[Federal Register Volume 71, Number 177 (Wednesday, September 13, 2006)]
[Proposed Rules]
[Pages 54001-54005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7526]



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DEPARTMENT OF STATE

22 CFR Part 99

[Public Notice 5539]
RIN: 1400-AC-20


Intercountry Adoption--Reporting on Non-Convention and Convention 
Adoptions of Emigrating Children

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: The Department of State (the Department), with the joint 
review and approval of the Department of Homeland Security (DHS), is 
proposing a new rule to implement the requirement in the Intercountry 
Adoption Act of 2000 (the IAA) to establish a Case Registry for, inter 
alia, emigrating children. This proposed rule would impose reporting 
requirements on adoption service providers, including governmental 
authorities who provide adoption services, in cases involving adoptions 
of children who will emigrate from the United States. These reporting 
obligations apply to all intercountry adoptions, regardless of whether 
they are covered under the 1993 Hague Convention on Protection of 
Children and Co-operation in Respect of Intercountry Adoption (the 
Convention). This proposed rule, although issued with the joint review 
and approval of DHS pursuant to section 303(d) of the IAA, only adds a 
new section to the Department's Convention regulations; no amendments 
or additions are made to DHS regulations.

DATES: Comments must be received on or before November 13, 2006.

ADDRESSES: You may submit comments, identified by docket number State/
AR-01/99, by one of the following methods (no duplicates, please):
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Electronically: You may submit electronic comments to 
[email protected]. Attachments must be in Microsoft Word.
     Mail: U.S. Department of State, CA/OCS/PRI, Adoption 
Regulations Docket Room, (SA-29), 2201 C Street, NW., Washington, DC 
20520.
     Courier: U.S. Department of State, CA/OCS/PRI, Adoption 
Regulations Docket Room, (SA-29), 2201 C Street, NW., Washington, DC 
20520. (Because access to the Department of State is not readily 
available to private individuals without Federal Government 
identification, do not personally deliver comments to the Department).
    Docket: Comments received before the close of the comment period 
will be available to the public, including any personally identifiable 
information that is included in a comment. The Department posts 
comments on its public Web site at: http://travel.state.gov or they are 
available for public inspection by calling Delilia Gibson-Martin at 
202-736-9105 for an appointment.

FOR FURTHER INFORMATION CONTACT: 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:

I. Legal Authority

    The Hague Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption, May 29, 1993, S. Treaty Doc. 105-51 
(1998); 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)), 32 I.L.M. 1134 
(1993); Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954.

II. Introduction

    The Convention is a multilateral treaty that provides a framework 
for the adoption of children habitually resident in one country that is 
a party to the Convention by persons habitually resident in another 
country that is also a party to the Convention. The Convention 
establishes procedures to be followed in these intercountry adoption 
cases and imposes safeguards to protect the best interests of children. 
It applies to the United States as both a country of origin (outgoing 
cases, i.e., where children are emigrating from the United States to a 
foreign country) and a receiving country (incoming cases, i.e., where 
children are immigrating to the United States from a foreign country).
    The implementing legislation for the Convention is the IAA. The IAA 
requires the Department and DHS to establish a Case Registry to track 
all intercountry adoption cases: Convention and non-Convention; 
emigrating and immigrating cases. It also requires the Department to 
report certain information about intercountry adoptions to Congress. To 
implement these responsibilities, the Department is, with the joint 
review and approval of DHS, promulgating this proposed rule to require 
adoption service providers who provide adoption services in 
intercountry adoption cases involving a child emigrating from the 
United States (including governmental authorities who provide such 
adoption services) to report certain information to the Department for 
incorporation into the Case Registry. These requirements would apply in 
both Convention and non-Convention cases involving emigrating children. 
No regulation is being proposed at this time to establish reporting 
requirements in cases involving children immigrating to the United 
States (incoming cases), because sufficient information can be 
collected through other means, primarily the DHS petition process and 
the immigration visa and issuance process.
    Separate regulations implement other aspects of the Convention and 
the IAA, such as regulations on the accreditation/approval of adoption 
service providers (ASPs) to perform adoption services in cases covered 
by the Convention (22 CFR part 96), preservation of Convention records 
(22 CFR part 98), visa procedures for Convention adoption cases 
involving immigrating children (regulations to appear at 22 CFR part 
42), and certification of Convention adoption proceedings done by U.S. 
courts (regulations to appear at 22 CFR part 97). Further background on 
the Convention and the IAA is provided in the Preamble to the Final 
Rule on the Accreditation and Approval of Agencies and Persons under 
the IAA, Section I and II, 71 FR 8064-8066 (February 15, 2006) and the 
Preamble to the Proposed Rule on the Accreditation of Agencies and 
Approval of Persons under the IAA, Section III and IV, 68 FR 54065-
54073 (September 15, 2003).

III. The Proposed Rule

    This proposed rule establishes reporting requirements for all 
intercountry adoption cases in which a child is emigrating from the 
United States. There are three IAA sections relevant to the development 
of this proposed rule. Section 102(e) of the IAA requires the 
Department and DHS to establish a Case Registry of all adoptions 
involving the immigration of children to the United States and 
emigration of children from the United States regardless of whether the 
adoption occurs under the Convention. This Case Registry must permit 
tracking of pending cases and retrieval of information on both pending 
and closed cases. (As noted previously, this proposed regulation 
addresses only emigrating (outgoing) cases, and not immigrating 
(incoming) cases, because the Department can obtain sufficient data on 
immigrating cases through other means.) Section 303(d) of the IAA 
requires all adoption service providers, including governmental 
authorities, who provide adoption services in outgoing cases not 
subject to the Convention, to file information required under 
regulations issued to implement

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the Case Registry. In addition, section 104 of the IAA requires the 
Department to submit annual reports to Congress on all intercountry 
adoptions, which must set forth, among other items, the total number of 
Convention and non-Convention outgoing cases, the country to which each 
child immigrated, and the State from which each child emigrated. In 
summary, these three sections of the IAA--section 102(a) (establishment 
of Case Registry), section 303(d)(filing with Case Registry regarding 
non-Convention adoptions), and section 104(b)(2) (annual reports to 
Congress)'provide the Department with the legal authority to collect 
the data outlined in the proposed rule.
    Although the main purpose of the IAA was to implement the 
Convention, Congress also sought to gather case-specific data on 
intercountry adoptions. Historically, children involved in outgoing 
cases did not require adoption-specific Federal services in connection 
with their departure from the United States and therefore were not 
identified as such to the Federal government. As noted, in the IAA, 
Congress mandated the creation of Case Registry to monitor all 
intercountry adoption cases, including both Convention and non-
Convention outgoing cases. The House Committee on International 
Relations stated in its report on the IAA that ``[T]his registry shall 
be for the purpose of easing administration of [the IAA] and the 
Convention so that Federal agencies and prospective adoptive parents 
can determine the status of a particular case and for the purpose of 
creating a system to track children who leave the United States to be 
adopted abroad.'' (Report of the House Committee on International 
Relations on the Intercountry Adoption Act, 106th Cong. 2nd Sess., H.R. 
Rep. No 106-691 (2000)). With this legislative history and the 
resulting statutory language in mind, the Department has devised a rule 
that requires reporting of certain case-specific information both to 
permit tracking and retrieval of information on outgoing cases and to 
enable the Department to complete its annual reports to Congress. The 
proposed rule is narrowly crafted to include only those basic items 
necessary to fulfill these case tracking and reporting functions. 
Moreover, in the interest of increasing compliance, we have attempted 
to keep the requirements simple and the number of items to be reported 
very limited.

Reporting Information on Convention and Non-Convention Outgoing Cases

    Section 99.1 of the proposed regulation defines the term 
``Convention'' and adopts by reference all other definitions 
established in 22 CFR 96.2 (Hague accreditation and approval 
regulation). Section 99.2 of the proposed regulation sets forth the 
reporting requirements for providers of adoption services in outgoing 
(emigrating child) adoptions. Note that the term ``adoption services'' 
is a defined term in 22 CFR 96.2 and refers to the following six 
services: (1) Identifying a child for adoption and arranging an 
adoption; (2) securing the necessary consent to termination of parental 
rights and to adoption; (3) performing a background study on a child or 
a home study on a prospective adoptive parent(s), and reporting on such 
a study; (4) making non-judicial determinations of the best interests 
of a child and the appropriateness of an adoptive placement for the 
child; (5) monitoring a case after a child has been placed with 
prospective adoptive parent(s) until final adoption; (6) when necessary 
because of disruption before final adoption, assuming custody and 
providing (including facilitating the provision of) child care or any 
other social service pending an alternative placement. Post-adoption 
services are not included within the definition of ``adoption 
services.''

Who Must Report?

    Section 99.2(a) makes clear that any entity that provides adoption 
services will be required to report under this rule if it is a 
``reporting provider'' in the case, as identified in Sec.  99.2(b). 
This means that all agencies (whether or not accredited or temporarily 
accredited), all persons (whether or not approved), all public domestic 
authorities (a defined term in 22 CFR 96.2 which means an authority 
operated by a State, local, or tribal government within the United 
States), and any other providers of adoption services in outgoing 
adoption cases are potentially required to report under this 
regulation. To avoid duplicative reporting, and to reduce the burden on 
all adoption service providers, including public domestic authorities, 
Sec.  99.2(b) establishes a framework for determining which provider 
must report in a given case as follows:
    Convention cases. In an outgoing Convention adoption case involving 
at least one accredited, temporarily accredited, or approved provider, 
it is the primary provider, as described in 22 CFR 96.14(a) that must 
report. In an outgoing Convention adoption in which there is no 
accredited, temporarily accredited, or approved provider involved, the 
public domestic authority performing adoption services in the case must 
report.
    Non-Convention cases. In an outgoing non-Convention adoption case, 
in which there is only one provider of adoption services, that provider 
must report. As noted above, this provider might be an agency 
(including an accredited agency or temporarily accredited agency), a 
person (including an approved person), a public domestic authority, or 
any other adoption service provider. In cases in which there are two or 
more providers of adoption services, the reporting provider is the 
provider that is responsible for child placement as determined by 
applying factors listed in Sec.  99.2. When multiple providers are 
involved in a non-Convention case, each provider must use the factors 
in Sec.  99.2 of the proposed rule to identify whether it is the 
provider with child placement responsibility and therefore must report 
the information listed in Sec.  99.2(c) and (d). The language in Sec.  
99.2(b)(1) through (4) is similar to the language in 22 CFR 96.14 on 
how to determine who is the primary provider; however, it has been 
adapted slightly to replace Convention specific terminology with 
language appropriate to non-Convention cases.
    This proposed rule does not require prospective adoptive parent(s) 
who are acting on their own behalf, as described in 22 CFR 96.13(d), to 
report information to the Department, even if they perform adoption 
services for themselves in an outgoing case. The Department is not 
including prospective adoptive parent(s) acting on their own behalf as 
potential reporters because, although they may perform adoption 
services on their own behalf, they are not providing adoption services 
to others, and thus section 303(d) of the IAA would not require them to 
report data to the Department. The Department believes that very few if 
any outgoing Convention adoption cases will be accomplished entirely by 
prospective adoptive parent(s) acting alone, since the requirements 
that must be met to achieve IAA and Convention compliance, as set forth 
in 22 CFR 97.3, will require the use of an adoption service provider. 
We also believe that, given the complexity of outgoing intercountry 
adoptions and the standard requirement of an independent home study, 
the number of non-Convention cases where there is no adoption service 
provider at all will be quite limited as well.

What Information Must Be Reported?

    Section 99.2(c) and (d) lists the case-specific information that 
must be reported to the Department. The

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Department has limited the data items to the minimum amount of 
information it believes necessary to carry out its statutory duties. 
The regulation divides required reporting into two basic categories: 
Identifying information that must be reported within 30 days of 
learning that the case involves emigration of a child from the United 
States to a foreign country, set forth in Sec.  99.2(c), and milestone 
information as well as changes to information previously provided that 
must be reported within 30 days of occurrence, as set forth in Sec.  
99.2(d).
    In accordance with Sec.  99.2(c), the reporting provider, as 
identified in Sec.  99.2(b), must provide the following identifying 
information to the Department within 30 days of learning a case 
involves emigration of a child from the United States to a foreign 
country:
     The name, date of birth of child, and place of birth of 
child;
     The U.S. state from which the child is emigrating;
     The foreign country to which the child is immigrating;
     The U.S state where the final adoption is taking place, or 
alternatively, the U.S. State where legal custody for the purpose of 
adoption is being granted and the foreign country where the final 
adoption will take place; and
     The name, address, phone number, and other contact 
information for the reporting provider.
    In addition, in accordance with Sec.  99.2(d), the reporting 
provider must provide any changes to information previously provided, 
as well as the following milestone information, to the Department 
within 30 days of occurrence:
     Date on which the case was determined to involve 
emigration from the United States. (Generally, this date would be the 
time the U.S. child is matched with foreign adoptive parents.)
     Date of the U.S. final adoption or, alternatively, the 
date on which custody for purpose of adoption was granted in the United 
States;
     Date of foreign final adoption if custody for purpose of 
adoption was granted in the United States, to the extent practicable; 
and
     Any additional information when requested by the 
Department in a particular case.
    The proposed rule mandates that an adoption service provider report 
the initial information to the Department within 30 days of identifying 
that the case involves the emigration of a child from the United 
States, and subsequently within 30 days of each milestone or change to 
previously reported information. The proposed rule does not include 
details on the mechanics of how and where to report the information 
listed in Sec.  99.2. The Department plans to post on its Web site 
instructions to adoption service providers on how and where to send the 
required basic information on a particular case.

The Department and DHS Role

    Section 303(d) of the IAA envisioned that DHS and the Department 
would agree on a rule on reporting requirements needed for the Case 
Registry. The Department is currently developing the Case Registry and 
coordinating with DHS on the case-tracking functions for immigrating 
children. DHS has a substantial role in cases involving immigrating 
children. On the other hand, DHS is not directly involved in outgoing 
cases at all. Nevertheless, in keeping with section 303(d) of the IAA, 
22 CFR part 99 was jointly reviewed and approved by the Department and 
DHS. However, the regulation only adds a new part to the Department's 
regulations at Title 22 of the Code of Federal Regulations. No changes 
are made to any DHS regulations, nor will the rule appear in Title 8 of 
the Code of Federal Regulations.

IV. Regulatory Review:

A. Administrative Procedures Act

    In accordance with provisions of the Administrative Procedure Act 
governing rules promulgated by Federal agencies that affect the public 
(5 U.S.C. 533), the Department is publishing this proposed rule and 
inviting public comment. All comments received before the close of 
business on the comment closing date indicated above will be considered 
and will be available for examination in the docket. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practicable. A final rule may be published at 
any time after close of the comment period.

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

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-612 
and Executive Order 13272, section 3(b), the Department of State has 
evaluated the effects of this proposed action on small entities, and 
has determined, and hereby certifies, pursuant to 5 U.S.C. 605(b), that 
it would not have a significant economic impact on a substantial number 
of small entities. As stated in the final rule for 22 CFR part 96 (71 
FR 8064, 8128), the Department estimates that overall there are between 
420 and 600 ASPs that may have to comply with the accreditation 
regulations, all of whom are likely to be small entities. However, 
overall, the number of outgoing intercountry adoption cases is expected 
to be very small in comparison with the number of incoming cases. 
Consequently, there will be very few ASPs who are small entities and 
who will also be involved in outgoing cases. The proposed rule requires 
only extremely limited reporting requirements for outgoing cases. Thus, 
the Department does not believe the economic impact on small entities 
will be significant; however, the Department welcomes public comment on 
the rule's impact on small entities and the cost of reporting 
requirements mandated by the IAA.

C. 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 would 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.

D. 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. 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.

E. Executive Order 13132: Federalism

    A rule has federalism implications under Executive Order 13132 if 
it has substantial direct effects on the States,

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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. The 
Convention and the IAA do, however, address issues that previously had 
been regulated primarily at the State level, as discussed in the 
preamble to the proposed rule on accreditation and approval of agencies 
and persons, appearing at 68 FR 54064, 54069-54070. These regulations 
do not create new federalism implications beyond those created by the 
IAA, and the Department has been careful to limit reporting duties of 
State, local, and tribal authorities to those necessitated by the IAA. 
We believe the burden of reporting the proposed information to the 
Department will be minimal. As with the regulations on accreditation 
and approval, the Department welcomes comments from State and local 
agencies and tribal governments on the proposed regulations. We also 
envision significant outreach and consultation with appropriate State 
authorities in the ultimate implementation of any regulation on this 
topic.

F. Executive Order 12866: Regulatory Review

    The Department of State does not consider this rule to be a 
``significant regulatory action'' within the scope of section 3(f)(1) 
of Executive Order 12866. Nonetheless, the Department has reviewed the 
rule to ensure its consistency with the regulatory philosophy and 
principles set forth in the Executive Order.

G. Executive Order 12988: Civil Justice Reform

    The Department has reviewed this 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.

H. The Paperwork Reduction Act (PRA) of 1995

    Under the PRA, 42 U.S.C. 3501 et seq., agencies are generally 
required to submit to the Office of Management and Budget (OMB) for 
review and approval information collection requirements imposed on 
``persons'' as defined in the PRA. Section 503(c) of the IAA exempts 
from the PRA information collection ``for purposes of sections 104, 
202(b)(4), and 303(d)'' of the IAA ``or for use as a Convention record 
as defined'' in the IAA. All information collections that relate to 
outgoing non-Convention cases will be collections made for the purposes 
of section 303(d) of the IAA, and thereby exempt. All information 
collections that relate to outgoing Convention cases will be Convention 
records as defined in and subject to the preservation requirements of 
22 CFR 98, which implements section 401(a) of the IAA. Additionally, 
the majority of information collection imposed on persons pursuant to 
this rule, with respect to both Convention and non-Convention cases, 
will be for the purposes of obtaining information for congressional 
reports required under section 104 of the IAA. Accordingly, the 
Department has concluded that the PRA does not apply to information 
collected from the public under this rule.

List of Subjects in 22 CFR Part 99

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

    Accordingly, the Department proposes to add new part 99 to title 22 
of the CFR, chapter I, subchapter J, to read as follows:

PART 99--REPORTING ON CONVENTION AND NON-CONVENTION ADOPTIONS OF 
EMIGRATING CHILDREN

Sec.
99.1 Definitions.
99.2 Reporting requirements for adoptions involving emigrating U.S. 
children.
99.3 [Reserved].

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


Sec.  99.1  Definitions.

    As used in this part, the term:
    (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) Such other terms as are defined in 22 CFR 96.2 shall have the 
meaning given to them therein.


Sec.  99.2  Reporting requirements for adoption cases involving 
emigrating U.S. children.

    (a) An agency (including an accredited agency and temporarily 
accredited agency), person (including an approved person), public 
domestic authority, or other adoption service provider providing 
adoption services in a case involving the emigration of a child from 
the United States must report information to the Secretary in 
accordance with this section if it is identified as the reporting 
provider in accordance with paragraph (b) of this section.
    (b) In a Convention case in which an accredited agency, temporarily 
accredited agency, or approved person is providing adoption services, 
the primary provider is the reporting provider. In any other Convention 
case, or in a non-Convention case, the reporting provider is the 
agency, person, public domestic authority, or other adoption service 
provider that is providing adoption services in the case, if it is the 
only provider of adoption services. If there is more than one more 
provider of adoption services in a non-Convention case, the reporting 
provider is the one that has child placement responsibility, as 
evidenced by the following factors:
    (1) Entering into placement contracts with prospective adoptive 
parent(s) to provide child referral and placement;
    (2) Accepting custody from a birthparent or other legal guardian 
for the purpose of placement for adoption;
    (3) Assuming responsibility for liaison with a foreign government 
or its designees with regard to arranging an adoption; or
    (4) Receiving from or sending to a foreign country information 
about a child that is under consideration for adoption.
    (c) A reporting provider, as identified in paragraph (b) of this 
section, must report the following identifying information to the 
Secretary for each outgoing case within 30 days of learning that the 
case involves emigration of a child from the United States to a foreign 
country:
    (1) Name, date of birth of child, and place of birth of child;
    (2) The U.S. State from which the child is emigrating;
    (3) The country to which the child is immigrating;
    (4) The U.S. State where the final adoption is taking place, or the 
U.S. State where legal custody for the purpose of adoption is being 
granted and the country where the final adoption is taking place; and
    (5) Its name, address, phone number, and other contact information.
    (d) A reporting provider, as identified in paragraph (b) of this 
section, must report any changes to information previously provided as 
well as the

[[Page 54005]]

following milestone information to the Secretary for each outgoing case 
within 30 days of occurrence:
    (1) Date case determined to involve emigration from the United 
States (generally the time the U.S. child is matched with foreign 
adoptive parents);
    (2) Date of U. S. final adoption or date on which custody for the 
purpose of adoption was granted in United States;
    (3) Date of foreign final adoption if custody for purpose of 
adoption was granted in the United States, to the extent practicable; 
and
    (4) Any additional information when requested by the Secretary in a 
particular case.


Sec.  99.3  [Reserved]

    Dated: June 15, 2006.
Maura Harty,
Assistant Secretary, Bureau of Consular Affairs, Department of State.
    Dated: August 30, 2006.
Michael Chertoff,
Secretary of Homeland Security, Department of Homeland Security.
[FR Doc. 06-7526 Filed 9-12-06; 8:45 am]
BILLING CODE 4710-06-P