[Federal Register Volume 71, Number 31 (Wednesday, February 15, 2006)]
[Rules and Regulations]
[Pages 8161-8164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1068]


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DEPARTMENT OF STATE

22 CFR Parts 97 and 98

[Public Notice 5297]
RIN 1400-AB69


Intercountry Adoption--Preservation of Convention Records

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This rule finalizes the proposed rule published on September 
15, 2003 to implement the records preservation requirements of the 1993 
Hague Convention on Protection of Children and Co-operation in Respect 
of Intercountry Adoption (the Convention) and the Intercountry Adoption 
Act of 2000 (the IAA). The IAA requires that the Department of State 
(the Department) issue rules to govern the

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preservation of Convention records held by the Department and the 
Department of Homeland Security (DHS). This final rule is the same as 
the proposed rule, except for non-substantive technical corrections. It 
requires the Department and DHS to maintain Convention records for 75 
years and defines the term Convention record.

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

SUPPLEMENTARY INFORMATION:

Background

    The Department published a proposed rule to be codified as part 98 
of title 22 of the CFR addressing the Department's and DHS's 
preservation of Convention records under the Convention and the IAA in 
the Federal Register on September 15, 2003 (68 FR 54119). A companion 
proposed rule, to be codified as part 96 of title 22 of the CFR, was 
published in the Federal Register on the same day (68 FR 54064). The 
companion proposed rule covered the accreditation and approval of 
agencies and persons under the Convention and the IAA. We received 
public comments regarding both proposed part 96 and proposed part 98. 
This notice discusses comments received expressing concerns about the 
preservation of Convention records requirements of part 98 of title 22 
of the CFR. Discussion of public comments on records issues not 
directly related to preservation of Convention records, such as 
preservation of and access to adoption records, may be found in the 
SUPPLEMENTARY INFORMATION published with the final rule for part 96 of 
title 22 of the CFR.
    This final rule fulfills the Department's responsibility to 
promulgate regulations addressing the preservation of Convention 
records. Section 401(a) of the IAA requires that the Department issue 
regulations that establish procedures and requirements for the 
preservation of Convention records, implementing in part the 
Convention's Article 30(1) requirement that each Convention country 
ensure preservation of information concerning any child whose adoption 
is subject to the Convention. The proposed rule for part 98 provided 
for a 75-year preservation period and defined Convention record. The 
notice of the proposed rule contained a detailed Preamble giving the 
statutory basis for issuing the rule, and reasons for the Department's 
decisions in the rule.
    The Department is adopting the proposed rule as final, with no 
changes in response to public comment. The Department did make several 
technical changes to Sec.  98.2, to avoid redundancy. These changes 
have no substantive effect on the rule. The final rule defines 
Convention record and adopts the same definition of Convention that the 
Department is adopting today in Sec.  96.2 of part 96 of title 22 of 
the Code of Federal Regulations (CFR), as well as other terms from part 
96 such as the Secretary, DHS, Case Registry, Convention country, 
adoption records, agency, person, and public body. It also requires the 
Department and DHS to preserve Convention records for 75 years. This 
final rule also reserves a new part 97 of title 22 of the CFR to cover 
intercountry adoption procedures under the Convention.
    This rule does not address or change otherwise applicable Federal 
law governing access to Convention records. Access to Convention 
records retained by the Department or DHS will be controlled by Federal 
law governing access to records held by Federal agencies, particularly 
by the Freedom of Information Act (5 U.S.C. 522 (1966)) and the Privacy 
Act (5 U.S.C. 552(a) (1974)).
    The final rule also does not create a new Federal rule governing 
access to adoption records--i.e., records held by entities outside the 
Federal Government. The term adoption record is defined in Sec.  96.2 
of part 96 of title 22 of the CFR to include records generated, 
received, or in the custody of agencies and persons or State public 
entities. State law will continue to govern access to adoption records 
held by agencies, persons, or public entities including State courts as 
provided for by section 401(c) of the IAA.

Discussion of Comments and Major Reasons for Retaining Proposed Rule as 
the Final Rule

Section 98.1--Definition of Convention Record

The Term ``Convention Record''
    We have not changed the definition of Convention record from that 
provided in the proposed rule. The final rule continues to follow the 
IAA definition of Convention record by including only records 
pertaining to adoptions under the Convention that are generated, 
received, or in the custody of two Federal agencies--the Department or 
DHS. The final rule also continues to clarify that the definition of 
Convention record includes not only records pertaining to Convention 
adoptions in which a child is immigrating to or from the United States, 
but also Convention adoptions involving two other countries party to 
the Convention in which the United States performs some Central 
Authority function. For example, there could be an instance where 
adoptive parents from Canada gain custody of a child from Lithuania 
(two Convention countries), and move to the United States during the 
post-placement period, during which a disruption occurs. In such a 
case, the Department, as the U.S. Central Authority, may become 
involved in consultations with Lithuania pursuant to Convention Article 
21. Any resulting records would be treated as Convention records.
    Comment: One commenter thinks that the responsibility for the 
preservation of all records relating to Convention adoptions is best 
granted to the Department and DHS because records could be lost when an 
agency or person closes or experiences a natural disaster such as a 
flood or fire. It suggests placing the responsibility for preserving 
all records related to Convention adoptions with a government office. 
Another commenter expresses concern that DHS would be responsible for 
retaining and maintaining Convention records.
    Response: There are two kinds of records: Convention records and 
adoption records. Adoption records are defined, in the final rule for 
part 96 of title 22 of the CFR, generally as records in the physical 
possession of agencies, persons, and the States. Convention records are 
records in the physical possession of two Federal Government agencies--
the Department and DHS. The IAA provides no statutory authority for the 
Department to require custodians of adoption records to transfer such 
records to the Federal government, nor does it provide any basis for 
the Department to store and preserve such non-Federal records. In fact, 
the Department believes such an approach would be inconsistent with 
Sec.  401(c) of the IAA.
    With respect to the question of whether all Convention records 
should be consolidated in the custody of the Department (or DHS), that 
is an internal agency management issue beyond the scope of this rule. 
This rule addresses only the length of time for which Convention 
records will be held, not how the Department and DHS will store 
Convention records. Any future decision by the Department and DHS to

[[Page 8163]]

consolidate record holdings is a question of agency management, to be 
addressed in negotiations between the two agencies. Thus, the 
Department is not modifying this section of the rule requiring both DHS 
and the Department to preserve their records involving a Convention 
adoption.
    Comment: One commenter states that no definition of Convention 
record has been provided.
    Response: There is a detailed definition of Convention record in 
Sec.  98.1(b).
Preservation Requirement of 75 Years
    After reviewing the public comments and consultations with DHS, the 
rule keeps a minimum period of 75 years for the preservation of 
Convention records. While no change was made in response to public 
comment, non-substantive technical changes were made to Sec.  98.2 to 
delete redundancies.

Section 98.2--Preservation of Convention Records

    Comment: Commenters expressed concerns about the record 
preservation time period. A commenter suggests changing the retention 
period from 75 years to 99 years. One adoptive parent suggested 100 
years; other commenters agree with the 75-year time period; other 
commenters want Convention records to be retained permanently. 
Commenters wanted the preservation time period to be extended from 75 
years to 100 years on the grounds that individuals are living longer 
than before and may seek out information available in a Convention 
record after the 75-year time period has expired. Several commenters 
also asked that the preservation time period be extended so that the 
information will be available to the children and future generations of 
the adoptee.
    Response: The Department has retained the 75-year preservation 
period for Convention records. This time period is sufficient to 
preserve Convention records for a period comparable to current life 
expectancies, while also ensuring that the costs and burden of 
maintaining records are not incurred unnecessarily by retaining 
Convention records beyond their likely usefulness. It is also 
consistent with the current record preservation period for vital 
records held by the Department and DHS that are similar to Convention 
records. While the Department appreciates the desire of some members of 
the public to preserve Convention records permanently so that they will 
be available to the children of adoptees, preserving Convention records 
permanently would create too great a recordkeeping burden. For further 
explanation of the 75-year preservation requirement, including 
information on when the 75-year time period begins to run, please see 
the Preamble to the Proposed Rule (68 FR 54119).
    Comment: One parent suggests that the Department require countries 
of origin to retain records of all Convention adoptions. Other 
commenters suggest establishing a penalty to prohibit anyone but the 
adoptee, adoptive parents, or birthparents from accessing the 
information in the country of origin.
    Response: The Department is making no change in response to these 
comments, which go beyond the scope of the proposed rule. In any event, 
the Department has no authority to force countries of origin to retain 
Convention records or adoption records or to impose penalties on a 
country of origin's Central Authorities or other public authorities if 
such country provides access to records to others besides adoptees, 
birthparent(s), or adoptive parent(s). The country of origin's laws 
will govern access to and preservation of records in the custody of the 
country of origin's Central Authority or other public authorities.
    Comment: One parent believes adoption records should be open to all 
adult adoptees. A commenter supports opening adoption information to 
all adult adoptees or to the birth parents if the adoptee is a minor. 
Another commenter recommends the creation of an ombudsman office, which 
would provide information as needed to adoptive parent(s), 
birthparent(s), and adoptees.
    Response: The Department is making no change to the proposed rule 
because part 98 does not regulate access to adoption records or 
Convention records. It has one narrow focus1uto establish the length of 
time the Department and DHS must preserve Convention records (records 
in custody of the Department or DHS). Section 401(c) of the IAA 
specifically provides that applicable State law will continue to 
determine whether adoption records are open to adoptees, birth 
parent(s), or adoptive parent(s). Similarly, it is outside the scope of 
this regulation to establish an ombudsman office to handle inquiries 
about access to records in the possession of entities other than the 
Department or DHS.
    Comment: A commenter suggests that Convention records be held by a 
Federal entity, such as the National Archives. The commenter believes 
Convention records should be considered Federal records and made 
accessible through FOIA.
    Response: If a record is a Convention record (not an adoption 
record), it is by definition a record preserved by the Department or 
DHS, both of which are Federal entities. Pursuant to the IAA, access to 
Convention records will be governed by applicable Federal law, 
including the FOIA and the Privacy Act. The question of where the 
Department and DHS will physically store Convention records is an 
operational issue that is not within the scope of this regulation. We 
have not addressed where Convention records will be physically held in 
this rule because we want to maintain the flexibility to take advantage 
of any advances in the rapidly changing field of information storage 
technology.

Regulatory Review

Regulatory Flexibility Act/Executive Order 13272: Small Business

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Public Law. 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires 
agencies to prepare a statement, including cost-benefit and other 
analyses, before proposing any rule that may result in an annual 
expenditure of $100 million or more by State, local, or tribal 
governments, or by the private sector. Section 4 of UFMA, 2 U.S.C. 
1503, excludes legislation necessary for implementation of treaty 
obligations. The IAA falls within this exclusion

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because it is the implementing legislation for the Convention. In any 
event, this rule will not result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year. Moreover, because this rule will not 
significantly or uniquely affect small governments, section 203 of the 
UFMA, 2 U.S.C. 1533, does not require preparation of a small government 
agency plan in connection with it.

Executive Order 13132: Federalism

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

Executive Order 12866: Regulatory Review

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

Executive Order 12988: Civil Justice Reform

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

The Paperwork Reduction Act (PRA) of 1995

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

List of Subjects in 22 CFR Part 98

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

0
Accordingly, the Department amends title 22 of the CFR, chapter I, 
subchapter J, as follows:

PART 97--INTERCOUNTRY ADOPTION--ISSUANCE OF HAGUE CONVENTION 
CERTIFICATES AND DECLARATIONS IN CONVENTION ADOPTION CASES 
[RESERVED]

0
1. Part 97 is added and reserved to read as set forth above.
0
2. Part 98 is added to read as follows:

PART 98--INTERCOUNTRY ADOPTION--CONVENTION RECORD PRESERVATION

Sec.
98.1 Definitions.
98.2 Preservation of Convention records.

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


Sec.  98.1  Definitions.

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


Sec.  98.2  Preservation of Convention records.

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

    Dated: January 13, 2006.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 06-1068 Filed 2-14-06; 8:45 am]
BILLING CODE 4710-06-P