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

DEPARTMENT OF STATE

22 CFR Part 96

[Public Notice 5296]

RIN 1400-AA-88

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

AGENCY:

Department of State.

ACTION:

Final rule.

SUMMARY:

The Department of State (the Department) is issuing a final rule on the accreditation and approval of agencies and persons in accordance with 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), after review of public comments received in response to the Department's September 15, 2003 issuance of a proposed rule. The Convention and the IAA generally require that agencies and persons be accredited or approved to provide adoption services for intercountry adoptions when both countries involved are parties to the Convention, and the IAA requires that the Department designate one or more qualified accrediting entities to accredit and approve agencies and persons. Today's new action establishes the accreditation and approval standards for agencies and persons that accrediting entities will use; establishes requirements applicable to potential accrediting entities; and establishes a framework for the Department's oversight of accrediting entities, agencies, and persons. This action is a necessary step toward bringing the Convention into force for the United States.

DATES:

This rule is effective March 17, 2006. Information about the date the Convention will enter into force is indicated in the text of the final rule.

FOR FURTHER INFORMATION CONTACT:

Corrin Ferber at 202-736-9172 or Anna Mary Coburn or Lisa Vogel at 202-736-9081. Hearing- or speech-impaired persons may use the Telecommunications Devices for the Deaf (TDD) by contacting the Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

II. The Department's Implementation of the Convention and the IAA

A. Accrediting Entities

B. Accreditation and Approval Standards

C. Enforcement

D. Concerns About Conduct in Convention Countries

III. Overview of Major Changes and Provisions in the Final Rule

A. Primary Providers and Supervised Providers

B. Accreditation and Approval Standards

C. Complaint Registry

IV. Section-by-Section Discussion of Comments

V. 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. Congressional Review

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

Final Rule

Subpart A—General Provisions

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

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

Subpart D—Application Procedures for Accreditation and Approval

Subpart E—Evaluation of Applicants for Accreditation and Approval

Subpart F—Standards for Convention Accreditation and Approval

Subpart G—Decisions on Applications for Accreditation or Approval

Subpart H—Renewal of Accreditation or Approval

Subpart I—Routine Oversight by Accrediting Entities

Subpart J—Oversight Through Review of Complaints

Subpart K—Adverse Action by the Accrediting Entity

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

Subpart M—Dissemination and Reporting of Information by Accrediting Entities

Subpart N—Procedures and Standards Relating to Temporary Accreditation

I. Background

The Convention is a multilateral treaty that provides a framework of safeguards for protecting children and families involved in intercountry adoption. It was developed under the auspices of the intergovernmental organization known as the Hague Conference on Private International Law (the Hague Conference).

The United States signed the Convention on March 31, 1994, and the President transmitted the Convention to the Senate for its advice and consent on June 11, 1998. (S. Treaty Doc. 105-51 at III (1998)). Differing versions of implementing legislation for the Convention were introduced in both the Senate and the House of Representatives in 1999 and were subsequently referred to the appropriate committees. The Senate Foreign Relations Committee held hearings on October 5, 1999, and 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)).

On September 20, 2000, the Senate gave its advice and consent to the ratification of the Convention and, at about the same time, Congress enacted the implementing legislation for the Convention, the Intercountry Adoption Act of 2000 (the IAA)), Public Law 106-279, 42 U.S.C. 14901-14952. Consistent with U.S. policy on ratification of treaties and the Senate's advice and consent to ratification, the United States will not ratify the Convention until the United States is able to carry out its obligations under the Convention (See Senate Declaration for Convention Article 22(2) (146 Cong. Rec. S8866 (daily ed. Sept. 20, 2000)). Thus, although this Final Rule is effective in 30 days, except as otherwise indicated in the text of the rule, the Convention will not enter into force immediately upon passage of the 30 days.

The Convention gives party countries a choice about whether to rely exclusively on public authorities or to use private bodies to complete certain Central Authority functions listed in the Convention. If the Convention country chooses to use private bodies, the private bodies must be accredited agencies (nonprofit adoption service providers) or approved persons (for-profit and individual adoption service providers). The Senate's advice and consent to the ratification of the Convention, taken together with the IAA, establish that the United States will use accredited agencies and approved persons (referred to within this preamble as “adoption service providers” where appropriate) to perform certain U.S. Central Authority functions under the Convention. Other Central Authority functions will be performed, as appropriate, by the Department or by other governmental authorities such as the Department of Homeland Security (DHS).

The purpose of this final rule is to establish the regulatory framework for

the accreditation and approval function required under the Convention and the IAA. In developing the rule, we conducted an extensive preliminary public input phase, discussed at

http://www.hagueregs.org,

to garner adoption community input and to engage in a dialogue with stakeholders. On September 15, 2003, the Department published in the

Federal Register

a proposed rule on the accreditation and approval of agencies and persons (68 FR 54064). For a more detailed discussion of the Convention, the IAA, and the Department's basis for the rule, see the preamble to the proposed rule. The Department held a further meeting on October 28, 2003 to answer questions regarding the proposed rule. The initial 60-day deadline for submitting comments was extended 30 days, to December 15, 2003.

Since issuing the proposed rule, the Department has also initiated a selection process to recruit and identify qualified accrediting entities to accredit agencies and approve persons. (The Department solicited candidates by mailing Requests for Statements of Interest to the adoption licensing and child welfare services authorities of each State and to all private nonprofit organizations that had expressed interest in providing accreditation/approval services. It also posted the information soliciting statements of interest from qualified candidates on its Web site.) The Department thoroughly reviewed all applications received by the deadline of April 30, 2004. The Department met with qualified candidates in March 2005 to begin negotiating agreements to designate accrediting entities. (70 FR 11306, March 8, 2005). The Department will publish all agreements designating accrediting entities in the

Federal Register

, as required by the IAA.

Also published in today's

Federal Register

is the final rule for part 98 of title 22 of the CFR. It provides the rule for the preservation of Convention records by the Department and DHS. Separate rules, which are still under preparation, will establish intercountry adoption procedures under the Convention and the IAA's amendments to the Immigration and Nationality Act (INA).

II. The Department's Implementation of the Convention and the IAA

Consistent with the IAA and the Convention, this rule creates an accreditation/approval system that does not displace State licensing of adoption service providers, but that does create new Federal requirements for agencies and persons handling adoption cases between the United States and other countries party to the Convention. A number of commenters expressed a variety of concerns about the Department's approach to implementing the Convention and the IAA through an accreditation scheme that relies on accrediting entities selected by the Department to oversee and monitor adoption service providers. In response to those concerns, we want to reiterate the guiding principles behind this rule and the Federal accreditation scheme it creates.

A. Accrediting Entities

Many commenters essentially objected to the use of accrediting entities, preferring the Department to assume direct responsibility for accreditation of agencies and approval of persons. It would be inconsistent with the IAA, however, for the Department to assume such a role. The IAA accreditation scheme provides for the Department to select and designate one or more accrediting entities to perform this function.

Some commenters sought more robust provisions controlling the conduct of accrediting entities. The IAA sections on accrediting entities left the Department discretion to negotiate by agreement how an accrediting entity will perform its accreditation duties. It would be unrealistic and unworkable to address these issues in the rule. We therefore have included in the final rule some provisions that will govern designated accrediting entities, but much of the conduct of accrediting entities will be governed by agreements in addition to these regulations. The use of agreements is consistent with the statute and provides the flexibility needed to handle relationships with multiple accrediting entities, which may differ in ways that require different provisions governing their relationships with the Department.

B. Accreditation and Approval Standards

We received a wide range of public input on what accreditation/approval standards should be excluded from or added to subpart F of the rule (and correspondingly subpart N on temporary accreditation). Our responses to comments on specific standards are contained in the section-by-section discussion. We respond here, however, to a number of general concerns repeatedly expressed by commenters by explaining our overall conception of the accreditation standards.

We used the central purposes of the IAA and the Convention as a guide throughout the development of the standards for accreditation and approval. These purposes are to protect the rights of, and prevent abuses against, participants in the adoption process in Convention cases, and to ensure that such adoptions are in the children's best interests. In addition, the IAA seeks to improve the ability of the Federal Government to assist prospective adoptive parent(s) in Convention cases involving the United States.

The standards in subpart F are based on the Convention and the IAA, particularly section 203(b). Where the Convention or the IAA speaks broadly, we have also sought to reflect current norms in adoption practice, as made known to us during the development of the rule.

In particular, the standards in subpart F reflect a focus on ensuring that agencies and persons provide adoption services with an individual child's best interests as the foremost goal. The standards also cover key areas of concern to adoptees, birth parents, and adoptive parents, such as financial transparency, ethical conduct in determining if a child is eligible for adoption and in obtaining medical records for a child, and sound social work practices when providing training and information to prospective adoptive parent(s). In reviewing the overall impact of the rule on agencies and persons in light of comments suggesting that the standards be loosened, we retained standards we consider necessary for implementing the Convention's and the IAA's goals of protecting participants in Convention adoptions.

Some commenters wanted the standards in subpart F to be cast as specific licensing criteria that must be met in all cases rather than as accreditation standards that must be “substantially” complied with. As explained in our response to comments on § 96.27 of subpart E, the Department believes that an accreditation model based on substantial compliance is more consistent with the regulatory approach the IAA contemplates. The performance-based standards created by subpart F (and subpart N) are the type of flexible standards common to the accreditation field generally, and thus are appropriate for implementing the IAA. The process of accreditation gives an accrediting entity discretion to identify problems in an agency's or person's operations and to provide an opportunity for correction.

C. Enforcement

A number of commenters sought to have the Department play a primary role in enforcing substantial compliance by agencies and persons with the

accreditation standards. This view is inconsistent with the IAA, however, which dictates that the primary responsibility for oversight of agencies and persons lies with the accrediting entities. The accrediting entities will have discretion to determine which adverse action is appropriate in light of the particular standards in subpart F (or N) with which the agency or person is not in compliance. The Department may be required to intervene if the accrediting entity, after consultation with the Department, fails, or refuses, to take adverse action against an agency or person. The types of adverse actions and who can take them (accrediting entities or the Department) under what circumstances are covered in subparts K and L of the rule.

The Department was asked to permit “penalties” for failure to be in substantial compliance with the rule, other than the enforcement mechanisms called adverse actions created by the IAA, and to tie the violation of particular standards to particular penalties. We have not made such changes. The rule provides the full range of “penalty” options provided in the IAA for disciplining agencies and persons. Because the IAA mandates a substantial compliance model of accreditation, the rule does not require that accrediting entities impose particular penalties for violation of particular standards.

Other commenters raised a number of concerns related to the notice that an agency or person would receive of an adverse action, and the options that an agency or person would have for protesting the imposition of the adverse action. While the IAA limits review procedures that are available, the Department has made a number of clarifications in the final rule to address these concerns. (See the section-by-section discussion of subparts K and L.) The rule now clearly provides that an accredited agency or approved person will have either notice that it may be faced with an adverse action and an opportunity to show it is not warranted or, if notice is not provided, an equivalent after-the-fact opportunity to show that the action should be withdrawn. The rule also clarifies that the accrediting entity that imposed an adverse action can always withdraw the adverse action, if it determines that the action was imposed based upon mistake of fact or otherwise in error.

D. Concerns About Conduct in Convention Countries

We received many comments requesting that the Department address specific problems in countries of origin. As Central Authority, the Department may be able to influence another Convention country's practices via diplomatic efforts and the provision of technical assistance. It is outside the scope of our authority, however, and inconsistent with the Convention's allocation of responsibilities between a country of origin and a receiving country, for us to impose specific rules on Convention countries. Therefore, we have not changed the final rule to cover conduct by other Central Authorities or their competent (public) authorities. As described in section III, subsection A, below, however, we have changed the standards U.S. agencies and persons will need to meet in using private providers in Convention countries. The standards, as changed, tie the accreditation of agencies and approval of persons to whether they have adequate arrangements in place to ensure that, when acting as a primary provider, they can provide “all adoption services in cases subject to the Convention” in a manner consistent with the IAA and the Convention. (See IAA section 203(b)(1)(B)). They are not intended to interfere with the allocation of responsibilities between countries party to the Convention.

III. Overview of Major Changes and Provisions in the Final Rule

Discussed here are changes and provisions in the final rule that we believe are of particular interest to the public. A more thorough response to individual comments, and more complete discussion of significant changes made to the rule in response to comments, appears below in the section-by-section analysis. In addition to changes made in direct response to comments received by the Department, we have also made a number of changes for technical and policy reasons, the more significant of which are brought to the public's attention in the section-by-section analysis. We have made an effort to highlight such changes in the general discussion at the beginning of each subpart, with a brief explanation of why the Department considered them necessary. Changes of a purely technical nature (for example, changes made to conform to changes in other sections, for grammatical reasons, or to ensure consistency throughout the regulations) are not exhaustively identified because we believe they are self-explanatory.

A. Primary Providers and Supervised Providers

Many commenters were concerned about the rule's coverage of supervised providers, both in the United States and overseas. Many urged that the U.S. accredited/approved primary provider be made responsible for any foreign providers that it selects and uses in the country of origin, whether public, accredited by the foreign country, or private and unaccredited.

In response to these concerns, we modified §96.14 of subpart C to increase the supervisory responsibilities of primary providers in the accreditation context. As discussed below at section III, subsection B.4, however, we removed provisions from subpart F that would have required a primary provider to assume the legal responsibility for tort, contract, and other civil claims against supervised providers and to carry liability insurance for its supervised providers. The final rule is not intended to have any effect on the allocation of legal responsibility for tort, contract and other civil claims. We also added concrete examples at §96.15 of subpart C to help explain, generally, the circumstances that require an adoption service provider to be accredited, temporarily accredited, approved, supervised, or exempted.

The IAA in section 201(a) provides that, if an agency or person is providing adoption services “in connection with a Convention adoption in the United States,” it must be accredited, approved, or under the supervision of an accredited agency or approved person (with limited exceptions set forth in section 201(b)). The proposed rule established the general principle of a primary provider—that is, one accredited agency or approved person responsible for ensuring the provision of all adoption services in the Convention adoption case.

Under the proposed rule, a primary provider could work with accredited agencies or approved persons in the United States, or overseas with entities accredited by a Convention country or public authorities of a Convention country, without supervising or being responsible for their acts. The primary provider also was not responsible for supervising exempted providers or public domestic authorities in the United States. The primary provider was responsible only for supervising the acts of private agencies, persons, or other entities that were providing adoption services without any Convention accreditation or approval status.

We have kept the requirement in the final rule that the primary provider is responsible for all supervised providers on a case, but we have broadened the kinds of private entities that the primary provider must supervise. There are some differences in the standards that govern the primary provider's use of

other providers in the United States and in Convention countries. These differences reflect both the structure of the IAA and the Convention's allocation of responsibilities between Convention countries. The common objective of these standards, however, is to implement the goals of the Convention and the IAA of protecting participants in the adoption process and ensuring adoptions are conducted in the best interests of the child.

1. U.S. Supervised Providers

The rule now requires that the primary provider ensure that other U.S. accredited agencies or approved persons providing adoption services in a case are complying with the standards applicable to U.S. supervised providers. That is, § 96.14(b) now requires that a primary provider treat all other agencies and persons it is using to provide adoption services in the United States on a case as supervised providers, regardless of their accreditation/approval status, unless the provider qualifies as an exempted provider or a domestic public authority.

We made this change to the proposed rule in response to expressed concerns about how an accrediting entity could evaluate the performance of an agency or person if, as primary provider, the agency or person was not required to supervise any accredited agencies or approved persons that it was using to provide adoption services in a particular case. If an accrediting entity finds that a primary provider has provided inadequate supervision and, as a result, the actions of an agency or person that the primary provider is using to provide services—whether accredited or approved or not—reveal non-compliance with the standards in these regulations applicable to the use of supervised providers, then the accrediting entity may take adverse action against the primary provider.

2. Foreign Providers

Under the final rule, the primary provider must now treat all non-governmental foreign providers, including agencies, persons, or entities accredited by a Convention country, that it uses to provide adoption services as supervised providers consistent with §96.46(a) and (b), unless the foreign provider performs a service qualifying for verification under §96.46(c) (consents, child background studies and home studies). We believe that this approach accommodates our concerns, expressed in the preamble to the proposed rule, that primary providers would have practical difficulty supervising entities in another Convention country. This approach was chosen to ensure that primary providers do not inappropriately rely on accreditation by a foreign Central Authority as a guarantee of conduct. It is consistent with the fact, recognized in this rule and the IAA, that accreditation and approval within the U.S. system cannot guarantee good conduct.

The verification requirement in §96.46(c) recognizes, however, that as a practical matter, a primary provider will not be able to supervise contemporaneously all adoption services that might occur in a Convention country. A limited number of adoption services will generally have been performed in a Convention country before a U.S. primary provider has been identified: In an incoming case (child immigrating to the United States) the consents to adoption and child background study will often have been prepared before intercountry adoption to the United States is specifically contemplated; in an outgoing case (child emigrating from the United States) the home study will often have been prepared before the prospective adoptive parent(s) determine that they wish to pursue intercountry adoption from the United States.

To recognize these possibilities and to avoid requiring that such services are re-performed under supervision—that is, to avoid creating additional costs and delaying adoption placements, which could, in turn, disadvantage U.S. prospective adoptive parent(s) seeking to adopt abroad and children seeking placements—the rule adopts a different approach to the primary provider's oversight of these services. The standard set forth in § 96.46(c) requires the primary provider to verify that these three adoption services, when provided by private, non-governmental providers, were performed in the Convention country consistently with the requirements of the Convention and any other applicable local law. (In many countries all three of these services will be performed by public or competent authorities, for whom a primary provider is not required to be responsible.) The verification standard of § 96.46(c) will reinforce the protections in the Convention and U.S. law relevant to the performance of these three adoption services. (The Convention requires, for example, that all home and child background studies not prepared by a governmental authority be prepared under the responsibility of an accredited body, and that competent authorities of the state of origin ensure that consents meet Convention requirements. U.S. governmental authorities will also address the issue of consent in determining visa eligibility.)

A primary provider will always have the option of treating providers of services that qualify for verification under the § 96.46(c) standard as supervised providers under § 96.46(a) and (b) instead, assuming that substantial compliance with those standards is feasible. This might occur, for example, if a primary provider has a long-standing supervisory relationship with a particular Convention country adoption service provider.

As was the case in the proposed rule, primary providers are not required to treat Central Authorities, or other foreign public authorities, as foreign supervised providers. This is consistent with the scope of the Department's authority, and the Convention's allocation of responsibilities.

B. Accreditation and Approval Standards

We received many comments on the proposed standards on insurance, social service personnel qualifications, blanket waivers of liability, and the primary provider's liability for its supervised providers. We want to explain revisions we have made to those standards in the final rule.

1. Standard on Professional Liability Insurance

The IAA requires that the standards include an insurance standard. The proposed rule provided that an agency or person maintains insurance in a minimum amount of no less than $1,000,000 per occurrence, annually. In the preamble to the proposed rule, we solicited comments on the insurance provision from insurance experts, actuaries, associations, and agencies and persons, and explicitly encouraged agencies and persons to have their insurance providers comment on this provision. We received a number of conflicting comments on the insurance provision, with some commenters opposing the inclusion of any standard, others stating that professional liability insurance is simply unavailable, and others maintaining that, even if professional liability insurance were available, the premiums would make it too costly for them to operate. Other commenters said insurance would be affordable and available.

In light of the conflicting public comment on this issue, the Department made good faith efforts to research further the issues of availability, feasibility, and costs of professional liability insurance for adoption service providers. The Department hired an insurance expert who contacted

adoption service providers, insurance brokers and agents, wholesalers, insurance industry service organizations and insurers. The report of the insurance expert (redacted of confidential business information), which helped inform the basis of the insurance requirement in the final rule, is now part of the public record and can be found at

http://www.travel.state.gov/family/adoption

.

The Department has determined that it is appropriate in §96.33(h) of the rule to set a standard of a minimum level of professional liability coverage in the amount of $1 million in the aggregate, rather than per occurrence. This standard means that an adoption service provider should have, at a minimum, a policy that would make available $1 million in coverage annually for all covered claims. We believe that this standard is sufficient to protect adoption service providers, children, and parents, and that the insurance market is likely to respond to this regulation by making such coverage available to adoption service providers. The rule continues to provide that this is a minimum standard; the agency or person will have to take into account whether its individual risk profile warrants additional professional liability coverage, or other types of insurance.

2. Social Service Personnel Qualifications

The proposed rule provided as a standard that supervisory social service personnel have a master's degree in social work (MSW) or master's degree in a related human service field (with some exceptions for those already working in the field). Non-supervisory social service personnel would have to hold an MSW or master's degree, or a bachelor's degree in addition to experience. The proposed rule also provided for individuals performing home studies or child background studies to have a minimum of an MSW or master's degree in a related human service field.

Most of the comments that we received strongly opposed any standard providing for social service personnel, other than those in supervisory positions, to have an MSW or master's degree. A number of comments indicated that finding qualified MSWs for low-paying positions available within nonprofit adoption agencies was next to impossible. Agencies and persons in rural, isolated areas expressed concern about the general lack of MSWs in non-urban locations. Commenters also indicated that experience with adoption practice typically was a better prerequisite for handling intercountry adoption cases than holding an MSW.

In response to these comments we revised the standard in the final rule. The final rule, at §96.37, retains the qualifications for supervisory social service personnel in the proposed rule. Qualifications for non-supervisory social service personnel have been slightly modified to provide for an MSW, master's, or a bachelor's degree in any field and prior experience in family and children's services and adoption. We have eliminated entirely any provision that home study preparers or child background study preparers have an MSW or a master's degree in a related human service field.

3. Waivers of Liability

The proposed rule would have set a standard prohibiting adoption service providers from asking clients to sign blanket waivers of liability. Prospective adoptive parent(s) expressed concerns about being asked to sign broad waivers of liability as part of their contracts with agencies and persons. On the other hand, we were also told that waivers are common to the adoption field, particularly in the face of increasing litigation over the tort of wrongful adoption, and were given copies of sample waivers. Some commenters insisted that agencies and persons could not obtain affordable liability insurance unless their contracts with clients identified risks inherent to the adoption process and asked clients to assume those enumerated risks. Other commenters suggested that the Department provide a boilerplate waiver clause.

We concluded that a standard prohibiting blanket waivers is not warranted, and have revised the standard in § 96.39(d) to permit an agency or person to include a waiver of liability, if consistent with applicable State law. This approach defers to the adoption service provider's own assessment of risks and benefits in asking a client to sign a waiver, and to State law, rather than imposing a Federal standard prohibiting waivers. To address the major concerns about extremely broad waivers that exempt all conduct, § 96.39 provides that any such waivers comply with State law and additionally be limited and specific and based on risks that have been discussed and explained to the client in the adoption services contract.

4. Primary Provider Liability for Acts of Supervised Providers

The proposed rule included standards in § 96.45(c) (Using supervised providers in the United States) and § 96.46(c) (Using providers in Convention countries) that would have provided for the primary provider to assume tort, contract, and other civil liability to the prospective adoptive parent(s) for the supervised provider's provision of the contracted adoption services and for maintenance of a bond, escrow account, or liability insurance to cover liability risks arising from the use of supervised providers.

Many commenters strongly opposed these provisions as impractical and unworkable, and some questioned the statutory basis behind them. In their view, a court should be allowed to allocate responsibility in any particular circumstance, and the Department should not attempt to allocate responsibility in the standard. Other commenters questioned the availability of the kind of insurance contemplated to cover the risk of using supervised providers, especially overseas. A number of commenters, including insurance providers and agents, said that insurance coverage for supervised providers would push the cost of adoption services beyond the reach of many potential prospective adoptive parents, while others said that such insurance would be affordable.

The final rule does not include these provisions, or related provisions on indemnification that were proposed at §§ 96.45(d) and 96.46(d). Primary providers may choose how to allocate risk with their contractual partners—that is, their supervised providers—within the framework of existing laws on liability. Under this rule, however, primary providers will still be held responsible for their supervision of supervised providers in the accrediting entity's assessment of whether they are providing adoption services in substantial compliance with this rule, the IAA, and the Convention.

C. Complaint Registry

The provisions of the final rule related to the Complaint Registry differ from those that appeared in the proposed rule. The Department still intends to establish a Complaint Registry to support the accrediting entities in fulfilling their oversight responsibilities and the Department in its own oversight role. The Department at this time no longer intends, however, that the Complaint Registry will be an independent entity with which the Department will have an agreement. As reflected in subpart J on oversight through review of complaints, the Complaint Registry will be a system established by the Department to assist the accrediting entities and the

Department in their oversight functions. The Department's current operational plan is for the Complaint Registry to collect complaints and make them available to the appropriate accrediting entity for action. Accrediting entities will be required to establish written procedures for recording, investigating, and taking action on complaints referred to them through the Complaint Registry. Upon completion of an investigation, accrediting entities will have to provide written notification to the complainant and the Complaint Registry of its findings and any actions taken.

The Department will be able to review complaints and actions taken by the accrediting entity and take independent action if appropriate. The Complaint Registry will maintain records of complaints, track compliance with deadlines, generate reports, and perform other functions as the Secretary determines appropriate. We believe that subpart J provides adequate flexibility to assign additional functions to the Complaint Registry if experience with the system indicates that additional functions would be useful or necessary.

IV. Section-by-Section Discussion of Comments

This section provides a detailed discussion of comments received on the proposed rule, and describes changes made to the proposed rule. Two general points should be kept in mind in reading this discussion. First, we refer generally to actions of the “Department” pursuant to the rule. The rule itself refers to actions of the “Secretary,” as the official named in the IAA, but the day-to-day exercise of the Secretary's functions has been delegated and will be exercised by other Department officials, primarily in the Bureau of Consular Affairs. (See § 96.2 of the rule, defining “Secretary.”) Second, particularly while discussing the accreditation/approval standards of Subpart F, we frequently talk in terms of actions that agencies or persons “must” take and “requirements” they must meet. Readers should keep in mind, however, that the accreditation/approval model looks for “substantial compliance” with the standards. Thus, within the substantial compliance framework for accreditation that the IAA establishes, statements that actions are required mean that agencies or persons will have to take such actions in order to be judged in full compliance with the standard in question. The accrediting entities will be responsible for developing methods of assessing and weighting compliance with individual standards, subject to the Department's approval, to determine whether accreditation, temporary accreditation, or approval can be granted and maintained.

Subpart A—General Provisions

Subpart A is organized in the same way as in the proposed rule, and includes § 96.1 (Purpose); § 96.2 (Definitions); and §96.3 (Reserved).

The Department has made a number of changes to §96.2 (Definitions), in response to public comment, which are described below. In addition, we have revised the definition of “approved home study” to clarify that a supervised provider could also complete a home study. We have changed the term “public body” to “public domestic authority” and the term “public authority” to “public foreign authority,” without making a substantive change in the definitions, to make the distinction between the two terms, which is primarily geographic, more transparent. We also added language to the definition of “supervised provider” to clarify that the definition applies regardless of the local terminology used to refer to private providers, so long as the private individual or organization is providing adoption services under the supervision and responsibility of a primary provider, and to the definition of “exempted provider” to clarify that such providers are providing services within the United States.

Section 96.2—Definitions

1. Comment:

One commenter recommends that the Department add a definition for “accreditation” to clarify that the regulations address accreditation only as it relates to Convention adoptions. The commenter requests that the Department specifically state that the regulations do not affect any voluntary accreditation process for non-Convention intercountry adoptions.

Response:

These regulations do not affect any voluntary accreditation process for non-Convention intercountry adoptions. It is not necessary to add a definition of “accreditation” to §96.2, however, because § 96.12 makes clear that agencies and persons need to be accredited or approved under these regulations only for purposes of Convention adoptions.

2. Comment:

One commenter requests that the Department establish a definition of “adoptability” for U.S. adoptees who are placed internationally.

Response:

Each U.S. State determines the criteria to use to determine if a child is eligible for adoption in that State. Because these regulations are not intended to preempt State law on eligibility for adoption, we have not added a definition of “adoptability.”

3. Comment:

One commenter requests clarification as to whether the IAA definition of “adoption” is intended to create a Federal law definition of adoption. The commenter suggests that the Department define an “adoption,” for the purposes of the regulations, as the judicial or administrative procedure that establishes a legal parent-child relationship for all purposes between a minor and an adult who is not already the minor's legal parent and that satisfies the requirements for the minor child's (i) immigration to the United States or (ii) emigration from the United States pursuant to the IAA and other relevant provisions of the INA and Federal law.

Response:

The definition of adoption in the rule is applicable only under these regulations, in the context of the Convention and the IAA. The Department does not have authority under the IAA to create a Federal definition of adoption to be used outside of the context of the Convention and the IAA. Overall, the definition of adoption, for these regulations, is designed to provide guidance to agencies and persons on what constitutes an adoption for Convention purposes so that they can determine if they must be accredited or approved to provide adoption services in a particular case. The definition is also useful in distinguishing between “post-placement” and “post-adoption.” In response to this comment, the Department is not creating a definition of adoption that will have any broader applicability but it is replacing the term “formal act” with the phrase, “the judicial or administrative act” in the definition of adoption. This change clarifies that the definition defers to State and Convention country choice of judicial or administrative procedures for adoption. The definition still requires that the legal relationship between a child and his or her former parents be terminated, but is not meant to affect informal relationships between a child and his or her former parents, such as those that develop from an open adoption, or any State law that allows a stepparent to adopt a child without terminating the parental rights of the stepparent's spouse, or any State law that grants an adopted child inheritance rights from a former parent even after a legal adoption.

4. Comment:

Many commenters request that the Department clarify the difference between “post-placement monitoring” and “post-adoption services.” Another commenter requests

that the Department explicitly state that “post-placement services” are services provided by exempted providers in connection with a Convention adoption. One commenter asks the Department to clarify whether providing assistance with U.S. immigrant visa processing is a post-adoption service or post-placement monitoring. There were conflicting comments as to whether or not “post-adoption services” include the provision of supportive services to adoptive families to promote the well-being of adoptees and families, the stability of adoptive placements, and the prevention of adoption disruption or dissolution as well as monitoring and reporting.

Response:

Post-placement monitoring is an “adoption service” under the IAA. Because of this an adoption service provider must be accredited, temporarily accredited, approved, or operate as a supervised provider to provide post-placement monitoring in a Convention adoption case in the United States. Post-adoption services, however, are not adoption services under the IAA, and an agency or person would not have to comply with the accreditation/approval requirements to perform them in a Convention adoption case. To distinguish between post-placement monitoring and post-adoption services, the Department has added new definitions of “post-placement” and “post-adoption.” “Post-placement” is defined as the period of time after a grant of legal custody or guardianship of the child to the prospective adoptive parent(s) or to a custodian for the purpose of escorting the child to the identified prospective adoptive parent(s), and before an adoption. An example of “post-placement monitoring” (an adoption service) would be a pre-adoption home visit or report monitoring the child's adjustment to the new pre-adoptive home. By contrast, “post-adoption” means after an adoption; in cases in which an adoption occurs in a Convention country and is followed by a re-adoption in the United States, it means after the adoption in the Convention country. Any of the following would be examples of a “post-adoption service,” if provided after the child's adoption: providing mental and physical health services for the adopted child; providing assistance in filling out post-adoption reports required by certain Convention countries; and sponsoring support groups for adopted children or adoptive parents. The Department understands that there is also some confusion over which post-placement services are “adoption services.” “Post-placement monitoring” is one of the enumerated “adoption services” in the IAA. Post-placement monitoring encompasses services related to evaluating the continuing fitness of the child's adoptive placement. For example, monitoring how a child is adjusting to his or her new family or visiting the prospective adoptive parent(s) to ensure that they are able to care for the particular needs of the child and to determine whether the placement is still in the child's best interests is post-placement monitoring.

If, on the other hand, the post-placement service is not related to the adoptive placement, then it is not the adoption service of “post-placement monitoring.” An agency or person is not performing a post-placement “adoption service,” for example, if it provides post-placement counseling to a family. Assisting with U.S. immigrant visa processing is not included in Section 3(3) of the IAA's definition of “adoption services,” and is not an activity that is within the scope of these regulations.

5.

Comment:

Some commenters request that the Department add “post-adoption services” to the list of adoption services, and hence to the activities subject to these regulations. One commenter states that its members believe post-placement services, whether provided before or after legalization of an adoption, should be provided by qualified personnel. The commenter suggests a revision of the Department's definition of “adoption services” to include providing required periodic reports to the child's country of origin, or any other post-adoption services required by the child's country of origin.

Response:

Section 3(3) of the IAA, which defines adoption services, does not include post-adoption services as an adoption service. (In fact, while at least one draft of H.R. 2909, the bill that became the IAA, included post-adoption services in the definition of adoption services, post-adoption services were not included in the definition in the IAA as enacted.) Services provided after an adoption is dissolved are also not “adoption services,” as defined in the IAA, because they are provided after an adoption has occurred, so they are post-adoption services.

Some of the comments on this issue reflected a concern about ensuring compliance with post-adoption reporting requirements imposed by countries of origin, particularly if parents are unwilling to cooperate, or do not maintain contact with agencies and persons. The Department encourages agencies and persons involved in Convention adoptions to comply with all applicable post-adoption reporting requirements. We note that countries of origin that require post-adoption reports may stop working with U.S. agencies and persons that cannot produce the post-adoption reports. While this is a potentially serious issue, it is not one that can be addressed through the accreditation process or these regulations.

6.

Comment:

Several commenters request more specific definitions addressing who can provide adoption services. They want to know if “adoption helpers” or “advisors” are covered. Another commenter requests that the Department's definition of “adoption services” be revised to exclude simply assisting a country of origin's public foreign authority. Another commenter requests that the Department define “adoption services” to include the services of “unlicensed facilitators”—individuals that essentially provide adoption services (like the preparation of adoption paperwork and the arrangement of child-matching services for parents in foreign countries).

Response:

Whether the activities of an adoption service provider are subject to the accreditation/approval standards in this rule turns solely on whether the private individual or entity is providing a defined “adoption service,” and not on the identity of the private individual or entity, the term used to refer to the private individual or entity, or the entity on whose behalf the services are provided. If people who call themselves “adoption helpers” or “advisors” are performing in the United States any of the services enumerated in the adoption services definition, they must be accredited, temporarily accredited, approved or supervised, or exempted once the Convention goes into force for the United States. A primary provider must also ensure that, with respect to adoption services performed in a Convention country, any private individuals or entities it is using to perform adoption services in a Convention case—regardless of identity, the term used to refer to them, or on whose behalf the services are performed—are supervised, unless they are performing a service qualifying for verification under § 96.46(c). Examples of different adoption services, and instances in which providers of such services must be accredited, temporarily accredited, approved, supervised, or exempted, have been added to the regulation to help clarify this point in § 96.15 of subpart C.

7.

Comment:

One commenter requests that the Department clearly define “suspension” and “cancellation” as they relate to adverse actions against

accredited agencies and approved persons. Specifically, the commenter asks whether an accredited agency or approved person will have to transfer its adoption cases to another entity during a period of “suspension.” The commenter requests that the Department replace the term “suspension” with “probation, with required corrective action” to clarify that the accredited agency or approved person does not have to transfer its cases while correcting noted problems.

Response:

The Department has not substituted “probation, with required corrective action” for “suspension” because suspension is the term used in the list of adverse actions contained in § 202(b)(3) of the IAA. Nor have we added definitions of suspension and cancellation to subpart A, because the consequences of suspension and cancellation are adequately explained in subpart K. Section 96.77 of subpart K provides that the suspended agency or person must consult with the accrediting entity about whether or not a particular suspension requires that an agency or person to transfer all its Convention cases. Please see response to comment 1 on §96.75 for further information.

8.

Comment:

Several commenters request that the Department elaborate on the definition of “child welfare services.” They note that providers of these services are exempt from the accreditation/approval process. One commenter requests that the Department provide more specific examples of providing child welfare services. Another commenter asks whether the definition is limited only to services provided by public child welfare agencies or whether it also includes broader services such as after-school activities, YMCA programs, or summer respite.

Response:

“Child welfare services” are defined in § 96.2 as services, “other than those defined as “adoption services,” which are designed to “promote and protect the well-being of a family or child.” Thus, when attempting to decide what constitutes a “child welfare service,” it is necessary first to determine if the service is an “adoption service.” If not, then the service could be a “child welfare service.” Some examples of child welfare services are: providing mental or physical health services for adoptive parents or adoptees; promoting adoption through general programs, but not providing adoption services in specific cases; conducting support groups for adoptive parents or adoptees; and providing temporary foster care for children who are awaiting adoption. These examples are not an exhaustive list of “child welfare services.” The definition of “child welfare services” is not limited to public child welfare agencies. Private organizations, such as the YMCA, are exempt from the accreditation/approval process if they only provide services for children or parents that are not adoption services.

9.

Comment:

One commenter seeks clarity for the definition of “exempted provider.”

Response:

“Exempted providers” and “exempted activities” are explained in more detail in the subpart C of this final rule. We have changed the definition of “exempted provider” to clarify that a social work professional or an organization may perform a home study or a child background study (or both) in the United States in a Convention adoption, as an exempted provider, as long as the social work professional or organization is not currently providing and has not previously provided any other adoption service in the same case. The definition is consistent with § 96.13 of subpart C. See responses to comments 1 and 2 in § 96.13.

10.

Comment:

Several commenters recommend that the regulations define what constitutes a complaint, so that the number of frivolous complaints will be limited. Several commenters also recommend that the word “complaint” be changed to the word “grievance,” in order to signify a more formal concern, and offer definitions of grievance. Several commenters also recommend that the regulations require complaints to be filed in writing. One commenter further requests that the regulations be amended to reflect that anonymous complaints may not be filed.

Response:

We have not added a definition of complaint, but have made other changes to the final rule to respond to the concerns expressed, in the definition of “Complaint Registry,” in § 96.41, and in subpart J. Section 96.41 now makes clear that complaints must be signed and dated to be lodged with an agency or person, and must refer to activities or services that the complainant believes raise an issue of compliance with the Convention, the IAA, or the regulations implementing the IAA. Subpart J similarly now makes clear that complaints that may be filed through the Complaint Registry are written documents submitted by a complainant that concern an accredited agency or approved persons (including their use of supervised providers), and that raise an issue of compliance with the Convention, the IAA, or the regulations implementing the IAA. An agency or person's response to other kinds of “complaints” will not be relevant to the accreditation/approval process.

11.

Comment:

Some commenters question how the Complaint Registry will be established.

Response:

The Department has modified the definition of “Complaint Registry” (§ 96.2) to make it clear that it will be a system created by the Department intended to receive, distribute, and monitor complaints relevant to the accreditation or approval status of agencies and persons. The functions of the Complaint Registry are addressed in § 96.70 of subpart J.

12.

Comment:

Commenters suggest that the Department add a definition of the term “displacement” to § 96.2, defining displacement as the placement of an adoptee in an out-of-home care environment without terminating parental rights, for example, so that the child may receive, for example, mental health in-patient treatment.

Response:

Because what the commenters describe as “displacement” would occur post-adoption, and thus would fall outside the scope of these regulations, we have not added a definition of displacement to the rule.

13.

Comment:

Several commenters request clarification or revision of the definitions of “dissolution” and “disruption” in § 96.2. One commenter suggests that the Department and Congress (in the IAA) reversed the meaning of these terms. Another commenter requests that the definitions of “disruption” and “dissolution” be revised to state explicitly that a disruption or dissolution must be included in the overall statistics of adoption failures only if it occurs while an adoptee is physically residing with a family in their home at the time of the disruption or dissolution. Similarly, another commenter is concerned that the Department's definition of “disruption” is too broad and could force agencies and persons to generate reports in cases in which the disruption had benign causes. One commenter suggests that the definition of “disruption” should be revised to address more specifically the “disruptions that occur after a child has left his or her country of origin.” A commenter suggests the following definitions: “ ‘Disruption’ means adoptive placement that does not finalize in an adoption. ‘Dissolution’ means dissolving the adoptive placement through termination of parental rights.”

Response:

In defining “disruption” to refer to an interrupted adoptive placement, the Department followed § 104(b)(3) of the IAA, which used “disruption” in the same manner. We

also believe that the majority of people involved with intercountry adoptions use the terms “disruption” and “dissolution” as we have defined them. Therefore, the Department is not changing the definitions of “disruption” and “dissolution” to, in effect, reverse them.

The Department has, however, revised the definition of “disruption” and has modified related definitions and reporting requirements, to clarify when a “disruption” will need to be reported. “Disruption” is now defined to mean the interruption of a placement for adoption during the “post-placement” period. “Post-placement” now is defined so that a “disruption” will need to be reported only when it takes place after legal custody or guardianship of the child has been transferred to the prospective adoptive parent(s) or a custodian for transport to the prospective adoptive parent(s), but before the adoption is completed. Thus, an agency or person would not need to report a “disruption” if a prospective adoptive family decided not to pursue an adoption during an informal placement pending transfer of legal custody of the child. On the other hand, a “disruption” would need to be reported if it happened after legal custody or guardianship of the child was transferred, even if the child had not yet left his or her country of origin.

We have also modified the definition of “dissolution” to reflect the addition to § 96.2 of a definition of “post-adoption,” and to respond to the suggestion that we make specific reference to termination of parental rights. The final rule defines “dissolution” to be the termination of the adoptive parent(s)' parental rights after an adoption.

14.

Comment:

One commenter requests that the Department add to § 96.2 a definition of a foreign Convention “accredited body.” Another commenter similarly suggests adding a definition for “foreign partner providers”—entities accredited or approved by a Convention country and providing one or more adoption services in a Convention case. The commenter also recommends defining “foreign governmental partner providers,” as public authorities of a Convention country (excluding courts) providing one or more adoption services in a Convention case.

Response:

The Department believes that it is unnecessary to add a definition for foreign accredited bodies or “foreign partner providers.” Subpart C explains when foreign providers accredited by a Convention country must operate under the supervision and responsibility of a primary provider. Please see response to comment 1 for § 96.14. We also believe that the definitions of “public foreign authority” and “competent authority” are adequate to refer to public authorities of Convention countries.

15.

Comment:

A commenter requests that the Department make clear, in the definition of “legal services,” that it is not regulating the actions of foreign attorneys. The commenter also cautions the Department that it cannot regulate attorneys licensed in the United States because they are regulated by the States. Thus, the commenter believes that the Department is incorrect when it asserts (in the preamble to the proposed rule) that a lawyer who secures necessary consents to the termination of parental rights and to adoptions in Convention cases must be approved or must secure the consents as part of, or under the supervision and responsibility of, an accredited agency, temporarily accredited agency, or an approved person.

Response:

The IAA and these regulations are not intended to preempt State laws regarding licensing of attorneys; on the other hand, under the IAA, persons, including lawyers, who provide adoption services in the United States, as opposed to legal services, must comply with the IAA. Section 201(b)(3) of the IAA states that the provision of legal services by a person “who is not providing any adoption service in the case” is exempt from the accreditation/approval requirements. The exemption does not apply, however, if the attorney is providing (non-exempt) adoption services in the case. An adoption service, as defined in the IAA, provided by a U.S. attorney, or through a U.S. accredited/approved provider's use of the services of a foreign attorney, in connection with a Convention case would need to provided in compliance with any applicable requirements of the IAA and these regulations, regardless of any professional standards or licensing or other laws that would also govern the actions of the attorney. We note, however, that the rule would allow a primary provider to treat a foreign attorney that provided only the adoption service of obtaining consents in a Convention country as either a supervised provider, consistent with §§ 96.45(a) and (b), or as performing a service qualifying for verification under § 96.46(c)).

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

Subpart B is organized in the same way as in the proposed rule, and includes § 96.4 (Designation of accrediting entities by the Secretary); § 96.5 (Requirement that accrediting entity be a nonprofit 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); and § 96.11 (Reserved).

We have made a number of changes to this subpart in response to public comment, including changes to §§ 96.6, 96.7, and 96.10, which are discussed below. We also deleted from § 96.4(a) material on soliciting accrediting entities that is no longer relevant and made additional clarifying corrections to § 96.4(a), to make plain that accrediting entities will be designated by the Department in an agreement that will also govern operations of the accrediting entity. Finally, we made conforming changes to § 96.7(b), to ensure consistency with changes made to the definition of Complaint Registry in § 96.2 and to subpart J.

Section 96.4—Designation of Accrediting Entities by the Secretary

1.

Comment:

Several commenters are concerned that having too few accrediting entities will create a monopoly, with accrediting entities charging exorbitant accrediting fees and possibly putting smaller agencies out of business. Other commenters encourage the Department to limit the number of accrediting entities to avoid accrediting entities competing for the business of the very people they are supposed to be regulating.

Response:

Section 202(a)(1) of the IAA states that the “Secretary shall enter into agreements with

one

or

more

qualified entities” that will perform the duties of an accrediting entity (emphasis added). The IAA permits public entities to act as accrediting entities in part to increase the number of possible accrediting entities. (See IAA section 202(a)(2)(B)). The Department has used extensive outreach efforts to solicit a broad pool of interested parties to apply to become accrediting entities. We will not know the actual, final number of accrediting entities until we are able to enter into agreements with qualified applicants, but it is clear the number will be small, at least initially. There is no reason at this time to limit the number by regulation. The quality and fairness of the accrediting entities will not be addressed by the number of such entities but by the Department designating accrediting entities that are

qualified under the IAA and that meet the criteria established in these regulations and through the Department's ongoing oversight, including its oversight of accreditation fees, which under the IAA and these regulations may not exceed the costs of accreditation.

2.

Comment:

Some commenters are concerned that the Department did not provide public entities enough time or information to allow them to submit Statements of Interest to become accrediting entities. These commenters suggest that the Department should individually contact all public entities that do adoption licensing and invite them to apply. Similarly, many commenters want the regulations to mandate that every State licensing authority act as an accrediting entity for Convention purposes.

Response:

The IAA does not authorize the Department to require all qualified public entities to become accrediting entities, but the Department did contact each relevant State authority and encourage it to apply to become an accrediting entity. The Department expects to provide additional open application periods for public entities or private nonprofit entities to apply to become accrediting entities at a future time.

3.

Comment:

Commenters believe that the Department should not delegate the function of accrediting agencies and approving persons to accrediting entities. These commenters suggest that the Department should act as the single accrediting entity for all agencies and persons, in order to bring uniformity to the application of accrediting standards and promote an emphasis on the best interests of the children.

Response:

The IAA requires that the Department enter into agreements with qualified public entities or qualified nonprofit organizations to be accrediting entities. The Department cannot act directly as an accrediting entity.

4.

Comment:

Several commenters recommend that the Department, rather than an accrediting entity, investigate allegations of improper conduct involving agencies and persons overseas.

Response:

Under the IAA, accrediting entities are given primary responsibility for overseeing the conduct of the agencies and persons they accredit or approve. As explained in the response to comment 1 on § 96.6, below, the accrediting entity will be responsible for monitoring agencies it accredits or temporarily accredits and persons it approves, including by monitoring their use of all supervised providers, including foreign supervised providers. The Department is required to take the direct action of suspension or cancellation against an accredited agency or approved person only if the accrediting entity has failed or refused, after consultation with the Department, to take appropriate enforcement action itself.

5.

Comment:

Some commenters request that the Department prohibit current State licensing authorities from becoming accrediting entities. One commenter suggests that these public domestic authorities have not been responsive in the past to the concerns of adopting parents. A commenter also asserts that the IAA was enacted in part because States were unable to regulate adoption effectively, and apparently is concerned that state licensing authorities that are accrediting entities will assert sovereign immunity, or in any event will not accord “consumers” sufficient “due process.” This commenter seems to contemplate suits against accrediting entities by “consumers” rather than the kind of judicial review of adverse action specifically addressed by the IAA.

Response:

As stated above, the IAA permits qualified public entities to become accrediting entities and the Department intends to consider qualified public entities as potential accrediting entities. The Department believes the commenters' concerns about the likely responsiveness of public entities will be addressed by the Department designating public entities as accrediting entities only if they demonstrate that they are qualified under the IAA and can meet the criteria established in these regulations. The Department will also maintain ongoing oversight of all accrediting entities. In particular, the Department's agreements with the accrediting entities, which will be published in the

Federal Register

, will address accountability of the accrediting entities to the Secretary. Also, in this regard, the public will be able to complain about the performance of any accrediting entity to the Department, and the Department will be able to suspend or cancel the designation of any accrediting entity, as set forth in § 96.10 of the rule. As well, subpart J ensures that the Department will be able to oversee the performance of all accrediting entities in resolving complaints against adoption service providers. As for the concern about sovereign immunity and the “due process” rights of “consumers,” nothing in these regulations is intended to create rights vis-à-vis any accrediting entity, whether public or private nonprofit. Consistent with this, we have made clear in § 96.12, as discussed in the response to comment 7 on this section, below, that the conferral of accreditation or approval does not make an accrediting entity responsible for any acts of any entity providing services in connection with a Convention adoption and does not guarantee that in any specific case an accredited agency or approved person is providing adoption services consistently with the Convention, the IAA, the regulations implementing the IAA, or any other applicable law.

6.

Comment:

Commenters recommend that the Department add a mechanism for the public to challenge a decision by the Department to designate or not designate a public domestic authority or nonprofit organization as an accrediting entity.

Response:

The Department's selection of accrediting entities is committed to the Department's discretion. Moreover, section 504 of the IAA provides that the Convention and the IAA shall not be construed to create a private right of action to seek administrative or judicial relief, except to the extent expressly provided in the IAA. Once the Department has signed an agreement with an accrediting entity, however, anyone will be able to submit a complaint regarding an accrediting entity directly to the Department. Section 96.10(a) of these regulations requires that such complaints be considered in determining whether an accrediting entity's designation should be suspended or canceled.

7.

Comment:

Potential accrediting entities suggest that the Department add a provision to § 96.4 to limit the liability of accrediting entities. Without such a provision, potential accrediting entities have suggested that it will be difficult to hire or retain evaluators/peer reviewers and that the fees for accreditation will be significantly higher to cover the risk of third-party litigation.

Response:

The Department never intended that accrediting entities be responsible for third-party tort claims, and does not believe that the IAA suggests that they should be. While we have not revised § 96.4, we have added language to § 96.12 to underscore that conferral and maintenance of accreditation, temporary accreditation, or approval is not tantamount to a guarantee that adoption services in specific cases are performed consistently with the Convention, the IAA, the regulations implementing the IAA, or any other applicable law but rather establishes only that the accrediting entity has concluded that the agency or person provides services in substantial compliance with the

applicable standards set forth in this part.

8.

Comment:

Two commenters suggest that an agency, person, or other interested party should have the opportunity to file a complaint against an accrediting entity or to challenge the accrediting entity's interpretation of a regulation or law.

Response:

The Department will accept and collect complaints against accrediting entities pursuant to § 96.10(a). (The Department intends to post on its website instructions for how to submit a complaint against an accrediting entity.) As part of its ongoing oversight responsibility, the Department will investigate and consider any complaints against an accrediting entity when determining whether an accrediting entity's designation should be suspended or cancelled. Please note that the accrediting entities are responsible for investigating complaints against agencies and persons.

Section 202(c)(3) of the IAA allows an agency or person that has been the subject of an adverse action by any accrediting entity to seek Federal court review to have the adverse action set aside. For a description of the accrediting entity's role with regard to terminating adverse actions, see the responses to comment 1 for § 96.78 and comment 1 for § 96.79.

Section 96.5—Requirement that Accrediting Entity be a Nonprofit or Public Entity

1.

Comment:

Some commenters believe that the current language of § 96.5 implies that only existing organizations can become accrediting entities (which will only exacerbate the potential for a monopoly of accrediting entities). These commenters note that § 96.5 states that an accrediting entity must “qualify” as either a nonprofit organization or a public entity. They have asked for clarification that, in the future, accreditation will be open to new organizations as well. They also propose the following language: “An accrediting entity must qualify as * * * (a) an organization or proposed organization described in section 501(c)(3) of the Internal Revenue Code of 1986.”

Response:

The Department does not believe there is a need for new language to cover “proposed” accrediting entities. Although the first application period for those interested in becoming accrediting entities closed on April 30, 2004, there will be opportunities in the future for another round of applications. At that time, any public entities and nonprofits that express interest in becoming accrediting entities will have the opportunity to demonstrate that they meet the IAA criteria and that they have the capacity to perform the duties of an accrediting entity.

2.

Comment:

One commenter suggests that § 96.5(a) should be removed because there is no advantage to restricting for-profit entities from being accrediting entities.

Response:

The Department is retaining § 96.5(a); its requirements come directly from § 202(a) of the IAA, under which for-profit private entities are not qualified to be accrediting entities.

Section 96.6—Performance Criteria for Designation as an Accrediting Entity

1.

Comment:

One commenter recommends that the Department modify the rule to require an accrediting entity to demonstrate that it has the ability to monitor the performance of accredited agencies and approved persons and their supervised providers.

Response:

Section § 96.6(c) already required the accrediting entity to demonstrate to the Department that it can monitor the performance of accredited agencies, temporarily accredited agencies, and approved persons. In addition, the Department has modified §§ 96.6(c) and 96.7(a)(4) to make it explicit that accrediting entities must demonstrate that they are capable of monitoring a primary provider's use of supervised providers. We are aware that public entities and nonprofits designated as accrediting entities will likely have limited capacity to investigate overseas conduct directly, but we still expect them to use all reasonable means available to them of evaluating an accredited agency's or approved person's use of a supervised provider overseas. Such means would include, but not be limited to, document review and interviews to check that the agency or person is complying with the requirements of § 96.45 for using supervised providers in the United States and of § 96.46 for using supervised providers in Convention countries.

2.

Comment:

A commenter recommends that the Department revise § 96.6(f) insofar as it requires an accrediting entity that is not a public entity to demonstrate that it operates independently of any organization that includes agencies or persons that provide adoption services, noting that membership associations have played a valuable role in the development and support of accrediting entities. The commenter suggests that this section instead permit an accrediting entity to demonstrate that membership organizations will not have inappropriate influence on an accrediting entity, and that the accrediting entity has conflict-of-interest policies to address its relationships with membership organizations.

Response:

We have not made the suggested change to § 96.6(f), but we have added a new § 96.6(i) providing that the accrediting entity must prohibit conflicts of interest with any agency, person, or membership organization that includes agencies or persons. With this addition it should be clear that § 96.6(f) does not bar accrediting entities that are not public entities from being associated with membership organizations, which we have been told can play a valuable role in helping to identify and maintain best practices within the field of adoption. At the same time, it is critical that accrediting entities be neutral and objective in evaluating agencies and persons and avoid the appearance of partiality. Potential problems may be avoided if accrediting entities operate independently of membership organizations with which they are associated and that include agencies or persons that provide adoption services. When the Department addresses conflict-of-interest issues in the agreements with the accrediting entities under § 96.6(h), it may include specific safeguards for accrediting entities' involvement with such membership organizations.

3.

Comment:

Some commenters ask that the Department expand the conflict-of-interest provisions of § 96.6(h) and set conflict-of-interest prohibitions through rulemaking. Another commenter requests that the Department specifically forbid any board member or employee who works with or for an agency or person or that is related to an agency or person from serving as a board member or employee of an accrediting entity. Another commenter suggests that the conflict-of-interest provisions should prohibit employees of accrediting entities or volunteer evaluators from becoming employed by an adoption service provider for at least one year after participating in any accreditation service for that provider.

Response:

In response to these comments, the Department has modified the final rule to include two new conflict-of-interest provisions. First, we have added § 96.6(i) to require that an accrediting entity demonstrate that it prohibits conflicts of interest with agencies or persons or with any membership organization that includes agencies or persons. Second, we added § 96.6(j) to require accrediting entities to demonstrate that they prohibit individuals directly involved with the

site evaluation of a particular agency or person from becoming employees or supervised providers of that same agency or person for at least one year. Consistent with section 202(a)(1) of the IAA, the Department may establish other appropriate conflict-of-interest rules in the agreements with accrediting entities.

Section 96.7—Authorities and Responsibilities of an Accrediting Agency

1.

Comment:

One commenter suggests that the Department should require that accrediting entities investigate and respond to complaints about the supervised providers of accredited agencies and approved persons.

Response:

As described in subpart J of these rules, the Complaint Registry will refer complaints about accredited agencies and approved persons to an accrediting entity. If a complaint involves conduct of a supervised provider, the accrediting entity will need to check whether the accredited agency or approved person that is acting as the primary provider has provided adequate supervision of its supervised providers. If an accredited agency or approved person does not provide adequate supervision of its supervised providers, it will be out of compliance with the standards in §§ 96.45 and 96.46 related to use of supervised providers. The accrediting entity may, if the complaint is supported, take adverse action against an accredited agency or approved person for reasons related to its use of a supervised provider. Section 96.71 requires accrediting entities to establish written procedures, including deadlines, for recording, investigating, and acting upon such complaints.

2.

Comment:

A commenter recommends that the Department add a statement to § 96.7(a)(7) to clarify that accrediting entities are permitted to report information relating to suspected child abuse to responsible State authorities.

Response:

The Department does not believe it is necessary to add such language. Nothing in § 96.7(a) prevents an accrediting entity from reporting suspected child abuse to the appropriate State authorities, and this section does not change State laws regarding mandatory reporting of suspected child abuse. Furthermore, § 96.72(b)(3) requires an accrediting entity, after consultation with the Department, to refer to law enforcement authorities any substantiated complaints that involve conduct that is in violation of Federal, State, or local law.

3.

Comment:

Two commenters object to § 96.7(a)(8), on transfer of Convention cases, and ask that it be removed from the regulations. One of the commenters believes that this requirement puts accrediting entities in the awkward position of having to choose, or make recommendations regarding, which agencies and persons should be assigned the Convention cases that need to be transferred. The other commenter believes that it is essential for an accrediting entity to transfer Convention cases pursuant to § 96.7(a)(8), but recommends that the Department develop specific criteria for the selection of organizations to accept the transfer of these cases.

Response:

We have modified § 96.7 (and provisions in subparts K, L, and N) so that accrediting entities are responsible for assisting the Department in taking appropriate action to help the agency or person transfer its Convention cases and adoption records. We now require in §§ 96.33(e) and 96.42(d) that agencies and persons have a plan to transfer their Convention cases and adoption records in the event that they become unable to continue performing Convention adoptions. If an agency's or person's plan fails, § 96.77(c) now requires accrediting entities to advise the Department, which, with the assistance of the accrediting entity, will coordinate efforts to identify other accredited agencies or approved persons to assume responsibility for the Convention cases and to transfer the records to other accredited agencies or approved persons, or to public domestic authorities, as appropriate. Corresponding comments were made to §§ 96.87 and 96.109.

Section 96.8—Fees Charged by Accrediting Entities

1.

Comment:

One commenter requests, for reasons of fairness, that the Department add a provision to the rules that mandates that fees for accrediting services will be uniform across geographic and jurisdictional boundaries. On the other hand, another commenter supports the Department's decision to permit fees to vary based on the relative size, geographic location, and volume of Convention cases of an accredited agency or approved person. Two other commenters express concern about the cost of accreditation.

Response:

Section 202(d) of the IAA requires that, in approving the fees set by an accrediting entity, the Department “consider the relative size of, the geographic location of, and the number of Convention adoption cases managed by the agencies or persons subject to accreditation or approval by the accrediting entity.” Therefore, the Department does not have the discretion to ignore these factors when approving fees. In addition, while fees may not exceed the costs of accreditation, it is possible that some public entities that are designated as accrediting entities may choose to subsidize the cost of accreditation in their States, creating additional possible variance in fees. The Department will review and approve accrediting entity fee schedules for compliance with the IAA's requirements. Approved fee schedules will be publicly available, which should allow comparison of fees.

2.

Comment:

Several commenters suggest that it is difficult to comment on the fee provisions of the regulations because the Department did not provide a fee schedule or an estimate of the accreditation fees.

Response:

This regulation does not address the actual fees of the accrediting entities, which are not subject to rulemaking, but only the factors the Department will consider in deciding whether to approve fee schedules that the accrediting entities propose. The regulation closely tracks the statute, leaving the Department flexibility to approve or disapprove proposed fees in light of the IAA's requirements. Given the wide range of possible fee structures and the start-up nature of the accreditation process, it is not practicable to further regulate on this issue at this time. Nor can the Department predict what the actual approved fees will be after the proposed fees are reviewed in light of the statutory and regulatory criteria.

3.

Comment:

A commenter suggests that § 96.8(d), which states “[n]othing in this section shall be construed to provide a private right of action to challenge any fee charged by an accrediting entity” was the equivalent of “taxation without representation.”

Response:

We have retained § 96.8(d) because it is consistent with section 504 of the IAA, which prohibits inferring private rights of action under the IAA and the Convention, except as provided by the IAA.

4.

Comment:

A commenter is concerned that, while the regulations require accrediting entities to investigate complaints about accredited agencies and approved persons, they provide for the allowable fees for such investigatory services to be predetermined and published in the fee schedule pursuant to § 96.8, the implication being that the fees may prove inadequate to support the necessary investigation. The commenter suggests that the Department remove the responsibility for investigating accredited agency and approved person

wrongdoing from accrediting entities and retain that responsibility for itself.

Response:

The IAA requires that accrediting entities investigate and review complaints against the agencies and persons that they accredit or approve. Under section 204(b) of the IAA, the Department is only required to take adverse action against an agency or person if it finds that the accrediting entity has failed or refused, after consultation with the Department, to take appropriate enforcement action. Accrediting entities are supposed to incorporate anticipated costs, including the costs of complaint review and investigations and routine oversight and enforcement, into their proposed fees. When the Department approves fees, we plan to ensure that the accrediting entity has budgeted for such expenses. In addition, § 96.8(b)(2) provides that “separate fees based on actual costs incurred may be charged for the travel and maintenance of evaluators.” If an accrediting entity finds that its actual expenses are far greater than it had anticipated in creating its fee schedules, and its fees are not sufficient to cover its operating expenses, it may apply to the Department to change its fee schedule.

5.

Comment:

A commenter recommends that the Department allow accrediting entities to revise their fee schedules from time to time with the approval of the Department.

Response:

Pursuant to § 96.8(a), accrediting entities may propose changes to an approved fee schedule, subject to approval by the Department. Upon approval, the modified fee schedule will be made available to the public.

6.

Comment:

A commenter thinks that the Complaint Registry should be funded through a portion of accrediting fees or by the Department. The commenter also believes that applicants for accreditation should pay a single, non-refundable fee for pre- and post-accreditation/approval work. The commenter requests, however, that the Department clarify that public bodies, such as State licensing authorities, are permitted to charge similar accrediting fees.

Response:

Under this final rule, the Department retains the discretion to determine how to fund the Complaint Registry, including through fees collected by the accrediting entities and/or by the Department. Section 96.8 explains the costs which may be included in any fee for accreditation and approval, including costs for complaint review and investigation and routine oversight and enforcement, and requires any such fee to be non-refundable. The fee provisions apply to any accrediting entity, including a public entity that has authority under State law to collect accrediting fees.

Section 96.9—Agreement Between the Secretary and the Accrediting Entity

1.

Comment:

A commenter states that there must be a mechanism in the regulations to ensure consistent interpretations of the Convention, the IAA, and the Department's regulations by accrediting entities across geographic regions. The commenter requests that the Department outline uniform standards in the regulations.

Response:

These regulations do create uniform accreditation standards and procedures for all accrediting entities. The criteria to be used by all accrediting entities are listed in subpart F (and with regard to temporarily accredited agencies in subpart N). The procedures applicable to the accreditation process are provided in subparts D through N, excluding F. The Department, in its oversight and monitoring role, will ensure that all accrediting entities adhere to these uniform standards and procedures. Please also see the response to comment 1 on § 96.66.

2.

Comment:

A commenter states that the Department should submit all matters listed in § 96.9 to a notice and comment period instead of setting them by agreement. The commenter states that these subjects are or may be crucial, and require an opportunity for public comment. The commenter further believes that it is unlikely that the regulations will be upheld in court unless the Department submits these matters to notice and comment.

Response:

Section 202(a) of the IAA requires the Department to enter into agreements with one or more qualified accrediting entities under which such entities will perform certain duties in accordance with the Convention, the IAA, and these regulations. While the IAA requires that the standards to be used by the accrediting entities to accredit or approve agencies or persons to provide adoption services in Convention cases be set by regulation, it does not require that the Department's agreements designating accrediting entities be subject to public comment—such a requirement would be unworkable. Nonetheless, the Department will publish the final agreements in the

Federal Register

.

Section 96.10—Suspension or Cancellation of the Designation of an Accrediting Entity by the Secretary

1.

Comment:

A commenter asks how the Department will determine whether accrediting entities are in substantial compliance with the regulations. The commenter also requests clarification on how accrediting entities will be given notice of any complaints or concerns that may arise so that they have an opportunity to respond to the concerns and to correct any deficiencies.

Response:

The Department has added § 96.10(b), which requires the Department to notify an accrediting entity in writing of any deficiencies in the accrediting entity's performance that could lead to the cancellation or suspension of its designation as an accrediting entity. The accrediting entity will be given an opportunity to demonstrate that suspension or cancellation is unwarranted, in accordance with mutually agreed upon procedures for handling complaints against the accrediting entity established in the agreement between the Department and the accrediting entity described in § 96.9. Section 96.10(c) now lists the factors that the Department will consider to determine whether an accrediting entity is substantially in compliance with these regulations, the IAA, and the Convention.

2.

Comment:

A commenter asks whether accrediting entities will be able to appeal any adverse decision by the Department regarding cancellation or suspension without having to go to court.

Response:

Under section 204(d) of the IAA, an accrediting entity that is the subject of 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 by the Department. The IAA does not provide for administrative review of cancellation or suspension of an accrediting entity by the Department. Section 96.10(b) of the rule now provides, however, that prior to the action being taken, an accrediting entity will be given an opportunity to demonstrate to the Department that suspension or cancellation would be unwarranted.

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

Subpart C is organized the same way as in the proposed rule, except that the Department has added a new § 96.15 (Examples) and consequently renumbered § 96.15 (Public domestic authorities) and § 96.16 (Effective date of accreditation and approval requirements) as §§ 96.16 and 96.17 respectively. Subpart C also contains § 96.12 (Authorized adoption service providers); § 96.13 (Circumstances in

which accreditation, approval, or supervision is not required); and § 96.14 (Providing adoption services using other providers).

The Department made a number of changes to this subpart in response to public comments, including changes to §§ 96.12, 96.13, 96.14 and 96.15. As discussed above in addressing § 96.4 comment 7, the Department has added a new § 96.12(c) to underscore that conferral and maintenance of accreditation, temporary accreditation, or approval is not tantamount to a guarantee that adoption services in specific cases are performed consistently with the Convention, the IAA, the regulations implementing the IAA, or any other applicable laws, but rather establishes only that the accrediting entity has concluded that the agency or person conducts adoption services in substantial compliance with the applicable standards set forth in this part. Section 96.13 has also been revised to clarify that, like § 96.12, it addresses services being provided in the United States in connection with a Convention adoption.

As discussed in section III, subsection A of the preamble, above, § 96.14 of the final rule differs from the proposed rule in its treatment of the responsibilities of a primary provider with respect to its use of other providers of adoption services in the United States and in Convention countries. The Department has revised § 96.14(b) and § 96.14(d) to require that, except as otherwise provided, in providing adoption services in the United States for a Convention case, a primary provider must treat other accredited agencies, temporarily accredited agencies, and approved persons as supervised providers under its responsibility and supervision. The response to comment 1 on § 96.14, below, discusses similar changes to § 96.14(c), the result of which is generally to require a primary provider to treat all non-governmental foreign providers as supervised providers, consistent with the standards in §§ 96.46(a) and (b), regardless of whether accredited by a Convention country, with a limited exception. The exception is provided for in § 96.14(c)(3), which allows a primary provider to use any foreign provider in a Convention country to obtain consents or perform a child background study in an incoming case, or to perform a home study in an outgoing case, so long as the primary provider verifies the provision of the service, in accordance with the standards set out in § 96.46(c).

Section 96.12—Authorized Adoption Service Providers

1.

Comment:

A commenter asks what will happen to intercountry adoption cases already in progress once the Convention enters into force.

Response:

We have modified § 96.12(a) to make explicit reference to section 505(b) of the IAA and to clarify that cases in progress are not within the scope of this rule. Section 505 of the IAA establishes how entry into force of the Convention for the United States will affect cases in progress (so-called “pipeline cases”). In general, adoption cases that are initiated, either in the United States or in a Convention country, before the entry into force of the Convention for the United States will not be treated as Convention cases subject to the IAA. If any further transition rules prove to be necessary, the Department will consider undertaking an additional rulemaking procedure.

2.

Comment:

Commenters ask if an agency or person will need to be accredited/approved if they handle adoptions from a country whose ratification or accession to the Convention has not been recognized by the United States. A commenter requests that the Department clarify when an agency or person will be required to be accredited or approved if they are handling intercountry adoption cases involving a country that is in the process of ratifying the Convention.

Response:

Once the Convention has entered into force for the United States, an agency or person operating in the United States needs to be accredited, temporarily accredited, approved, or supervised or exempted only if it is performing adoption services in a Convention adoption. An adoption will not be considered a Convention adoption unless the Convention has entered into force between the United States and the other country involved. The Convention will not be in force between the United States and the other country if the other country has not yet ratified, approved, or acceded to the Convention, or if the United States does not recognize another country's accession to the Convention, as permitted by Article 44 of the Convention in certain circumstances.

With respect to the question of when agencies and persons handling intercountry adoptions will need to be accredited or approved to handle adoptions from countries whose subsequent ratification, approval, or accession the United States recognizes, we expect that this question will be largely governed by the other country's implementing proclamation. We note, however, that under Articles 14 and 41 of the Convention, we would expect the Convention to apply only to cases that arise after the Convention enters into force between the United States and the new Convention country, not to cases already in progress.

For a full list of countries that have already ratified or acceded to the Convention, please refer to the Web site of the Hague Conference on Private International Law at

http://www.hcch.net

. From the home page, click “Welcome,” click “Conventions” from the left hand menu, click Convention No. 33 in the list provided, and then click “Status table” from the right hand menu. (The direct Web address is

http://hcch.e-vision.nl/index_en.php?act=conventions.status&cid=69

) If an entry into force or “EIF” date appears in connection with a country, and the United States has not objected to the accession (which would be shown by clicking on “A**” in the Type column), then it is a Convention country. The Web site also lists the countries, like the United States, that have signed the treaty but for whom the treaty has not yet entered into force.

3.

Comment:

A commenter is concerned that mandatory accreditation will create a burden for agencies and persons. The commenter requests that subpart C permit voluntary accreditation. The commenter also recommends that the Department encourage agencies working in non-Convention countries to seek accreditation voluntarily.

Response:

Consistent with the Convention, section 201 of the IAA creates a mandatory accreditation and approval system for Convention adoptions. On the other hand, the IAA does not give the Department authority to require accreditation or approval for non-Convention cases. Thus no changes are warranted in light of these comments.

Section 96.13—Circumstances in Which Accreditation, Approval, or Supervision Is Not Required

1.

Comment:

Several commenters believe that an exempted provider should be a social work professional or organization that is performing a home study but is not currently providing any other adoption service. They believe this would allow the exempt organization to become a supervised provider later, once a client selects a placing agency that will require post-placement services from the home study provider.

Response:

The Department has changed the definition of exempted

provider, as noted in the response to comment 9 on § 96.2. The changes to the definition are meant to clarify that the event that triggers the accreditation/approval requirement is the provision of an adoption service other than a home study or child background study. Until an agency or person begins to provide such a non-exempt adoption service in addition to a home study report (or child background study), it is not required to be accredited or approved. (Note that the Department has modified the language of § 96.13(a) to remove a repetitive restatement of the definition of exempted provider found in § 96.2; this modification does not change the fact that a home study preparer or child background study preparer who is not currently and has not previously provided any other adoption service in the case is exempt from accreditation/approval.) If the exempted adoption service provider is simultaneously or subsequently asked to perform an additional adoption service in the case, however, the adoption service provider at that time would be required to become accredited, approved, or supervised before providing the additional adoption service in the United States. The examples numbered 3, 5, and 6 in § 96.15 illustrate the circumstances in which a home study provider is exempt and circumstances in which the provider would need to become accredited or approved or supervised. Example 4 in § 96.15 illustrates circumstances in which a child background study provider would be exempt.

2.

Comment:

One commenter suggests that exempted providers should be allowed to provide both home study services and post-placement services, because no agency can easily survive performing only home studies. Another commenter believes it is impractical to exempt only home study services and not post-placement services.

Response:

The IAA specifically includes post-placement monitoring as an adoption service that requires an agency or person to be accredited, temporarily accredited, approved, or supervised.

Like post-adoption services and child welfare services, post-placement services other than post-placement monitoring are not adoption services, as discussed in the response to comment 4 on § 96.2. The change to the definition of exempted provider should clarify that providers of home studies and/or child background studies in the United States who have not performed any other adoption service in connection with a case are exempted providers until they provide a subsequent adoption service, such as post-placement monitoring. Thus a provider may offer any combination of “exempt services” (child background studies and home studies), child welfare services (such as post-adoption services), and other non-adoption services (such as legal services) in a case without being required to be accredited, temporarily accredited, approved, or supervised. This is further discussed in the response to comment 6, below, explaining changes to § 96.13(b) and (c). Please also see example 8 in § 96.15, regarding post-placement monitoring, for a concrete illustration.

3.

Comment:

Several commenters recommend that the home study or child background study prepared by an exempted provider be submitted to an accredited agency or temporarily accredited agency for review and re-approval. The commenters assert that clarifying that the report will be re-approved instead of approved denotes that the study was approved first by the home study agency as required by State and Federal regulations, and then was submitted to the accredited or temporarily accredited agency for re-approval.

Response:

The Department is not making this change because we believe the rule, as written, addresses the commenter's concern. The requirement in § 96.13(a) of these regulations that a study prepared by an exempted provider must be “approved” refers to the new approval requirement mandated by section 201(b)(1) of the IAA. In order to get this section 201(b)(1) approval by an accredited agency or temporarily accredited agency, § 96.47(c) requires a determination that the home study was performed in accordance with 8 CFR 204.3(e) and applicable State law. Therefore, under these regulations, home studies must comply with any applicable State approval requirements, 8 CFR 204.3(e), and the IAA requirement that the home study be approved by an accredited or temporarily accredited agency.

4.

Comment:

Several commenters believe that the regulations should not exempt home study or child background study providers from the accreditation/approval process. One commenter requests that, at a minimum, home study and child background study providers be supervised providers. Some commenters support the exemption of home study and child background study providers from accreditation/approval.

Response:

Section 201(b)(1) of the IAA clearly exempts the providers of home studies and child background studies in the United States from accreditation/approval requirements if such providers are not providing any other adoption service in the case.

There are other protections covering the completion of home studies and child background studies by exempted providers. The preparer of the home study or child background study must comply with other applicable Federal and State laws and regulations concerning the preparation of a home study or child background study. As an added measure of guidance and protection, the reports must be approved by an accredited agency or temporarily accredited agency who, under § 96.47(c), must determine that such laws have been complied with, and that all information required by these regulations has been included. These protections will help to ensure that the home studies and child background studies prepared by exempted providers comply with Convention requirements, the IAA, and these regulations.

5.

Comment:

A commenter asks whether U.S. social workers licensed in the United States who live abroad and perform home studies and post-adoption services for Americans overseas need to be accredited or approved. If we understand the comment correctly, such U.S. social workers often assist individual U.S. clients and U.S. child-placing agencies, but the laws of the country in which they are living may preclude their working as an employee of a U.S. agency. Thus, such a social worker cannot be an employee of an accredited agency or approved person under these regulations.

Response:

A U.S. licensed social worker living abroad and providing post-adoption services and home studies will have to comply with the laws of the country of residence, which may preclude the social worker from being employed directly by an agency or person accredited or approved under these regulations. Such a social worker will not have to be independently accredited or approved under these regulations. In some circumstances, however, an accredited agency or approved person in the United States will be held responsible under these regulations for treating an independent overseas U.S. licensed social worker as a supervised provider, for example, if the social worker is asked to assist an accredited agency or approved person by performing home studies in cases involving immigration to the United States or by performing post-placement monitoring. If the independent overseas social worker is providing a home study

in an outgoing case, an accredited agency or approved person would also be able to use a home study prepared by the social worker if it verified the study pursuant to § 96.46(c).

6.

Comment:

A commenter recommends requiring that agencies or persons be accredited or approved if performing a home study/child background study and providing a child welfare service.

Response:

The proposed rule caused some confusion as to the circumstances in which accreditation, temporary accreditation, supervision, or approval will be required. Confusion is difficult to avoid, in part, because section 201 of the IAA both includes home studies and child background studies in the definition of adoption services covered by the accreditation/approval/supervision requirement and provides that preparing these studies is a service exempt from accreditation/approval/supervision in certain circumstances.

The Department is changing § 96.13(b) to state the rule more clearly. As modified, § 96.13(b) states that, if an agency or person provides both a child welfare service and any of the adoption services listed in § 96.2 in the United States in a Convention case, it must be accredited, temporarily accredited, approved or supervised unless the only adoption service provided is preparation of a home study and/or a child background study. Thus, if the agency or person is an exempted provider and provides a child welfare service, the agency or person is still an exempted provider. It will remain exempted from accreditation/approval even if, in addition to providing child welfare services it also provides a home study, child background study, or both.

Otherwise the home study and child welfare services exemptions, explicitly required by the IAA, would have little force. On the other hand, if an agency or person provides an adoption service in the United States in addition to the child background study or home study, then that agency or person must be accredited, temporarily accredited, approved or supervised. For further clarification, the Department has added at § 96.15 examples illustrating circumstances when providers must be accredited, temporarily accredited, approved, or supervised, and examples of when they are exempt. Examples 2 and 5 of § 96.15 specifically address the child welfare services exemption.

To be consistent with § 96.13(b), the Department has also modified § 96.13(c) so that, if an agency or person provides both legal services and any adoption service defined in § 96.2 in the United States in a Convention adoption case, it must be accredited, temporarily accredited, approved or supervised unless the only adoption service provided is preparation of a home study and/or a child background study.

7.

Comment:

A commenter is concerned that facilitators, permitted to operate under some States' laws and not others, will be exempt from becoming accredited or approved. The commenter believes that this will provide unlicensed facilitators an unfair advantage by permitting them to provide services without adhering to State or Federal licensing laws.

Response:

Any agency or person that provides one of the adoption services defined in § 96.2 in the United States must be accredited, temporarily accredited, approved, supervised, or an exempted provider under these regulations, regardless of whether or not the agency or person must be licensed or otherwise authorized in the State in which they operate. Furthermore, providers must still comply with any other applicable State and Federal laws.

8.

Comment:

A commenter is concerned that the regulations do not protect parents who try to adopt independently, without the aid of an agency or person. The commenter believes that such parents may be particularly susceptible to questionable adoption practices. Also, one commenter thinks that parents adopting independently should not be exempt from the regulations. Other commenters suggest that adoptive parents should not have to comply with the Convention, the IAA or other applicable laws when acting on their own behalf.

Response:

Because section 201(b)(4) of the IAA explicitly exempts prospective adoptive parent(s) who are acting on their own behalf from any accreditation/approval requirements, § 96.13(d) is retained in the final rule. Notwithstanding this exemption, prospective adoptive parent(s) acting independently must comply with the Convention, other applicable provisions of the IAA, and other applicable laws. Moreover, as provided in § 96.13(d), parent(s) may act on their own behalf only if such action is allowed under applicable State law and the law of the concerned Convention country.

9.

Comment:

A commenter requests that the regulations emphasize that “post-adoption services,” including reminding the prospective adoptive parent(s) of their need to file post-adoption reports with the country of origin, are not “adoption services.”

Response:

The commenter is correct that post-adoption services—those services provided after a child's adoption—are not adoption services under the IAA. The preparation of post-adoption reports and efforts to encourage parents to file these reports are post-adoption services. Agencies or persons that solely perform such types of post-adoption services do not need to be accredited, temporarily accredited, approved, or supervised. The Department does not consider any change to the regulation to be necessary in response to this comment.

10.

Comment:

One commenter notes that several foreign governments require adoptive parent(s) to use an agency or person for post-adoption reporting. The commenter states that many agencies and persons currently take advantage of this requirement by overcharging adoptive parent(s) for these services. The commenter requests that the Department attempt to regulate this behavior.

Response:

The preparation and filing of post-adoption reports are post-adoption services. The IAA does not cover such services, or provide a basis to regulate the fees charged for them. Nevertheless, § 96.40(b)(7) requires an accredited agency, temporarily accredited agency, or approved person to disclose in writing its expected fees and estimated 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 a child's expected country of origin. The Department believes that this requirement will help prospective adoptive parent(s) to make informed choices when choosing an agency or person and will promote fair and ethical fee arrangements.

11.

Comment:

One commenter requests that the Department draft a “non-interference” regulation that prohibits agencies and persons from interfering in an adoption when prospective adoptive parent(s) act on their own behalf.

Response:

The Department does not believe that it is necessary at this time to include a non-interference provision, assuming that one germane to accreditation/approval could be crafted. If a prospective adoptive parent believes that an accredited agency or approved person is acting incompatibly with the IAA's exemption of prospective adoptive parent(s) acting on their own behalf from the accreditation/approval requirements, the complaint procedures of this rule will apply.

Section 96.14—Providing Adoption Services Using Other Providers

1.

Comment:

Several commenters are concerned about the relationship between a primary provider and entities accredited by Convention countries

(foreign accredited providers). Many want the regulations to reach as many types of providers who operate overseas as possible, while others stress that U.S. agencies and persons are not able to control or oversee the conduct of foreign providers. Some commenters want primary providers to be responsible for supervising the actions of every agency or person they use overseas, but others support the proposed rule, under which primary providers were not responsible for supervising foreign accredited providers.

Response:

The issue of who a primary provider must treat as under its supervision and responsibility is clearly one on which reasonable people differ.

As explained at section III, subsection A of the preamble, above, the Department has modified §§ 96.14(c) and (d) to require that providers accredited by the Convention country, in addition to providers that are unregulated by the Convention country, be treated as foreign supervised providers, unless they are performing a service qualifying for verification under § 96.46(c). A primary provider will therefore need to exercise care in selecting foreign supervised providers, and will need to oversee their work; it may lose its status as an accredited agency or approved person if it fails to ensure that its use of foreign supervised providers meets the relevant standards in § 96.46.

This change in the regulations is consistent with the Department's view—made express in new § 96.12(c)—that accreditation is not a guarantee of good behavior. It also underscores the importance of U.S. agencies or persons working with ethical providers in other countries in order to ensure that all Convention adoptions comply with Convention standards. The final rule means that primary providers cannot ignore questionable practices simply because they are committed by a foreign provider that has been accredited. While the exception for services qualifying for verification acknowledges that U.S. agencies and persons may not be well positioned to supervise the providers of such services, the after-the-fact verification requirement will require the U.S. agency or person acting as the primary provider to take appropriate steps to ensure that the requirements of the Convention and local law have been met.

2.

Comment:

Some commenters state that primary providers should be fully responsible for all “agents” and individuals that assist them in the country of origin.

Response:

Under the IAA and this rule, whether a primary provider must supervise an “agent” or other individual in a Convention country does not turn on what the provider is called. Section 96.14 requires that a primary provider adhere to the standards of § 96.46 when using any foreign non-governmental provider, and § 96.2 now makes clear that “agents” and other foreign entities are included in the definition of supervised provider. These modifications to the regulations are sufficient to address this comment.

3.

Comment:

One commenter notes a Connecticut case in which the court refused to award a State subsidy to an adoptive parent—presumably located in Connecticut—because the entity that “placed” the child was not licensed in Connecticut, and suggests that the Department address the interpretation of State statutes regarding the award of post-adoption subsidies through these regulations.

Response:

The Department infers that the commenter believes that the Department could affect when State subsidies are available by including in the regulation a provision regarding, for example, whether a primary provider or a supervised provider will be considered to have “placed” a child for adoption, or where an adoption service provider will be deemed to be located, if multiple providers are involved in a Convention adoption. The Department does not agree that this issue can or should be addressed in these regulations.

4.

Comment:

A commenter requests that the Department change § 96.14(b)(2) because, as written, it appears that home studies performed by an exempted provider must be approved by any accredited agency, but not specifically by the primary provider. Other commenters suggest primary providers could be reluctant to accept home studies from exempted providers that they themselves did not approve.

Response:

The Department is not making the change suggested because the Department believes that the regulation, as written, is consistent with the IAA, section 201(b)(1), which requires only that a home study prepared by an exempted provider be reviewed and approved by an accredited agency. We do not believe it is necessary to require further that the accredited or temporarily accredited agency approving the home study be the primary provider in the Convention case, and do not believe that this provision will deter primary providers from accepting home studies from exempted providers. While the primary provider must supervise and be responsible for the supervised providers with which it works, primary providers may need the flexibility to accept home studies prepared by exempted providers that have been approved by other accredited or temporarily accredited agencies (for example those located in other States) to complete Convention adoptions. Otherwise, primary providers could find it difficult to work with out-of-State prospective adoptive parent(s).

5.

Comment:

A commenter is concerned that small agencies will have trouble finding work as supervised providers because large accredited agencies will attempt to curb competition by performing all services in a case on their own, and recommends that, in lieu of having primary providers supervise other agencies, the Department step into the role of supervisor of the provision of adoption services by smaller agencies.

Response:

It would be incompatible with the IAA's scheme for Convention implementation for the Department to take on a direct role in supervising the provision of adoption services, and we therefore decline to make any change in response to this comment. As well, we note that temporary accreditation, under section 203(c) of the IAA, is meant to address this commenter's concerns, by providing a mechanism to allow small agencies to continue to operate independently of larger agencies, while giving the small agencies a longer period of time to gather the information and resources necessary to achieve full accreditation. Moreover, while we cannot fully predict at this time the public demand for provision of adoption services in Convention cases, we believe that it is unlikely that accredited agencies or approved persons will have the resources to take over providing all of the adoption services that are currently handled by small agencies or persons. Also, when working with out-of-state clients, accredited agencies and approved persons will likely need supervised providers to provide adoption services in States where they are not licensed. Thus, the Department anticipates that small agencies and persons will continue to be able to provide services in Convention adoptions.

6.

Comment:

One commenter requests that the Department specifically outline what services require an agency or person to be accredited or approved.

Response:

Only an agency or person providing adoption services, as defined in the IAA and in § 96.2, in a Convention adoption in the United States is required to be accredited or approved. An agency or person may avoid accreditation or approval if it provides Convention adoption services

solely as a supervised provider or exempted provider. Section 96.15 provides examples of circumstances in which an adoption service provider will be required to be accredited, temporarily accredited, or approved or to operate as a supervised provider or exempted provider.

Section 96.16—Public Domestic Authorities

Comment:

The Department received a comment stating that it should require public domestic authorities providing adoption services to become accredited just like private entities, because it is “hypocritical” for the U.S. Government to have one set of rules for private agencies and a different set for public domestic authorities.

Response:

While initial draft versions of the IAA did not exclude government agencies from the category of persons to be accredited or approved, (S. 682, 106th Cong. 1st Sess. (1999) and H.R. 2342, 106th Cong. 1st Sess. (1999)), sections 3(14) and 201(a) of the IAA as enacted, taken together, provide that persons to be accredited/approved shall not include an agency of government or tribal government entity, thereby excluding public domestic authorities from the accreditation and approval requirement. The Department understands this to exclude all State, local and tribal government entities—an approach that is consistent with the concerns of the Convention's drafters about abuses by private entities and that avoids placing the Federal government in the role of regulating State and local governments unnecessarily. (See the Notice of Proposed Rulemaking at 68 FR 54079 for further discussion of this issue.)

Section 96.17—Effective Date of Accreditation and Approval Requirements

Comment:

A commenter asks what will happen to an agency that has not completed the accreditation process when the Convention enters into force.

Response:

Once the Convention enters into force for the United States, any agency or person providing adoption services in connection with a Convention adoption in the United States will need to be accredited, temporarily accredited, approved, supervised, or be an exempted provider. The rule has a special timetable for the initial round of accreditation/approvals, which is discussed in the section-by-section responses for subpart D.

Subpart D—Application Procedures for Accreditation and Approval

Subpart D is organized in the same way as in the proposed rule, and includes § 96.18 (Scope); § 96.19 (Special provision for agencies and persons seeking to be accredited or approved as of 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); and § 96.22 (Reserved).

As discussed below, the Department has made no changes to this subpart in response to public comment. It has made minor technical and conforming changes, however.

Section 96.19—Special Provision for Agencies and Persons Seeking To Be Accredited or Approved at the Time the Convention Enters Into Force for the United States

Comment:

Commenters support the transitional application deadline (TAD) and deadline for initial accreditation or approval (DIAA) process. Some request that the regulations more clearly outline the process for those who obtain accreditation after the Convention has entered into force. Another commenter suggests that any agency or person that has applied for full accreditation during the initial accreditation/approval timeframe, but that has not been processed by an accrediting entity through no fault of its own, should be granted temporary accreditation.

Response:

We are not modifying the rule to allow temporary accreditation to be granted to an applicant for full accreditation that has not been accredited by the DIAA. The IAA specifically limits temporary accreditation to small agencies, as defined in section 203(c) of the IAA. The Department recognizes, however, that a large volume of applications may make it difficult for accrediting entities to complete accreditations and approvals in an expedited fashion. For this reason, § 96.19 establishes that a TAD will be published before the final DIAA. 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 necessary site visits), it will announce the DIAA. The DIAA 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. Since the DIAA will be set after the Department and the accrediting entities have a better idea of how long it will take the accrediting entities to do their job, all agencies and persons who applied by the TAD should have a reasonable opportunity to have their applications for accreditation or approval reviewed by the DIAA. The process for applying for accreditation/approval after the Convention has entered into force is already described in § 96.20.

Section 96.20—First-Time Application Procedures for Accreditation and Approval

Comment:

A commenter believes that the regulations should specify the length of time an accrediting entity has to evaluate an applicant for accreditation or approval, and suggests 90 days.

Response:

While the Department wants to ensure that applications for accreditation and approval are reviewed as quickly as possible, it is not establishing a deadline by which accrediting entities will have to complete their work. Variables like the number of agencies and persons that will apply, and the number and capacity of the accrediting entities, require that the time frame remain flexible. In addition, § 96.24(d) authorizes accrediting entities to give agencies and persons an opportunity to cure deficiencies before denying an application for accreditation or approval. If the Department imposed a 90-day limit on completion of accreditation and approval decisions, accrediting entities could be forced to deny applications in circumstances where an agency or person had not yet cured any identified deficiencies within 90 days. We believe agencies and persons will benefit from an accreditation and approval process that retains some flexibility.

Section 96.21—Choosing an Accrediting Entity

Comment:

Some commenters recommend that applicants for accreditation and approval be allowed to apply to any designated accrediting entity, regardless of geographical location. Other commenters ask that the regulations clarify the accrediting entity to which an agency or person that is licensed in more than one State should apply for accreditation or approval.

Response:

Section 96.21(a) states that an agency or person applying for accreditation or approval may apply to any accrediting entity with jurisdiction over its application. The criteria to determine the accrediting entities' jurisdiction will be set out in the

agreements between the Department and each accrediting entity. These agreements will be published in the

Federal Register

. The agreements between the Department and any accrediting entity that is a State licensing authority will have geographical limitations on its jurisdiction that are consistent with section 202(a)(2)(B)(ii) of the IAA, which states that public entities designated as accrediting entities will be permitted to accredit “only agencies located in the State in which the public entity is located.”

Subpart E—Evaluation of Applicants for Accreditation and Approval

Subpart E is organized in the same way as in the proposed rule, and includes § 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 agency); § 96.27 (Substantive criteria for evaluating applicants for accreditation or approval), and § 96.28 (Reserved).

The Department has made a number of changes in response to public comments, including to § 96.24, § 96.25, § 96.26, and § 96.27, which are discussed below.

Section 96.24—Procedures for Evaluating Applicants for Accreditation or Approval

1.

Comment:

Several commenters request that the Department address whether agencies that have undergone voluntary accreditation, as offered by the Council on Accreditation (COA), will have any “deemed status.” Similarly, several commenters request that, if an agency or person is already voluntarily accredited, then the accrediting entity recognize automatically compliance with certain subpart F standards that they believe are duplicative of the standards under which they were voluntarily accredited. Some voluntarily accredited small agencies contend that they cannot afford a second accreditation.

Response:

The Department will not allow agencies or persons that have undergone a voluntary accreditation process to have “deemed” Convention accreditation or approval status. The Department acknowledges that some standards of subpart F overlap with the COA voluntary accreditation standards, however, there are many standards in subpart F that do not overlap. We do not believe that COA voluntary accreditation is a substitute for ensuring that all agencies meet the specific standards on intercountry adoption practices that are derived from the Convention and the IAA and set forth in subpart F. For example, § 96.33(b) requires an agency's or person's finances to be subject to independent audits every four years. COA standard G6.5.02 does not require any audit of an organization that annually reports revenues less than $500,000. Similarly, § 96.34(a) prohibits an agency or person from compensating any individual providing intercountry adoption services on a contingent fee basis, and § 96.34(b) prohibits an agency or person from compensating its directors, officers, employees or supervised providers on a contingent fee basis. COA standards have no explicit prohibition against contingent fees. The regulation in § 96.35(b) also contains requirements that are not in COA standards. The COA standards are focused on overall organizational integrity and ensuring best child welfare practices. The Department's standards are instead focused on implementing specific provisions of the IAA and ensuring that agencies and persons can perform Convention tasks. Finally, considerations of equity and timeliness counsel against allowing a COA voluntary accreditation to substitute, in whole or in part, for accreditation under these regulations—equity vis-á-vis agencies and persons who have not participated in COA's voluntary program and timeliness to the extent that accreditation under these regulations will be based on information to be collected in the future and closer to time to entry into force.

2.

Comment:

Several commenters ask that agencies and persons that have a State license become automatically accredited. Other commenters seek deeming of State licensing authorities' standards.

Response:

The IAA does not authorize the Department to substitute licensure by a State for accreditation/approval under the Federal scheme created by the IAA. The Convention and the IAA mandate many specific duties for agencies and persons, including reporting duties, which are not part of current State licensing. In addition, because licensing requirements vary between States, allowing “deeming” would be at odds with the IAA's goal of uniform interpretation and implementation of the Convention, IAA section 2(a)(2), and might lead to disparities between agencies and persons, depending on their location. Thus, the fact that an agency or person is licensed or authorized by State licensing authorities is only one factor to consider in determining whether it can be accredited or approved.

3.

Comment:

A commenter notes that the nonprofit charitable organization she works with cannot place children with adoptive parents because it has just received State licensure as a child-placing agency, and the authorities in the foreign country in which it works require a child-placing agency to have been licensed at least four years before it is allowed to place children. The commenter expresses hope that the Department will be able to resolve the issue of differing standards in different countries in this rule, and welcome new agencies into the Convention system.

Response:

The Department welcomes all agencies and persons, both new and old, to apply for accreditation or approval. The Department hopes that birth parents and prospective adoptive parent(s) will be able to select a provider from a broad and geographically diverse pool of accredited agencies and approved persons to help them with Convention adoptions. Article 12 of the Convention, however, states that an agency that is accredited in one Convention country may provide services in another Convention country only if it has been authorized to do so by the authorities of both countries. Thus, the United States cannot, in this rule, ensure that U.S. accredited agencies and approved persons will be entitled to work in all Convention countries. The Department expects, however, that because the standards for U.S. accreditation and approval will be stringent and comprehensive, Convention countries may be willing to accept U.S. accreditation or approval, without requiring further accreditation or approval.

4.

Comment:

One commenter notes that the proposed regulation would require evaluators to have experience in intercountry adoption or the evaluation of compliance with standards. While the commenter believes it would be preferable to require experience with both, because it expects that any entity designated as an accrediting entity would receive an initial flood of accreditation/approval applications, it requests that § 96.24(a) be revised to allow the use of a wider pool of evaluators who do not have intercountry adoption experience in order to complete accreditation/approval on a timely basis. Another commenter would like the regulation to specify that at least one evaluator participating in site visits must have experience with intercountry adoption.

Response:

The Department has expanded the qualifications for

evaluators in § 96.24(a). Those qualifications now include: (1) Expertise in intercountry adoption; (2) expertise in standards evaluation; or (3) experience with the management or oversight of a child welfare organization. The Department believes that permitting evaluators to meet any of these three qualifications will ensure that accrediting entities perform high-quality evaluations of agencies and persons, while leaving them flexibility to find enough qualified site evaluators. To preserve flexibility, we are not mandating that the visiting site evaluator be the one with the intercountry adoption experience.

5.

Comment:

Some commenters are concerned that the accrediting entities will not consider complaints when evaluating agencies and persons.

Response:

We have added a provision to § 96.24(b) to require that accrediting entities consider complaints referred to them under subpart J of this rule when reviewing an agency's or person's accreditation or approval status.

6.

Comment:

A commenter asks whether an agency seeking accreditation must cover the cost of any off-site interviews with individuals (e.g., clients who have moved to a different city from the agency).

Response:

Pursuant to § 96.8(b)(2), agencies and persons will pay a nonrefundable fee for full accreditation or approval that is set to include “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 * * * except that separate fees based on actual costs incurred may be charged for the travel and maintenance of evaluators.” Thus, an agency or person can be expected to cover the cost of doing any off-site interviews, whether the cost is incorporated fully into the accreditation or approval fee or recovered in part through fees for travel costs incurred by evaluators to do off-site interviews.

The fee arrangement is different for those agencies seeking temporary accreditation, but the net result is the same with respect to off-site interviews. The accrediting entity will charge a non-refundable fee for temporary accreditation that will not include the costs of site visits, whether on-or off-site, because a site visit is not mandatory to receive temporary accreditation. If the accrediting entity decides a site visit is necessary to determine whether to approve an application for temporary accreditation, the accrediting entity will assess additional fees to the agency for the costs of a site visit, including any costs for off-site interviews.

7.

Comment:

A commenter requests the following revision to § 96.24(d) to make notice of deficiencies to a candidate for accreditation or approval mandatory: “Before deciding whether to accredit an agency or approve a person, the accrediting entity shall 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.”

Response:

The Department has not changed the language of the proposed rule. Section 96.24(d) already permits an accrediting entity discretion to give an agency or person advance notice of and an opportunity to cure any deficiencies that may hinder or prevent its accreditation or approval. The accrediting entities are being chosen based on their expertise and experience with accreditation and/or licensing of adoption service providers, and the rule defers to that expertise by giving them discretion to judge whether it would be constructive to give notice and an opportunity to cure deficiencies before any specific denial.

8.

Comment:

One commenter notes that § 96.24(c) provides for persons with knowledge of an agency's or person's work to comment on an application for accreditation or approval, but that the Department has not provided a mechanism for making such comments. The commenter states that knowledgeable individuals have no way of knowing whether an agency or person has filed for accreditation or approval.

Response:

This issue is not addressed fully in the regulation, but will be further addressed in the agreements with the accrediting entities. Pursuant to § 96.91(b)(1), once the Convention has entered into force, individuals who wish to comment on an agency's or person's application for accreditation or approval may ask an accrediting entity to confirm whether that agency or person has a pending application for accreditation or approval. The Department intends, in its agreements with the accrediting entities, to require that the accrediting entities also make available to the public information related to agencies and persons that apply to be accredited or approved by the date of entry into force. We also intend to address in the agreements with the accrediting entities the mechanism by which the public can communicate to the accrediting entity comments on initial applications for accreditation or approval. The agreements will be published in the

Federal Register.

Section 96.25—Access to Information and Documents Requested by the Accrediting Entity

1.

Comment:

Several commenters ask the Department to clarify whether accrediting entities are allowed access to information and documents belonging to an agency or person regarding non-Convention cases. These commenters request that the Department specifically limit the accrediting entity's access to information and documents to Convention adoption cases only.

Response:

The Department has modified this section to clarify that, with the exception of first-time applicants for accreditation or approval, agencies and persons are only required to give accrediting entities access to adoption case files related to Convention adoptions. Thus, if an agency seeking renewal of accreditation provides adoption services relating to both children from a Convention country and children from a non-Convention country, the agency or person would have to give the accrediting entity access to any adoption case files relating to intercountry adoptions with the Convention country, but not to the files relating solely to its intercountry adoptions from the non-Convention country. The exception to this rule, which now appears at § 96.25(b), is that the accrediting entity may review case files of non-Convention adoption cases for the purpose of assessing a first-time applicant's capacity to comply with the record-keeping and data-management standards in subpart F. We make this exception so that accrediting entities have the option of reviewing adoption case files of a first-time applicant if they are concerned about the applicant's record-keeping capabilities, since the applicant will not have any Convention case files to be reviewed. Section 96.25(b) makes it clear that, if such review is requested by an accrediting entity, the agency or person may withhold names and other information that identifies birth parent(s), prospective adoptive parent(s), and adoptee(s) from such non-Convention adoption case files to protect the privacy of those individuals.

The general rule prohibiting review of non-Convention adoption case files does not apply with respect to documents and information, such as policy guidelines, that relate to both Convention and non-Convention adoptions. The accrediting entity must be given access to such documents and information. For example, accrediting entities will be allowed to look at documents relating to an agency's or

person's finances and corporate governance, which relate to both Convention and non-Convention adoption activities.

2.

Comment:

A commenter suggests that the Department amend § 96.25(a) so that it reads: “The agency or person must give the accrediting entity access to all information and documents * * * that it requests [instead of “requires”] to evaluate an agency or person,” in order to remove any argument that the accrediting entity would be required to justify why access to certain documents or information was necessary to the accreditation process.

Response:

The Department has modified § 96.25(a) so that it states that an agency or person must give the accrediting entity access to information and documents “that it requires or requests” to evaluate an agency or person for accreditation or approval. This should make it clear (subject to the general rule prohibiting review of non-Convention adoption case files) both that the agency or person must give the accrediting entity the information and documents it needs, even if not requested by the accrediting entity, and that the agency or person must give the accrediting entity what the accrediting entity requests, without challenging whether the accrediting entity needs the information and documents.

Section 96.26—Protection of Information and Documents by the Accrediting Entity

1.

Comment:

Several commenters request that all documents used by an accrediting entity in the accreditation process be made available to the public, subject only to existing Federal, State, and local laws. They suggest that the documents could help prospective adoptive families choose which agency or person to use for adoption services. Commenters also request that an agency's or person's list of supervised providers (particularly foreign supervised providers) be public information. These commenters want § 96.26(a), which sets limits on disclosure of information procured by the accrediting entity, to be deleted. Other commenters recommend that the Department maintain § 96.26(a) as it is written. They believe that confidentiality is essential to facilitating an open relationship between accrediting entities and agencies and persons seeking accreditation/approval. Some commenters think subpart M appropriately specifies the types of information that should be provided to the public. One State licensing authority requests that the Department elaborate on the interplay between the Freedom of Information Act (FOIA), 5 U.S.C. 552 and § 96.26, because it believes § 96.26 conflicts with the FOIA.

Response:

We have made a few changes to § 96.26(a). Section 96.26(a) continues to require accrediting entities to protect from unauthorized use and disclosure all documents and information the accrediting entity may collect while doing its job of evaluating an agency or person, such as self studies, internal policies, corporate financial data, and background information on individual employees. We are not deleting the basic rule of confidentiality, because we believe it is appropriate when agencies and persons are being asked to disclose internal business information.

In order to clarify in what circumstances information may be disclosed, and to reinforce that the confidentiality rule does not prohibit disclosures otherwise required under State or Federal law, we have moved and revised language from § 96.26(a) to a new § 96.26(b). Section § 96.26(b) now contains the general prohibition on disclosure of such documents and information to the public, and sets out the circumstances in which it is appropriate to release information. In particular, § 96.26(b)(2) now includes new language making it clear that the accrediting entity may not withhold information, including an agency's or person's internal documents, if otherwise required to release it under State or Federal law. We note that § 96.26 of the final rule cannot conflict with the FOIA or similar State laws because the prohibitions against disclosure in § 96.26(b)(2) do not apply if disclosure is otherwise required under Federal or State laws. Thus, if the FOIA or other information disclosure laws apply, accrediting entities must comply with those laws.

2.

Comment:

A commenter requests that the Department delete the first sentence of § 96.26(b) (now § 96.26(c)), which allows agencies and persons to provide documents in which individually assigned codes have been substituted for personal identifying information, because it believes monitoring the actual practices of an agency or person requires a comprehensive list identifying all clients, including prospective adoptive parent(s) and birth parent(s), and because it believes the provision is unnecessary because the remainder of the provision already imposes a duty of confidentiality on the accrediting entity.

Response:

The Department has to balance the need of accrediting entities to obtain information on the practices of accredited agencies and approved persons against the need to protect the privacy of individual participants in the adoption process. The Department believes that this provision, now § 96.26(c), strikes the right balance between these competing interests by giving accrediting entities the authority to request information that identifies birth parents, prospective adoptive parent(s), and adoptees if they have an articulated need for that information, but not requiring the automatic disclosure of all such information, and thus it has made no changes in response to this comment.

Section 96.27—Substantive Criteria for Evaluating Applicants for Accreditation or Approval

1.

Comment:

Several commenters suggest that using a point system for evaluating compliance with standards will be too subjective. Many also believe that a substantial compliance system is too vaguely defined in the regulations. Some request that the regulations specify how different standards will be weighted. Other commenters commend the Department for allowing accrediting entities to develop a substantial compliance system and express support for the rule as written. Some commenters request that the Department submit any substantial compliance procedures to notice and comment rulemaking. Other commenters recommend that any system prevent an agency or person from achieving accreditation or approval if it does not meet all minimum requirements in section 203(b)(1)(A)-(F) of the IAA.

Response:

The Department did not think it was advisable to include a methodology for measuring substantial compliance in the rule, and continues to be of that view. The accrediting entities, who will be using the methodology and who will have more experience than the Department in administering standards, should take the lead in preparing the procedures for measuring substantial compliance.

We have, however, revised § 96.27(d) to clarify that the Department will retain oversight over the development and use of substantial compliance procedures by the accrediting entity, ensuring that each accrediting entity only uses a method approved by the Department, and that each method is substantially the same as all other approved methods. In accordance with the rule, once an accrediting entity is selected, the entity must develop a method of evaluating compliance. Each such method will include: an assigned value for each standard or element of a standard; a method of rating compliance with each standard; and a method of evaluating an

agency's or person's overall compliance with all of the applicable standards. The Department must then approve each accrediting entity's method for ascertaining substantial compliance, ensuring that the value assigned to each standard reflects the Convention and the IAA and is consistent with the value assigned to the standard by other accrediting entities. The weighting of particular standards will be based on the priorities set in the Convention and the IAA (including the core standards in IAA section 203(b)(1)(A)-(F)).

The Department does not agree that substantial compliance procedures, when developed, must or should be subject to Administrative Procedure Act rulemaking procedures. The final rule, like the proposed rule, instead requires that accrediting entities advise applicants of the value assigned to the standards or elements of the standards at the time they provide applicants with the application materials. This notice and the Department's oversight of the development of the procedures for measuring substantial compliance will ensure that agencies and persons are informed about the procedures before seeking accreditation or approval, and that the procedures reflect the objectives of the Convention and the IAA.

2.

Comment:

Several commenters do not agree with the use of a substantial compliance system. They request that the regulations require complete compliance with all the standards of subpart F. Many other commenters express their support for a substantial compliance model. Some are concerned that the accrediting entities will require compliance with standards not contained in subpart F.

Response:

There has been considerable disagreement in the adoption community about which of the standards in subpart F—if any—should be made absolute. The preamble to the proposed rule discussed this issue extensively. (See 68 FR 54080). The IAA plainly contemplates a substantial compliance standard, however, as section 204(b)(1) of the IAA requires the Department to suspend or cancel the accreditation or approval of an agency or person who is “substantially out of compliance with applicable requirements,” if the accrediting entity has not taken appropriate enforcement action. In addition, the standards in Part F address a wide range of ethical and social work and adoption issues and reflect practices that inherently are evolving. One-time failures to comply with a particular standard, though unfortunate, should not necessarily lead to the imposition of severe types of adverse action such as cancellation of accreditation or approval. The Department considers it essential to give sufficient discretion to accrediting entities, which will be selected based on their expertise, to decide when noncompliance warrants adverse action, and which kind of adverse action to take.

The Department recognizes that adherence to certain individual standards is critical to protecting children and families and comporting with the requirements of the Convention and the IAA. Therefore, as noted in the response to comment 1 for this section, the accrediting entity is required to develop and use a method for measuring substantial compliance which includes assigning values and weighting each individual standard, or element of a standard, reflecting the relative importance of each standard to compliance with the Convention and IAA. The accrediting entity may not use standards other than those contained in this rule.

3.

Comment:

Several commenters believe that the accreditation process described in § 96.27 focuses too heavily on document review. They would like the regulations to emphasize analysis of an agency's or person's past performance, including successful adoptions, disruptions and dissolutions, complaints, and pending or resolved lawsuits, as the primary criteria for accreditation. Some commenters suggest that the primary basis of evaluation for accreditation should be interviews of clients chosen on a random basis, as well as interviews with former employees, agents, and consultants. One commenter suggests that a provider should be required to waive any confidentiality requirements contained in settlements of lawsuits. Some commenters would like agencies to give accrediting entities a list of all their clients and former clients to aid in the evaluation.

Response:

We believe the overall process outlined in the rule for evaluating agencies and persons and determining substantial compliance is consistent with the IAA's accreditation model. It i

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