[Federal Register Volume 71, Number 129 (Thursday, July 6, 2006)]
[Notices]
[Pages 38442-38446]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10573]


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DEPARTMENT OF STATE

[Public Notice: 5462]


Memorandum of Agreement Between the U.S. Department of State and 
the Colorado Department of Human Services Regarding Performance of 
Duties as an Accrediting Entity Under the Intercountry Adoption Act of 
2000

AGENCY: Department of State.

ACTION: Notice.

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SUMMARY: The Department of State (the Department) is the lead Federal 
agency for implementation 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 (IAA). Among 
other things, the IAA gives the Secretary of State responsibility for 
the accreditation of agencies and approval of persons to provide 
adoption services under the Convention. The IAA requires the Department 
to enter into agreements with one or more qualified entities under 
which such entities will perform the tasks of accrediting agencies and 
approving persons, monitoring compliance of such agencies and persons 
with applicable requirements, and other related duties set forth in 
section 202(b) of the IAA. This notice is to inform the public that on 
June 29, 2006, the Department exercised its authority under the IAA and 
entered into an agreement with the Colorado Department of Human 
Services under which the Department designated the Colorado Department 
of Human Services as an accrediting entity. In its role as an 
accrediting entity, the Colorado Department of Human Services will be 
accrediting or approving qualified adoption service providers located 
in and licensed by the State of Colorado to enable them to provide 
adoption services in cases subject to the Convention once the 
Convention enters into force for the United States. As the U.S. Central 
Authority for the Convention, the Department will monitor the 
performance of the Colorado Department of Human Services and approve 
fees charged by it as an accrediting entity. The text of the Memorandum 
of Agreement, signed on June 29, 2006 by Maura Harty, Assistant 
Secretary for Consular Affairs, U.S. Department of State and signed on 
June 13, 2006 by Marva Livingston Hammons, Executive Director, 
Department of Human Services, State of Colorado, is included at the end 
of this Notice. Also included at the end of the Memorandum of Agreement 
is its Attachment 1, Colorado Revised Statutes Sec.  26-6-104(6.5).

FOR FURTHER INFORMATION CONTACT: Mikiko Stebbing at 202-736-9086. 
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: The Department, pursuant to section 202(a) 
of the IAA, must enter into an agreement with at least one qualified 
entity and designate it as an accrediting entity. Accrediting entities 
may be (1) nonprofit private entities with expertise in developing and 
administering standards for entities providing child welfare services; 
or (2) State adoption licensing bodies that have expertise in 
developing and administering standards for entities providing child 
welfare services and that accredit only agencies located in that State. 
Colorado's Department of Human Services is a State adoption licensing 
body with expertise in developing and administering standards for 
entities providing child welfare services and only accredits agencies 
located in the State of Colorado. The final rule on accreditation of 
agencies and approval of persons (22 CFR Part 96) was published in the 
Federal Register (71 FR 8064-8066, February 15, 2006) and became 
effective on March 17, 2006. The final rule establishes the regulatory 
framework for the accreditation and approval function and provides the 
standards that the designated accrediting entities will follow in

[[Page 38443]]

accrediting or approving adoption service providers.

Memorandum of Agreement Between the U.S. Department of State, Bureau of 
Consular Affairs and the Colorado Department of Human Services

Parties & Purpose of the Agreement

    The Department of State, Bureau of Consular Affairs (Department) 
and the Colorado Department of Human Services (Colorado), with its 
principal office located at 1575 Sherman Street, Denver, CO 80203-1714, 
hereinafter the ``Parties'', are entering into this agreement for the 
purpose of designating Colorado as an accrediting entity under the 
Intercountry Adoption Act of 2000 (IAA), Public Law 106-279 and 22 CFR 
Part 96.

Authorities

    The Department enters into this agreement pursuant to Sections 202 
and 204 of the IAA, 22 CFR Part 96, and Delegation of Authority 261. 
Colorado has full authority to enter into this MOA pursuant to Colorado 
Revised Statutes Sec.  26-6-104(6.5), a copy of which is attached 
hereto as Attachment 1. The Executive Director of the Colorado 
Department of Human Services is authorized to sign on Colorado's 
behalf.

Definitions

    For purposes of this memorandum of agreement, terms used here that 
are defined in 22 CFR 96.2 shall have the same meaning as they have in 
22 CFR 96.2. In addition, the terms ``transitional application 
deadline'' (TAD) and ``deadline for initial accreditation or approval'' 
(DIAA) shall have the meaning given them in 22 CFR 96.19 and ``uniform 
notification date'' (UND) shall have the meaning given it in 22 CFR 
96.58.
    The Parties agree as follows:

Article 1--Designation and Jurisdiction of the Accrediting Entity

    The Department hereby designates Colorado as an accrediting entity 
and thereby authorizes it to accredit (including temporarily accredit) 
agencies and approve persons that are located in Colorado and that are 
licensed as a child placement agency in the State of Colorado, in 
accordance with the procedures and standards set forth in 22 CFR Part 
96, and to perform all of the accrediting entity functions set forth in 
22 CFR 96.7.

Article 2--Accreditation Responsibilities and Duties of the Accrediting 
Entity

    (1) Colorado agrees to perform all accrediting entity functions set 
forth in 22 CFR 96.7(a) and to perform its functions in accordance with 
the Convention, the IAA, Part 96 of 22 CFR and any other applicable 
regulations, and as additionally specified in this agreement. In 
performing these functions, Colorado will operate under policy 
direction from the Department regarding U.S. obligations under the 
Convention and regarding the functions and responsibilities of an 
accrediting entity.
    (2) Colorado will take appropriate staffing, funding, and other 
measures to allow it to carry out all of its functions and fulfill all 
of its responsibilities, and will use the Adoptions Tracking System and 
the Hague complaint registry (ATS/HCR) as directed by the Department, 
including by updating required data fields in a timely fashion.
    (3) In carrying out its accrediting entity functions Colorado will:
    (a) Prepare to accept applications by the TAD by expending its own 
funds and other resources for materials development, staff training, 
travel and meeting attendance in advance of receiving any fees for its 
services as an accrediting entity;
    (b) Make decisions on accreditation and approval in accordance with 
the procedures set forth in 22 CFR Part 96 and using only the standards 
in subpart F of 22 CFR Part 96 and the substantial compliance weighting 
system approved by the Department pursuant to Article 3, paragraph 5, 
below;
    (c) Make decisions on temporary accreditation in accordance with 
the procedures and standards in subpart N of 22 CFR Part 96 and the 
procedures presented to the Department pursuant to Article 3, paragraph 
3, subsection (a), below;
    (d) Charge applicants for accreditation, approval, or temporary 
accreditation only fees approved by the Department pursuant to Article 
3, paragraph 4 below;
    (e) Consistent with 22 CFR 96.19 and 96.97, use its best efforts to 
evaluate and decide by the DIAA all applications for accreditation, 
temporary accreditation, or approval that were submitted by the TAD;
    (f) Review complaints, including complaints regarding conduct 
alleged to have occurred abroad, in accordance with subpart J of 22 CFR 
Part 96 and the additional procedures approved by the Department 
pursuant to Article 3, paragraph 3, subsections (c) and (d) below. 
Colorado will exercise its discretion in determining which methods are 
most appropriate to review complaints regarding conduct alleged to have 
occurred abroad.
    (g) Take adverse actions against accredited agencies, temporarily 
accredited agencies, and approved persons in accordance with subparts K 
and N of 22 CFR Part 96, and cooperate with the Department in any case 
in which the Department considers exercising its adverse action 
authorities because the accrediting entity has failed or refused after 
consultation with the Department to take what the Department considers 
to be appropriate enforcement action;
    (h) Assume full responsibility for defending adverse actions in 
court proceedings, if challenged by the adoption service provider or 
the adoption service provider's board or officers;
    (i) Refer an adoption service provider to the Department for 
debarment if, but only if, it concludes after investigation that the 
adoption service provider's conduct meets the standards for action by 
the Secretary set out in 22 CFR 96.85;
    (j) Promptly report any change in the accreditation (including 
temporary accreditation) or approval status of an adoption service 
provider to the relevant state licensing authority.
    (k) Maintain and use only the required procedures approved by the 
Department and those procedures presented to the Department pursuant to 
Article 3 of this agreement whenever they apply.

Article 3--Preparatory Tasks

(Tasks Preceding the Transitional Application Deadline)

    (1) Accreditation Materials and Training: In coordination with any 
other designated accrediting entities, by a date agreed upon by the 
Parties, Colorado will:
    (a) Develop forms, training materials, and evaluation practices;
    (b) Determine whether joint training of evaluators or other 
personnel is practical, and, if so, assist in conducting or participate 
in any joint training sessions;
    (c) Develop explanatory guidance to assist applicants for 
accreditation, temporary accreditation, and approval in achieving 
substantial compliance with the applicable standards.
    (2) Development of Internal Review Procedure: Colorado will develop 
and present to the Department for approval, by a date agreed upon by 
the Parties, procedures that it will maintain and use to determine 
whether to terminate adverse actions against an accredited agency or 
approved person on the grounds that the deficiencies necessitating the 
adverse action have been corrected.

[[Page 38444]]

    (3) Development of Other Procedures: Colorado will develop and 
present to the Department, by a date agreed upon by the Parties, 
procedures that it will maintain and use:
    (a) To evaluate whether a candidate for temporary accreditation 
meets the applicable eligibility requirements set forth in 22 CFR 
96.96;
    (b) To carry out its annual monitoring duties;
    (c) To review thoroughly complaints or information referred to it 
through the Hague Complaint Registry or from the Department directly, 
including procedures for obtaining complete and accurate information 
about conduct alleged to have occurred abroad;
    (d) To review complaints that it receives about its own actions as 
an accrediting entity for Hague adoption service providers;
    (e) To make the public disclosures required by 22 CFR 96.91; and
    (f) To ensure the reasonableness of charges for the travel and 
maintenance of its site evaluators, such as for travel, meals and 
accommodations.
    (4) Fee Schedule Development:
    (a) Colorado will develop a fee schedule for accreditation, 
temporary accreditation, and approval services that meets the 
requirements of 22 CFR 96.8. Fees will be set based on the principle of 
recovering no more than the full cost, as defined in OMB Circular A-25 
paragraph 6(d)(1), of accreditation, temporary accreditation, and 
approval services. Colorado will submit a fee schedule developed using 
this methodology together with comprehensive documentation justifying 
the proposed fees to the Department for approval by a date agreed upon 
by the Parties.
    (b) The approved fee schedule can be amended with the approval of 
the Department.
    (5) Substantial Compliance Weighting Systems Development:
    (a) Colorado will develop a substantial compliance weighting system 
as described in 22 CFR 96.27, and will submit it to the Department for 
approval by a date agreed upon by the Parties.
    (b) Colorado will develop a separate substantial compliance 
weighting system to be used in evaluating temporarily accredited 
agencies that incorporates the performance standards in 22 CFR 96.104 
and will submit it to the Department for approval by a date agreed upon 
by the Parties.
    (c) In developing the systems described in paragraphs (a) and (b) 
of this section, Colorado will coordinate with any other accrediting 
entities, and consult with the Department to ensure consistency between 
the systems used by accrediting entities. These systems can be amended 
with the approval of the Department.

Article 4--Initial Accreditation (Including Temporary Accreditation) 
and Approval Tasks

    (1) The Department will consult with Colorado and all other 
accrediting entities before establishing the transitional application 
deadline (TAD), the uniform notification date (UND), and the deadline 
for initial accreditation or approval (DIAA).
    (2) Within an agreed number of days following the TAD, Colorado 
will make public the names and addresses of agencies and persons that 
have applied to be accredited (including temporarily accredited) or 
approved, provide a mechanism for the public to comment on applicants, 
and consider comments received from the public in its decisions on 
applicants. With respect to additional applications received prior to 
entry into force of the Convention, Colorado will make the names of 
such applicants public within an agreed number of days following 
receipt. Colorado will consider any public comments in its decisions on 
the additional applicants.
    (3) In conformity with 22 CFR 96.58, Colorado will not release its 
accreditation (including temporary accreditation) and approval 
decisions prior to the UND.
    Colorado will prepare the list of decisions to be announced on the 
UND and transmit the information as directed by the Department. 
Colorado will immediately notify the Department of any corrections, so 
that the Department may rely upon this list in compiling the list of 
initially accredited and approved adoption service providers that it 
will deposit with the Permanent Bureau of the Hague Conference on 
Private International Law.

Article 5--Data Collection, Reporting and Records

    (1) Adoptions Tracking System/Hague Complaint Registry (ATS/HCR):
    (a) Colorado will maintain and fund a computer and internet 
connection for use with the ATS/HCR that meets system requirements set 
by the Department;
    (b) The Department will provide software or access tokens needed by 
individuals for secure access to the ATS/HCR and facilitate any 
necessary training in use of the ATS/HCR;
    (c) Colorado will ensure that only individuals that the Department 
has approved for access have access to the ATS/HCR and to any secure 
access tokens or passwords.
    (2) Annual Report: Colorado will report on dates agreed upon by the 
Parties, in the format specified by the Department, the information 
required in 22 CFR 96.93 as provided in that section through ATS/HCR.
    (3) Additional Reporting: Colorado will provide any additional 
status reports or data as required by the Department, and in the format 
required by the Department.
    (4) Accrediting Entity Records: Colorado will retain all records 
related to its accreditation functions and responsibilities for a 
minimum of six years after their creation, or until any litigation, 
claim or audit related to the records filed or noticed within the six 
year period is finally terminated, whichever is longer.

Article 6--Department Oversight and Monitoring

    (1) Accrediting Entity Obligations: To facilitate oversight and 
monitoring by the Department, Colorado will:
    (a) Provide copies of its forms and other materials to the 
Department and give Department personnel the opportunity to participate 
in any training sessions for its evaluators or other personnel;
    (b) Allow the Department to inspect all records relating to its 
accreditation functions and responsibilities and provide to the 
Department copies of such records as requested or required for 
oversight, including to evaluate renewal or maintenance of the 
accrediting entity's designation, and for purposes of transferring 
adoption service providers to another accrediting entity;
    (c) Submit to the Department by a date agreed upon by the Parties 
an annual declaration signed by the Licensing Administrator confirming 
that Colorado is complying with the IAA, 22 CFR Part 96, any other 
applicable regulations, and this agreement in carrying out its 
functions and responsibilities;
    (d) Make appropriate senior-level officials available to attend a 
yearly performance review meeting with the Department;
    (e) Immediately report to the Department events which have a 
significant impact on its ability to perform its functions and 
responsibilities as an accrediting entity, including financial 
difficulties, changes in key personnel or other staffing issues, State 
legislative or regulatory changes; legal or disciplinary actions 
against Colorado and conflicts of interest;

[[Page 38445]]

    (f) Notify the Department of any requests for information that it 
receives from Central Authorities of other Hague signatories, or any 
other foreign government authorities (except for routine requests 
concerning accreditation, temporary accreditation, or approval status 
or other information publicly available under subpart M of Part 96), 
and consult with the Department before releasing information;
    (g) Consult immediately with the Department about any issue or 
event that may affect compliance with the IAA or U.S. compliance with 
obligations under the Convention.
    (2) Departmental Approval Procedures: In all instances in which the 
Department must approve a policy, system, fee schedule, or procedure 
before Colorado can bring it into effect or amend it, Colorado will 
submit the policy, system, fee schedule, or procedure or amendment in 
writing to the Department's AE Liaison via email where possible. The AE 
Liaison will be responsible for coordinating the Department's approval 
process and arranging any necessary meetings or telephone conferences 
with Colorado. Formal approval by the Department will be conveyed in 
writing by the Deputy Assistant Secretary for Overseas Citizens 
Services or her or his designee.
    (3) Suspension or Cancellation: When the Department is considering 
suspension or cancellation of Colorado's designation:
    (a) The Department will notify Colorado in writing of the 
identified deficiencies in its performance and the time period in which 
the Department expects correction of the deficiencies;
    (b) Colorado will respond in writing to either explain the actions 
that it has taken or plans to take to correct the deficiencies or to 
demonstrate that the Department's concerns are unfounded within 10 
business days;
    (c) Upon request, the Department will also meet with the 
accrediting entity by teleconference or in person;
    (d) If the Department, in its sole discretion, is not satisfied 
with the actions or explanation of Colorado, it will notify Colorado in 
writing of its decision to suspend or cancel Colorado's designation and 
this agreement;
    (e) Colorado will stop or suspend its actions as an accrediting 
entity as directed by the Department in the notice of suspension or 
cancellation, and cooperate with any Departmental instructions in order 
to transfer adoption service providers it accredits (including 
temporarily accredits) or approves to another accrediting entity, 
including by transferring a reasonable allocation of collected fees for 
the remainder of the accreditation or approval period of such adoption 
service providers.
    (4) Complaint Procedures: By a date agreed upon by the Parties, the 
Parties will agree upon procedures for handling complaints against the 
accrediting entity received by the Department or referred to the 
Department because the complainant was not satisfied with the 
accrediting entity's resolution of the complaint. These complaint 
procedures may be incorporated into the Department's general procedures 
for handling instances in which the Department is considering whether a 
deficiency in the accrediting entity's performance may warrant 
suspension or cancellation of its designation.

Article 7--Other Issues Agreed by the Parties

    (1) Conflict of interest: Colorado shall disclose to the Department 
the name of any organization of which it is a member that also has as 
members intercountry adoption service providers. Colorado shall 
demonstrate to the Department that it has procedures in place to 
prevent any such membership from influencing its actions as an 
accrediting entity and shall maintain and use these procedures.
    (2) Liability: Colorado agrees to maintain sufficient resources to 
defend challenges to its actions as an accrediting entity, and to 
inform the Department immediately of any events that may affect its 
ability to defend itself. Colorado agrees that it will consult with the 
Department immediately if it becomes aware of any legal proceedings 
related to its acts as an accrediting entity, or of any legal 
proceedings not related to its acts as an accrediting entity that may 
threaten its ability to continue to function as an accrediting entity.

Article 8--Liaison Between the Department and the Accrediting Entity

    (1) Colorado's principal point of contact for communications 
relating to its functions and duties as an accrediting entity will be 
the Licensing Administrator in the Department of Human Services. The 
Department's principal point of contact for communication is the 
Accrediting Entity Liaison officer in the Office of Children's Issues, 
Bureau of Consular Affairs, U.S. Department of State.
    (2) The parties will keep each other currently informed in writing 
of the names and contact information for their principal points of 
contact. As of the signing of this Agreement, the respective principal 
points of contact are as set forth in Attachment 2.

Article 9--Certifications and Assurances

    (1) Colorado certifies that it will comply with all requirements of 
applicable State and Federal law.
    (2) Colorado certifies that it satisfies all of the accrediting 
entity performance criteria set forth in 22 CFR 96.6 and agrees to 
continue to do so throughout the duration of its designation.
    (3) Colorado agrees to indemnify the Department and any persons 
acting on its behalf and to hold them harmless from any claim, loss or 
other liability that is caused by Colorado's fault or negligence in 
connection with performing duties under this Agreement. Any negligence 
or alleged negligence by the Department or persons acting on its behalf 
shall not preclude a claim for indemnification.

Article 10--Agreement, Scope, and Period of Performance

    (1) Scope:
    (a) This agreement is not intended to have any effect on any 
activities of Colorado that are not related to its functions as an 
accrediting entity for adoption service providers providing adoption 
services in intercountry adoptions under the Hague Convention.
    (b) Nothing in this agreement shall be deemed to be a commitment or 
obligation to provide any Federal funds. The Department, consistent 
with the IAA, may not provide any funds to the accrediting entity for 
the performance of accreditation and approval functions.
    (c) All accrediting entity functions and responsibilities 
authorized by this agreement are to occur only during the duration of 
this agreement.
    (d) Nothing in this agreement shall release Colorado from any legal 
requirements or responsibilities imposed on the accrediting entity by 
the IAA, 22 CFR Part 96, or any other applicable laws or regulations.
    (2) Duration: Colorado's designation as an accrediting entity and 
this agreement shall remain in effect for five years from signature, 
unless terminated earlier by the Department in conjunction with the 
suspension or cancellation of the designation of Colorado. The Parties 
may mutually agree in writing to extend the designation of the 
accrediting entity and the duration of this agreement. If either Party 
does not wish to renew the agreement, it must provide written notice no 
less than one year prior to the termination date, and the Parties will 
consult to establish a mutually agreed schedule to transfer adoption 
service

[[Page 38446]]

providers to another accrediting entity, including by transferring a 
reasonable allocation of collected fees for the remainder of the 
accreditation or approval period of such adoption service providers.
    (3) Severability: To the extent that the Department determines, 
within its reasonable discretion, that any provision of this agreement 
is inconsistent with the Convention, the IAA, the regulations 
implementing the IAA or any other provision of law, that provision of 
the agreement shall be considered null and void and the remainder of 
the agreement shall continue in full force and effect as if the 
offending portion had not been a part of it.
    (4) Entirety of Agreement: This agreement is the entire agreement 
of the Parties and may be modified only upon written agreement of the 
Parties.

Attachment 1--Colorado Revised Statutes: Title 26 Human Services Code: 
Article 6 Child Care Centers: Part 1 Child Care Licensing

26-6-104. Licenses--Out-of-State Notices and Consent

    (6.5) On and after July 1, 2005, and subject to designation as a 
qualified accrediting entity as required by the ``Intercountry 
Adoption Act of 2000'', 42 U.S.C. 14901 et seq., the state 
department may license and accredit a child placement agency for 
purposes of providing adoption services for convention adoptions 
pursuant to the ``Intercountry Adoption Act of 2000'', 42 U.S.C. 
14901 et seq. The state board of human services may adopt rules 
consistent with federal law governing the procedures for adverse 
actions regarding accreditation, which procedures may vary from the 
procedures set forth in the ``State Administrative Procedure Act'', 
article 4 of title 24, C.R.S.

    Dated: June 29, 2006.
Maura Harty,
Assistant Secretary, Bureau of Consular Affairs, Department of State.
[FR Doc. E6-10573 Filed 7-5-06; 8:45 am]
BILLING CODE 4710-06-P