Rule Legal And Related Services Intercountry Adoption; Hague Convention Certificates And Declarati
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Rule Legal And Related Services Intercountry Adoption; Hague Convention Certificates And Declarati Document Transcript

  • 1. Federal Register / Vol. 71, No. 212 / Thursday, November 2, 2006 / Rules and Regulations 64451 to compete effectively in a global a generic copy of Fort Dodge Animal (2) Indications for use. As a environment. Health’s, Division of Wyeth’s ROBINUL- preanesthetic agent. This Statement of Policy has been V (glycopyrrolate), approved under (3) Limitations. Federal law restricts developed as a means for the NADA 101–777. The ANADA is this drug to use by or on the order of Commission to respond flexibly to the approved as of October 2, 2006, and the a licensed veterinarian. challenges posed by the ongoing regulations are amended in 21 CFR Dated: October 23, 2006. evolution in electronic access to global 522.1066 to reflect the approval and a Stephen F. Sundlof, markets. The Commission will continue current format. The basis of approval is Director, Center for Veterinary Medicine. to monitor carefully, and review the discussed in the freedom of information Policy Statement as necessary in light [FR Doc. E6–18444 Filed 11–1–06; 8:45 am] summary. of, the ongoing evolution of cross-border In accordance with the freedom of BILLING CODE 4160–01–S electronic direct access and information provisions of 21 CFR part intermediation in order to ensure that it 20 and 21 CFR 514.11(e)(2)(ii), a does not adversely affect U.S. cash and summary of safety and effectiveness DEPARTMENT OF STATE futures markets, market participants and data and information submitted to customers, as well as the consumers support approval of this application 22 CFR Part 97 affected by those foreign market may be seen in the Division of Dockets [Public Notice 5602] transactions. Management (HFA–305), Food and Drug RIN 1400–AC19 Issued in Washington, DC, on October 27, Administration, 5630 Fishers Lane, rm. 2006 by the Commission. 1061, Rockville, MD 20852, between 9 Intercountry Adoption—Department Eileen A. Donovan, a.m. and 4 p.m., Monday through Issuance of Certifications in Hague Acting Secretary of the Commission. Friday. Convention Adoption Cases FDA has determined under 21 CFR [FR Doc. E6–18513 Filed 11–1–06; 8:45 am] AGENCY: Department of State. 25.33(a)(1) that this action is of a type BILLING CODE 6351–01–P that does not individually or ACTION: Final rule. cumulatively have a significant effect on the human environment. Therefore, SUMMARY: The Department of State (the DEPARTMENT OF HEALTH AND neither an environmental assessment Department) is issuing a final rule to HUMAN SERVICES nor an environmental impact statement implement the certification and is required. declaration provisions of the 1993 Food and Drug Administration This rule does not meet the definition Hague Convention on Protection of of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because Children and Co-operation in Respect of 21 CFR Part 522 it is a rule of ‘‘particular applicability.’’ Intercountry Adoption (the Convention) Therefore, it is not subject to the and the Intercountry Adoption Act of Implantation or Injectable Dosage congressional review requirements in 5 2000 (the IAA) with respect to adoption Form New Animal Drugs; U.S.C. 801–808. and custody proceedings taking place in Glycopyrrolate the United States, after review of public List of Subjects in 21 CFR Part 522 comments received in response to the AGENCY: Food and Drug Administration, HHS. Animal drugs. Department’s June 16, 2006 issuance of ACTION: Final rule. I Therefore, under the Federal Food, a proposed rule. This final rule governs Drug, and Cosmetic Act and under the application process for Hague SUMMARY: The Food and Drug authority delegated to the Commissioner Adoption Certificates and Hague Administration (FDA) is amending the of Food and Drugs and redelegated to Custody Declarations in cases involving animal drug regulations to reflect the Center for Veterinary Medicine, 21 emigration of a child from the United approval of an abbreviated new animal CFR part 522 is amended as follows: States. It also establishes a process for drug application (ANADA) filed by IVX seeking certification, for purposes of Animal Health, Inc. The ANADA PART 522—IMPLANTATION OR Article 23 of the Convention, that an provides for veterinary prescription use INJECTABLE DOSAGE FORM NEW adoption done in the United States of glycopyrrolate solution as an ANIMAL DRUGS following a grant of custody in a injectable preanesthetic agent in dogs Convention country of origin was done I 1. The authority citation for 21 CFR and cats. in accordance with the Convention. part 522 continues to read as follows: DATES: This rule is effective November DATES: This rule is effective December 4, Authority: 21 U.S.C. 360b. 2, 2006. 2006. Information about the date the I 2. Revise § 522.1066 to read as Convention will enter into force is FOR FURTHER INFORMATION CONTACT: John follows: provided in 22 CFR 96.17. K. Harshman, Center for Veterinary Medicine (HFV 104), Food and Drug § 522.1066 Glycopyrrolate. FOR FURTHER INFORMATION CONTACT: For Administration, 7500 Standish Pl., (a) Specifications. Each milliliter of further information, contact Anna Mary Rockville, MD 20855, 301–827–0169, e- solution contains 0.2 milligram Coburn at 202–736–9081. Hearing- or mail: glycopyrrolate. speech-impaired persons may use the SUPPLEMENTARY INFORMATION: IVX (b) Sponsors. See Nos. 000856 and Telecommunications Devices for the Animal Health, Inc., 3915 South 48th 059130 in § 510.600(c) of this chapter. Deaf (TDD) by contacting the Federal Street Ter., St. Joseph, MO 64503, filed (c) Conditions of use in dogs and Information Relay Service at 1–800– ANADA 200–365 that provides for cats—(1) Amount. 5 micrograms per 877–8339. veterinary prescription use of pound of body weight (0.25 milliliter pwalker on PRODPC60 with RULES SUPPLEMENTARY INFORMATION: Glycopyrrolate Injectable as a per 10 pounds of body weight) by preanesthetic agent in dogs and cats. intravenous, intramuscular, or I. Background IVX Animal Health, Inc.’s subcutaneous injection in dogs or by The Convention is a multilateral Glycopyrrolate Injectable is approved as intramuscular injection in cats. treaty that provides a framework for the VerDate Aug<31>2005 16:15 Nov 01, 2006 Jkt 211001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:FRFM02NOR1.SGM 02NOR1
  • 2. 64452 Federal Register / Vol. 71, No. 212 / Thursday, November 2, 2006 / Rules and Regulations adoption of children habitually resident parties to recognize adoptions, if the are governed mainly by State law, when in one country party to the Convention adoption is certified by the country of the IAA has expressly imposed such by persons habitually resident in adoption as having been made in Convention requirements. Finally, the another country party to the accordance with the Convention. This Department has changed the title of the Convention. It was developed under the final rule also establishes a separate, proposed rule to clarify that the rule auspices of the intergovernmental discretionary, procedure pursuant to covers both incoming and outgoing case organization known as the Hague which the Department may certify that certifications. The title change is not Conference on Private International Law an incoming case finalized in the United indicative of any substantive changes to (the Hague Conference). States (i.e., a case in which custody was the final rule. The United States signed the granted abroad but the adoption was Convention on March 31, 1994, and the Section 97.1 Definitions done by a U.S. court) was done in President subsequently transmitted the accordance with the Convention. The No comments on the definitions were Convention to the Senate for its advice Department may issue this certification received, and no changes to 97.1 have and consent. On September 20, 2000, if an issue arises concerning recognition been made. One commenter did the Senate gave its advice and consent of the adoption pursuant to Article 23 recommend that throughout the rule the to the ratification of the Convention of the Convention. term ‘‘adoptable’’ child be removed and, at about the same time, Congress Further background on the because, according to the commenter, enacted the implementing legislation for Convention and the IAA is provided in the term has historically implied that the Convention—the Intercountry the Preamble to the Proposed Rule on children are a marketable commodity. Adoption Act (the IAA), Public Law Issuance of Hague Convention Although the Convention itself uses the 106–279, 42 U.S.C. 14901–14952. Certificates and Declarations in term ‘‘adoptable’’ despite similar Consistent with U.S policy on Convention Adoption Cases, Section I, objections at the time of drafting, we ratification of treaties and the Senate’s 71 FR 34857–34858 (June 16, 2006); the have changed the word ‘‘adoptable’’ to advice and consent to ratification, the Preamble to the Final Rule on the ‘‘eligible for adoption’’ whenever United States will not ratify the Accreditation and Approval of Agencies possible. Convention until the United States is and Persons under the IAA, Section I Section 97.2 Application for a Hague able to carry out its obligations under and II, 71 FR 8064–8066 (February 15, Adoption Certificate (HAC) or a Hague the Convention. (See Senate Declaration 2006); and the Preamble to the Proposed Custody Declaration (HCD) (Outgoing for Convention Article 22(2) (146 Cong. Rule on the Accreditation of Agencies Case) Rec. S8866 (daily ed. Sept. 20, 2000). and Approval of Persons under the Although this final rule is effective in 30 Intercountry Adoption Act of 2000, 1. Comment: Some commenters are days, parties are not required to comply Sections III and IV, 68 FR 54065–54073 concerned about how long the process with the provisions of 22 CFR part 97 (September 15, 2003). to obtain a HAC or a HCD will take and until the Convention enters into force that any delays could negatively affect II. Section-by-Section Discussion of a child waiting for an adoptive for the United States (three months after Comments placement. One commenter the United States ratifies it). This final rule establishes procedures This section provides a detailed recommends that specific timeframes be for issuing certifications in Convention discussion of comments received on the added to the rule, such as requiring the adoptions involving the emigration of a proposed rule and describes changes Department to issue a HAC or HCD in child from the United States (outgoing made to the proposed rule. Three three business days, to ensure that cases) and for seeking certifications general points should be kept in mind families who had traveled to adopt a regarding adoptions in incoming cases. in reading this discussion. First, we child living the United States did not In response to its issuance of the refer generally to actions of the have to wait too long for a HAC or HCD proposed rule, the Department received ‘‘Department’’ pursuant to the rule. The once the relevant State court issued the insightful public comments that are rule itself refers to actions of the final adoption decree or custody decree. posted on the Department’s Web site at ‘‘Secretary,’’ as the official named in the Response: We agree that the HAC or The IAA, but the day-to-day exercise of the HCD should be swiftly issued. The Department is issuing the rule as final Secretary’s functions has been delegated Department, however, is not including a with minor changes, taking into account (Delegation of Authority 261, 68 FR specific timeframe in the rule. Our goal the comments received. 56372, September 30, 2003) to the nonetheless is to issue a HAC or HCD Section 303(c) of the IAA gives the Assistant Secretary for Consular Affairs. as soon as possible, provided the Department responsibility for issuing an Second, this rule directly imposes supporting documentation required official certification that a child resident Federal requirements on State courts to under § 96.3 has been submitted. in the United States has been adopted, the extent consistent with the IAA. 2. Comment: One commenter urges or a declaration that custody for the Specifically, the IAA assigns to State the Department to accept all materials, purpose of adoption has been granted, courts with jurisdiction over matters of including applications and supporting in accordance with the Convention and adoption, or custody for purpose of documents by fax or e-mail, and to the IAA. The IAA assigns to State courts adoption, the responsibility for encourage other Central Authorities with jurisdiction over matters of receiving and verifying documents (CAs) to do the same. The commenter adoption, or custody for purposes of required under the Convention, making also asks that the Department encourage adoption, the responsibility for certain determinations required of the the CAs of receiving countries to receiving and verifying documents country of origin by the Convention, provide any necessary approvals within required under the Convention, making and determining that the placement is 24 hours of request, noting that the certain determinations required of the in the best interests of the child. In Netherlands issues approvals within 24 country of origin by the Convention, keeping with current U. S. domestic law hours. pwalker on PRODPC60 with RULES and determining that the placement is and philosophy of treaty application in Response: The Department intends to in the best interests of the child. With the context of a federalist system, we accept applications and supporting certain limited exceptions, the have imposed the Convention materials via fax and e-mail to the Convention requires all Convention requirements on outgoing cases, which extent practicable. We will encourage VerDate Aug<31>2005 16:15 Nov 01, 2006 Jkt 211001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:FRFM02NOR1.SGM 02NOR1
  • 3. Federal Register / Vol. 71, No. 212 / Thursday, November 2, 2006 / Rules and Regulations 64453 other CAs to accept communications by or HCD may be issued. The conform with the Convention and the fax and e-mail as well. We also plan to Department’s goal is to provide a HAC IAA, as implemented through § 97.3, urge other CAs to act expeditiously to or HCD to any party to the adoption or and issue a HAC or HCD without send any necessary approvals to custody proceeding who may need it to adjudicating the application. relevant State courts for a Hague obtain recognition and acceptance of the We understand that some parties to outgoing case. adoption decree or custody for purpose intercountry adoptions may be unaware 3. Comment: One commenter requests of adoption decree from other of the Convention and the IAA and that fee payments be permitted by credit Convention countries or from U.S. consequently may not submit to the card submission via Internet, phone, or authorities. State court the information the court fax. 7. Comment: Some commenters needs to make the findings required Response: If a fee is charged for request clarification of the application under § 97.3. The Department plans to issuance of a HAC or HCD, we will process for HACs and HCDs. In continue its extensive outreach efforts to make the methods of payment easy and particular, commenters want to know if inform interested persons about the consistent with other federal agency a HAC or HCD is automatically issued Convention, the IAA, and the applicable requirements covering payment of fees. even if no party applies. Similarly, other regulations. To date, we have conducted 4. Comment: One commenter asks commenters believe that the Department numerous outreach events with State which part of the Department will be should always issue a HAC or HCD after court judges, public domestic responsible for issuing HACs and HCDs a State court grants an adoption or authorities, and adoption service and where its office will be located. custody for purpose of adoption decree. providers. Response: The Office of Children’s Others are concerned that many parties 8. Comment: One commenter suggests Issues in the Bureau of Consular Affairs will be unaware that for outgoing cases that the Department is withholding will issue HACs and HCDs out of its involving Convention adoptions, the recognition of the State court adoption central office in Washington, DC. receiving country is obligated not to or custody decree if it declines to issue 5. Comment: One commenter asks permit the child’s entry unless the the HAC or HCD. what type of training will be provided Department (as CA of the country of Response. By verifying compliance to the staff responsible for adjudicating origin) has issued a HAC or HCD for the with § 97.3 before issuing a HAC or applications for HACs or HCDs and child. HCD, the Department is acting in requests information on how this Response: Unless there is an accordance with Article 23 of the function will be staffed. application from a party or other Convention. The Department’s Response: The Department plans to interested person, in accordance with verification that all steps in the train the Office of Children’s Issues case § 97.2(a), the Department will not sua adoption and/or custody process officers thoroughly by using Foreign sponte issue a HAC or HCD. The complied with the Convention, the IAA, Affairs Manual (FAM) materials and Department must be notified, via the and the regulations implementing the formal classroom training. With respect application process, for the HAC or HCD IAA ensures that U.S. children leaving to staffing, we do not yet know the to be issued. We expect that the the United States are protected in number of outgoing cases and thus adoption service provider working with accordance with the Convention. cannot determine how many officers the family would inform the prospective 9. Comment: One commenter requests will be assigned this critical CA adoptive parent(s) of any necessary that the rule include language on the function. requirements, including the need for a legal effect of a HAC or HCD similar to 6. Comment: One commenter requests HAC or HCD. In any case, a party or the language in Section 302(b) of the clarification of the parties that may interested person may apply for a HAC IAA with respect to incoming cases (i.e., apply for a HAC or HCD and asks or HCD at any time. cases in which a child is immigrating to specifically whether birthparent(s) may Once a party applies for a HAC or the United States). apply for a HAC or HCD. The HCD, the Department, in its role as CA, Response: Article 23 of the commenter also asks whether the must adjudicate the request to Convention requires other Convention citizenship of the adoptive parent(s) or determine if the child has been adopted countries to recognize an adoption that prospective adoptive parent(s) will or custody of the child for purposes of has been certified by the competent affect their ability to obtain a HAC or a adoption has been granted in authority of the State of the adoption. HCD. accordance with the Convention and Therefore, Convention countries must Response: The adoptive parent(s) or (except as provided in § 97.4(b)) the recognize any adoption for which the prospective adoptive parent(s), who will IAA. Specifically, section 303(c) of the Department has issued a HAC. be habitual residents of the receiving IAA provides that the Department shall Including a requirement in U.S. country and typically will not be U.S. issue a HAC or HCD on receipt and regulations is therefore unnecessary. In citizens, will most likely be the parties verification of the required material and addition, the United States has no to apply for a HAC or a HCD. Despite information. The Department may thus authority to regulate the receiving being non-U.S. citizen adoptive not issue a HAC or HCD for all cases. countries. parent(s) or prospective adoptive The rule mirrors the IAA statutory As for the HCD, Article 19 of the parent(s), they will be able to apply for requirements and is not changed in Convention provides that the transfer of and obtain a HAC or HCD. The rule response to the comment. The parties the child to the receiving country may states that ‘‘any party’’ to an adoption or must first apply to a State court to make be carried out only if the requirements custody proceeding may apply for a the needed findings, all derived from of Article 17 have been satisfied. The HAC or HCD; thus, if a birthparent was the Convention or the IAA, so that the HCD demonstrates to the receiving a party to the adoption or custody proceeding is Hague-compliant. The country that the United States, as the proceeding, he or she may apply for a Department then reviews the State court country of origin, has agreed that the HAC or HCD. Likewise, the adopted findings to adjudicate the application child may be entrusted to the pwalker on PRODPC60 with RULES child may apply for a HAC or HCD. If before issuing a HAC or HCD. The prospective adoptive parent(s) and that various parties to the adoption or Department may not assume that every the adoption may proceed in the custody proceeding apply for HACs or adoption or custody for purpose of receiving country. The Department HCDs, more than one copy of the HAC adoption case will automatically expects that the receiving countries will VerDate Aug<31>2005 16:15 Nov 01, 2006 Jkt 211001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:FRFM02NOR1.SGM 02NOR1
  • 4. 64454 Federal Register / Vol. 71, No. 212 / Thursday, November 2, 2006 / Rules and Regulations recognize the HCD as evidence that the 4. Comment: One commenter asks if contacts may occur in States which Article 17 requirements have been met. the provision in 97.3(f), which limits expressly permit such contacts and In any event, as noted, the United States contacts between the prospective prescribe the conditions under which may not regulate another Convention adoptive parent(s) and the child’s such contacts may occur. country. birthparent(s) or any other person who 5. Comment: Another commenter asks has care of the child before the if States that allow ‘‘open adoptions’’ in Section 97.3 Requirements Subject to adoption, prevents birthparent(s) from which the birthparent(s) and Verification in an Outgoing Convention identifying prospective adoptive prospective adoptive parents(s) meet Case parent(s) via such methods as reviewing and establish a trusting relationship 1. Comment: Several commenters parent profiles provided by an attorney before the adoption must change their request that the reasonable efforts for the prospective adoptive parent(s), laws. The commenter notes that requirement to locate a placement for or provided by an attorney for the oftentimes the open contacts continue the child in the United States in birthparent(s), or provided by an throughout the child’s life and that § 97.3(c) not apply when birthparent(s) agency, or made available online. The current psychological research supports directly identify prospective parent(s) commenter also asks if birthparent(s) the conclusion that such bonds are outside the United States. One may identify prospective adoptive beneficial to the adoptee in the long- commenter suggests that such contacts parent(s) via referrals from non-relatives run. be permitted as long as an accredited, or by responding to advertisements Response: These regulations do not temporarily accredited, or approved placed in newspapers. require States to change their laws with adoption service provider is involved in Response: Section 97.3(j) implements respect to contacts. As discussed above, the case. the requirements in Article 29 of the pre-birth contacts are permitted in Response: This provision cross- Convention. Article 29’s prohibition on Convention cases if they are allowed by references 22 CFR 96.54(a), which prior contact applies unless the the relevant State law or public specifically excludes from the adoption takes place within a family or domestic authority and the contacts reasonable efforts requirement cases in the contact is in compliance with the occurred in accordance with required which the birthparent(s) have identified conditions established in the country of conditions. origin, in this case the United States. For 6. Comment: One commenter asks if specific prospective adoptive parent(s) this reason, § 97.3(j) permits contacts the no direct contacts provision of the or in other special circumstances when a ‘‘relevant State or public rule applied to the U.S. government- accepted by the State court. domestic authority has established sponsored 2. Comment: One commenter photo listing service. The commenter recommends that the rule specify more conditions under which such contact may occur and any such contact explains that public domestic clearly the steps that must be completed authorities put a photo and information for a reasonable efforts finding to be occurred in accordance with such conditions.’’ The answers to the about a child eligible for adoption made by the State court. (usually a child or sibling group that has commenter’s questions thus depend on Response: As noted above, this been waiting a long time for a local law and regulations. provision cross-references 22 CFR A State or a public domestic authority permanent family placement) on the 96.54(a), which sets forth the placement may establish conditions on direct web-based service and families from all standards in outgoing cases, including contacts between birthparent(s) and over the world may express an interest the reasonable efforts requirement. prospective adoptive parent(s). If such in the child to the public domestic Specifically, reasonable efforts to find a conditions are set, then contacts that authority, submit a home study, and timely placement for the child in the comply with those conditions may then social workers for the public United States include: (1) Disseminating occur. If a State has no laws or domestic authority determine if a information on the child and his or her conditions on direct contacts, then such referral and subsequent match are in the availability for adoption through print, contacts may not occur because the best interests of the child. If so, then the media, and internet resources designed Convention intends that such contacts public domestic authority undertakes to communicate with potential be either barred or subject to regulation. the subsequent steps to complete an prospective adoptive parent(s) in the If these principles are applied to the adoption, including in some cases, United States; (2) Listing information commenter’s questions, then the answer supervising meetings with the about the child on a national or State to what direct contacts are permitted birthparent(s), the child, and the adoption exchange or registry for at least will necessarily depend on the State prospective adoptive parent(s). sixty calendar days after the birth of the where the birthparent(s) are residing. If Response: Public domestic authorities child; (3) Responding to inquiries about the State where the birthparent(s) reside must comply with 22 CFR part 97. As adoption of the child; and (4) Providing permits them to review prospective discussed above, contacts are generally a copy of the child background study to adoptive parent(s) profiles before the prohibited, unless the relevant State or potential U.S. prospective adoptive referral or adoption or consider non- public domestic authority has parent(s). relative referrals, then the practice is not established conditions under which 3. Comment: One commenter objects per se prohibited, but must comply with such contact may occur and any such to the sixty-day period for listing any specific State requirements, such as contact occurred in accordance with information about the child on a those on who may present the such conditions. Presumably, because national or State adoption exchange or information (attorney for prospective the public domestic authority is registry because research shows that adoptive parent(s) or birthparent(s) or coordinating the adoption, it has delays in placement negatively impact a adoption service provider). If State established procedures on the contacts. child’s emotional well-being. requirements are completely silent, then If the conditions for the contacts have Response: This comment goes to 22 direct contact practices are not allowed. been enumerated, then the contacts may pwalker on PRODPC60 with RULES CFR part 96 and was addressed in the Likewise, if the State permits continue even for Hague cases as long context of that rule. Part 96 is now a birthparent(s) to locate prospective as the contacts comply with the final rule and no longer open for adoptive parent(s) through media such procedures that the public domestic comment. as newspapers or Web sites, then such authority established. Thus, if a State or VerDate Aug<31>2005 16:15 Nov 01, 2006 Jkt 211001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:FRFM02NOR1.SGM 02NOR1
  • 5. Federal Register / Vol. 71, No. 212 / Thursday, November 2, 2006 / Rules and Regulations 64455 its public domestic authorities permit 2. Comment: One commenter requests limit the issuance of these certifications birthparent(s) and the child to meet that the rule be changed to require solely to instances where there is a with the prospective adoptive parent(s) prospective adoptive parent(s) who have showing of exceptional need or if the then this contact would be permitted. been granted custody for purpose of child would be traveling. We have As for the question about the photo- adoption by the country of origin (in deleted § 97.5(3) that required parties to listing service, unless State law incoming cases) to complete adoptions submit a signed statement explaining prohibits photo-listings of children in the United States. the need for such a certification. eligible for adoption, States may Response: The Department is not 4. Comment: One commenter is continue to post information about such modifying the rule as requested. concerned that countries of origin children on the federally-funded Although the prospective adoptive expect copies of the Article 23 national Web site. parent(s) failure to finalize the adoption certification to be sent in every case is problematic, the IAA does not require where the adoption is completed by a Section 97.5 Certification of Hague prospective adoptive parent(s) to obtain Convention Compliance in an Incoming final adoption order in the United States a final adoption decree in a U.S. State and cite Articles 7, 20, and 23, and of Convention Case Where Adoption court when only custody for purpose of Occurs in the United States the Convention for support. adoption was granted in the country of origin. Moreover, this rule relates to Response: The Department believes 1. Comment: Two commenters are that its rule on Convention Article 23 concerned that the certification certifications of adoptions pursuant to the Convention. certifications is consistent with the procedure in § 97.5 means that Convention provisions cited and adoptions of children immigrating to the We nevertheless share the commenter’s concern about adoptions implements the Convention. United States (incoming cases) that are Specifically, as noted above, the IAA completed in the United States (as that are not finalized. The Department currently has experience with a few does not require that families finalize receiving country) after the country of the adoptions or notify the Department origin granted custody for purposes of such cases in which the prospective adoptive parent(s) are granted custody when the adoptions are final. We will adoption are not entitled to recognition use all other available means to obtain under Convention Article 23. for purpose of adoption in the country of origin, bring the child to the United information on the final adoption of the Response: Article 23 of the States, and never finalize the adoption. child for the child’s country of origin, Convention requires other Convention The family is typically intact and the including relying on 22 CFR 96.50(h)(2), countries to recognize an adoption that child is benefiting from an ongoing which requires accredited agencies, has been certified as having been made permanent placement so there is no temporarily accredited agencies, and in accordance with the Convention by basis for the State to remove the child. approved persons, to notify the the competent authority of the State of Yet, there is no final adoption, the child Department of the finalization of the the adoption. If custody for purpose of does not acquire U.S. citizenship under adoption within thirty days of the entry adoption is granted in a Convention The Child Citizenship Act, and remains of the final adoption order. We believe country of origin and the prospective a legal permanent resident, subject to that through 22 CFR 96.50(h)(2) adoptive parent(s) subsequently obtain a deportation under certain limited combined with the final rule in final adoption decree in a State court, circumstances. Similarly, the child does § 97.5(e), making clear that the State the adoption is entitled to recognition not have all the additional benefits of a court final adoption decree may serve as under the Convention, provided that the full legal parent-child relationship. the Convention Article 23 certification, State court decree is based on a Despite these issues, there is no current the United States will fulfill its certificate issued by a consular officer authority or new authority in the IAA Convention obligations. pursuant to 22 CFR 42.24(j) certifying granting the Department or the that the grant of custody of the child Regulatory Review Department of Homeland Security occurred in compliance with the (DHS) the authority to compel A. Administrative Procedures Act Convention or on the court’s finalization of the adoption. We plan to determination that the requirements of continue our outreach and This rule, through which the Article 17 of the Convention have been communication efforts to stress to Department provides for met. This is true regardless of whether families and adoption service implementation of the Convention, the parent(s) or child apply for the provider(s) the critical importance of which focuses on issuance of additional certification under § 97.5 finalizing the adoption in both documents to facilitate cross-border because, as pointed out by the Convention and non-Convention cases. recognition of adoptions done under the commenters, the recognition of the 3. Comment: Some commenters Convention, involves a foreign affairs adoption takes place by operation of law request that the rule be changed to function of the United States and with or without subsequent certification mandate that the Department always therefore pursuant to 5 U.S.C. 553(a)(1) by the Department. The U.S. adoption issue a certification under § 97.5 after is not subject to the procedures required would necessarily be recognized in all the parent(s) complete the final by 5 U.S.C. 553 and 554. Nonetheless, U.S. territory, but if the parent(s) or adoption in the United States. One the Department published the proposed other persons need documentation to commenter was concerned that a person rule and received public comment on it. show that the Convention adoption requesting the certification must show a B. Regulatory Flexibility Act/Executive finalized in the United States was done need for it, including a showing that the Order 13272: Small Business in accordance with the Convention, they child would be traveling overseas. may seek the certification as outlined in Response. The Department is not In accordance with the Regulatory § 97.5. In addition, they may rely on the modifying the rule in response to this Flexibility Act, 5 U.S.C. 601–612, and State court adoption order. We have request. The Department cannot issue a Executive Order 13272, Section 3(b), the pwalker on PRODPC60 with RULES added a paragraph to § 97.5 to make certification under 97.5 absent a request Department of State has evaluated the clear that the final State court order because it has no means to know when effects of this rule on small entities and shall constitute the certification under a State court issues an adoption decree. has determined and hereby certifies that Article 23 of the Convention. However, the intent of § 97.5 was not to this rule would not have a significant VerDate Aug<31>2005 16:15 Nov 01, 2006 Jkt 211001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:FRFM02NOR1.SGM 02NOR1
  • 6. 64456 Federal Register / Vol. 71, No. 212 / Thursday, November 2, 2006 / Rules and Regulations economic impact on a substantial State level, as discussed in the preamble collection requirements imposed on number of small entities. to the proposed rule on accreditation ‘‘persons’’ as defined in the PRA. and approval of agencies and persons, Section 503(c) of the IAA, however, C. Small Business Regulatory appearing at 68 FR 54064, 54069–54070. exempts from the PRA any information Enforcement Fairness Act of 1996 In recognition of this fact, section 503(a) collection ‘‘for purposes of sections 104, This rule is not a major rule as of the IAA contains a specific provision 202(b)(4), and 303(d)’’ of the IAA ‘‘or for defined by 5 U.S.C. 804 for purposes of limiting preemption of State law to use as a Convention record as defined’’ congressional review of agency those State law provisions inconsistent in the IAA. Convention record is rulemaking under the Small Business with the Convention or the IAA, and Regulatory Enforcement Fairness Act of defined in section 3(11) of the IAA to only to the extent of the inconsistency. mean ‘‘any item, collection, or grouping 1996, Pub. L. 104–121. The rule would This rule does not create new federalism not result in an annual effect on the of information contained in an implications beyond those created by economy of $100 million or more, a electronic or physical document, an the IAA and the Convention, and the major increase in costs or prices, or Department has been careful in this rule electronic collection of data, a significant adverse effects on to defer to State authorities whenever photograph, an audio or video tape, or competition, employment, investment, possible consistent with Convention any other information storage medium productivity, or innovation, or on the and IAA mandates. We also envision of any type whatever that contains ability of United States-based significant outreach and consultation information about a specific past, companies to compete with foreign- with appropriate State authorities in the current, or prospective Convention based companies in domestic and implementation of any regulation on adoption (regardless of whether the export markets. this topic. adoption was made final) that has been preserved in accordance with section D. The Unfunded Mandates Reform Act F. Executive Order 12866: Regulatory of 1995 401(a) by the Secretary of State or the Review Attorney General.’’ Information Section 202 of the Unfunded This rule, through which the collections imposed on persons Mandates Reform Act of 1995 (UFMA), Department provides for pursuant to this rule would relate Pub. L. 104–4; 109 Stat. 48; 2 U.S.C. implementation of the Convention, directly to specific Convention 1532, generally requires agencies to which focuses on issuance of adoptions (whether final or not), insofar prepare a statement, including cost- documents to facilitate cross-border as collections would be used by the benefit and other analyses, before recognition of adoptions done under the Department in its determination of proposing any rule that may result in an Convention, pertains to a foreign affairs whether a Convention adoption, or a annual expenditure of $100 million or function of the United States; therefore, grant of custody for purposes of a more by State, local, or tribal pursuant to section 3(d)(2) of the Convention adoption, has been governments, or by the private sector. Executive Order 12866, this rule is not Section 4 of UFMA, 2 U.S.C. 1503, conducted in accordance with the subject to the review procedures set excludes regulations necessary for Convention and the IAA. Upon receipt, forth in Executive Order 12866. In implementation of treaty obligations. these information collections would be addition, the Department is exempt This rule falls within this exclusion subject to the preservation requirements from Executive Order 12866 except to because it would implement the the extent it is promulgating regulations set forth in 22 CFR part 98 to implement Convention. In any event, this rule in conjunction with a domestic agency section 401(a) of the IAA. Accordingly, would not result in the expenditure by that are significant regulatory actions. the Department has concluded that the State, local, or tribal governments, in the The Department of State, however, PRA would not apply to information aggregate, or by the private sector, of provided the proposed rule to OMB for collected from the public under this $100 million or more in any year. comment and incorporated its rule, for the purpose of determining Moreover, because this rule would not comments. The Department is not entitlement to a Hague Adoption significantly or uniquely affect small submitting the final rule to OMB, but Certificate or Hague Custody governments, section 203 of the UFMA, has reviewed it to ensure consistency Declaration, or a certification of 2 U.S.C. 1533, does not require with the regulatory philosophy and Convention compliance pursuant to preparation of a small government principles set forth in Executive Order § 97.5, because such documents would agency plan in connection with it. 12866. be collected for use as Convention E. Executive Order 13132: Federalism records. G. Executive Order 12988: Civil Justice A rule has federalism implications Reform The Department intends, nonetheless, under Executive Order 13132 if it has to consider carefully how to minimize The Department has reviewed this substantial direct effects on the States, the burden on the public of information rule in light of sections 3(a) and 3(b)(2) on the relationship between the national collections contained in this rule as of Executive Order 12988 to eliminate government and the States, or on the ambiguity, minimize litigation, establish such collections, in particular the distribution of power and clear legal standards, and reduce required application form, continue to responsibilities among the various burden. The Department has made every be developed. levels of government. This rule will not reasonable effort to ensure compliance List of Subjects in 22 CFR Part 97 have such effects, and therefore does not with the requirements in Executive have sufficient federalism implications Order 12988. Adoption and foster care; to require consultations or to warrant International agreements; Reporting and the preparation of a federalism summary H. The Paperwork Reduction Act (PRA) recordkeeping requirements. impact statement under section 6 of of 1995 pwalker on PRODPC60 with RULES Executive Order 13132. Under the Paperwork Reduction Act I Accordingly, the Department adds The Convention and the IAA do, (PRA), 42 U.S.C. 3501 et seq., agencies new part 97 to title 22 of the CFR, however, address issues that previously are generally required to submit to OMB chapter I, subchapter J, to read as had been regulated primarily at the for review and approval information follows: VerDate Aug<31>2005 16:15 Nov 01, 2006 Jkt 211001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:FRFM02NOR1.SGM 02NOR1
  • 7. Federal Register / Vol. 71, No. 212 / Thursday, November 2, 2006 / Rules and Regulations 64457 PART 97—ISSUANCE OF ADOPTION (f) Terms defined in 22 CFR 96.2 have identity, adoptability, background, CERTIFICATES AND CUSTODY the meaning given to them therein. social environment, family history, DECLARATIONS IN HAGUE medical history (including that of the § 97.2 Application for a Hague Adoption child’s family), and any special needs of CONVENTION ADOPTION CASES Certificate or a Hague Custody Declaration (Outgoing Convention Case). the child. Sec. (b) Transmission of Child Data. A 97.1 Definitions. (a) Once the Convention has entered U.S. authorized entity must conclude 97.2 Application for a Hague Adoption into force for the United States, any that the child is eligible for adoption Certificate or a Hague Custody party to an outgoing Convention and, without revealing the identity of Declaration (Outgoing Convention Case). adoption or custody proceeding may 97.3 Requirements Subject to Verification the birth mother or the birth father if apply to the Secretary for a Hague these identities may not be disclosed in an Outgoing Convention Case. 97.4 Issuance of a Hague Adoption Adoption Certificate or a Hague Custody under applicable State law, transmit to Certificate or a Hague Custody Declaration. Any other interested person a foreign authorized entity the Declaration (Outgoing Convention Case). may also make such application, but background study, proof that the 97.5 Certification of Hague Convention such application will not be processed necessary consents have been obtained, Compliance in an Incoming Convention unless such applicant demonstrates that and the reason for its determination that Case Where Final Adoption Occurs in a Hague Adoption Certificate or Hague the proposed placement is in the child’s the United States. Custody Declaration is needed to obtain best interests, based on the home study 97.6–97.7 [Reserved]. a legal benefit or for purposes of a legal and child background study and giving Authority: Convention on Protection of proceeding, as determined by the due consideration to the child’s Children and Co-operation in Respect of Secretary in the Secretary’s discretion. upbringing and his or her ethnic, Intercountry Adoption (done at The Hague, (b) Applicants for a Hague Adoption religious, and cultural background. May 29, 1993), S. Treaty Doc. 105–51 (1998); Certificate or Hague Custody (c) Reasonable Efforts to find 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); Declaration shall submit to the Intercountry Adoption Act of 2000, 42 U.S.C. Domestic Placement. Reasonable efforts 14901–14954. Secretary: pursuant to 22 CFR 96.54 must be made (1) A completed application form in to actively recruit and make a diligent § 97.1 Definitions. such form as the Secretary may search for prospective adoptive As used in this part: prescribe, with any required fee; parent(s) to adopt the child in the (a) Adoption Court means the State (2) An official copy of the order of the United States and a timely adoptive court with jurisdiction over the adoption court finding that the child is placement in the United States not adoption or the grant of custody for eligible for adoption and that the found. purpose of adoption. adoption or proposed adoption is in the (d) Preparation and Transmission of (b) U.S. Authorized Entity means a child’s best interests and granting the Home Study. A U.S. authorized entity public domestic authority or an agency adoption or custody for purposes of must receive from a foreign authorized or person that is accredited or adoption; entity a home study on the prospective temporarily accredited or approved by (3) An official copy of the adoption adoptive parent(s) prepared in an accrediting entity pursuant to 22 CFR court’s findings (either in the order accordance with the laws of the part 96, or a supervised provider acting granting the adoption or custody for receiving country, under the under the supervision and purposes of adoption or separately) responsibility of a foreign Central responsibility of an accredited agency or verifying, in substance, that each of the Authority, foreign accredited body, or temporarily accredited agency or requirements of § 97.3 has been public foreign authority, that includes: complied with or, if the adoption court (1) Information on the prospective approved person. has not verified compliance with a adoptive parent(s)’ identity, eligibility, (c) Foreign Authorized Entity means a and suitability to adopt, background, particular requirement in § 97.3, foreign Central Authority or an family and medical history, social authenticated documentation showing accredited body or entity other than the environment, reasons for adoption, that such requirement nevertheless has Central Authority authorized by the ability to undertake an intercountry been met and a written explanation of relevant foreign country to perform adoption, and the characteristics of the why the adoption court’s verification of Central Authority functions in a children for whom they would be compliance with the requirement Convention adoption case. qualified to care; cannot be submitted; and (d) Hague Adoption Certificate means (2) Confirmation that a competent (4) Such additional documentation a certificate issued by the Secretary in authority has determined that the and information as the Secretary may an outgoing case (where the child is prospective adoptive parent(s) are request at the Secretary’s discretion. emigrating from the United States to eligible and suited to adopt and has (c) If the applicant fails to submit all another Convention country) certifying ensured that the prospective adoptive of the documentation and information that a child has been adopted in the parent(s) have been counseled as required pursuant to paragraph (b)(4) of United States in accordance with the necessary; and this section within 120 days of the Convention and, except as provided in (3) The results of a criminal Secretary’s request, the Secretary may § 97.4(b), the IAA. background check. consider the application abandoned. (e) Hague Custody Declaration means (e) Authorization to Enter. The a declaration issued by the Secretary in § 97.3 Requirements Subject to Central Authority or other competent an outgoing case (where the child is Verification in an Outgoing Convention authority of the receiving country must emigrating from the United States to Case. declare that the child will be authorized another Convention country) declaring (a) Preparation of Child Background to enter and reside in the receiving that custody of a child for purposes of Study. An accredited agency, country permanently or on the same pwalker on PRODPC60 with RULES adoption has been granted in the United temporarily accredited agency, or public basis as the adopting parent(s). States in accordance with the domestic authority must complete or (f) Consent by Foreign Authorized Convention and, except as provided in approve a child background study that Entity. A foreign authorized entity or § 97.4(b), the IAA. includes information about the child’s competent authority must declare that it VerDate Aug<31>2005 16:15 Nov 01, 2006 Jkt 211001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:FRFM02NOR1.SGM 02NOR1
  • 8. 64458 Federal Register / Vol. 71, No. 212 / Thursday, November 2, 2006 / Rules and Regulations consents to the adoption, if its consent that the prospective adoptive parent(s) (c) If a person seeking the certification is necessary under the law of the are eligible and suited to adopt and the described in paragraph (a) of this relevant foreign country for the adoption court’s determinations that the section fails to submit all the adoption to become final. child is eligible for adoption, that the documentation and information (g) Guardian Counseling and Consent. requirements in paragraphs (c) and (g) of required pursuant to paragraph (b) of Each person, institution, and authority this section have been met, and that an this section within 120 days of the (other than the child) whose consent is intercountry adoption is in the child’s Secretary’s request, the Department may necessary for the adoption must be best interests, provided that this consider the request abandoned. counseled as necessary and duly prohibition on contacts shall not apply (d) The Secretary may issue the informed of the effects of the consent if the relevant State or public domestic certification if the Secretary, in the (including whether or not an adoption authority has established conditions Secretary’s discretion, is satisfied that will terminate the legal relationship under which such contact may occur the adoption was made in compliance between the child and his or her family and any such contact occurred in with the Convention. The Secretary may of origin); must freely give consent accordance with such conditions. decline to issue a certification, expressed or evidenced in writing in the (k) Improper financial gain. No one including to a party to the adoption, in required legal form without any may derive improper financial or other the Secretary’s discretion. A inducement by compensation of any gain from an activity related to the certification will not be issued to a non- kind; and consent must not have been adoption, and only costs and expenses party requestor unless the requestor subsequently withdrawn. If the consent (including reasonable professional fees demonstrates that the certification is of the mother is required, it may be of persons involved in the adoption) needed to obtain a legal benefit or for given only after the birth of the child. may be charged or paid. purposes of a legal proceeding, as (h) Child Counseling and Consent. As determined by the Secretary in the appropriate in light of the child’s age § 97.4 Issuance of a Hague Adoption Secretary’s discretion. and maturity, the child must be Certificate or a Hague Custody Declaration (e) A State court’s final adoption counseled and informed of the effects of (Outgoing Convention Case). decree, when based upon the certificate the adoption and the child’s views must (a) Once the Convention has entered issued by a consular officer pursuant to be considered. If the child’s consent is into force for the United States, the 22 CFR 42.24(j), certifying that the grant required, the child must also be Secretary shall issue a Hague Adoption of custody of the child has occurred in counseled and informed of the effects of Certificate or a Hague Custody compliance with the Convention, or granting consent, and must freely give Declaration if the Secretary, in the upon its determination that the consent expressed or evidenced in Secretary’s discretion, is satisfied that requirements of Article 17 of the writing in the required legal form the adoption or grant of custody was Convention have been met constitutes without any inducement by made in compliance with the the certification of the adoption under compensation of any kind. Convention and the IAA. Article 23 of the Convention. (i) Authorized Entity Duties. A U.S. (b) If compliance with the Convention authorized entity must: can be certified but it is not possible to § 97.6–97.7 [Reserved] (1) Ensure that the prospective certify compliance with the IAA, the Dated: October 12, 2006. adoptive parent(s) agree to the adoption; Secretary personally may authorize (2) Agree, together with a foreign Maura Harty, issuance of an appropriately modified authorized entity, that the adoption may Assistant Secretary, Bureau of Consular Hague Adoption Certificate or Hague proceed; Affairs, Department of State. Custody Declaration, in the interests of (3) Take all appropriate measures to [FR Doc. E6–18507 Filed 11–1–06; 8:45 am] justice or to prevent grave physical ensure that the transfer of the child harm to the child. BILLING CODE 4710–06–P takes place in secure and appropriate circumstances and, if possible, in the § 97.5 Certification of Hague Convention company of the adoptive parent(s) or the Compliance in an Incoming Convention DEPARTMENT OF THE TREASURY prospective adoptive parent(s), and Case Where Final Adoption Occurs in the United States. Internal Revenue Service arrange to obtain permission for the child to leave the United States; and (a) Once the Convention has entered (4) Arrange to keep a foreign into force for the United States, any 26 CFR Parts 1 and 301 authorized entity informed about the person may request the Secretary to [TD 9295] adoption process and the measures certify that a Convention adoption in an taken to complete it, as well as about the incoming case finalized in the United RIN 1545–BF98 progress of the placement if a States was done in accordance with the probationary period is required; to Convention. AJCA Modifications to the Section return the home study and the child (b) Persons seeking such a 6011, 6111, and 6112 Regulations background study to the authorities that certification must submit the following AGENCY: Internal Revenue Service (IRS), forwarded them if the transfer of the documentation: Treasury. child does not take place; and to be (1) A copy of the certificate issued by ACTION: Final and temporary consulted in the event a new placement a consular officer pursuant to 22 CFR regulations. or alternative long-term care for the 42.24(j) certifying that the granting of child is required. custody of the child has occurred in SUMMARY: This document contains (j) Contacts. Unless the child is being compliance with the Convention; temporary and final regulations under adopted by a relative, there may be no (2) An official copy of the adoption sections 6011, 6111, and 6112 of the contact between the prospective court’s order granting the final adoption; Internal Revenue Code that modify the pwalker on PRODPC60 with RULES adoptive parent(s) and the child’s and rules relating to the disclosure of birthparent(s) or any other person who (3) Such additional documentation reportable transactions and the list has care of the child prior to the and information as the Secretary may maintenance requirements. These competent authority’s determination request at the Secretary’s discretion. regulations affect taxpayers VerDate Aug<31>2005 16:15 Nov 01, 2006 Jkt 211001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:FRFM02NOR1.SGM 02NOR1