA.


Sec.  96.56  [Reserved]

Subpart G--Decisions on Applications for Accreditation or Approval


Sec.  96.57  Scope.

    The provisions in this subpart establish the procedures for when 
the accrediting entity issues decisions on applications for 
accreditation or approval. Temporary accreditation is governed by the 
provisions in subpart N of this part. Unless otherwise provided in 
subpart N of this part, the provisions in subpart G of this part do not 
apply to agencies seeking temporary accreditation.


Sec.  95.58  Notification of accreditation and approval decisions.

    (a) The accrediting entity must notify agencies and persons that 
applied by the transitional application deadline of its accreditation 
and approval decisions on a uniform notification date to be established 
by the Secretary. On that date, the accrediting entity must inform each 
applicant and the Secretary in writing whether the agency's or person's 
application has been granted or denied or remains pending. The 
accrediting entity may not provide any information about its 
accreditation or approval decisions to any agency or person or to the 
public until the uniform notification date. If the Secretary requests 
information on the interim or final status of an applicant prior to the 
uniform notification date, the accrediting entity must provide such 
information to the Secretary.
    (b) Notwithstanding the provisions in paragraph (a) of this 
section, the accrediting entity may, in its discretion, communicate 
with agencies and persons that applied by the transitional application 
deadline about the status of their pending applications for the sole 
purpose of affording them an opportunity to correct deficiencies that 
may hinder or prevent accreditation or approval.
    (c) The accrediting entity must routinely inform applicants that 
applied after the transitional application deadline in writing of its 
accreditation and approval decisions, as those decisions are finalized, 
but may not do so earlier than the uniform notification date referenced 
in paragraph (a) of this section. The accrediting entity must routinely 
provide this information to the Secretary in writing.


Sec.  96.59  Review of decisions to deny accreditation or approval.

    (a) There is no administrative or judicial review of an accrediting 
entity's decision to deny an application for accreditation or approval. 
As provided in Sec.  96.79, a decision to deny for these purposes 
includes:
    (1) A denial of the agency's or person's initial application for 
accreditation or approval;
    (2) A denial of an application made after cancellation or refusal 
to renew by the accrediting entity; and
    (3) A denial of an application made after cancellation or debarment 
by the Secretary.
    (b) The agency or person may petition the accrediting entity for 
reconsideration of a denial. The accrediting entity must establish 
internal review procedures that provide an opportunity for an agency or 
person to petition for reconsideration of the denial.


Sec.  96.60  Length of accreditation or approval period.

    (a) Except as provided in paragraph (b) of this section, the 
accrediting entity will accredit or approve an agency or person for a 
period of four years. The accreditation or approval period will 
commence either on the date the Convention enters into force for the 
United States (if the agency or person is accredited or approved before 
that date) or on the date that the agency or person is granted 
accreditation or approval.
    (b) In order to stagger the renewal requests from agencies and 
persons that applied for accreditation or approval by the transitional 
application deadline, so as to prevent renewal requests from coming due 
at the same time, the accrediting entity may, in consultation with the 
Secretary, accredit or approve some agencies and persons that applied 
by the transitional application deadline for a period of between three 
and five years for their first accreditation or approval cycle. The 
accrediting entity must establish criteria, which must be approved by 
the Secretary, for choosing which agencies and persons it will accredit 
or approve for a period of other than four years.


Sec.  96.61  [Reserved]

Subpart H--Renewal of Accreditation or Approval


Sec.  96.62  Scope.

    The provisions in this subpart establish the procedures for renewal 
of an agency's accreditation or a person's approval. Temporary 
accreditation may not be renewed, and the provisions in subpart H of 
this part do not apply to temporarily accredited agencies.


Sec.  96.63  Renewal of accreditation or approval.

    (a) The accrediting entity must advise accredited agencies and 
approved persons it is responsible for monitoring of the date by which 
they should seek renewal of their accreditation or approval so that the 
renewal process can reasonably be completed before the agency's or 
person's current accreditation or approval expires. If the accredited 
agency or approved person wishes to renew its accreditation or 
approval, it must seek renewal by this date. If the accredited agency 
or approved person does not wish to renew its accreditation or 
approval, it must immediately notify the accrediting entity and take 
all necessary steps to complete its Convention cases and to transfer 
its pending Convention cases and adoption records to other accredited 
agencies, approved persons, or a State archive, as appropriate, under 
the oversight of the accrediting entity, before its accreditation or 
approval expires.
    (b) The accredited agency or approved person may seek renewal from 
a different accrediting entity than the one that handled its prior 
application. If it changes accrediting entities, the accredited agency 
or approved person must so notify the accrediting entity that handled 
its prior application by the date on which the agency or person must 
(pursuant to paragraph (a) of this section) seek renewal of its status. 
The accredited agency or approved person must follow the accrediting 
entity's instructions when submitting a request for renewal and 
preparing documents and other information for the accrediting entity to 
review in connection with the renewal request.
    (c) The accrediting entity must process the request for renewal in 
a timely fashion. Before deciding whether to renew the accreditation or 
approval of an agency or person, the accrediting entity may, in its 
discretion, advise the agency or person of any deficiencies that may 
hinder or prevent its renewal and defer a decision to allow the agency 
or person to correct the deficiencies. The accrediting entity must 
routinely notify the accredited agency, approved person, and the 
Secretary in writing when it renews or refuses to renew an agency's or 
person's accreditation or approval.
    (d) Sections 96.25 and 96.26, relating to requests for and use of 
information, and Sec.  96.27, relating to the substantive criteria for 
evaluating applicants for accreditation or approval, other than

[[Page 54112]]

Sec.  96.27(e), will govern determinations whether to renew 
accreditation or approval. In addition, in lieu of Sec.  96.27(e), if 
the agency or person has been suspended by an accrediting entity or the 
Secretary during its most current accreditation or approval cycle, the 
accrediting entity may take the reasons underlying the suspension into 
account when determining whether to renew accreditation or approval and 
may refuse to renew accreditation or approval based on the prior 
suspension.


Sec.  96.64  [Reserved]

Subpart I--Routine Oversight by Accrediting Entities


Sec.  96.65  Scope.

    The provisions in this subpart establish the procedures for routine 
oversight of accredited agencies and approved persons. Temporary 
accreditation is governed by the provisions of subpart N of this part. 
Unless otherwise provided in subpart N, the provisions in subpart I of 
this part do not apply to temporarily accredited agencies.


Sec.  96.66  Oversight of accredited agencies and approved persons by 
the accrediting entity.

    (a) The accrediting entity must monitor agencies it has accredited 
and persons it has approved at least annually to ensure that they are 
in substantial compliance with the standards in subpart F of this part. 
The accrediting entity must investigate complaints about accredited 
agencies and approved persons, as provided in subpart J of this part.
    (b) An accrediting entity may, on its own initiative, conduct site 
visits to inspect an agency's or person's premises or programs, with or 
without advance notice, for purposes of random verification of its 
continued compliance or to investigate a complaint. The accrediting 
entity may consider any information about the agency or person that 
becomes available to it about the compliance of the agency or person. 
The provisions of Sec. Sec.  96.25 and 96.26 govern requests for and 
use of information.


Sec.  96.67  [Reserved]

Subpart J--Oversight Through Review of Complaints


Sec.  96.68  Scope.

    The provisions in this subpart establish the procedures for 
processing complaints against accredited agencies and approved persons. 
Temporary accreditation is governed by the provisions of subpart N of 
this part, and as provided for in Sec.  96.103, procedures for 
processing complaints on temporarily accredited agencies must comply 
with subpart J of this part.


Sec.  96.69  Filing of complaints against accredited agencies and 
approved persons.

    (a) Complaints against accredited agencies and approved persons may 
be made as follows:
    (1) The complaint must first be filed with the agency or person 
providing adoption services;
    (2) If the agency or person against whom the complaint is being 
made is a supervised provider, the complaint must also be filed with 
the primary provider;
    (3) If a complaint is filed with a supervised provider, the 
supervised provider must instruct the complainant to also file the 
complaint with the primary provider and must provide the complainant 
with the primary provider's contact information;
    (4) If the complaint cannot be resolved through the complaint 
processes of the agency or person providing the services or the primary 
provider (if different), or if the complaint was resolved by an 
agreement to take action but the agency or person providing the service 
or the primary provider (if different) failed to take such action 
within thirty days of agreeing to do so, the complaint may then be 
filed with the Complaint Registry in accordance with Sec.  96.70, which 
will refer the complaint to the accrediting entity or other appropriate 
authority in accordance with Sec.  96.70(b).
    (b) A Federal government body, including DHS, a public body, any 
law enforcement authority or licensing authority, or a foreign Central 
Authority may make complaints directly to the Complaint Registry or the 
accrediting entity overseeing the accredited agency or approved person. 
Federal government bodies, including DHS, may report complaints 
directly to the Secretary.


Sec.  96.70  Review of complaints about accredited agencies and 
approved persons by the Complaint Registry.

    (a) The Secretary shall establish a Complaint Registry to assist 
the Secretary in executing his or her oversight responsibilities and to 
perform such functions on behalf of the accrediting entity as the 
Secretary may determine. The Secretary may provide for the Complaint 
Registry to be funded in whole or in part from fees collected by the 
Secretary pursuant to section 403(b) of the IAA (Pub. L. 106-279, 
section 403(b), 42 U.S.C. 14943(b)) or by the accrediting entity(s).
    (b) The Secretary will provide for the Complaint Registry to:
    (1) Record, screen, refer (to the appropriate accrediting entity, 
the Secretary, or a law enforcement or other agency), and track the 
resolution and disposition of complaints that could not be resolved 
through the complaint processes of the relevant agency or person that 
provided the service in question, or the primary provider (if 
different);
    (2) Record, screen, refer (to the appropriate accrediting entity, 
the Secretary, or a law enforcement or other agency), and track the 
resolution and disposition of cases in which the agency or person that 
provided the service in question, or the primary provider (if 
different) failed to take specific remedial action on a complaint 
within thirty days of agreeing to do so;
    (3) Report possible patterns of complaints made at any time against 
a particular accredited agency or approved person to the accrediting 
entity overseeing that agency or person; and
    (4) Perform such other functions as the Secretary may assign to it 
to assist the accrediting entity or the Secretary in exercising their 
oversight and other responsibilities under the IAA.
    (c) The Secretary will post on the Department's Web site contact 
information necessary for submitting complaints to the Complaint 
Registry and information concerning its precise functions.


Sec.  96.71  Review of complaints against accredited agencies and 
approved persons by the accrediting entity.

    (a) The accrediting entity must establish written procedures, 
including deadlines, for recording, investigating, and acting upon 
complaints it receives about agencies it has accredited and persons it 
has approved. The procedures must be consistent with this section and 
be approved by the Secretary. The accrediting entity must make written 
information about its complaint procedures available upon request.
    (b) If the accrediting entity determines that a complaint 
implicates the Convention, the IAA, or the regulations implementing the 
IAA, it must act as follows:
    (1) Unless the complaint was made directly to the Complaint 
Registry or the accrediting entity pursuant to Sec.  96.69(b), the 
accrediting entity must verify whether the complainant has already 
attempted to resolve the complaint through the internal complaint 
procedures of the agency or person that provided the service or the 
primary provider (if different) and, if not, may refer the complaint to 
the agency or person, or to the primary provider, for

[[Page 54113]]

attempted resolution through its internal complaint procedures.
    (2) The accrediting entity may conduct whatever investigative 
activity (including site visits) it considers necessary to determine 
whether the accredited agency or approved person may maintain 
accreditation or approval as provided in Sec.  96.27. The provisions of 
Sec. Sec.  96.25 and 96.26 govern requests for and use of information. 
The accrediting entity must give priority to complaints submitted from 
the Secretary, other Federal government bodies, including DHS, any law 
enforcement or licensing authority, a public body, or a foreign Central 
Authority.
    (3) If the accrediting entity determines that the agency or person 
may not maintain accreditation or approval, it must take adverse action 
pursuant to subpart K of this part.
    (c) When the accrediting entity has completed its complaint review 
process, it must provide written notification of the outcome of its 
investigation, and any actions taken, to the complainant, the Complaint 
Registry, and to any other entity that referred the information.
    (d) The accrediting entity may not take any action to discourage an 
individual from, or retaliate against an individual for, making a 
complaint, expressing a grievance, questioning the conduct of, or 
expressing an opinion about the performance of an accredited agency, an 
approved person, or the accrediting entity.


Sec.  96.72  Referral of complaints to the Secretary and other 
authorities.

    (a) An accrediting entity must report promptly to the Secretary any 
substantiated complaint that:
    (1) Reveals that an accredited agency or approved person has 
engaged in a pattern of serious, willful, grossly negligent, or 
repeated failures to comply with the standards in subpart F of this 
part; or
    (2) Indicates that continued accreditation or approval would not be 
in the best interests of the children and families concerned.
    (b) An accrediting entity must, after consultation with the 
Secretary, refer to the Attorney General or other appropriate law 
enforcement authorities any substantiated complaints that involve 
conduct that is:
    (1) Subject to the civil or criminal penalties imposed by section 
404 of the IAA (Pub. L. 106-279, section 404, 42 U.S.C. 14944);
    (2) In violation of the Immigration and Nationality Act (8 U.S.C. 
1101 et seq.); or
    (3) Otherwise in violation of Federal, State, or local law.
    (c) When an accrediting entity makes a report pursuant to 
paragraphs (a) or (b) of this section, it must indicate whether it is 
recommending that the Secretary take action to debar the agency or 
person, either temporarily or permanently.


Sec.  96.73  [Reserved]

Subpart K--Adverse Action by the Accrediting Entity


Sec.  96.74  Scope.

    The provisions in this subpart establish the procedures governing 
adverse action by an accrediting entity against accredited agencies and 
approved persons. Temporary accreditation is governed by the provisions 
in subpart N of this part. Unless otherwise provided in subpart N of 
this part, the provisions in subpart K of this part do not apply to 
temporarily accredited agencies.


Sec.  96.75  Adverse action against accredited agencies or approved 
persons not in substantial compliance.

    The accrediting entity must take adverse action when it determines 
that an accredited agency or approved person may not maintain 
accreditation or approval as provided in Sec.  96.27. The accrediting 
entity is authorized to take any of the following actions against an 
accredited agency or approved person whose compliance the entity 
oversees. Each of these actions by an accrediting entity is considered 
an adverse action for purposes of the IAA and the regulations in this 
part:
    (a) Suspending accreditation or approval;
    (b) Canceling accreditation or approval;
    (c) Refusing to renew accreditation or approval;
    (d) Requiring an accredited agency or approved person to take a 
specific corrective action to bring itself into compliance;
    (e) Imposing other sanctions including, but not limited to, 
requiring an accredited agency or approved person to cease providing 
adoption services in a particular case or in a specific Convention 
country.


Sec.  96.76  Procedures governing adverse action by the accrediting 
entity.

    (a) The accrediting entity must decide which adverse action to take 
based on the seriousness and type of violation and on the extent to 
which the accredited agency or approved person has corrected or failed 
to correct deficiencies of which it has been previously informed. The 
accrediting entity must notify an accredited agency or approved person 
in writing of any decision to take an adverse action against the agency 
or person. The accrediting entity's written notice must identify the 
deficiencies prompting imposition of the adverse action.
    (b) Before taking adverse action, the accrediting entity may, in 
its discretion, advise the agency or person of the deficiencies 
warranting adverse action and provide it with an opportunity to take 
corrective action and demonstrate compliance before the adverse action 
is imposed. If the accrediting entity took adverse action but did not 
communicate with the accredited agency or approved person about the 
deficiency in advance (such as in a situation in which providing 
advance notice is not consistent with ensuring that a child's well-
being is protected), the accrediting entity must allow the accredited 
agency or approved person an opportunity after the notice is issued to 
provide information refuting that adverse action was warranted. The 
accrediting entity may withdraw the adverse action based on the 
information provided.
    (c) The provisions in Sec. Sec.  96.25 and 96.26 govern requests 
for and use of information.


Sec.  96.77  Responsibilities of the accredited agency, approved 
person, and accrediting entity following adverse action by the 
accrediting entity.

    (a) If the accrediting entity takes an adverse action against an 
agency or person, the action will take effect immediately unless the 
accrediting entity agrees to a later effective date.
    (b) If the accrediting entity suspends or cancels the accreditation 
or approval of an agency or person, the agency or person must 
immediately, or by any later effective date set by the accrediting 
entity, cease to provide adoption services in all Convention cases. In 
the case of suspension, it must consult with the accrediting entity 
about whether to transfer its Convention adoption cases and its 
adoption records. In the case of cancellation, it must, under the 
oversight of the accrediting entity, transfer its Convention adoption 
cases and adoption records to other accredited agencies, approved 
persons, or a State archive as appropriate.
    (c) If the accrediting entity refuses to renew the accreditation or 
approval of an agency or person, the agency or person must cease to 
provide adoption services in all Convention cases upon expiration of 
its existing accreditation or approval. It must take all necessary 
steps to complete its Convention cases before its accreditation or 
approval

[[Page 54114]]

expires. It must also, under the oversight of the accrediting entity, 
transfer its pending Convention cases and adoption records. When the 
agency or person is unable to transfer such Convention cases or 
adoption records, the accrediting entity must, after consultation with 
the Secretary, take appropriate action to assist the agency or person 
in transferring its Convention cases and adoption records.
    (d) The accrediting entity must immediately notify the Secretary in 
writing when it takes an adverse action that impacts the accreditation 
or approval status of an agency or person.


Sec.  96.78  Petitions to terminate adverse action by the accrediting 
entity.

    (a) If the accrediting entity takes adverse action against an 
agency or person, the agency or person must petition the accrediting 
entity to terminate the adverse action, on the grounds that the 
deficiencies necessitating the adverse action have been corrected, 
before it can seek judicial review. The accrediting entity may 
terminate the adverse action only if the agency or person demonstrates 
to the satisfaction of the accrediting entity that the deficiencies 
that led to the adverse action have been corrected. The accrediting 
entity must notify an agency or person in writing of its decision on 
the petition to terminate the adverse action. If the accrediting entity 
does not terminate the adverse action after being petitioned to do so 
in accordance with this paragraph, the agency or person may seek 
judicial review of the adverse action.
    (b) If the accrediting entity described in paragraph (a) of this 
section is no longer providing accreditation or approval services, the 
agency or person may petition any accrediting entity with jurisdiction 
over its application.
    (c) If the accrediting entity cancels or refuses to renew an 
agency's or person's accreditation or approval, and does not terminate 
the adverse action pursuant to paragraph (a) of this section, the 
agency or person must reapply for accreditation or approval if it 
wishes to become accredited or approved again. Before doing so, the 
agency or person must request and obtain permission to make a new 
application from the accrediting entity that cancelled or refused to 
renew its accreditation or approval. The accrediting entity may grant 
such permission only if the agency or person demonstrates to the 
satisfaction of the accrediting entity that the specific deficiencies 
that led to the cancellation or refusal to renew have been corrected.
    (d) If the accrediting entity grants the agency or person 
permission to reapply, the agency or person may file an application 
with that accrediting entity in accordance with subpart D of this part.


Sec.  96.79  Administrative or judicial review of adverse action by the 
accrediting entity.

    (a) There is no administrative review of an adverse action by an 
accrediting entity.
    (b) Section 202(c)(3) of the IAA (Pub. L. 106-279, Sec.  202(c)(3), 
42 U.S.C. 14922(c)(3)) provides for judicial review of adverse actions 
by an accrediting entity. Adverse actions are only those actions listed 
in Sec.  96.75. There is no judicial review of an accrediting entity's 
decision to deny accreditation or approval, including:
    (1) A denial of an initial application;
    (2) A denial of an application made after cancellation or refusal 
to renew by the accrediting entity; and
    (3) A denial of an application made after cancellation or debarment 
by the Secretary.
    (c) In accordance with section 202(c)(3) of the IAA (Pub. L. 106-
279, Sec.  202(c)(3), 42 U.S.C. 14922(c)(3)), an accredited agency or 
approved person that is the subject of an adverse action by an 
accrediting entity may petition the United States district court in the 
judicial district in which the agency is located or the person resides 
to set aside the adverse action imposed by the accrediting entity. The 
United States district court may review the adverse action in 
accordance with 5 U.S.C. 706. When an accredited agency or approved 
person petitions a United States district court to review the adverse 
action of an accrediting entity, the accrediting entity will be 
considered an agency as defined in 5 U.S.C. 701 for the purpose of 
judicial review of the adverse action.


Sec.  96.80  [Reserved]

Subpart L--Oversight of Accredited Agencies and Approved Persons by 
the Secretary


Sec.  96.81  Scope.

    The provisions in this subpart establish the procedures governing 
adverse action by the Secretary against accredited agencies and 
approved persons. Temporary accreditation is governed by the provisions 
in subpart N of this part. Unless otherwise provided in subpart N of 
this part, the provisions in subpart L of this part do not apply to 
temporarily accredited agencies.


Sec.  96.82  The Secretary's response to actions by the accrediting 
entity.

    (a) There is no administrative review by the Secretary of an 
accrediting entity's decision to deny accreditation or approval, nor of 
any decision by an accrediting entity to take an adverse action.
    (b) When informed by an accrediting entity that an agency has been 
accredited or a person has been approved, the Secretary will take 
appropriate steps to ensure that relevant information about the 
accredited agency or approved person is provided to the Permanent 
Bureau of the Hague Conference on Private International Law. When 
informed by an accrediting entity that it has taken an adverse action 
that impacts an agency's or person's accreditation or approval status, 
the Secretary will take appropriate steps to inform the Permanent 
Bureau of the Hague Conference on Private International Law.


Sec.  96.83  Suspension or cancellation of accreditation or approval by 
the Secretary.

    (a) The Secretary must suspend or cancel the accreditation or 
approval granted by an accrediting entity when the Secretary finds that 
the agency or person is substantially out of compliance with the 
standards in subpart F of this part and that the accrediting entity has 
failed or refused, after consultation with the Secretary, to take the 
action directed by the Secretary.
    (b) The Secretary may suspend or cancel the accreditation or 
approval granted by an accrediting entity if the Secretary finds that 
such action:
    (1) Will further U.S. foreign policy or national security 
interests;
    (2) Will protect the ability of U.S. citizens to adopt children 
under the Convention; or
    (3) Will protect the interests of children.
    (c) If the Secretary suspends or cancels the accreditation or 
approval of an agency or person, the Secretary will take appropriate 
steps to notify both the accrediting entity and the Permanent Bureau of 
the Hague Conference on Private International Law.


Sec.  96.84  Reinstatement of accreditation or approval after 
suspension or cancellation by the Secretary.

    An agency or person may petition the Secretary for relief from the 
Secretary's suspension or cancellation of its accreditation or 
approval. If the Secretary is satisfied that the deficiencies or 
circumstances that led to the suspension or cancellation have been 
corrected or are no longer applicable, the Secretary shall, in the case 
of a suspension, terminate the suspension or, in the case of a 
cancellation, notify the agency or person that it may reapply for 
accreditation or

[[Page 54115]]

approval to the same accrediting entity that handled its prior 
application for accreditation or approval. If that accrediting entity 
is no longer providing accreditation or approval services, the agency 
or person may reapply to any accrediting entity with jurisdiction over 
its application. If the Secretary terminates a suspension or permits an 
agency or person to reapply for accreditation or approval, the 
Secretary will so notify the appropriate accrediting entity. If the 
Secretary terminates a suspension, the Secretary will also notify the 
Permanent Bureau of the Hague Conference on Private International Law 
of the reinstatement.


Sec.  96.85  Temporary and permanent debarment by the Secretary.

    (a) The Secretary may temporarily or permanently debar an agency 
from accreditation or a person from approval on the Secretary's own 
initiative, at the request of DHS, or at the request of an accrediting 
entity. A debarment of an accredited agency or approved person will 
automatically result in the cancellation of accreditation or approval 
by the Secretary, and the accrediting entity shall deny any pending 
request for renewal of accreditation or approval.
    (b) The Secretary may issue a debarment order only if:
    (1) There is substantial evidence that the agency or person is out 
of compliance with the standards in subpart F of this part; and
    (2) There has been a pattern of serious, willful, or grossly 
negligent failures to comply or other aggravating circumstances 
indicating that continued accreditation or approval would not be in the 
best interests of the children and families concerned. For purposes of 
this paragraph, ``the children and families concerned'' include any 
children and any families whose interests have been or may be affected 
by the agency's or person's actions.


Sec.  96.86  Length of debarment period and reapplication after 
temporary debarment.

    (a) In the case of a temporary debarment order, the order will take 
effect on the date specified in the order and will specify a date, not 
earlier than three years later, on or after which the agency or person 
may petition the Secretary for withdrawal of the temporary debarment. 
If the Secretary withdraws the temporary debarment, the agency or 
person may then reapply for accreditation or approval to the same 
accrediting entity that handled its prior application for accreditation 
or approval. If that accrediting entity is no longer providing 
accreditation or approval services, the agency or person may apply to 
any accrediting entity with jurisdiction over its application.
    (b) In the case of a permanent debarment order, the order will take 
effect on the date specified in the order. The agency or person will 
not be permitted to apply again to an accrediting entity for 
accreditation or approval, or to the Secretary for termination of the 
debarment.


Sec.  96.87  Responsibilities of the accredited agency, approved 
person, and accrediting entity following suspension, cancellation, or 
debarment by the Secretary.

    If the Secretary suspends or cancels the accreditation or approval 
of an agency or person, or debars an agency or person, the agency or 
person must cease to provide adoption services in all Convention cases. 
In the case of suspension, it must consult with the accrediting entity 
about whether to transfer its Convention adoption cases and adoption 
records. In the case of cancellation, it must, under the oversight of 
the accrediting entity, transfer its Convention adoption cases and 
adoption records to other accredited agencies, approved persons, or a 
State archive, as appropriate. When the agency or person is unable to 
transfer such Convention cases or adoption records, the accrediting 
entity must, after consultation with the Secretary, take appropriate 
action to assist the agency or person in transferring its Convention 
cases and adoption records.


Sec.  96.88  Review of suspension, cancellation, or debarment by the 
Secretary.

    (a) There is no administrative review of an action by the 
Secretary.
    (b) Section 204(d) of the IAA (Pub. L. 106-279, Sec.  204(d), 42 
U.S.C.14924(d)) provides for judicial review of final actions by the 
Secretary. A suspension or cancellation of accreditation or approval, 
and a debarment (whether temporary or permanent) by the Secretary are 
final actions subject to judicial review. Other actions by the 
Secretary are not final actions and are not subject to judicial review.
    (c) In accordance with section 204(d) of the IAA (Pub. L. 106-279, 
Sec.  204(d), 42 U.S.C. 14924(d)), an agency or person that has been 
suspended, cancelled, or temporarily or permanently debarred by the 
Secretary may petition the United States District Court for the 
District of Columbia, or the United States district court in the 
judicial district in which the person resides or the agency is located, 
pursuant to 5 U.S.C. 706, to set aside the action.


Sec.  96.89  [Reserved]

Subpart M--Dissemination and Reporting of Information by 
Accrediting Entities


Sec.  96.90  Scope.

    The provisions in this subpart govern the dissemination and 
reporting of information on accredited agencies and approved persons by 
accrediting entities. Temporary accreditation is governed by the 
provisions in subpart N of this part and, as provided for in Sec.  
96.110, reports on temporarily accredited agencies must comply with 
subpart M of this part.


Sec.  96.91  Dissemination of information to the public about 
accreditation and approval status.

    (a) Once the Convention has entered into force for the United 
States, the accrediting entity must maintain and make the following 
information available to the public on a quarterly basis:
    (1) The name, address, and contact information for each agency and 
person it has accredited or approved;
    (2) The names of agencies and persons to which it has denied 
accreditation or approval that have not subsequently been accredited or 
approved;
    (3) The names of agencies and persons that have been subject to 
withdrawal of temporary accreditation, suspension, cancellation, 
refusal to renew accreditation or approval, or debarment by the 
accrediting entity or the Secretary; and
    (4) Other information specifically authorized in writing by the 
accredited agency or approved person to be disclosed to the public.
    (b) Once the Convention has entered into force for the United 
States, each accrediting entity must make the following information 
available to individual members of the public upon specific request:
    (1) Confirmation of whether or not a specific agency or person has 
a pending application for accreditation or approval and, if so, the 
date of the application and whether it is under active consideration or 
whether a decision on the application has been deferred;
    (2) A summary of the accreditation or approval study of an agency 
or person, in a format approved by the Secretary; and
    (3) If an agency or person has been subject to withdrawal of 
temporary accreditation, suspension, cancellation, refusal to renew 
accreditation or approval, or debarment, a brief statement of the 
reasons for the action.

[[Page 54116]]

Sec.  96.92  Dissemination of information to the public about 
complaints against accredited agencies and approved persons.

    Once the Convention has entered into force for the United States, 
each accrediting entity must maintain a written record documenting each 
complaint received and the steps taken in response to it. This 
information may be disclosed to the public as follows:
    (a) The accrediting entity must verify, upon inquiry from a member 
of the public, whether a complaint was received against an accredited 
agency or approved person and, if so, provide information about the 
status of the complaint, including whether it was found to be 
substantiated or not;
    (b) The accrediting entity must have procedures for disclosing 
information about complaints that are substantiated and those that are 
not substantiated.


Sec.  96.93  Reports to the Secretary about accredited agencies and 
approved persons and their activities.

    (a) The accrediting entity must make annual reports to the 
Secretary on the information it collects from accredited agencies and 
approved persons pursuant to Sec.  96.43. The accrediting entity must 
make quarterly reports to the Secretary that summarize for the entire 
quarter the following information:
    (1) The accreditation and approval status of applicants, accredited 
agencies, and approved persons;
    (2) Any instances where it has denied accreditation or approval;
    (3) Any adverse actions taken against an accredited agency or 
approved person and any withdrawals of temporary accreditation;
    (4) All substantiated complaints against accredited agencies and 
approved persons and the impact of such complaints on their 
accreditation or approval status;
    (5) The number, nature, and outcome of complaint investigations 
carried out by the accrediting entity as well as the shortest, longest, 
average, and median length of time expended to complete complaint 
investigations; and
    (6) Any discernible patterns in complaints received about specific 
agencies or persons, as well as any discernible patterns of complaints 
in the aggregate.
    (b) The accrediting entity must report to the Secretary within 
thirty days of the time it learns that an accredited agency or approved 
person:
    (1) Has ceased to provide adoption services; or
    (2) Has transferred its Convention cases and adoption records.
    (c) In addition to the reporting requirements contained in Sec.  
96.72, an accrediting entity must immediately notify the Secretary in 
writing:
    (1) When it accredits an agency or approves a person;
    (2) When it renews the accreditation or approval of an agency or 
person;
    (3) When it takes an adverse action against an accredited agency or 
approved person that impacts its accreditation or approval status or 
withdraws an agency's temporary accreditation.


Sec.  96.94  [Reserved]

Subpart N--Procedures and Standards Relating to Temporary 
Accreditation


Sec.  96.95  Scope.

    (a) The provisions in subpart N of this part govern only temporary 
accreditation. The provisions in subpart F of this part cover full 
accreditation of agencies and approval of persons.
    (b) Agencies that meet the eligibility requirements in this subpart 
may apply for temporary accreditation which will run for a one- or two-
year period following the Convention's entry into force for the United 
States. Persons may not be temporarily approved. Temporary 
accreditation is only available to agencies that apply by the 
transitional application deadline and who complete the temporary 
accreditation process by the deadline for initial accreditation or 
approval in accordance with Sec.  96.19.


Sec.  96.96  Eligibility requirements for temporary accreditation.

    (a) An accrediting entity may not temporarily accredit an agency 
unless the agency demonstrates to the satisfaction of the accrediting 
entity that:
    (1) It has provided adoption services in fewer than 100 
intercountry adoption cases in the calendar year preceding the year in 
which the transitional application deadline falls. For purposes of 
subpart N of this part, the number of cases includes all intercountry 
adoption cases that were handled by, or under the responsibility of, 
the agency, regardless of whether they involved countries party to the 
Convention;
    (2) It qualifies for non-profit tax treatment under section 
501(c)(3) of the Internal Revenue Code of 1986, as amended, or for non-
profit status under the law of any State;
    (3) It is properly licensed under State law to provide adoption 
services in at least one State. It is, and for the last three years 
prior to the transitional application deadline has been, providing 
intercountry adoption services;
    (4) It has the capacity to maintain and provide to the accrediting 
entity and the Secretary, within thirty days of request, all of the 
information relevant to the Secretary's reporting requirements under 
section 104 of the IAA (Pub. L. 106-279, section 104, 42 U.S.C. 14914); 
and
    (5) It has not been involved in any improper conduct related to the 
provision of intercountry adoption or other services, as evidenced in 
part by the following:
    (i) The agency has maintained its State license without suspension 
or cancellation for misconduct during the entire period in which is has 
provided intercountry adoption services;
    (ii) The agency has not been subject to a finding of fault or 
liability in any administrative or judicial action in the three years 
preceding the transitional application deadline; and
    (iii) The agency has not been the subject of any criminal findings 
of fraud or financial misconduct in the three years preceding the 
transitional application deadline.
    (b) An accrediting entity may not temporarily accredit an agency 
unless the agency also demonstrates to the satisfaction of the 
accrediting entity that it has a comprehensive plan for applying for 
and achieving full accreditation before the agency's 
temporaryaccreditation expires, and is taking steps to execute that 
plan.


Sec.  96.97  Application procedures for temporary accreditation.

    (a) An agency seeking temporary accreditation must submit an 
application to an accrediting entity with jurisdiction over its 
application, with the required fee(s), by the transitional application 
deadline established pursuant to Sec.  96.19. Applications for 
temporary accreditation that are filed after the transitional 
application deadline will not be considered.
    (b) An agency may not seek temporary accreditation and full 
accreditation at the same time. The agency's application must clearly 
state whether it is seeking temporary accreditation or full 
accreditation. An eligible agency's option of applying for temporary 
accreditation will be deemed to have been waived if the agency also 
submits a separate application for full accreditation prior to the 
transitional application deadline. The agency may apply to only one 
accrediting entity at a time.
    (c) The accrediting entity must establish and follow uniform 
application procedures and must make information about these procedures 
available to agencies that are

[[Page 54117]]

considering whether to apply for temporary accreditation. The 
accrediting entity must evaluate the applicant for temporary 
accreditation in a timely fashion. The accrediting entity must use its 
best efforts to provide a reasonable opportunity for an agency that 
applies for temporary accreditation by the transitional application 
deadline to complete the temporary accreditation process by the 
deadline for initial accreditation or approval. If an agency seeks 
temporary accreditation under subpart N of this part, it will be 
included on the initial list deposited by the Secretary with the 
Permanent Bureau of the Hague Conference on Private International Law 
only if it is granted temporary accreditation by the deadline for 
initial accreditation or approval established pursuant to Sec.  
96.19(a).


Sec.  96.98  Length of temporary accreditation period.

    (a) One-year temporary accreditation. An agency that has provided 
adoption services in 50-99 intercountry adoptions in the calendar year 
preceding the year in which the transitional application deadline falls 
may apply for a one-year period of temporary accreditation. The one-
year period will commence on the date that the Convention enters into 
force for the United States.
    (b) Two-year temporary accreditation. An agency that has provided 
adoption services in fewer than 50 intercountry adoptions in the 
calendar year preceding the year in which the transitional application 
deadline falls may apply for a two-year period of temporary 
accreditation. The two-year period will commence on the date that the 
Convention enters into force for the United States.


Sec.  96.99  Converting an application for temporary accreditation to 
an application for full accreditation.

    (a) The accrediting entity may, in its discretion, permit an agency 
that has applied for temporary accreditation to convert its application 
to an application for full accreditation, subject to submission of any 
additional required documentation, information, and fee(s). The 
accrediting entity may grant a request for conversion if the 
accrediting entity has determined that the applicant is not in fact 
eligible for temporary accreditation based on the number of adoption 
cases it has handled; if the agency has concluded that it can complete 
the full accreditation process sooner than expected; or for any other 
reason that the accrediting entity deems appropriate.
    (b) If an application is converted, it will be treated as an 
application filed after the transitional application deadline, and the 
agency may not necessarily be provided an opportunity to complete the 
accreditation process in time to be included on the initial list of 
accredited agencies and approved persons that the Secretary will 
deposit with the Permanent Bureau of the Hague Conference on Private 
International Law.


Sec.  96.100  Procedures for evaluating applicants for temporary 
accreditation.

    (a) To evaluate an agency for temporary accreditation, the 
accrediting entity must:
    (1) Review the agency's written application and supporting 
documentation; and
    (2) Verify the information provided by the agency, as appropriate. 
The accrediting entity may also request additional documentation and 
information from the agency in support of the application as it deems 
necessary.
    (b) The accrediting entity may also decide, in its discretion, that 
it must conduct a site visit to determine whether to approve the 
application for temporary accreditation. The site visit may include 
interviews with birth parents, adoptive parent(s), prospective adoptive 
parent(s), and adult adoptee(s) served by the agency, interviews with 
the agency's employees, and interviews with other individual(s) 
knowledgeable about its provision of adoption services. It may also 
include a review of on-site documents. Theaccrediting entity must, to 
the extent possible, advise the agency or person in advance of 
documents it wishes to review during the site visit. The provisions of 
Sec. Sec.  96.25 and 96.26 will govern requests for and use of 
information.
    (c) Before deciding whether to grant temporary accreditation to the 
agency, the accrediting entity may, in its discretion, advise the 
agency of any deficiencies that may hinder or prevent its temporary 
accreditation and defer a decision to allow the agency to correct the 
deficiencies.
    (d) The accrediting entity may only use the criteria contained in 
Sec.  96.96 when determining whether an agency is eligible for 
temporary accreditation.
    (e) The eligibility criteria contained in Sec.  96.96 and the 
standards contained in Sec.  96.104 do not eliminate the need for an 
agency to comply fully with the laws of the jurisdictions in which it 
operates. An agency must provide adoption services in Convention cases 
consistent with the laws of any State in which it operates and with the 
Convention and the IAA.


Sec.  96.101  Notification of temporary accreditation decisions.

    (a) The accrediting entity must notify agencies of its temporary 
accreditation decisions on the uniform notification date to be 
established by the Secretary pursuant to Sec.  96.58(a). On that date, 
the accrediting entity must inform each applicant and the Secretary in 
writing whether the agency has been granted temporary accreditation. 
The accrediting entity may not provide any information about its 
temporary accreditation decisions to any agency or to the public until 
the uniform notification date. If the Secretary requests information on 
the interim or final status of an agency prior to the uniform 
notification date, the accrediting entity must provide such information 
to the Secretary.
    (b) Notwithstanding paragraph (a) of this section, the accrediting 
entity may, in its discretion, communicate with agencies about the 
status of their pending applications for temporary accreditation for 
the sole purpose of affording them an opportunity to correct 
deficiencies that may hinder their temporary accreditation. When 
informed by an accrediting entity that an agency has been temporarily 
accredited, the Secretary will take appropriate steps to ensure that 
relevant information about the temporarily accredited agency is 
provided to the Permanent Bureau of the Hague Conference on 
PrivateInternational Law.


Sec.  96.102  Review of temporary accreditation decisions.

    There is no administrative or judicial review of an accrediting 
entity's decision to deny temporary accreditation.


Sec.  96.103  Oversight by accrediting entities.

    (a) The accrediting entity must oversee an agency that it has 
temporarily accredited by monitoring whether the agency is in 
substantial compliance with the standards contained in Sec.  96.104 and 
through the process of assessing the agency's application for full 
accreditation when it is filed. The accrediting entity must also 
investigate any complaints or other information that becomes available 
to it about an agency it has temporarily accredited. Complaints against 
a temporarily accredited agency must be handled in accordance with 
subpart J of this part. For purposes of subpart J of this part, the 
temporarily accredited agency will be treated as if it were a fully 
accredited agency, except that:
    (1) The relevant standards will be those contained in Sec.  96.104 
rather than

[[Page 54118]]

those contained in subpart F of this part; and
    (2) Enforcement action against the agency will be taken in 
accordance with Sec.  96.105 and Sec.  96.107 rather than in accordance 
with subpart K of this part.
    (b) The accrediting entity may determine, it its discretion, that 
it must conduct a site visit to investigate a complaint or other 
information or otherwise monitor the agency. In such a case, the 
accrediting entity may assess additional fees for actual costs incurred 
for travel and maintenance of evaluators and for any additional 
administrative costs to the accrediting entity.
    (c) The accrediting entity may consider any information that 
becomes available to it about the compliance of the agency. The 
provisions of Sec. Sec.  96.25 and 96.26 govern requests for and use of 
information.


Sec.  96.104  Performance standards for temporary accreditation.

    The accrediting entity may not maintain an agency's temporary 
accreditation unless the agency demonstrates to the satisfaction of the 
accrediting entity that it is in substantial compliance with the 
following standards:
    (a) The agency follows applicable licensing and regulatory 
requirements in all jurisdictions in which it provides adoption 
services;
    (b) It does not engage in any improper conduct related to the 
provision of intercountry adoption services, as evidenced in part by 
the following:
    (1) It maintains its State license without suspension or 
cancellation for misconduct;
    (2) It is not subject to a finding of fault or liability in any 
administrative or judicial action; and
    (3) It is not the subject of any criminal findings of fraud or 
financial misconduct;
    (c) It adheres to the standards in Sec.  96.36 prohibiting child 
buying;
    (d) It adheres to the standards for responding to complaints in 
accordance with Sec.  96.41;
    (e) It adheres to the standards on adoption records and information 
relating to Convention cases in accordance with Sec.  96.42;
    (f) It adheres to the standards on providing data to the 
accrediting entity in accordance with Sec.  96.43;
    (g) When acting as the primary provider in a Convention adoption 
and using supervised providers in the United States or in another 
Convention country, it complies with the standards in Sec. Sec.  96.44, 
96.45 and 96.46;
    (h) When performing or approving a home study in an incoming 
Convention case, it complies with the standards in Sec.  96.47;
    (i) When performing or approving a child background study or 
obtaining consents in an outgoing Convention case, it complies with the 
standards in Sec.  96.53;
    (j) When performing Hague Convention functions in incoming or 
outgoing cases, it complies with the standards in Sec.  96.52 or Sec.  
96.55;
    (k) It has a plan to transfer its cases and adoption records if it 
ceases to provide or is no longer permitted to provide adoption 
services in Convention cases;
    (l) The agency is making continual progress towards completing the 
process of obtaining full accreditation by the time its temporary 
accreditation expires; and
    (m) The agency or person takes all necessary and appropriate 
measures to perform any tasks in a Convention adoption case that the 
Secretary identifies are required to comply with the Convention, the 
IAA, or any regulations implementing the IAA.


Sec.  96.105  Adverse action against a temporarily accredited agency by 
an accrediting entity.

    (a) If at any time the accrediting entity determines that an agency 
it has temporarily accredited is substantially out of compliance with 
the standards in Sec.  96.104, it may, in its discretion, withdraw the 
agency's temporary accreditation. The accrediting entity must notify 
the agency in writing of any decision to withdraw the agency's 
temporary accreditation. The written notice must identify the 
deficiencies necessitating the withdrawal. Before withdrawing the 
agency's temporary accreditation, the accrediting entity may, in its 
discretion, provide the agency with an opportunity to correct the 
deficiencies warranting withdrawal.
    (b) The provisions of Sec. Sec.  96.25 and 96.26 govern requests 
for and use of information.
    (c) The accrediting entity must immediately notify the Secretary in 
writing when it withdraws an agency's temporary accreditation.


Sec.  96.106  Review of the withdrawal of temporary accreditation by an 
accrediting entity.

    (a) There is no administrative review of a decision by an 
accrediting entity to withdraw an agency's temporary accreditation.
    (b) Withdrawal of temporary accreditation is analogous to 
cancellation of accreditation and is therefore an adverse action 
pursuant to Sec.  96.75. In accordance with section 202(c)(3) of the 
IAA (Pub. L. 106-279, section 202(c)(3), 42 U.S.C. 14922(c)(3)), a 
temporarily accredited agency that is the subject of an adverse action 
by an accrediting entity may petition the United States district court 
in the judicial district in which the agency is located or the person 
resides to set aside the adverse action imposed by the accrediting 
entity. The United States district court may review the adverse action 
in accordance with 5 U.S.C. 706. When an accredited agency petitions a 
United States district court to review the adverse action of an 
accrediting entity, the accrediting entity will be considered an agency 
as defined in 5 U.S.C. 701 for the purpose of judicial review of the 
adverse action.


Sec.  96.107  Adverse action against a temporarily accredited agency by 
the Secretary.

    (a) The Secretary may, in his or her discretion, withdraw an 
agency's temporary accreditation if the Secretary finds that the agency 
is substantially out of compliance with the standards in Sec.  96.104 
and the accrediting entity has failed or refused, after consultation 
with the Secretary, to take appropriate enforcement action.
    (b) The Secretary may also withdraw an agency's temporary 
accreditation if the Secretary finds that such action:
    (1) Will further U.S. foreign policy or national security 
interests;
    (2) Will protect the ability of U.S. citizens to adopt children 
under the Convention; or
    (3) Will protect the interests of children.
    (c) If the Secretary withdraws an agency's temporary accreditation, 
the Secretary will notify the accrediting entity.


Sec.  96.108  Review of the withdrawal of temporary accreditation by 
the Secretary.

    (a) There is no administrative review of a decision by the 
Secretary to withdraw an agency's temporary accreditation.
    (b) Section 204(d) of the IAA (Pub. L. 106-279, section 204(d), 42 
U.S.C.14924(d)) provides for judicial review of final actions by the 
Secretary. Withdrawal of temporary accreditation, which is analogous to 
cancellation of accreditation, is a final action subject to judicial 
review.
    (c) An agency whose temporary accreditation has been withdrawn by 
the Secretary may petition the United States District Court for the 
District of Columbia, or the United States district court in the 
judicial district in which the agency is located, to set aside the 
action pursuant to section 204(d) of the

[[Page 54119]]

IAA (Pub. L. 106-279, 204(d), 42 U.S.C. 14924(d)).


Sec.  96.109  Effect of the withdrawal of temporary accreditation by 
the accrediting entity or the Secretary.

    (a) If an agency's temporary accreditation is withdrawn, it must 
cease to provide adoption services in all Convention cases and must, 
under the oversight of the accrediting entity, transfer its Convention 
adoption cases and adoption records to other accredited agencies, 
approved persons, or a State archive, as appropriate.
    (b) Where the agency is unable to transfer such Convention cases or 
adoption records, the accrediting entity must, after consultation with 
the Secretary, take appropriate action to assist the agency in 
transferring its Convention cases and adoption records.
    (c) When an agency's temporary accreditation is withdrawn, the 
Secretary will, where appropriate, take steps to inform the Permanent 
Bureau of the Hague Conference on Private International Law.
    (d) An agency whose temporary accreditation has been withdrawn may 
continue to seek full accreditation or may withdraw its pending 
application and apply for full accreditation at a later time. Its 
application for full accreditation must be made to the same accrediting 
entity that granted its application for temporary accreditation. If 
that entity is no longer providing accreditation services, it may apply 
to any accrediting entity with jurisdiction over its application.
    (e) If an agency continues to pursue its application for full 
accreditation or subsequently applies for full accreditation, the 
accrediting entity may take the circumstances of the withdrawal of its 
temporary accreditation into account when evaluating the agency for 
full accreditation.


Sec.  96.110  Dissemination and reporting of information about 
temporarily accredited agencies.

    The accrediting entity must disseminate and report information 
about agencies it has temporarily accredited as if they were fully 
accredited agencies, in accordance with subpart M of this part.


Sec.  96.111  Fees charged for temporary accreditation.

    (a) Any fees charged by an accrediting entity for temporary 
accreditation will include a non-refundable fee for temporary 
accreditation set forth in a schedule of fees approved by the Secretary 
as provided in Sec.  96.8(a). Such fees may not exceed the costs of 
temporary accreditation and must include all the costs of all 
activities associated with the temporary accreditation cycle 
(including, but not limited to, costs for completing the temporary 
accreditation process, complaint review and investigation, routine 
oversight and enforcement, and other data collection and reporting 
activities). The temporary accreditation fee may not include the costs 
of site visit(s). The schedule of fees may provide, however, that, in 
the event that a site visit is required to determine whether to approve 
an application for temporary accreditation, to investigate a complaint 
or other information, or otherwise to monitor the agency, the 
accrediting entity may assess additional fees for actual costs incurred 
for travel and maintenance of evaluators and for any additional 
administrative costs to the accrediting entity.
    (b) An accrediting entity must make its schedule of fees available 
to the public, including prospective applicants for temporary 
accreditation, upon request. At the time of application, the 
accrediting entity must specify the fees to be charged in a contract 
between the parties and must provide notice to the applicant that no 
portion of the fee will be refunded if the applicant fails to become 
temporarily accredited.

    Dated: August 27, 2003.
Richard Armitage,
Deputy Secretary of State, Department of State.
[FR Doc. 03-22650 Filed 9-12-03; 8:45 am]
BILLING CODE 4710-06-P



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