[Federal Register Volume 85, Number 225 (Friday, November 20, 2020)]
[Proposed Rules]
[Pages 74492-74557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24391]



[[Page 74491]]

Vol. 85

Friday,

No. 225

November 20, 2020

Part II





 Department of State





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22 CFR Part 96





Intercountry Adoptions: Regulatory Changes to Accreditation and 
Approval Regulations in Intercountry Adoption; Proposed Rule

  Federal Register / Vol. 85 , No. 225 / Friday, November 20, 2020 / 
Proposed Rules  

[[Page 74492]]


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DEPARTMENT OF STATE

22 CFR Part 96

[Public Notice: 10732]
RIN 1400-AE39


Intercountry Adoptions: Regulatory Changes to Accreditation and 
Approval Regulations in Intercountry Adoption

AGENCY: Department of State.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of State (the Department) is proposing 
revisions to the Code of Federal Regulations to amend requirements for 
accreditation and authorization by the United States to provide 
adoption services in intercountry adoption cases. This proposed rule 
amends regulations to provide clarification, updating, or other 
adaptation of familiar accreditation and approval standards for 
intercountry adoption. It includes long-awaited provisions for 
intercountry adoption by relatives. The new regulations simplify and 
streamline the process by limiting the number of adoption services the 
primary provider must provide and capitalizing on the adoptive family's 
understanding of local culture and institutions. It provides a 
comprehensive definition of relative to clarify the relationships that 
are encompassed in the amendments to the accreditation rule. Also 
featured in this proposed rule is a new focus on supporting children 
and families in the event their adoptive placement disrupts.

DATES: The Department will accept comments on the proposed regulation 
until January 19, 2021.

ADDRESSES: Internet: You may view this proposed rule and submit your 
comments by visiting the Regulations.gov website at 
www.regulations.gov, and searching for docket number DOS-2020-0048. 
Submitting comments electronically through this website is the 
preferred method.

FOR FURTHER INFORMATION CONTACT: 
     Technical Information: Marisa Light, (202) 485-6042.
     Legal Information: Carine L. Rosalia, (202) 485-6092.

SUPPLEMENTARY INFORMATION: 

Preamble Contents

I. Introduction
II. Proposed Changes
    A. Adoption by Relatives
    B. Amendments Relating to Accrediting Entities and Accreditation
    C. Child Buying and Protection of Prospective Adoptive Parents
    D. Post-Placement Monitoring and Post-Adoption Services
    E. Submission of Complaints
    F. Reasonable Efforts To Find a Timely and Qualified Adoptive 
Placement in Outgoing Cases
    G. Provisions Relating to Corporate Governance and Oversight
    H. Procedures and Requirements for Adverse Action by the 
Secretary, Including for Challenges to Such Adverse Action
    I. Miscellaneous Amendments
III. Response to Regulatory Reform Solicitation of Comments
IV. Timeline for Implementing Changes in the Proposed Rule, if 
Approved
V. Regulatory Analysis

I. Introduction

    This proposed rule amends part 96 to provide clarification, 
updating, or other adaptation of familiar accreditation and approval 
standards for intercountry adoption. These changes derive from 
observations and experience with the practical operation of the 
accreditation and approval regulations in the fourteen years since the 
regulations went into effect. The Department engages in systematic 
review and analysis of its regulatory responsibilities. Since the 
inception of the accreditation scheme in 2006 and entry into force of 
the 1993 Hague Convention on Protection of Children and Co-operation in 
Respect of Intercountry Adoption (Convention) in 2008, we established 
ongoing formal and informal interactions with accrediting entities 
(AEs), adoption service providers (ASPs), and other stakeholders such 
as adoptive parents, law enforcement officials, and foreign Central 
Authorities. Through each of these interactions we seek greater insight 
into our work and the effectiveness of the tools we employ to achieve 
the objectives of our national law and regulations and the Convention 
itself.
    Annually, we engage in an even deeper review process as we perform 
an evaluation of the work of our AEs, culminating in a senior level 
review meeting with AE and Department leaders. This review process 
allows for reflection and a chance to establish new benchmarks, to 
update and correct AE policies and procedures, as well as refine our 
own standard operating procedures. Through this analytical process we 
become aware of deficiencies in the regulations or areas in which 
additional information or clarification would be helpful and beneficial 
for children, their birth parents, and adoptive families in 
intercountry adoption.

Background and Context

    The accreditation regulations flow from the Intercountry Adoption 
Act of 2000 (IAA), which implements the Convention. The United States 
signed the Convention shortly after its completion in 1993, enacted the 
IAA implementing the Convention in 2000, and published implementing 
regulations, including the accreditation regulations in 22 CFR part 96, 
in 2006. With these milestones achieved, the United States deposited 
its instrument of ratification to the Convention in December 2007, and 
the Convention entered into force with respect to the United States on 
April 1, 2008. Effective in 2014, the Intercountry Adoption Universal 
Accreditation Act (UAA) extended the standards in this regulation to 
all adoption service providers providing intercountry adoption 
services. For additional information about the development of the 
Convention, the IAA, and the accreditation regulations, each is treated 
in detail in the preambular discussion of the proposed and final rules 
in 2003 and 2005, respectively. Those accounts are found in 68 FR 54064 
(September 15, 2003); and in 71 FR 8064 (February 15, 2006).

Changes in the Number and Characteristics of Intercountry Adoptions 
Worldwide

    In 2008, when the Convention entered into force for the United 
States, U.S. citizens adopted 17,456 children through intercountry 
adoptions, down from a historical peak of 22,884 intercountry adoptions 
in 2004. In FY 2019, the most recent year for which the Department has 
published data, U.S. citizens adopted 2,971 children through 
intercountry adoption. It is important to note that the trend in 
declining adoptions is not a trend experienced by the United States 
alone. All receiving countries have experienced this decline, and to 
similar degree. Most experts agree that this decline reflects numerous 
factors, many of which are discussed in the narratives to our Annual 
Report to the Congress.\1\
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    \1\ https://travel.state.gov/content/travel/en/Intercountry-Adoption/adopt_ref/adoption-publications.html.
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    Accompanying this decline in numbers has been a change in the 
characteristics of children adopted through intercountry adoption. Dr. 
Peter Selman of Newcastle University has studied worldwide intercountry 
adoption trends dating back to before World War II, with more attention 
given to adoption over the past 25 years. In 2015 he reported that 
adoption of

[[Page 74493]]

children with ``special needs'' are becoming more common, as are 
adoptions of older age children and of sibling groups. Dr. Selman notes 
that while there remains a lack of agreement on what exactly the term 
``special needs'' covers, the trend first became obvious to him over 
the period from 2005 to 2009 with respect to adoptions from China. In 
2005, the percentage of children adopted from China with special needs 
was 9% for all adoptions in all receiving countries. By 2007, the 
number of adopted children from China with special needs had risen to 
30%. By 2009, 49% of all adopted children from China were children with 
special needs.
    This trend was echoed in a report by a U.S. coalition of child 
welfare organizations that said many countries of origin are 
increasingly limiting intercountry adoption to older children or those 
who may have special needs. In addition, many children are remaining in 
orphanages for longer periods of time prior to family placement, and 
have increased risk factors for emotional, behavioral, and 
developmental difficulties. Citing Department of State statistics, the 
coalition noted that in 1999 over 50% of adopted children were under 
the age of 1 year; whereas in 2013 the number of adopted children under 
1 year had dropped to less than 8%.

A Viable Option for Eligible Children in Every Country

    The Department is dedicated to maintaining intercountry adoption as 
a viable option for eligible children in every country, world-wide. To 
do so, it engages in sustained bilateral diplomacy advocating that 
countries of origin establish procedures and essential safeguards that 
allow intercountry adoption for children who cannot find permanent 
family solutions in their country of origin. The Department also 
oversees the accreditation system through which the United States 
establishes these safeguards.
    The proposed changes in this NPRM largely represent essential 
revisions to make the accreditation regulations more effective given 
the purposes of the Convention and implementing legislation, noted 
above, working for the best interests of children and enhanced 
viability of intercountry adoption world-wide.

II. Proposed Changes to 22 CFR Part 96

A. Adoption by Relatives

    The Department is pleased to introduce provisions relating to the 
intercountry adoption of relatives in the new subpart R. Due to the 
reasons discussed below, the relative adoption provisions are the most 
universally requested addition from the public over the last ten years. 
Section 502(a) of the IAA (42 U.S.C. 14952) authorizes the Department 
to establish alternative regulations for adoption of children by 
individuals related to them by blood, marriage, or adoption to the 
extent consistent with the Convention. In support of this addition, we 
added the following definition of relative to the section on 
definitions, Sec.  96.2:
    Relative, for the purposes of the alternative procedures for the 
intercountry adoption of relatives found in subpart R, means any of the 
following: Parent, step-parent, brother, step-brother, sister, step-
sister, grandparent, aunt, uncle, half-brother to the child's parent, 
half-sister to the child's parent, half-brother, half-sister, or the 
U.S. citizen spouse of the person with one of these qualifying 
relationships with the child. The relationship can exist by virtue of 
blood, marriage, or adoption.
    The new regulations on adoption by relatives in subpart R simplify 
the role of the primary provider in such cases by limiting the number 
of adoption services the primary provider is required to provide. Of 
the six adoption services, the required services primary providers 
would continue to need to provide for adoptions by relatives are: 
Performing a background study on a child or a home study on a 
prospective adoptive parent(s), and reporting on such a study (service 
3); Monitoring a case after a child has been placed with propective 
adoptive parent(s) until final adoption (service 5); and When necessary 
because of a disruption before final adoption, assuming custody and 
providing (including faciplitation the provision of) child care or any 
other social service pending an alternative placement (service 6). 
However, primary providers would not generally be required to provide: 
Identifying a child for adoption and arranging an adoption (service 1); 
Securing the necessary consent to termination of parental rights and to 
adoption (service 2); and Making non-judicial determinations of the 
best interests of a child and the appropriateness of an adoptive 
placement for the child (service 4). We are proposing this exemption 
because in many cases, these services may be provided by the adoptive 
family and/or local authorities, without the prior assistance of a 
primary provider. The Department notes, however, that the primary 
provider is responsible for any other adoption services (including 
services 1, 2, or 4) it actually provides or facilitates in the case. 
All services in relative adoption cases must be provided in accordance 
with Sec.  96.44.
    The most persistent concerns expressed to the Department about the 
need for regulations relating to adoption by relatives are to reduce 
costs and to simplify the process associated with such adoptions such 
that they take less time. More specifically, stakeholders have 
indicated that the current regulations do not reflect the fact that 
families adopting relative children abroad already provide most of the 
key adoption services in such cases, handling many of the 
administrative tasks associated with an adoption abroad. Stakeholders 
also point out that many relative cases involve an emergent situation 
in which a child or children are suddenly bereft of their parents and 
action on the case needs to be taken quickly.
    In addition to these concerns, ASPs have informed the Department 
that many relative cases occur in countries where few if any U.S. ASPs 
have adoption programs or expertise. The new provisions are thus 
crafted in a way to allow primary providers to rely on the intimate 
knowledge of family members in the country of origin. It is the 
Department's hope that this approach will make it less burdensome for 
ASPs to provide services in relative adoptions and thus encourage ASPs 
to serve as primary providers in relative adoption cases. This would 
relieve families trying to adopt their relative child abroad of the 
burden of contacting many ASPs seeking one willing to work in a country 
where it has little if any expertise. Often in such cases, when the 
family cannot find an ASP to serve as a primary provider in their case, 
they end up having to make alternative arrangements for the child, 
which may not be in the child's best interests. In some cases, the U.S. 
relative feels compelled to relocate to the child's country of origin 
or residence to reside with her/him in challenging conditions separated 
from family members in the United States, thus introducing additional 
stresses into a situation in which emotions and resources are already 
strained.
    Prospective adoptive parents adopting a relative child abroad must 
fulfill the same 10 hours of training and preparation required in Sec.  
96.48(a) (which are unchanged in the proposed rulemaking) as in all 
other intercountry adoption cases. The proposed amendment in Sec.  
96.100(c) provides that this training should be completed prior to 
finalizing the adoption or grant of legal custody. The proposed 
amendment also recognizes that in some relative

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cases, the adoption may be finalized before a primary provider becomes 
involved in the case. In such cases the primary provider ``must verify 
such training requirements have been met as soon as practicable.''

B. Amendments Relating to Accrediting Entities and Accreditation

    Primary responsibility for accreditation and approval of ASPs, and 
monitoring and oversight of ASPs' compliance with the IAA, the UAA, and 
their implementing regulations, rests not with the Department but with 
one or more designated accrediting entities (AEs) (42 U.S.C. 14922). 
The IAA does not permit a U.S. Federal agency to assume the role of AE. 
An AE must be either a nonprofit organization (as described in section 
501(c)(3) of the Internal Revenue Code), or a public entity other than 
a federal entity, that otherwise meets the requirements of the 
regulations. In accordance with these IAA principles, in 2006 the 
Department designated two AEs to accredit or approve U.S. adoption 
service providers who, upon such accreditation or approval, were 
authorized to provide adoption services in intercountry adoption cases 
subject to the Convention. Since 2008, both Department-designated AEs 
have withdrawn from that role. The Department designated the current 
accrediting entity, the Intercountry Adoption Accreditation and 
Maintenance Entity, Inc. (IAAME), in 2017.
    The IAA and existing Sec.  96.4 provide that there can be more than 
one designated AE and that AE roles be defined in the Secretary's 
written agreement with AEs. Proposed revisions to various sections of 
the rule clarify how responsibilities may be allocated among AEs if 
more than one AE is designated. Revisions to Sec.  96.6(c) and (d) 
clarify that an AE must have the capacity to monitor and take 
appropriate adverse action against ASPs, even if the ASP was initially 
accredited or approved by a different AE. Revisions to Sec. Sec.  96.8 
and 96.9 clarify that the fees charged by an AE must relate to the 
functions it is authorized to provide, whether or not that AE is 
authorized to perform all AE functions. The Department notes that in 
the event multiple AEs are in operation at one time, under Sec.  96.4 
the Department can expressly designate the jurisdiction of each AE, 
thus preventing jurisdiction overlap, competition or unfair forum 
shopping for agencies seeking or holding accreditation. The Department 
also notes that Sec.  96.27(d) helps ensure that each AE uses methods 
that are ``substantially the same'' as those of any other designated 
AEs.
    Revisions to Sec.  96.8 introduce a new element to the Secretary's 
approval of AE fee schedules. The new provisions require the Department 
to publish proposed fee schedules in the Federal Register for public 
comment and review before approving the schedules. The Department is 
introducing this requirement to enhance transparency on an issue of 
concern noted by some stakeholders, and expects this to result in 
increased trust between the AE and the ASPs subject to AE fees.
    The amendment to Sec.  96.10(c)(2) modifies the criteria for 
finding an AE out of substantial compliance with the accreditation 
regulations, to include where an AE has accredited an ASP whose 
performance results in intervention by the Secretary.
    Section 96.24(a) lists particular skills and expertise that AE 
evaluators must have in order to effectively carry out an AE's 
responsibility to evaluate an ASP for accreditation or approval. The 
proposed amendments to Sec.  96.24(a) adds finance and accounting to 
this list of skills and expertise, reflecting AE experience that 
indicates that such skills are important to be able to evaluate an 
ASP's compliance with financial requirements under the regulations.
    Proposed edits to Sec.  96.26(b) clarify that information collected 
by an AE in the course of its work, including during monitoring and 
oversight, may be shared with appropriate tribal and foreign 
authorities. Section 96.26(d), formerly the last sentence of Sec.  
96.26(c), now appears as an independent subsection clarifying that an 
AE must maintain a complete and accurate record of all information it 
receives related to an agency or person and the basis for an AE's 
decisions concerning the agency or person. New Sec.  96.7(a)(9) imposes 
the same requirement as to other records relating to an AE's role.
    Proposed revisions to Sec.  96.92 increase the frequency by which 
an AE is required to disseminate information to the public about the 
accreditation status of ASPs and adverse actions taken with respect to 
ASPs, thus ensuring that the most current information is regularly made 
available to the public. An AE typically disseminates this information 
via its website, which is updated regularly. Revisions to Sec. Sec.  
96.43 and 96.94 require expanded reporting to the Secretary about 
disruption, dissolution, and unregulated custody transfers, because of 
the potential risk of harm to children and the potential repercussion 
to U.S. bilateral relationships associated with this conduct. These 
revisions impose no additional requirements on ASPs or the public.
    Subpart F's section on ``Scope'' was formerly Sec.  96.29, and 
under this proposal will be found at Sec.  96.28. The new Sec.  96.29 
is entitled ``Compliance with all Applicable Laws'' and explicitly 
includes as standards within subpart F, upon which an AE can rely in 
making accreditation, approval, renewal, and maintenance decisions, 
certain existing regulatory requirements. These provisions include the 
prohibition on unauthorized provision of adoption services, the 
requirement to provide essential information to an AE, and compliance 
with the laws of each domestic and foreign jurisdiction in which an ASP 
operates when providing adoption services, and with the Convention, the 
IAA, and the UAA. A proposed amendment to Sec.  96.45(a) makes more 
explicit the existing requirement that primary providers ensure that 
when using foreign supervised providers to provide adoption services, 
those foreign supervised providers do so in accordance with the 
Convention, the IAA and the UAA.

C. Prevention of Child Buying and Protection of Prospective Adoptive 
Parents

Child Care Contributions
    The proposed rule revisions to Sec. Sec.  96.36(a) and 96.40(c)(4) 
aim to prohibit ASPs from charging prospective adoptive parents (PAPs) 
to care for a particular child prior to completion of the intercountry 
adoption process. Payment of monthly support fees to ASPs or local 
providers for the care of children where the intercountry adoption 
process is not complete can create an incentive to illicitly recruit 
children into institutions, while also providing a disincentive for 
expeditious processing of an adoption. In some cases, the fees charged 
to PAPs have been significantly higher than the normal costs associated 
with the care of children in the foreign country. AEs have identified 
these situations via ongoing internal research and monitoring, 
including comparisons of like-services provided by other ASPs as well 
as reviews of databases related to the provision of certain services. 
These practices substantially and unpredictably increase the costs of 
adoption for PAPs, who are not in a position either to object to the 
charges or to expedite the completion of the adoption, and may result 
in a situation where an adoptive family pays for long-term care of a 
child who is not in fact eligible for intercountry adoption.

[[Page 74495]]

    The proposed revisions do not prohibit the transfer of funds to a 
foreign country to provide food, medical care or other provisions for 
children. ASPs may still include fees for food, medical care or other 
provisions for children in their program costs and may charge such fees 
to parents as part of their program fees. However, those fees must be 
structured as broader assistance to a country's child welfare efforts, 
must be dissociated from the care of a specific child, must be charged 
only once during the adoption process, and must be disclosed to PAPs as 
part of the ASP's overall fee disclosure. These proposed regulations 
place the responsibility for transferring and monitoring the use of 
such funds on the ASPs, and prohibit ASPs from shifting this 
responsibility to PAPs, who may be vulnerable to pressure or 
exploitation. The proposed revisions also require ASPs to verify that 
the fees are not unreasonable for the country where the services are 
provided and are used for their intended purposes. While there is not a 
formal process AEs use for analyzing or auditing the reasonableness of 
the fees charged, the Department notes that AEs use administrative 
data, including publicly available resources and data.
    To increase transparency and provide an AE with an effective tool 
for assessing an ASP's compliance with this prohibition on child 
buying, revisions to Sec.  96.36(b) would require the ASP to retain a 
record of all foreign financial transactions, to enhance transparency 
and provide a means of identifying potential child buying.
Prohibited Compensation Practices
    Section 96.34 prohibits the payment of incentive or contingent fees 
that likewise create an incentive to recruit children for intercountry 
adoption, and gives effect to this prohibition by requiring ASPs to 
compensate all service providers only for services rendered, and only 
on a wage, salary, or fee-for-service basis that is not unreasonably 
high in connection with the actual cost of services. Proposed revisions 
to Sec.  96.34 address known practices used to circumvent this 
limitation, such as making these excessive payments to associates of 
foreign supervised providers or other intermediaries who do not 
themselves provide adoption services, by extending this limitation on 
unreasonable compensation to any entity involved in an intercountry 
adoption.
Transparency of Fees
    The Department has received feedback from prospective adoptive 
parents who have noted that there are discrepancies in the amount of 
information that agencies and persons provide about their fees, making 
prospective adoptive parents' selection process difficult. The 
Department has determined that many prospective adoptive parents would 
benefit from an increased level of transparency about what to expect 
during the intercountry adoption process. This is in part because 
currently, many prospective adoptive parents fear that because some 
fees are described in very general terms, there may be undisclosed 
costs hidden from view. Undisclosed fees may stretch adoptive family 
resources so thin as to cast doubt on whether the family will be able 
to complete the adoption. To address these concerns, the proposed 
revisions in Sec. Sec.  96.39 and 96.40 enhance the general public's 
knowledge of ASP practice, and insulate PAPs from being charged 
unexpected or excessive fees at points in the adoption process where 
they are vulnerable to such overcharging. The proposed changes increase 
the amount and frequency of information disclosure relating to fees to 
the general public and to an ASP's prospective clients. In particular, 
the proposed rule in Sec. Sec.  96.39(a) and 96.40 would require ASPs 
to disclose a schedule of expected fees and expenses on their websites, 
and to provide an itemized disclosure of fees to PAPs before providing 
any adoption services. The rule also would require ASPs to distinguish 
fees for services provided in the United States from those provided in 
a foreign country.
    Along these lines of fee transparency, Sec.  96.46(b)(7) and (8) 
are proposed to be amended to prohibit direct billing of PAPs by 
foreign supervised providers. Before this proposed change, foreign 
supervised providers could require direct payments for services abroad 
from PAPs, thus exposing PAPs to potential abuses such as overcharging. 
Under these changes, the primary provider would be responsible for 
assessing fees from PAPs and transmitting the fees to the foreign 
supervised provider. The change is also found at Sec.  96.40(c)(6).
    The Department specifically requests comment on the cost of 
maintaining fee transparency under this proposal.
Segregation of Client Funds
    Proposed provisions in Sec.  96.40(f) would reinforce the principle 
that client funds received but not yet expended for agreed upon 
services are not part of the ASP's assets, and so must be segregated 
from both their general operating funds and the required two months' 
reserve fund.

D. Post-Placement Monitoring and Post-Adoption Services

    ASPs play a critical role in supporting families in the post-
placement and post-adoption periods. Although the majority of 
intercountry adoptions are successful, some families experience 
adjustment challenges, discovery of unknown medical or emotional needs, 
or other issues that may lead to instability of the placement or the 
adoption.
    In addition to the existing requirements relating to supervising a 
child's placement until final adoption and providing counseling in the 
event that a placement is in crisis, the proposed rule requires ASPs to 
take all appropriate measures to inform the parents of local and State 
laws and legal resources pertaining to disruption of a placement and 
appropriate measures for making another placement of a child, to 
explain the risks and implications of disruption for the child, and to 
provide resources to address potential future crises. ASPs would be 
required to provide specific points of contact for support in the event 
an adoptive family faces difficulties that place permanency at risk.
    The Department has found that the generalized requirements related 
to providing support to the family experiencing disruption under 
current Sec.  96.50 did not provide sufficient information to PAPs to 
serve their needs nor those of the children. Proposed Sec.  96.50(c) 
through (h) delineate an ASP's specific responsibilities for responding 
to disruptions that occur while the PAPs and the child are still in the 
country of origin. These requirements are aimed at ensuring the PAPs 
are supported in the process of considering a possible disruption and 
are informed about the implications of a disrupted placement for the 
child and the family, including any siblings.
    For disruptions in the United States, ASPs will be required to 
notify the Department and, in placing the child with a new family, to 
provide information about sibling relationships, outstanding post-
placement reporting requirements, and the child's citizenship status, 
all of which are critical for the child's long-term safety and welfare. 
For disruptions in the country of origin, ASPs will be required to 
notify local authorities, as well as the Department, of the disruption 
and to ensure the safe and timely transfer or temporary placement of 
the child consistent with local law.
    Proposed amendments to Sec.  96.50(f) would impose new requirements 
for notification to child welfare authorities, the foreign competent or 
Central

[[Page 74496]]

Authorities, and the Secretary, of a disruption or a family's intent to 
disrupt. Such notification will help to ensure the child's safety and 
welfare and will allow the Department to facilitate communication with 
foreign authorities to mitigate the potential repercussions to a 
country's willingness to continue to engage with the United States with 
respect to intercountry adoption. Throughout this section, there are 
revisions intended to address increasing awareness of the parents' 
responsibilities to the child and an ASP's responsibilities to both the 
child and the family.
    Proposed amendments to Sec.  96.51(b) provide for informing the 
PAPs whether post-adoption services, including any post-adoption 
reporting, are included in the agency's or person's fees, and if not, 
enumerate the cost the agency or person would charge for such services 
and whether it would provide services if an adoption is dissolved.

E. Submission of Complaints

    An amendment to Sec.  96.2 permits complaints to be submitted 
electronically as well as in writing. Amendments to Sec.  96.41(b) and 
(e) allow for complaints to be submitted by any individual or entity, 
and extend the protection against retaliation to any individual or 
entity who makes a complaint, or otherwise expresses a grievance, 
provides information to an AE on the ASP's performance, or questions 
the conduct of or expresses an opinion about the performance of an ASP.

F. Reasonable Efforts To Find a Timely and Qualified Adoptive Placement 
in Outgoing Cases

    Article 4 of the Convention provides that a Convention adoption may 
occur when competent authorities have determined that the child is 
adoptable and that, after possibilities for placement of the child 
within the State of origin have been given due consideration, the 
authorities have determined that an intercountry adoption is in the 
child's best interests. The new provisions in Sec.  96.54 would require 
that ASPs demonstrate reasonable efforts to find a timely adoptive 
placement for the child in the United States in all cases (except for 
certain cases involving adoption by relatives). This revision will 
ensure that ASPs provide the information on the child to interested 
PAPs in the United States in an effort to find a timely placement, in 
accordance with Article 4 of the Convention. These efforts must be 
documented for a court's review. With this information, courts would be 
better able to determine whether a placement abroad is in the best 
interests of the child.
    Also, the provision relating to adoption of siblings in Sec.  
96.54(d)(2) was expanded to make diligent efforts to place siblings 
together consistent with relevant laws in most States and with best 
practices within the child welfare community. While not directly 
addressed in the IAA or the Convention, placing siblings together 
whenever possible is consistent with the notion discussed at the time 
of the drafting of the Convention that termination of parental rights 
does not include termination of other familial relationships.

G. Provisions Relating to Corporate Governance and Oversight

    The proposed amendment to Sec.  96.32(c) requires the ASP to 
maintain for 25 years records relating to the selection, monitoring, 
and oversight of foreign supervised providers, financial transactions 
to and from foreign countries, and records relating to responding to 
complaints. The proposed amendment to Sec.  96.32(e)(4) requires the 
ASP to disclose to an AE certain related entities, to the extent they 
provided services to or receive payment from the ASP.
    A period of 25 years was chosen to ensure that ASP records relevant 
to a particular adoption remain available to adopted children who, 
after becoming adults, wish to access their records in order to learn 
about their adoption and their origins.

H. Procedures and Requirements for Adverse Action by the Secretary, 
Including for Challenges to Such Adverse Action

    The proposed rule would amend provisions in subpart L regarding 
adverse action by the Secretary. The proposed rule sets forth 
procedural requirements for providing ASPs with adequate notice of any 
adverse action taken by the Secretary and the reasons for such action 
and describes the administrative process by which an ASP may contest 
such adverse action. Upon exercising these authorities for the first 
time in 2016, the Department determined that it would be appropriate to 
supply the public with relevant details as to the place, requirements, 
procedures and purpose of such notice and proceedings.
    Section 96.83(b) describes the notification and supporting evidence 
to be provided to the ASP in the event of suspension or cancellation of 
accreditation by the Secretary, and Sec. Sec.  96.88(a) and 96.89(a) 
describe the notification and supporting evidence to be provided to the 
ASP in the event of a temporary or permanent debarment. New Sec. Sec.  
96.84(a) and (b) would set forth procedures by which an ASP can object 
to a suspension or cancellation as unjustified, and the standards by 
which the Department will review such an objection. This is 
distinguished from a petition for relief from suspension or 
cancellation based upon the ASP's correction of deficiencies, which is 
now addressed in Sec.  96.84(c).
    Section 96.85(c) provides that the Secretary shall ordinarily give 
notice of a proposed finding of debarment and an opportunity to be 
heard before the debarment takes effect, and may make the debarment 
effective immediately only where the Secretary finds that doing so is 
necessary to address a substantial risk of significant harm to children 
and families. Section 96.88 sets forth in detail the procedures, 
requirements, time frames, and standards of review that apply where an 
ASP objects to a proposed debarment, and Sec.  96.89 sets forth the 
corresponding procedures, requirements, time frames, and standards of 
review for post-debarment review where an ASP objects to a debarment 
that is effective immediately. The time frames under Sec.  96.89 are 
somewhat shorter, in recognition of the fact that the ASP is unable to 
operate during the pendency of a post-debarment challenge, but the 
Department anticipates that the appointed hearing officer will extend 
the default time frames if the parties so request.
    Clarifying changes to Sec.  96.85 specify that the Secretary may 
consider a detrimental effect on the ability of U.S. citizens to adopt 
children in the future in considering whether an ASP's continued 
accreditation is not in the best interests of children and families, 
and that an ASP that is debarred ceases to be accredited upon 
debarment. The proposed Sec.  96.88 includes information as to how an 
ASP subject to debarment may request an administrative hearing on the 
matter.
    Section 96.83(c) adds USCIS, state licensing authorities, and 
foreign central authorities to the list of entities to be notified in 
the event of adverse action by the Secretary, and conforming changes 
are made to such notification provisions throughout this subpart.

I. Miscellaneous Amendments

    The requirement to retain a completed FBI Form FD-258 contained in 
Sec.  96.35(c)(4) and (d)(2) have been removed, as this form cannot be 
used for the purpose stated in those provisions under current FBI 
guidance.

[[Page 74497]]

    A proposed amendment to Sec.  96.25(c) allows an AE to take adverse 
action for ``engag[ing] in deliberate destruction of documentation, or 
provid[ing] false or misleading documents or information.''
    We propose to add a definition to the list of terms in Sec.  96.2 
for ``authorization.'' This term derives from a key provision in the 
Hague Adoption Convention, and until now it was missing from our 
collection of key terms and definitions.
    We propose to augment the definition of the term best interests of 
the child to include the situation in which the child is outside of the 
United States, in which case best interests shall be interpreted in 
light of the objects of the Convention without reference to any 
particular U.S. State.
    Another new proposed term added to the definitions in Sec.  96.2 is 
unregulated custody transfer, which refers to the placement of a child 
with a person or entity with the intent of severing the child's 
existing parent-child or guardian-child relationship without taking the 
appropriate steps, both to ensure the child's safety and permanency and 
to transfer legal custody or guardianship of the child.
    The proposed standards in Sec.  96.37 relate to education and 
experience requirements for ASP employees. In Sec.  96.37(c), we expand 
the standard to include not only clinical skills and judgment, but also 
training in the professional delivery of intercountry adoption 
services.
    Section 96.38 addresses training requirements for social service 
personnel. Section 96.38(b) adds important topics on which the social 
service personnel need expertise, to include, among others, the 
physical, psychological, cognitive, and emotional issues facing 
children who have experienced trauma, abuse, including sexual abuse, or 
neglect and other factors with a long-term impact on a child's social 
and emotional development. A proposed amendment to Sec.  96.38(d) 
provides for an exemption from the orientation and initial training of 
newly-hired employees, if within the last two years they have received 
such orientation in another organization and are otherwise current in 
their other training requirements.
    At the request of ASPs, we have proposed amendments to Sec.  96.47 
with instructions on how an ASP may withdraw its recommendation of PAPs 
for adoption when it withdraws its approval of the home study.
    Minor proposed revisions to the definitions in Sec.  96.2 include 
simplification of the term child welfare services by removing elements 
suggestive of adoption services; clarification that the term public 
domestic authority includes ``an authority operated by a State, local, 
or tribal government within the United States or an agent of such 
government;'' and further clarification that the term public foreign 
authority only refers to courts or regulatory bodies operated by the 
national or subnational governments of a foreign country.
    Finally, the Department proposes minor technical edits, including 
punctuation, to Sec. Sec.  96.2; 96.4(c); 96.5; 96.6(h); 96.7(a)(4); 
96.7(b)(1), 96.7(c); 96.10(c)(6) and (7); 96.12(a); 96.27; 96.33(f); 
96.35; 96.39(d); 96.45(b)(9); 96.49(e), (g) and (i); and 96.54(d)(1) 
and (2) that do not have substantive impacts on accreditation 
requirements and that removed references to temporary accreditation, 
which expired in 2010.

III. Response to Regulatory Reform Solicitation of Comments

    On August 7, 2018, the Department published a Federal Register 
document soliciting comments from the public on regulatory reform 
initiatives as outlined in Executive Order 13777 (``Enforcing the 
Regulatory Reform Agenda''). 83 FR 38669. The Department received 
comments relating to this proposed rule, which can be accessed at 
https://beta.regulations.gov/comment/DOS_FRDOC_0001-4901.
    In response to the Department's Federal Register document, the 
Department received comments relating to foreign supervised providers 
(FSPs) as well as other concerns related to the regulation of 
intercountry adoption. At the present time, while we acknowledge the 
concerns identified by the commenter related to oversight of FSPs in 
certain limited circumstances, in this notice of proposed rulemaking, 
we are not addressing any regulatory changes to accreditation standards 
relating to FSPs. We will instead undertake a consultative process on 
this issue with a wide variety of stakeholders in intercountry adoption 
and consider the entire range of standards relating to FSPs. Through 
this consultative process, we will explore solutions for resolving 
concerns related to FSPs, including those that do not require changes 
in regulation.
    The Department's responses to the proposed revisions follow:
    (a) Proposed change: Remove Sec. Sec.  96.35(c)(4) and 96.35(d)(2). 
The Department's response: These sections have been removed in this 
proposed rule.
    (b) Proposed change: Amend Sec.  96.8(b)(1) by removing the word 
``non-refundable.'' The Department disagrees with the suggested 
deletion. The Department's response: AE fees have always been non-
refundable to protect an AE's capacity to perform its roles and 
functions that they are required to perform by law and their agreement 
with the Department. An AE is required to charge no more than the fees 
necessary to perform its functions. AEs monitor ASP activity as a 
whole, not individual cases, and the expenditure of funds to cover 
accreditation services is not tied to any individual adoption. 
Accordingly, the current AE's schedule of fees was calculated based on 
its full cost of conducting accreditation responsibilities. This cost 
was divided by the estimated number of adoptions, based on currently 
available data, as a way of allocating the AE's costs across ASPs of 
significantly different size. If fees were made refundable where an 
individual case is withdrawn, the per-adoption fee would be 
correspondingly higher to cover the unchanged cost of accreditation 
services.
    Proposed change: Amend Sec.  96.8(c) by adding the following 
sentence at the end of the existing paragraph: ``An accrediting entity 
must make available to the public its demonstration of compliance with 
Sec.  96.8(a) and (b), upon request.'' The Department's response: The 
Department has revised Sec.  96.8(b) as noted in Section II (b), above.
    (c) Proposed change: Re-order paragraphs within Sec.  96.8 and add 
two new paragraphs as follows:
    (1) Sec.  96.8(d): ``An accrediting entity must not charge 
additional fees for the placement of siblings, when placed for adoption 
with the same parents at the same time.'' The Department's response: 
The Department disagrees with this suggestion. The amount of the 
current AE's monitoring and oversight fee per adoption case was 
established based on the projected number of total adoption cases and 
the AE's projected expenses for conducting monitoring and oversight 
activities. At this time, there is insufficient data to allow the AE to 
create a model that exempts siblings from the monitoring and oversight 
fee structure. This may be considered in the future when adequate data 
is available.
    (2) Sec.  96.8(e): ``If an accrediting entity establishes fees 
based on the number of prospective adoptive parents an accredited 
agency or approved person contracts with, such determinations shall 
take into account the number of applicants who complete adoptions with 
these adoption service providers.'' The Department's response: The 
Department disagrees with this suggestion. The current AE's schedule of 
fees was designed to cover the projected cost of conducting

[[Page 74498]]

accreditation and monitoring and oversight activities for all 
intercountry adoptions across ASPs and country programs. AEs monitor 
ASP activity as a whole. The fee model allows ASPs to pay fees 
incrementally as cases are accepted, rather than paying significantly 
larger fees as a lump sum at the beginning of the four-year 
accreditation cycle, and thus ensures that the costs of monitoring are 
borne proportionately to the number of adoption cases handled by each 
ASP. If the suggestion were accepted, the AE would be unable to fund 
its activities for the next four years without immediately assessing 
large accreditation fees on agencies.
    (d) Proposed change: Amend the beginning of Sec.  96.39(a) to read: 
``The agency or person fully discloses in writing to the general public 
upon request and to prospective client(s) prior to signing a 
contract:'' The Department's response: The Department disagrees with 
this suggestion, because the information to be disclosed is readily 
available even at first contact and thus creates no new burden to 
produce. Disclosure at first contact also provides a PAP with 
information it can use in selecting the ASP with which they want to 
work.
    (e) Proposed change: Amend Sec.  96.49(i) to read: ``The agency or 
person ensures that any videotapes or photographs taken by the 
accredited agency or person are identified by the date on which the 
videotape or photograph was recorded or taken and that they were made 
in compliance with the laws in the country where recorded or taken.'' 
The Department's response: We incorporated this suggested revision in 
the proposed rule; the amended provision only applies to photos taken 
by accredited or approved ASPs and their foreign supervised providers. 
The Department made this change in recognition that U.S. providers have 
limited or no ability to determine when and under what circumstances 
photos or videos provided by a foreign adoption authority or 
unaffiliated third party were taken.
    (f) Proposed change: Amend Sec.  96.52(a) to read: ``When 
requested, the agency or person informs the Central Authority of the 
Convention country or the Secretary about necessary information 
regarding a specific adoption case and the measures taken to complete 
it, as well as about the progress of the placement if a probationary 
period is required.'' The Department's response: The Department 
understands the concern behind this suggestion and addressed it by 
modifying the suggested language to more precisely indicate the 
circumstances under which an agency or person must inform the Central 
Authorities about the case. Additionally, we added: In the case of 
information developed or new information relating to the suitability 
and eligibility of adoptive parents, inform USCIS, the sole authority 
for making suitability determinations.
    (g) Proposed change: Strike Sec.  96.52(b)(4), because the actions 
described therein are performed by the Department, not accredited 
agencies or approved persons. The Department's response: Rather than 
deleting this provision, the Department takes the point and adapted it 
to include ``or confirm that this information has been transmitted to 
the foreign country's Central Authority or other competent authority by 
the United States' Central Authority.
    (h) Proposed change: Amend Sec.  96.52(d) as follows: ``When 
requested by the Secretary or a foreign Central Authority, the agency 
or person returns the original home study on the prospective adoptive 
parent(s) and/or the original child background study to the authorities 
that forwarded them.'' The Department's response: The amendment has 
been made to Sec.  96.52(d) after adding the term ``original'' to it. 
The Department made the same changes in Sec.  96.55(c) in relation to 
requests for return of original home studies or child background 
studies when the transfer of the child has not taken place.
    (i) Proposed change: Strike Sec.  96.52(e), as being too broad. The 
Department's response: The Department has not accepted this deletion 
but has modified the language to clarify that the obligation only 
applies to requirements that the Secretary has previously identified 
under existing authorities and made known (directly or via an AE) to 
ASPs.

IV. Timeline for Implementing Changes in the Proposed Rule, if Approved

    Some changes in the proposed rule would become effective 180 days 
after publication of the final rule. The Department invites comment on 
the timelines for implementation.
    Provisions in Sec.  96.40 relating to fee disclosures would take 
effect 180 days after publication of the final rule. To comply with the 
new rule, ASPs will need to change their fee disclosures. The 
Department believes that this timeframe would allow ASPs to review 
already available information, determine whether such fees and expenses 
should be characterized as fees and expenses for services provided in 
the United States or overseas, respectively, and begin to provide this 
information to PAPs.
    The Department plans to implement the new alternative procedures 
for adoption of relatives abroad three months after publication of the 
final rule.

V. Regulatory Analysis

Administrative Procedure Act (APA)

    The Department is issuing this rule as a notice of proposed 
rulemaking (NPRM) as required by the IAA and welcome comments from the 
public on every aspect of the NPRM.

Executive Order 13771: Reducing Regulation and Controlling Regulatory 
Costs

    This proposed rule is expected to be an Executive Order 13771 
regulatory action. Details about the estimated costs of this proposed 
rule can be found in the RFA Discussion, below.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    This section considers the effects that the proposed amendments to 
the accreditation regulations may have on accredited or approved ASPs 
as required by the Regulatory Flexibility Act (RFA, 5 U.S.C. et seq., 
Pub. L. 96-354) as amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996 (SBREFA). The RFA generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to notice 
and comment rulemaking requirements under 5 U.S.C. 553(b). 42 U.S.C. 
14923(a)(3) provides that subsections (b), (c), and (d) of 5 U.S.C. 553 
apply to this rulemaking. The Department requests information and data 
from the public that would assist in better understanding the impact of 
this proposed rule on small entities. The Department also seeks input 
from the public on alternatives that will accomplish the same 
objectives and minimize the proposed rule's economic impact on small 
entities. Our preliminary initial regulatory flexibility analysis 
(IRFA) follows.
    1. A description of the reasons why the action is being considered 
by the Department: This proposed rule clarifies, updates, or otherwise 
adapts a limited number of changes to accreditation and approval 
standards, most of which have been in full operation since 2006. The 
proposed changes derive from our observation of the rule's practical 
operation and from the observations of intercountry adoption 
stakeholders such as adoptive parents, ASPs, Congressional offices, and 
law enforcement authorities. Taken

[[Page 74499]]

together, these interactions with a broad cross section of 
organizations, critics, entities, and individuals have allowed us to 
reflect on potential improvements and regulatory adaptations. Through 
these changes we want to refine our work to better serve the birth 
families, adoptive parents, and children whose interests all intersect 
in the intercountry adoption process.
    2. A succinct statement of the objectives of, and legal basis for, 
the proposed rule: The proposed rule supports many of the Department's 
policy goals. A primary consideration is making the accreditation rule 
as effective as possible in defining standards essential to protecting 
the safety and other interests of the participants in intercountry 
adoption. We aspire to implementing the lofty goals of the Hague 
Convention on Protection of Children and Co-operation in Respect of 
Intercountry Adoption (the Adoption Convention), which include in 
Article 1: To establish safeguards to ensure that intercountry 
adoptions take place in the best interests of the child and with 
respect for his or her fundamental rights as recognized in 
international law; and to establish a system of co-operation among 
Contracting States to ensure that those safeguards are respected and 
thereby prevent the abduction, the sale of, or traffic in children. The 
proposed changes to the accreditation rule focus on the individual 
participants in the process. But taking into account that even small 
changes in the regulations may have a significant impact, each proposed 
revision also contributes to preservation of intercountry adoption as a 
viable option for children in need of permanency the world over.
    The legal authority to engage in these proposed changes derives 
from our treaty obligations found in the Adoption Convention and as 
implemented by the Intercountry Adoption Act of 2000, the Intercountry 
Adoption Universal Accreditation Act of 2012, and the Secretary's 
responsibilities to support foreign policy interests of our nation 
found in the U.S. Constitution.
    Another objective of this proposed rule is to be responsive to the 
adoption community's calls for a different process for adoption by 
relatives, one that is faster and less costly, while maintaining 
essential safeguards to protect children and prospective adoptive 
parents. We share the community's desire to make intercountry adoption 
more accessible to relatives, which fits squarely into the Department's 
mission to support the viability of intercountry adoption for children 
in need as well. We are therefore proposing new relative adoption 
provisions, consistent with Section 502(a) of the Intercountry 
Adoptions Act (42 U.S.C. Chapter 143 sec. 14952(a)) (IAA Title V sec. 
502(a)) relating to alternative procedures for the adoption of children 
by individuals related to them by blood, marriage, or adoption.
    3. A description--and, where feasible, an estimate of the number--
of small entities to which the proposed rule will apply: The RFA 
defines a ``small entity'' as a small not-for-profit organization, 
small governmental jurisdiction, or small business. The RFA requires, 
with some exceptions, that agencies define small firms according to its 
size standards. SBA sets size standards by the number of employees or 
the amount of revenues for specific industries. These size standards 
are captured in the North American Industry Classification System 
(NAICS) codes. The work of intercountry adoption ASPs falls under the 
NAICS code 624110--Child and Youth Services. SBA's standard for a small 
business within this industry code is an entity with gross revenues of 
$11 million or less. Based off of public administrative data supplied 
by the ASPs themselves and the AE, the total number of entities subject 
to this rule is 118, as of June 2020. Of this total, 90 meet the SBA 
definition of small business entity. These firms are grouped based on 
gross revenues as follows: Gross receipts data were obtained from ASP 
public filings of IRS form 990, which non-profit organizations under 
section 501(c)(3) of the Internal Revenue Code are required to submit 
annually.

 Table 1--US Accredited/Approved Adoption Service Providers Grouped by Annual Gross Receipts, NAICS Code 624110
----------------------------------------------------------------------------------------------------------------
                                                                                   Number of
                                                                                    adoption      Percentage of
                                                                                    service        small firms
                                                                                   providers
----------------------------------------------------------------------------------------------------------------
Firms with Gross Receipts over $100M-$500M....................................                3              N/A
Firms with Gross Receipts over $11M-$100M.....................................               17              N/A
Small Firms (Gross Receipts up to $11M).......................................               90              100
Firms with Gross Receipts over $5M-$11M.......................................               12               13
Firms with Gross Receipts over $2M-$5M........................................               17               19
Firms with Gross Receipts over $1M-$2M........................................               16               18
Firms with Gross Receipts over $500K-$1M......................................               19               21
Firms with Gross Receipts $500K and under.....................................               26               29
Firms for whom we have no financial data......................................                8              N/A
                                                                               ---------------------------------
    Total U.S. Accredited and Approved ASPs...................................              118  ...............
----------------------------------------------------------------------------------------------------------------

    Data for gross receipts were obtained from ASP public filings of 
IRS form 990, which non-profit organizations under section 501(c)(3) of 
the Internal Revenue Code are required to submit annually. The number 
of ASPs affected by this proposed rule making is very small. Agencies 
affected by this proposed rule typically provide child-related social 
services beyond intercountry adoption, though we understand some 
specialized exclusively in it. Of the ASPs engaged in intercountry 
adoption, most (112) are non-profit accredited agencies. Six ASPs are 
approved persons, which under the IAA are individuals, or for-profit 
entities. For the approved persons we have no financial data that would 
allow us to place them more accurately on Table 1. Two other agencies 
for whom we have no financial data are religious organizations not 
required to file IRS form 990, despite their classification as non-
profit entities. It is our belief that they would fall within the scope 
of the small business rubric.
    The Department would appreciate receiving feedback about the 
groupings of ASP firms in this description.
    4. A description of projected reporting, recordkeeping, and other 
compliance requirements of the proposed rule. Some of the provisions of

[[Page 74500]]

this rule relate to reporting and record keeping. All provisions apply 
equally to all parts of this group of small firms, but also to the non-
small firms that make up the total number of accredited and approved 
agencies and persons. In Table 2, below, we summarize the impact of the 
proposed changes, including reporting and record keeping elements and 
our understanding of the average cost of implementing those provisions.
    5. An identification, to the extent possible, of all relevant 
federal rules that may duplicate, overlap, or conflict with the 
proposed rule. To our knowledge, there are not relevant federal rules 
that duplicate, or conflict with, the proposed rule.
Considering Alternative Approaches
Relative Adoptions
    The relative adoption provisions illustrate how we approached 
considering alternative ways to address a need through this regulation. 
As previously noted, our objective in developing a new process for 
adoption by relatives was to reduce the cost and the time it takes to 
bring a relative adoption to a successful conclusion. Also important to 
us was a process that ASPs would find attractive for serving families 
with precious few options. Many relative cases arise in countries where 
there are no well-established intercountry adoption programs, and where 
few if any ASPs have expertise to work comfortably.
    We considered three approaches:
    1. No change
    2. A minimalist approach in which the primary provider was not 
required to provide any adoption services in the case, and
    3. Sharing services between adoptive families and a primary 
provider.
    No change: We rejected the status quo as not acceptable as it 
achieved none of our goals for relative adoptions. We wanted a change 
the met the needs of the public and the ASPs and preserved key 
safeguards in relative cases.
    Minimalist approach: We looked at various ways of limiting the role 
of a primary provider in the case to verification of services only, 
relieving the Primary Provider of the obligation of providing any 
services, or supervising the provisions of adoption services in the 
case. We rejected this very minimalist approach and the variations on 
the minimalist theme we considered because even though they might be 
cheaper for ASPs and PAPs than the proposed approach, the heightened 
risks to children, birth families, and adoptive families inherent in a 
very highly curtailed role for the primary provider were unacceptable. 
Taking the minimalist road would allow too much influence by 
unscrupulous foreign providers on family members and putting them in 
the way of corrupt officials without allowing for a modicum of 
oversight.
    Sharing services: The proposed approach, in which families may 
provide certain services themselves instead of ASPs, leaving other 
services to be provided by a primary provider in the case, balances 
protecting against risks while promoting an efficient and cost-
effective process for families. We are requiring the ASP primary 
provider to provide the home study and the post placement services. 
These services are the bedrock of social services in our regulations. 
Accredited ASPs have deep capacity to provide these services 
independent of special cultural knowledge or foreign bureaucratic know 
how. Permitting this division of labor in relative adoption cases plays 
to the strengths of both PAPs and ASPs. And it will reduce the time the 
ASP must spend on the case and the cost of their work on the case by 
limiting its scope. Reducing the cost to families will have the 
additional benefit of encouraging families to consult with a U.S. 
adoption professional sooner as the case gets underway and thereby 
avoid pitfalls that result from calling them in at the very tag end of 
the case. In this instance, the approach we landed on was not the very 
least costly option, but it will mean significant savings to ASPs and 
adoptive families alike, while building in effective controls on risks.
Segregation of Client Funds
    Our objective was to preserve unspent client funds so that they 
would be available when needed. We have observed and adoptive families 
have complained loudly when this occurs, that when an ASP is called 
upon to transfer cases to other agencies for completion (for a wide 
variety of possible reasons) sometimes those funds are no longer 
available. In the case of an ASP that has been suspended or lost its 
accreditation, the ASP is required to implement its case transfer 
plans, including transferring client funds not yet expended in the 
client's case. If the ASP was asked to transfer cases and its own 
finances are in disarray it may be that the coffers are now empty and 
the client must struggle to force the ASP to return funds or must 
proceed with the in-progress adoption case with another agency and must 
need to pay additional fees to do so. We wanted to help prospective 
adoptive families with a revision to the rule that will put them on 
protected footing.
    There were a range of possible solutions:
    1. No change, but work to educate families and ASPs about how to 
avoid this situation,
    2. Imposing highly formalized fiduciary funds physical separation 
from the agency's funds process (similar to how most law firms do it), 
or
    3. Requiring the segregation without specifying how the ASP should 
accomplish it, but build in reporting and AE oversight.
    No change: The concept of separation of client funds from other 
client funds and ASP funds is not new and has been the subject of at 
least one law suit in which the court caused an ASP to lose its state 
license to provide adoption services for comingling client funds with 
its own. We were concerned that just talking about it and not tying it 
to some form of accountability would not invigorate enough ASPs to make 
needed changes. We wanted a solution that promised results.
    Holding unspent client funds in an escrow account: Physical 
separation of client from agency funds in an escrow fund managed by a 
financial institution had its obvious attractions. While producing the 
highest level of protection for the adoptive families, this was also 
the most expensive option as most escrow accounts have fees associated 
with them and may involve administrative hassles to access protected 
funds on short notice. We liked the level of protection but the cost, 
especially if multiplied across all clients, was prohibitive.
    Choose your own solution subject to AE verification and adverse 
action if you fail to put into place effective segregation of funds: In 
our interaction with ASPs we learned that there were many possible ways 
of effectively segregating client funds that reflect ASP management 
style, financial sophistication, and workforce savvy and budgetary 
solvency. This solution gave the ASP the greatest leeway to decide 
which method it preferred while creating accountability for protecting 
unspent client funds. Potential low cost and increased accountability.
Creating Greater Transparency of Fees Charged by ASPs
    On several levels, adoption-related fees are a source of friction, 
competition, and confusion within the adoption community at large. 
There are many who criticize ASPs for charging high adoption fees. 
Countries of origin raise this matter with us bilaterally when we speak 
with them in private, complaining that they don't understand why the 
fees are so high and what the

[[Page 74501]]

funds are used for. To address these concerns and to create greater 
transparency for prospective adoptive parents, we wanted to propose a 
change to how ASPs disclose their fees.
    The options we considered were:
    1. No change,
    2. Create a form that ASPs would be required to use to provide a 
detailed list of information in a uniform manner with strong penalties 
for failure to conform, and
    3. A hybrid approach somewhere between options (a) and (b).
    No change: The cheapest option by far. It also does not improve 
transparency and accountability if we do nothing.
    Create a draconian list of detailed fee information linked to 
strong sanctions for failure to comply: This option envisions forcing 
all ASPs to provide the exact kind of information and to the same level 
of detail for each country in which the offered adoption services and 
with strict consequences for noncompliance. Some agencies would favor 
this approach because it would force a level playing field for ASPs. 
Some are reluctant to reveal the details of their fees because the 
don't want to be ``outbid'' by other ASPs. Others do not want to be 
pinned down to exact fee levels because they want flexibility to keep 
up with local conditions. Yet others have used their published fees to 
provide camouflage for questionable fee practices. This approach is 
more akin to a licensing context, in which all ASPs must demonstrate 
the same high level of compliance to retain their license. Our system, 
by contrast, is an accreditation model in which APS have more leeway to 
demonstrate conformance with standards of practice and may also have 
acceptable levels of compliance short of perfect compliance. We 
wondered if some agencies would resist compliance to highlight this 
essential difference between the two models.
    A hybrid approach: As we fleshed it out, we found that it offered 
greater transparency for adoptive families, other ASPs and countries of 
origin alike. It provided a framework for increasing the number of fee 
particulars that was scalable depending on the kind of intercountry 
adoption program your agency had, reflecting the complexity of 
adoptions in specific countries and allowing for streamlining 
information where appropriate. The key to success, we thought, would 
lie in getting the main categories right and separating the information 
in terms of where the service takes place, rather than under general 
headings of foreign program or domestic program fees. To mitigate the 
cost of implementation, we envisioned keeping the number of fees to 
report to a list larger than the status quo but not so detailed as to 
make conforming with a disclosure requirement too costly to launch or 
difficult to keep up to date.
Calculating Staff Worker Hourly Rates
    Using the most recent edition of Bureau of Labor Statistics (BLS) 
Occupational Employment Statistics (OES),\2\ we obtained several 
estimates for social workers ranging from about $24 per hour (as an 
average national wage rate) to nearly $30 per hour. We went a step 
further and found the average (mean) of the hourly rate for each state 
in the category ``Social Workers, All Other,'' as reported in the State 
by State data sets for OES code 21-1029 of May 18, 2018,\3\ the most 
recent data set available. On this basis, we arrived at an average 
national hourly rate of $30.12, which for ease of calculating we 
rounded to $31.
---------------------------------------------------------------------------

    \2\ https://www.bls.gov/oes/.
    \3\ https://www.bls.gov/oes/2018/may/oes211029.htm.
---------------------------------------------------------------------------

    In a similar manner, we captured national wage rates for other 
staff and management workers from the BLS OES Data sets, including:
    (1) Financial Managers,\4\ $70.59/hour (rounded to $71), whose 
duties include to plan, direct, or coordinate accounting, investing, 
banking, insurance, securities, and other financial activities of a 
branch, office, or department of an establishment;
---------------------------------------------------------------------------

    \4\ https://www.bls.gov/oes/2018/may/oes113031.htm.
---------------------------------------------------------------------------

    (2) Bookkeeping, Accounting, and Auditing Clerks,\5\ $20.25/hour 
(rounded to $21), whose duties may include to compute, classify, and 
record numerical data to keep financial records complete; to perform 
any combination of routine calculating, posting, and verifying duties 
to obtain primary financial data for use in maintaining accounting 
records; and to check the accuracy of figures, calculations, and 
postings pertaining to business transactions recorded by other workers;
---------------------------------------------------------------------------

    \5\ https://www.bls.gov/oes/2018/may/oes433031.htm.
---------------------------------------------------------------------------

    (3) Auditors,\6\ $37.89 (rounded to $38), whose duties include to 
examine, analyze, and interpret accounting records to prepare financial 
statements, give advice, or audit and evaluate statements prepared by 
others; and
---------------------------------------------------------------------------

    \6\ https://www.bls.gov/oes/2018/may/oes132011.htm.
---------------------------------------------------------------------------

    (4) Training and Development Specialists,\7\ $31.31 (rounded to 
$32), whose duties include to design and conduct training and 
development programs to improve individual and organizational 
performance. They may also analyze training needs.
---------------------------------------------------------------------------

    \7\ https://www.bls.gov/oes/2018/may/oes131151.htm.
---------------------------------------------------------------------------

    The Department requests public comment on the method used to 
estimate the cost of compliance with the amendments to this regulation, 
including the estimates of compensation noted here.

       Table 2--Summary of Cost Data in Appendix A to the Preamble
  [Each item in this summary and in Appendix A is numbered for ease or
    comparison. The numbered items refer to the items in the Preamble
                               narrative.]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
             Projected Implementation Costs for Small Firms
------------------------------------------------------------------------
 
Year 1 Costs For Each Small Firm:
     Average Cost in the First Year: $14,165.
Costs For Each Small Firm in Subsequent * Years:
     Average Cost in Subsequent Years: $5,274.
* For more information on subsequent year average costs and the services
 with which they are associated, see the bottom of this table.
------------------------------------------------------------------------
 
  Total Projected Implementation Costs for All Firms Regardless of Size
------------------------------------------------------------------------
 
Year 1 Costs For All Firms Taken Together:
     Average Cost in the First Year: $1,558,095.
Costs in Subsequent Years for All Firms Taken Together:

[[Page 74502]]

 
     Average Cost in each Subsequent Year: $580,085.
------------------------------------------------------------------------


 
                                                                                            Average first year $
                                                  Average year 1 $    Average first year $    costs for all ASP
                                                  costs for 1 small    costs for all small   firms regardless of
                                                        firm                ASP firms               size
----------------------------------------------------------------------------------------------------------------
1. Preamble II-A-1, Subpart R, Sec.  Sec.       Reduction in Costs    Reduction in Costs    Reduction in Costs
 96.100-96.101, Adoption by Relatives.           Expected.             Expected.             Expected.
2. Preamble II-B-1, Sec.   96.43 and 96.94,     93..................  8,370...............  10,230.
 Additional data points to report in the event
 of a disruption or dissolution.
3. Preamble II-C-2, Sec.   96.36(a), Prohibits  610.................  54,900..............  67,100.
 payment of expenses for a specific child or
 as an inducement to release a child for
 adoption.
4. Preamble II-C-3 Initial Year, Sec.           1,766...............  158,895.............  194,205.
 96.36(b), Requires policies and procedures
 prohibiting the sale of children and
 incorporates in an employee training.
4. Preamble II-C-3 Subsequent Years...........  See Table Below.....
5. Preamble II-C-4 Initial Year, Sec.   96.34,  731.................  65,745..............  80,355.
 No incentive or contingent fees or plans to
 compensate formally or informally for
 locating or placing children.
6. Preamble II-C-5 Initial Year, Sec.   96.40,  2,123...............  $191,025............  233,475.
 Expanded categories of estimated fees and
 expenses in the United States and abroad
 associated with an intercountry adoption.
6. Preamble II-C-5 Subsequent Years...........  See Table Below.....
7. Preamble II-C-6 Initial Year, Sec.           1,020...............  91,755..............  112,145.
 96.40(c)(4)(i), Prohibits regular payments
 for care of a particular child, unreasonably
 high fees, and fees based on a period of time
 it takes to complete adoption.
8. Preamble II-C-7 Initial Year, Sec.           427.................  38,385..............  46,915.
 96.46(b)(7) and (8), Prohibits direct
 payments to foreign supervised providers.
 Fees for FSPs paid by the ASP not PAPs.
9. Preamble II-C-8 Initial Year, Now located    1,880...............  169,200.............  206,800.
 in Sec.   96.40(f), Holding Unspent Client
 Funds Separate from ASP Operating Funds.
9. Preamble II-C-8 Subsequent Year............  See Table Below.....
10. Preamble II-D-1 Initial Year, Sec.          731.................  65,745..............  80,355.
 96.50(c) through (h), Provides increased
 detail on post placement monitoring,
 notification requirements and time frames for
 notification when adoption is in crisis.
11. Preamble II-D-2, Sec.   96.51(b),           731.................  65,745..............  80,355.
 Addressing post adoption services in the ASP-
 PAP service agreement; returning child to COO.
12. Preamble II-E-1, Sec.   96.41, ASPs accept  731.................  65,745..............  80,355.
 all written complaints.
13. Preamble II-F-1, Sec.   96.54(a), Outgoing  Not possible to       Not possible to       Not possible to
 Cases--Removes the provisions on birth parent-  determine.            determine.            determine.
 selected PAPs. ASPs make reasonable efforts
 to find a timely U.S. adoptive placement.
14. Preamble II-F-2, Sec.   96.54(d)(2),        731.................  65,745..............  80,355.
 Diligent Efforts to place siblings together.
15. Preamble II-G-1, Sec.   96.32(c), Retain    610.................  54,900..............  67,100.
 board meeting records and records about
 supervised providers, financial transactions
 with foreign countries for 25 years.
16. Preamble II-G-2, Sec.   96.32(e)(4), ASP    610.................  54,900..............  67,100.
 discloses to the AE orgs that share with it
 any leadership, officers, boards or family
 relationships and whether it provides
 services to or receives payment from the
 agency or person.
17. Preamble II-I-1, Sec.   96.25(c),           62..................  5,580...............  6,820.
 Deliberate destruction of documentation or
 provision of false or misleading information.
18. Preamble II-I-2, Sec.   96.37(c), Training  Not possible to       Not possible to       Not possible to
 topics for social service personnel may be      determine.            determine.            determine.
 waived due to training or experience.
19. Preamble II-I-3, Sec.   96.38(b), Topics    610.................  54,900..............  67,100.
 relating to intercountry adoption about which
 agency social service personnel require
 training.
20. Preamble II-I-4, Sec.   96.38(d),           93..................  8,370...............  10,230.
 Exemption from training for newly hired
 social service staff in certain circumstances.
21. Preamble II-I-5, Sec.   96.47(e),           610.................  54,900..............  67,100.
 Procedures for withdrawal of home study
 approval.
----------------------------------------------------------------------------------------------------------------
                                  Average Additional Costs in Subsequent Years
----------------------------------------------------------------------------------------------------------------
4. Preamble II-C-3 Subsequent Years Average     $2,772..............  $249,480............  $304,920.
 Costs.
6. Preamble II-C-5 Subsequent Year Average      $2,601..............  $185,445............  $226,655.
 Costs.
9. Preamble II-C-8 Subsequent Year Average      $441................  $39,690.............  $48,510.
 Costs.
                                               -----------------------------------------------------------------
    Total Average Costs for Subsequent Years..  $5,274..............  $474,615............  $580,085.
----------------------------------------------------------------------------------------------------------------


[[Page 74503]]


     Table 3--Revenue Test for Accredited or Approved Adoption Service Providers (NAICS Code 624110)--$11 Million Small Firm Size Standard--Cost of
                                                 Implementation as a Percentage of Gross Annual Receipts
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                          Average $ cost
                                        Average annual     Number of      % of small     Average $ cost   Revenue test     per firm in     Revenue test
     Firm Size (by gross receipts)        $ receipts         firms           firms        per firm in          (%)          subsequent          (%)
                                                                                           first year                         years
--------------------------------------------------------------------------------------------------------------------------------------------------------
Firms with Receipts from $100M up to       150,638,293               3             N/A           14,103              <1            5,274              <1
 $500M................................
Firms with Receipts from $11M up to         21,613,364              17             N/A           14,103              <1            5,274              <1
 $100M................................
Small Firms:
    Gross Receipts up to $11M.........       2,047,594              90             100           14,103              <1            5,274              <1
    Firms with Receipts from $5M up to       6,973,159              12              12           14,103              <1            5,274              <1
     $11M.............................
    Firms with Receipts from $2M up to       3,420,233              17              18           14,103              <1            5,274              <1
     $5M..............................
    Firms with Receipts from $1M up to       1,409,580              16              20           14,103               1            5,274              <1
     $2M..............................
    Firms with Receipts from $500K up          695,517              19              23           14,103               2            5,274              <1
     to $1M...........................
    Firms with Receipts from $500K and         257,443              26              27           14,103               5            5,274               2
     under............................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of ASP Firms for whom we had no financial data: 8.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    What the cost data and the revenue test tell us: Represented in 
Tables 2 and 3 are the average costs of implementing the changes 
proposed in this NPRM, at least as far as we could anticipate such 
costs. The data are shown both as aggregated average costs and as 
separately reported average costs for each proposed change. The data 
are reported in three columns, the projected average costs to a single 
small firm in Year 1, the projected average cost for all small firms 
taken together in Year 1, and in the third column, the projected 
average cost for all ASP firms combined, regardless of size. This third 
column allows us to draw some conclusions about all ASPs separate from 
our interest in the impact of the proposed changes on small firms. See 
the discussion of these data in the narrative to E.O. 12866.
    The revenue tests reported in Table 3 illustrate that for most of 
the small firms, the anticipated average cost is either about 2 percent 
or less than 1 percent of gross revenues. The one exception is the 
group of small firms with the smallest amount of gross annual revenues, 
those bringing in less than $500,000 annually. For this group, the test 
revealed as much as 5% of revenues would be needed to implement the 
proposed changes considered in this NPRM. Five percent is a ``high'' 
result for the test if taken at face value. We chose to employ average 
implementation costs rather than ranges, because the higher end of any 
range suggests that a given firm had as much chance of being at the 
upper extreme as at the lower one. In fact, the well-known statistical 
notion of regression toward the mean suggests that in most situations, 
individuals and entities tend to fall away from statistical extremes 
toward the average or mean. In this case, we do not mean to predict 
that in every case ASPs will end up implementing these changes right in 
the middle of a possible range of costs. Rather, we believe that how 
ASPs implement these changes will be likely to mirror how they do the 
rest of their work--smaller entities would do their best using 
available staff skills and resources and within existing budget 
constraints. Large entities would be more likely to acquire additional 
talent or expertise to take on the implementation tasks.
    For example, because we do not prescribe how firms are to segregate 
client funds from ASP operating funds or funds dedicated to other 
families, ASPs will choose the most cost-effective solution for 
themselves. In our cost projections we projected acquiring talented 
staff with special expertise to plan, implement and monitor a system of 
segregation of funds. We would, however, anticipate that for firms 
operating at or close to their budget margins, the solution chosen 
would be the most cost effective one that meets their requirements. It 
would be realistic to predict that for the 29% of small firms falling 
in this lowest revenue group, the ASPs would be likely to implement the 
standard at or near minimum cost, such as use of a paper spreadsheet 
method to keep track of client funds, the management of which would be 
added to the existing duties of one or more staff members, rather than 
hiring new staff or a service to virtually or actually segregate the 
funds and be able to verify with great speed how successful 
implementation was. In this example the very least expensive solution 
for Item number 9 (Holding Unspent Client Funds Separate from ASP 
Operating Funds) on the summary of costs table would likely fall well 
short (closer to zero dollars annually) of the average projected cost 
of $1,880/year. Viewed with this set of lenses, the anticipated cost to 
the agency of at least this one element would skew the overall cost of 
implementation away from the mean entirely toward something approaching 
less than 3%, well withing normal ranges.

The 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. This 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, innovation, or on the ability of U.S.-based companies to 
compete with foreign-based companies in domestic and import markets.

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (codified 
at 2 U.S.C. 1532) generally requires agencies to prepare a statement 
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 any such expenditure, nor 
will it significantly or

[[Page 74504]]

uniquely affect small governments or the private sector.

Executive Orders 12372 and 13132: Federalism

    While States traditionally have regulated adoptions and will have 
an interest in this rule, the Department does not believe that this 
regulation will have substantial direct effects on the States, on the 
relationship between the national government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. The rule will not impose any obligations on State 
governments or have federalism implications warranting the application 
of Executive Orders 12372 and 13132.

Executive Orders 12866 and 13563

    The Department has reviewed this proposed rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866. The obligation to determine whether the benefits 
of the proposed revision to the accreditation regulation outweigh the 
costs of achieving them is made more difficult by the fact that the 
benefits, which primarily relate to protecting the best interests of 
the child as well as providing certain consumer protections for PAPs, 
are difficult to economically quantify. There is a severe lack of 
quantitative data analysis relating to the work performed by social 
service professionals in the intercountry adoption setting. That makes 
a strict cost-benefit analysis more difficult to accomplish.
    Similarly, there is little quantitative data analysis of the 
significant qualitative benefits for children, their birth parents and 
their adoptive families. We found none that shed light on the work of 
intercountry adoption professionals and have been obliged to rely on a 
qualitative analysis, instead. We do not know, for example, how many 
relative adoptions occur annually, since those cases are now processed 
exactly as every other intercountry adoption and neither the Department 
nor DHS track this specific information. In addition, because the 
Department's regulatory authority generally does extend to after the 
intercountry adoption is completed, our visibility into the long-term 
outcomes for families and child is limited to anecdotal reports, 
academic literature, and to the data submitted under the requirements 
of our Annual Report to the Congress.
    Nonetheless, we believe the benefits apparent from this qualitative 
discussion of costs and benefits supports our conclusion that the costs 
associated with the proposed changes are justified and conclude that 
they deliver significant benefits on several levels. The benefits to 
children, to adoptive families, to society in general, and to the 
institution of intercountry adoption in terms of its world-wide 
viability outweigh the dollar costs of implementing the proposed 
changes.
    The changes the Department is proposing regarding relative 
adoptions are designed to improve the efficiency of the adoption 
process in such cases and reduce unintended barriers to relative 
adoption. We believe that these proposed changes will help ensure that 
relative adoptions are completed in a manner that promotes the best 
interests of children and protects the rights of and prevent abuses 
against children, birth families, and adoptive parents, while also 
recognizing the uniqueness of these adoptions. The benefits to children 
we anticipate resulting from the incremental changes proposed here are 
tied to the improved chances for placement of children in families 
through intercountry adoption, including promoting. We believe the 
additional protections proposed in this rulemaking will help ensure 
that PAPs are more informed and have additional protections during the 
adoption process. The more likely that children are to be placed in 
families thorough a safe and transparent process, the more likely they 
are to experience personal safety, have a chance at lifelong permanency 
and security in a family, and benefit from all the physical, emotional, 
and intellectual ills avoided when children are removed from 
institutional care.
    The changes proposed here seek to iron out some of the wrinkles in 
the fabric of intercountry adoption that create irritation and, 
sometimes, insuperable barriers to its effectiveness. Among these 
sources of irritation are the perception that U.S. adoption fees are 
very high; our proposed changes allow ASPs to provide much more 
granularity about the fees they charge both in the United States and 
abroad. This may increase information utility and reduce information 
asymmetry for PAPs when selecting an ASP. Additionally, providing 
additional transparency on what fees are charged and building in 
accountability that fees are actually expended as intended serves to 
bolster foreign countries' trust in the United States as good partners 
in intercountry adoption. While this is primarily a qualitative benefit 
pertaining to improved foreign relations, bolstered trust improves 
could result, in the long-term, in encouraging countries to reduce 
their in-country adoption fees, which would benefit families and the 
reputation of intercountry adoption as well.
    Increasing reporting requirements and timeliness of those reports 
about adoption disruptions helps to engage countries of origin early on 
in finding solutions to failing adoptions. This strengthens trust and 
cooperation in this fundamentally international process. We believe 
this will also help improve protections for adoptive children in the 
unlikely event of disruption or dissolution.
    Holding client funds in separate accounts or under strict 
separation of accounting helps protect families in the event that an 
ASP is unable to complete its adoption case. When properly sequestered, 
such unused PAP funds can be returned to the PAPs or transferred to the 
new agency taking over from the withdrawing one so that the 
intercountry adoption case can continue in a seamless manner. Often in 
the past, the lack of holding unused funds separate from other ASP 
operating funds has meant that when the ASP must withdraw from the 
case, the intercountry adoption case languishes and never reaches 
completion because PAPs are asked to provide thousands of additional 
dollars to the case when it is discovered that the ASP has spent their 
money on other PAPs cases or on general agency expenses. While there 
may be minor accounting or administrative costs associated with this 
process, we believe these are outweighed by the reductions in moral 
hazards and financial protections for PAPs caused by ensuring those 
funds are secured for their intended purpose.
    In our view the wide range of non-quantifiable benefits resulting 
from the proposed changes in this NPRM, though not definable in 
monetary terms, nevertheless do justify the costs of this NPRM.

Total Cost Estimates

    Table 4 summarizes the impacts of the proposed rule. Total 
monetized costs of the proposed rule include the aggregated average 
cost of implementing the proposed changes to the accreditation rule 
found in Appendix A and summarized in Table 2. The 10-year discounted 
cost of the proposed rule in 2020 dollars would range from x thousands 
to y thousands (with 7 and 3 percent discount rates, respectively). The 
annualized costs of the proposed rule would range from $534,000 to 
$607,000 (with 7 and 3 percent discount rates, respectively).

[[Page 74505]]



                   Table 4--Costs of the Proposed Rule
                           [2020 $ thousands]
------------------------------------------------------------------------
                                                        All ASP firms
                    Fiscal year                       regardless of size
------------------------------------------------------------------------
2021...............................................                1,558
2022...............................................                  580
2023...............................................                  580
2024...............................................                  580
2025...............................................                  580
2026...............................................                  580
2027...............................................                  580
2028...............................................                  580
2029...............................................                  580
2030...............................................                  580
                                                    --------------------
    Undiscounted Total.............................               $6,778
                                                    --------------------
    Total with 3% discounting......................               $6,074
                                                    --------------------
    Total with 7% discounting......................               $5,337
                                                    --------------------
        Annualized, 3% discount rate, 10 years.....                 $607
                                                    --------------------
        Annualized, 7% discount rate, 10 years.....                 $534
------------------------------------------------------------------------

Executive Order 12988: Civil Justice Reform

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

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Section 5 of Executive Order 13175 do 
not apply to this rulemaking.

The Paperwork Reduction Act of 1995

    In accordance with 42 U.S.C. 14953(c), this rule does not impose 
information collection requirements subject to the provisions of the 
Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 96

    Accreditation, Administrative practice and procedure, Intercountry 
adoption, Reporting and recordkeeping requirements, Standards, Treaties

    For the reasons stated in the preamble, the State Department 
proposes to amend 22 CFR part 96 as follows:

PART 96--INTERCOUNTRY ADOPTION ACCREDITATION OF AGENCIES AND 
APPROVAL OF PERSONS

0
1. The authority citation for part 96 continues to read as follows:

    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; The Intercountry Adoption Universal Accreditation Act 
of 2012, Pub. L. 112-276, 42 U.S.C. 14925.

0
2. Revise subpart A to read as follows:
Subpart A--General Provisions
Sec.
96.1 Purpose.
96.2 Definitions.
96.3 [Reserved]

Subpart A--General Provisions


Sec.  96.1  Purpose.

    This part provides for the accreditation and approval of agencies 
and persons pursuant to the Intercountry Adoption Act of 2000 (42 
U.S.C. 14901-14954, Pub. L. 106-279), which implements the 1993 Hague 
Convention on the Protection of Children and Co-operation in Respect of 
Intercountry Adoption, U.S. Senate Treaty Doc. 105-51, Multilateral 
Treaties in Force as of January 1, 2016, p. 9; and the Intercountry 
Adoption Universal Accreditation Act of 2012 (42 U.S.C. 14925, Pub. L. 
112-276).


Sec.  96.2  Definitions.

    As used in this part, the term:
    Accredited agency means an agency that has been accredited by an 
accrediting entity, in accordance with the standards in subpart F of 
this part, to provide adoption services in the United States in 
intercountry adoption cases.
    Accrediting entity means an entity that has been designated by the 
Secretary to accredit agencies and/or to approve persons for purposes 
of providing adoption services in the United States in intercountry 
adoption cases.
    Adoption means the judicial or administrative act that establishes 
a permanent legal parent-child relationship between a minor and an 
adult who is not already the minor's legal parent and terminates the 
legal parent-child relationship between the adoptive child and any 
former parent(s).
    Adoption record means any record, information, or item related to a 
specific intercountry adoption of a child received or maintained by an 
agency, person, or public domestic authority, including, but not 
limited to, photographs, videos, correspondence, personal effects, 
medical and social information, and any other information about the 
child.
    Adoption service means any one of 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;

[[Page 74506]]

    (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; or
    (6) When necessary because of a disruption before final adoption, 
assuming custody and providing (including facilitating the provision 
of) child care or any other social service pending an alternative 
placement.
    Agency means a private, nonprofit organization licensed to provide 
adoption services in at least one State. (For-profit entities and 
individuals that provide adoption services are considered ``persons'' 
as defined in this section.)
    Approved home study means a review of the home environment of the 
child's prospective adoptive parent(s) that has been:
    (1) Completed by an accredited agency; or
    (2) Approved by an accredited agency.
    Approved person means a person that has been approved, in 
accordance with the standards in subpart F of this part, by an 
accrediting entity to provide adoption services in the United States in 
intercountry adoption cases.
    Authorization means the permission from a Central Authority for an 
agency or person to act in a country with respect to an intercountry 
adoption. In the United States, accreditation or approval provides 
general authorization to act with respect to an intercountry adoption. 
Where required, an accredited agency or approved person must also have 
the authorization of the relevant country to act in that country.
    Best interests of the child, in cases in which a State has 
jurisdiction to decide whether a particular adoption or adoption-
related action is in a child's best interests, shall have the meaning 
given to it by the law of that State. In all other cases, including any 
case in which a child is outside the United States at the time the ASP 
considers, or should have considered, the best interests of the child 
in connection with any decision or action, best interests of the child 
shall be interpreted in light of the object and purpose of the 
Convention, without reference to the law of any particular State.
    Case Registry means the tracking system jointly established by the 
Secretary and DHS to comply with section 102(e) of the IAA (42 U.S.C. 
14912).
    Central Authority means the entity designated as such under Article 
6(1) of the Convention by any Convention country, or, in the case of 
the United States, the United States Department of State. In countries 
that are not Convention countries, Central Authority means the relevant 
``competent authority'' as defined in this section.
    Central Authority function means any duty required to be carried 
out by a Central Authority in a Convention country, and any equivalent 
function in a non-Convention country.
    Child welfare services means services, other than those defined as 
``adoption services'' in this section, that are designed to promote and 
protect the well-being of a family or child. Such services include, but 
are not limited to, providing temporary foster care for a child in 
connection with an intercountry adoption or providing educational, 
social, cultural, medical, psychological assessment, mental health, or 
other health-related services for a child or family in an intercountry 
adoption case.
    Client means the prospective adoptive parent(s) with whom an 
accredited agency or approved person enters into a service agreement 
pursuant to Sec.  96.44.
    Competent authority means a court or governmental authority of a 
foreign country that has jurisdiction and authority to make decisions 
in matters of child welfare, including adoption.
    Complaint means any written or electronic communication made to the 
accredited agency or approved person, the accrediting entity, or the 
Department, or submitted to the complaint registry, about an accredited 
agency or approved person, including its officers, directors, 
employees, and independent contractors, or its activities or services, 
including its use of supervised providers, that may raise an issue of 
non-compliance with the Convention, the IAA, the UAA, or the 
regulations implementing the IAA and the UAA.
    Complaint Registry means the system created by the Secretary 
pursuant to Sec.  96.70 to receive, distribute, and monitor complaints 
relevant to the accreditation or approval status of agencies and 
persons.
    Convention means the Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption done at The Hague on May 
29, 1993.
    Convention adoption means the adoption of a child resident in a 
Convention country by a United States citizen, or an adoption of a 
child resident in the United States by an individual or individuals 
residing in a Convention country, when, in connection with the 
adoption, the child has moved or will move between the United States 
and the Convention country.
    Convention country means a country that is a party to the 
Convention and with which the Convention is in force for the United 
States.
    Country of origin means the country in which a child is a resident 
and from which a child is emigrating in connection with his or her 
adoption.
    Debarment means the loss of accreditation or approval by an agency 
or person as a result of an order of the Secretary under which the 
agency or person is temporarily or permanently barred from 
accreditation or approval.
    DHS means the U.S. Department of Homeland Security and encompasses 
the former Immigration and Naturalization Service (INS) or any 
successor entity designated by the Secretary of Homeland Security to 
assume the functions vested in the Attorney General by the IAA relating 
to the INS's responsibilities.
    Disruption means the interruption of a placement for adoption 
during the post-placement period.
    Dissolution means the termination of the adoptive parent(s)' 
parental rights after an adoption.
    Exempted provider means a social work professional or organization 
that performs a home study on prospective adoptive parent(s) or a child 
background study (or both) in the United States in connection with an 
intercountry adoption (including any reports or updates), but that is 
not currently providing and has not previously provided any other 
adoption service in the case.
    IAA means the Intercountry Adoption Act of 2000, Public Law 106-279 
(2000) (42 U.S.C. 14901-14954), as amended from time to time.
    INA means the Immigration and Nationality Act (8 U.S.C. 1101 et 
seq.), as amended.
    Intercountry adoption means a Convention adoption as described in 
INA section 101(b)(1)(G) or the adoption of a child described in INA 
section 101(b)(1)(F).
    Legal custody means having legal responsibility for a child under 
the order of a court of law, a public domestic authority, competent 
authority, public foreign authority, or by operation of law.
    Legal services means services, other than those defined in this 
section as ``adoption services,'' that relate to the provision of legal 
advice and information and to the drafting of legal instruments. Such 
services include, but are not limited to, drawing up contracts, powers 
of attorney, and other legal instruments; providing advice and counsel 
to adoptive parent(s) on completing DHS or Central Authority

[[Page 74507]]

forms; and providing advice and counsel to accredited agencies, 
approved persons, or prospective adoptive parent(s) on how to comply 
with the Convention, the IAA, the UAA, and the regulations implementing 
the IAA and the UAA.
    Person means an individual or a private, for-profit entity 
(including a corporation, company, association, firm, partnership, 
society, or joint stock company) providing adoption services. It does 
not include public domestic authorities or public foreign authorities.
    Post-adoption means after an adoption; in cases in which an 
adoption occurs in a foreign country and is followed by a re-adoption 
in the United States, it means after the adoption in the foreign 
country.
    Post-placement means 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.
    Primary provider means the accredited agency or approved person 
that is identified pursuant to Sec.  96.14 as responsible for ensuring 
that all six adoption services are provided and for supervising and 
being responsible for supervised providers where used.
    Public domestic authority means an authority operated by a State, 
local, or tribal government within the United States, or an agent of 
such government.
    Public foreign authority means a court or regulatory authority 
operated by a national or subnational government of a foreign country.
    Relative, for the purposes of the alternative procedures for the 
intercountry adoption of relatives found in subpart R of this part, 
means any of the following: parent, step-parent, brother, step-brother, 
sister, step-sister, grandparent, aunt, uncle, half-brother to the 
child's parent, half-sister to the child's parent, half-brother, half-
sister, or the U.S. citizen spouse of the person with one of these 
qualifying relationships with the child. The relationship can exist by 
virtue of blood, marriage, or adoption.
    Secretary means the Secretary of State, the Assistant Secretary of 
State for Consular Affairs, or any other Department of State official 
exercising the Secretary of State's authority under the Convention, the 
IAA, the UAA, or any regulations implementing the IAA and the UAA, 
pursuant to a delegation of authority.
    State means the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, and the U.S. Virgin Islands.
    Supervised provider means any agency, person, or other non-
governmental entity, including any foreign person or entity, regardless 
of whether it is called a facilitator, agent, attorney, or by any other 
name, that is providing one or more adoption services in an 
intercountry adoption case under the supervision and responsibility of 
an accredited agency or approved person that is acting as the primary 
provider in the case.
    UAA means the Intercountry Adoption Universal Accreditation Act of 
2012 (42 U.S.C. 14925, Pub. L. 112-276 (2012)).
    Unregulated custody transfer is the placement of a child with a 
person or entity with the intent of severing the child's existing 
parent-child or guardian-child relationship without taking the 
appropriate steps both to ensure the child's safety and permanency and 
to transfer legal custody or guardianship of the child.
    USCIS means U.S. Citizenship and Immigration Services within the 
U.S. Department of Homeland Security.


Sec.  96.3  [Reserved]

0
3. Revise subpart B to read as follows:
Subpart B--Selection, Designation, and Duties of Accrediting Entities
Sec.
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.
96.11 [Reserved]

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


Sec.  96.4  Designation of accrediting entities by the Secretary.

    (a) The Secretary, in the Secretary's discretion, will designate 
one or more entities that meet the criteria set forth in Sec.  96.5 to 
perform the accreditation and/or approval functions. Each accrediting 
entity's designation will be set forth in an agreement between the 
Secretary and the accrediting entity. The agreement will govern the 
accrediting entity's operations. The agreements will be published in 
the Federal Register.
    (b) The Secretary's designation may authorize an accrediting entity 
to accredit agencies, to approve persons, or to both accredit agencies 
and approve persons. The designation may also limit the accrediting 
entity's geographic jurisdiction or impose other limits on the entity's 
jurisdiction.
    (c) A public entity under Sec.  96.5(b) may only be designated to 
accredit agencies and approve persons that are located in the public 
entity's State.


Sec.  96.5  Requirement that accrediting entity be a nonprofit or 
public entity.

    An accrediting entity must qualify as either:
    (a) An organization described in section 501(c)(3) of the Internal 
Revenue Code of 1986, as amended (26 CFR 1.501(c)(3)-1), that has 
expertise in developing and administering standards for entities 
providing child welfare services; or
    (b) A public entity (other than a Federal entity), including, but 
not limited to, any State or local government or governmental unit or 
any political subdivision, agency, or instrumentality thereof, that has 
expertise in developing and administering standards for entities 
providing child welfare services.


Sec.  96.6  Performance criteria for designation as an accrediting 
entity.

    An entity that seeks to be designated as an accrediting entity must 
demonstrate to the Secretary:
    (a) That it has a governing structure, the human and financial 
resources, and systems of control adequate to ensure its reliability;
    (b) That it is capable of performing the accreditation or approval 
functions or both on a timely basis and of administering any renewal 
cycle authorized under Sec.  96.60;
    (c) That it can monitor the performance of accredited agencies and 
approved persons (including their use of any supervised providers) to 
ensure their continued compliance with the Convention, the IAA, the 
UAA, and the regulations implementing the IAA and the UAA;
    (d) That it has the capacity to take appropriate adverse actions 
against accredited agencies and approved persons;
    (e) That it can perform the required data collection, reporting, 
and other similar functions;
    (f) Except in the case of a public entity, that it operates 
independently of any accredited agency or approved person that provides 
adoption services, and of any membership organization that includes 
agencies or approved persons that provide adoption services;

[[Page 74508]]

    (g) That it has the capacity to conduct its accreditation and 
approval functions fairly and impartially;
    (h) That it can comply with any conflict of interest prohibitions 
set by the Secretary;
    (i) That it prohibits conflicts of interest with accredited 
agencies or approved persons or with any membership organization that 
includes accredited agencies or persons that provide adoption services; 
and
    (j) That it prohibits its employees or other individuals acting as 
site evaluators, including, but not limited to, volunteer site 
evaluators, from becoming employees or supervised providers of an 
accredited agency or approved person for at least one year after they 
have evaluated such agency or person for accreditation or approval.


Sec.  96.7   Authorities and responsibilities of an accrediting entity.

    (a) An accrediting entity may be authorized by the Secretary to 
perform some or all of the following functions:
    (1) Determining whether agencies are eligible for accreditation;
    (2) Determining whether persons are eligible for approval;
    (3) Overseeing accredited agencies and/or approved persons by 
monitoring their compliance with applicable requirements;
    (4) Reviewing and responding to complaints about accredited 
agencies and approved persons (including their use of supervised 
providers);
    (5) Taking adverse action against an accredited agency or approved 
person, and/or referring an accredited agency or approved person for 
possible action by the Secretary;
    (6) Determining whether accredited agencies and approved persons 
are eligible for renewal of their accreditation or approval on a cycle 
consistent with Sec.  96.60;
    (7) Collecting data from accredited agencies and approved persons, 
maintaining records, and reporting information to the Secretary, State 
courts, and other entities; and
    (8) Assisting the Secretary in taking appropriate action to help an 
agency or person in transferring its intercountry adoption cases and 
adoption records.
    (9) Maintaining all records related to its role as an accrediting 
entity for a period of at least ten years, or as otherwise set forth in 
its agreement with the Secretary.
    (b) The Secretary may require the accrediting entity:
    (1) To utilize the Complaint Registry as provided in subpart J of 
this part; and
    (2) To fund a portion of the costs of operating the Complaint 
Registry with fees collected by the accrediting entity pursuant to the 
schedule of fees approved by the Secretary as provided in Sec.  96.8.
    (c) An accrediting entity must perform all responsibilities in 
accordance with the Convention, the IAA, the UAA, the regulations 
implementing the IAA and the UAA, and its agreement with the Secretary.


Sec.  96.8   Fees charged by accrediting entities.

    (a) An accrediting entity may charge fees for accreditation or 
approval services under this part only in accordance with a schedule of 
fees approved by the Secretary. Before approving a schedule of fees 
proposed by an accrediting entity, or subsequent proposed changes to an 
approved schedule, the Secretary will require the accrediting entity to 
demonstrate:
    (1) That its proposed schedule of fees reflects appropriate 
consideration of the relative size and geographic location and volume 
of intercountry adoption cases of the agencies or persons it expects to 
serve; and
    (2) That the total fees the accrediting entity expects to collect 
under the schedule of fees will not exceed the full costs of the 
accrediting entity functions the Secretary has authorized it to perform 
under this part (including, but not limited to, costs for completing 
the accreditation or approval process, complaint review, routine 
oversight and enforcement, and other data collection and reporting 
activities).
    (b) The Secretary shall publish in the Federal Register a notice of 
the proposed fee schedule along with a summary of the information 
provided by the AE and a general statement explaining their basis. 
After notice required by this section, the Secretary shall give 
interested persons an opportunity to participate in the proposed fee 
schedule setting through submission of written data, views, or 
arguments with or without opportunity for oral presentation. After 
consideration of the relevant matter presented, the Secretary shall, 
following approval of the final schedule of fees, publish the final 
schedule of fees and a concise general statement of their basis.
    (c) The schedule of fees must:
    (1) Establish separate, non-refundable fees for accreditation and 
approval; and
    (2) Include in each fee the costs of all activities associated with 
such fee, including but not limited to, costs for completing the 
accreditation or approval process, complaint review, routine oversight 
and enforcement, and other data collection and reporting activities, 
except that separate fees based on actual costs incurred may be charged 
for the travel and maintenance of evaluators.
    (d) An accrediting entity must make its approved schedule of fees 
available to the public, including prospective applicants for 
accreditation or approval, upon request. At the time of application, 
the accrediting entity must specify the fees to be charged to the 
applicant in a contract between the parties and must provide notice to 
the applicant that no portion of the fee will be refunded if the 
applicant fails to become accredited or approved.
    (e) Nothing in this section shall be construed to provide a private 
right of action to challenge any fee charged by an accrediting entity 
pursuant to a schedule of fees approved by the Secretary.


Sec.  96.9   Agreement between the Secretary and the accrediting 
entity.

    An accrediting entity must perform its functions pursuant to a 
written agreement with the Secretary that will be published in the 
Federal Register. The agreement will address:
    (a) The responsibilities and duties of the accrediting entity;
    (b) The method by which the costs of delivering the authorized 
accrediting entity functions may be recovered through the collection of 
fees from those seeking accreditation or approval, and how the entity's 
schedule of fees will be approved;
    (c) How the accrediting entity will address complaints about 
accredited agencies and approved persons (including their use of 
supervised providers) and complaints about the accrediting entity 
itself;
    (d) Data collection requirements;
    (e) Matters of communication and accountability between both the 
accrediting entity and the applicant(s) and between the accrediting 
entity and the Secretary; and
    (f) Other matters upon which the parties have agreed.


Sec.  96.10   Suspension or cancellation of the designation of an 
accrediting entity by the Secretary.

    (a) The Secretary will suspend or cancel the designation of an 
accrediting entity if the Secretary concludes that it is substantially 
out of compliance with the Convention, the IAA, the UAA, the 
regulations implementing the IAA and the UAA, other applicable laws, or 
the agreement with the Secretary. Complaints regarding the performance 
of the accrediting entity may be submitted to the Department of State, 
Bureau of Consular Affairs. The Secretary will consider complaints in

[[Page 74509]]

determining whether an accrediting entity's designation should be 
suspended or canceled.
    (b) The Secretary will notify an accrediting entity in writing of 
any deficiencies in the accrediting entity's performance that could 
lead to the suspension or cancellation of its designation, and will 
provide the accrediting entity with an opportunity to demonstrate that 
suspension or cancellation is unwarranted, in accordance with 
procedures established in the agreement entered into pursuant to Sec.  
96.9.
    (c) An accrediting entity may be considered substantially out of 
compliance under circumstances that include, but are not limited to:
    (1) Failing to act in a timely manner when presented with evidence 
that an accredited agency or approved person is substantially out of 
compliance with the standards in subpart F of this part;
    (2) Accrediting or approving an agency or person whose performance 
results in intervention of the Secretary for the purpose of suspension, 
cancellation, or debarment;
    (3) Failing to perform its responsibilities fairly and objectively;
    (4) Violating prohibitions on conflicts of interest;
    (5) Failing to meet its reporting requirements;
    (6) Failing to protect information, including personally 
identifiable information, or documents that it receives in the course 
of performing its responsibilities; and
    (7) Failing to monitor frequently and carefully the compliance of 
accredited agencies and approved persons with the Convention, the IAA, 
the UAA, and the regulations implementing the IAA and the UAA, 
including the home study requirements of the Convention, section 
203(b)(1)(A)(ii) of the IAA (42 U.S.C. 14923(b)(1)(A)(ii)), and Sec.  
96.47.
    (d) An accrediting entity that is subject to 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 as provided in section 204(d) of the IAA (42 
U.S.C. 14924(d)).


Sec.  96.11   [Reserved]

0
4. Transfer Sec.  96.12 from subpart C to subpart B and revise it to 
read as follows:


Sec.  96.12   Authorized adoption service providers.

    (a) Except as provided in section 505(b) of the IAA (relating to 
transition cases) and section 2(c) of the UAA (relating to transition 
cases), an agency or person may not offer, provide, or facilitate the 
provision of any adoption service in connection with an intercountry 
adoption unless it is:
    (1) An accredited agency or an approved person;
    (2) A supervised provider; or
    (3) An exempted provider, if the exempted provider's home study or 
child background study will be reviewed and approved by an accredited 
agency pursuant to Sec.  96.47(c) or Sec.  96.53(b).
    (b) A public domestic authority may also offer, provide, or 
facilitate the provision of any such adoption service.
    (c) Neither conferral nor maintenance of accreditation or approval, 
nor status as an exempted or supervised provider, nor status as a 
public domestic authority shall be construed to imply, warrant, or 
establish that, in any specific case, an adoption service has been 
provided consistently with the Convention, the IAA, the UAA, or the 
regulations implementing the IAA and the UAA. Conferral and maintenance 
of accreditation or approval under this part establishes only that the 
accrediting entity has concluded, in accordance with the standards and 
procedures of this part, that the accredited agency or approved person 
provides adoption services in substantial compliance with the 
applicable standards set forth in this part; it is not a guarantee that 
in any specific case the accredited agency or approved person is 
providing adoption services consistently with the Convention, the IAA, 
the UAA, the regulations implementing the IAA and the UAA, or any other 
applicable law, whether Federal, State, or foreign. Neither the 
Secretary nor any accrediting entity shall be responsible for any acts 
of an accredited agency, approved person, exempted provider, supervised 
provider, or other entity providing services in connection with an 
intercountry adoption.
0
5. Revise subpart E to read as follows:
Subpart E--Evaluation of Applicants for Accreditation and Approval
Sec.
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 
entity.
96.27 Substantive criteria for evaluating applicants for 
accreditation or approval.

Subpart E--Evaluation of Applicants for Accreditation and Approval


Sec.  96.23   Scope.

    The provisions in this subpart govern the evaluation of agencies 
and persons for accreditation or approval.


Sec.  96.24   Procedures for evaluating applicants for accreditation or 
approval.

    (a) The accrediting entity must designate at least two evaluators 
to evaluate an agency or person for accreditation or approval. The 
accrediting entity's evaluators must have expertise in intercountry 
adoption, standards evaluation, finance or accounting, or have 
experience with the management or oversight of child welfare 
organizations and must also meet any additional qualifications required 
by the Secretary in the agreement with the accrediting entity.
    (b) To evaluate the agency's or person's eligibility for 
accreditation or approval, the accrediting entity must:
    (1) Review the agency's or person's written application and 
supporting documentation;
    (2) Verify the information provided by the agency or person by 
examining underlying documentation;
    (3) Consider any complaints received by the accrediting entity 
pursuant to subpart J of this part; and
    (4) Conduct site visit(s).
    (c) The site visit(s) may include, but need not be limited to, 
interviews with birth parents, adoptive parent(s), prospective adoptive 
parent(s), and adult adoptee(s) served by the agency or person, 
interviews with the agency's or person's employees, and interviews with 
other individuals knowledgeable about the agency's or person's 
provision of adoption services. It may also include a review of on-site 
documents. The accrediting entity must, to the extent practicable, 
advise the agency or person in advance of the type of documents it 
wishes to review during the site visit. The accrediting entity must 
require at least one of the evaluators to participate in each site 
visit. The accrediting entity must determine the number of evaluators 
that participate in a site visit in light of factors such as:
    (1) The agency's or person's size;
    (2) The number of adoption cases it handles;
    (3) The number of sites the accrediting entity decides to visit; 
and
    (4) The number of individuals working at each site.
    (d) Before deciding whether to accredit an agency or approve a 
person, the accrediting entity may, in its discretion, advise the 
agency or person of any deficiencies that may hinder or

[[Page 74510]]

prevent its accreditation or approval and defer a decision to allow the 
agency or person to correct the deficiencies.


Sec.  96.25   Access to information and documents requested by the 
accrediting entity.

    (a) The agency or person must give the accrediting entity access to 
information and documents, including adoption case files and 
proprietary information, that it requires or requests to evaluate an 
agency or person for accreditation or approval and to perform its 
oversight, enforcement, renewal, data collection, and other functions. 
The agency or person must also cooperate with the accrediting entity by 
making employees available for interviews upon request.
    (b) Accrediting entity review of adoption case files pursuant to 
paragraph (a) of this section shall be limited to Convention adoption 
case files and cases subject to the UAA, except that, in the case of 
first-time applicants for accreditation or approval, the accrediting 
entity may review adoption case files related to other non-Convention 
cases for purposes of assessing the agency's or person's capacity to 
comply with record-keeping and data-management standards in subpart F 
of this part. The accrediting entity shall permit the agency or person 
to redact names and other information that identifies birth parent(s), 
prospective adoptive parent(s), and adoptee(s) from such non-Convention 
adoption case files not subject to the UAA prior to their inspection by 
the accrediting entity.
    (c) If an agency or person fails to provide requested documents or 
information, or to make employees available as requested, or engages in 
deliberate destruction of documentation, or provides false or 
misleading documents or information, the accrediting entity may deny 
accreditation or approval or, in the case of an accredited agency or 
approved person, take appropriate adverse action against the agency or 
person solely on that basis.


Sec.  96.26   Protection of information and documents by the 
accrediting entity.

    (a) The accrediting entity must protect from unauthorized use and 
disclosure all documents and information about the agency or person it 
receives including, but not limited to, documents and proprietary 
information about the agency's or person's finances, management, and 
professional practices received in connection with the performance of 
its accreditation or approval, oversight, enforcement, renewal, data 
collection, or other functions under its agreement with the Secretary 
and this part.
    (b) The documents and information received may not be disclosed to 
the public and may be used only for the purpose of performing the 
accrediting entity's accreditation or approval functions, monitoring 
and oversight, and related tasks under its agreement with the Secretary 
and this part, or to provide information to the Secretary, the 
Complaint Registry, or an appropriate foreign, Federal, State, tribal, 
or local authority, including, but not limited to, a public domestic 
authority or local law enforcement authority unless:
    (1) Otherwise authorized by the agency or person in writing;
    (2) Otherwise required under Federal or State laws; or
    (3) Required pursuant to subpart M of this part.
    (c) Unless the names and other information that identifies the 
birth parent(s), prospective adoptive parent(s), and adoptee(s) are 
requested by the accrediting entity for an articulated reason, the 
agency or person may withhold from the accrediting entity such 
information and substitute individually assigned codes in the documents 
it provides. The accrediting entity must have appropriate safeguards to 
protect from unauthorized use and disclosure of any information in its 
files that identifies birth parent(s), prospective adoptive parent(s), 
and adoptee(s). The accrediting entity must ensure that its officers, 
employees, contractors, and evaluators who have access to information 
or documents provided by the agency or person have signed a non-
disclosure agreement reflecting the requirements of paragraphs (a) and 
(b) of this section.
    (d) The accrediting entity must maintain a complete and accurate 
record of all information it receives related to an agency or person, 
and the basis for the accrediting entity's decisions concerning the 
agency or person for a period of at least ten years, or as otherwise 
set forth in its agreement with the secretary.


Sec.  96.27   Substantive criteria for evaluating applicants for 
accreditation or approval.

    (a) The accrediting entity may not grant an agency accreditation or 
a person approval, or permit an agency's or person's accreditation or 
approval to be maintained, unless the agency or person demonstrates to 
the satisfaction of the accrediting entity that it is in substantial 
compliance with the standards in subpart F of this part.
    (b) When the agency or person makes its initial application for 
accreditation or approval, the accrediting entity may measure the 
capacity of the agency or person to achieve substantial compliance with 
the standards in subpart F of this part where relevant evidence of its 
actual performance is not yet available. Once the agency or person has 
been accredited or approved pursuant to this part, the accrediting 
entity must, for the purposes of monitoring, renewal, enforcement, and 
reapplication after adverse action, consider the agency's or person's 
actual performance in deciding whether the agency or person is in 
substantial compliance with the standards in subpart F of this part, 
unless the accrediting entity determines that it is still necessary to 
measure capacity because services have not yet been provided and thus 
adequate evidence of actual performance is not available.
    (c) The standards contained in subpart F of this part apply during 
all the stages of accreditation and approval, including, but not 
limited to, when the accrediting entity is evaluating an applicant for 
accreditation or approval, when it is determining whether to renew an 
agency's or person's accreditation or approval, when it is monitoring 
the performance of an accredited agency or approved person, and when it 
is taking adverse action against an accredited agency or approved 
person. The accrediting entity shall use the standards contained in 
subpart F of this part, when determining whether an agency or person 
may be granted or permitted to maintain accreditation or approval.
    (d) The Secretary will ensure that each accrediting entity performs 
its accreditation and approval functions using only a method approved 
by the Secretary that is substantially the same as the method approved 
for use by each other accrediting entity. Each such method will 
include: An assigned value for each standard (or element of a 
standard); a method of rating an agency's or person's compliance with 
each applicable standard; and a method of evaluating whether an 
agency's or person's overall compliance with all applicable standards 
establishes that the agency or person is in substantial compliance with 
the standards and can be accredited or approved. The Secretary will 
ensure that the value assigned to each standard reflects the relative 
importance of that standard to compliance with the Convention, the IAA, 
and the UAA and is consistent with the value assigned to the standard 
by other accrediting entities. The accrediting entity must advise

[[Page 74511]]

applicants of the value assigned to each standard (or elements of each 
standard) at the time it provides applicants with the application 
materials.
    (e) If an agency or person previously has been denied accreditation 
or approval, has withdrawn its application in anticipation of denial, 
or is reapplying for accreditation or approval after cancellation, 
refusal to renew, or temporary debarment, the accrediting entity must 
take the reasons underlying such actions into account when evaluating 
the agency or person for accreditation or approval, and may deny 
accreditation or approval on the basis of the previous action.
    (f) If an agency or person that has an ownership or control 
interest in the applicant, as that term is defined in section 1124 of 
the Social Security Act (42 U.S.C. 1320a-3), has been debarred pursuant 
to Sec.  96.85, the accrediting entity must take into account the 
reasons underlying the debarment when evaluating the agency or person 
for accreditation or approval, and may deny accreditation or approval 
or refuse to renew accreditation or approval on the basis of the 
debarment.
    (g) The standards contained in subpart F of this part do not 
eliminate the need for an agency or person to comply fully with the 
laws of the jurisdictions in which it operates. An agency or person 
must provide adoption services in intercountry adoption cases 
consistent with the laws of any State in which it operates, and with 
the Convention, the IAA, and the UAA. Persons that are approved to 
provide adoption services may only provide such services in States that 
do not prohibit persons from providing adoption services. Nothing in 
the application of subparts E and F of this part should be construed to 
require a State to allow persons to provide adoption services if State 
law does not permit them to do so.
0
6. Revise subpart F to read as follows:
Subpart F--Standards for Intercountry Adoption Accreditation and 
Approval
Sec.
96.28 Scope.
96.29 Compliance with all applicable laws.

Licensing and Corporate Governance

96.30 State licensing.
96.31 Corporate structure.
96.32 Internal structure and oversight.

Financial and Risk Management

96.33 Budget, audit, insurance, and risk assessment requirements.
96.34 Compensation.

Ethical Practices and Responsibilities

96.35 Suitability of agencies and persons to provide adoption 
services.
96.36 Prohibition on child buying and inducement.

Professional Qualifications and Training for Employees

96.37 Education and experience requirements for social service 
personnel.
96.38 Training requirements for social service personnel.

Information Disclosure, Fee Practices, and Quality Control Policies and 
Practices

96.39 Information disclosure and quality control practices.
96.40 Fee policies and procedures.

Responding to Complaints and Records and Reports Management

96.41 Procedures for responding to complaints and improving service 
delivery.
96.42 Retention, preservation, and disclosure of adoption records.
96.43 Case tracking, data management, and reporting.

Service Planning and Delivery

96.44 Acting as primary provider.
96.45 Using supervised providers in the United States.
96.46 Using providers in foreign countries.

Standards for Cases in Which a Child Is Immigrating to the United 
States (Incoming Cases)

96.47 Preparation of home studies in incoming cases.
96.48 Preparation and training of prospective adoptive parent(s) in 
incoming cases.
96.49 Provision of medical and social information in incoming cases.
96.50 Placement and post-placement monitoring until final adoption 
in incoming cases.
96.51 Post-adoption services in incoming cases.
96.52 Performance of communication and coordination functions in 
incoming cases.

Standards for Convention Cases in Which a Child Is Emigrating From the 
United States (Outgoing Cases)

96.53 Background studies on the child and consents in outgoing 
Convention cases.
96.54 Placement standards in outgoing Convention cases.
96.55 Performance of Convention communication and coordination 
functions in outgoing Convention cases.
96.56 [Reserved]

Subpart F--Standards for Intercountry Adoption Accreditation and 
Approval


Sec.  96.28   Scope.

    The provisions in this subpart provide the standards for 
accrediting agencies and approving persons.


Sec.  96.29   Compliance with all applicable laws.

    (a) The agency or person has not:
    (1) Provided any adoption service other than as:
    (i) An accredited agency or an approved person;
    (ii) A supervised provider, under the supervision of an accredited 
agency or approved person; or
    (iii) An exempted provider, if the exempted provider's home study 
or child background study was prepared for review and approval by an 
accredited agency pursuant to Sec.  96.47(c) or Sec.  96.53(b).
    (2) Provided any adoption service in a foreign country without 
authorization from the relevant foreign country, if required by that 
country.
    (b) The agency or person gives the accrediting entity access to 
information, documents, and employees, as set forth in Sec.  96.25, 
that the accrediting entity requires or requests to evaluate an agency 
or person for accreditation or approval and/or to perform its 
oversight, enforcement, renewal, data collection, and other functions. 
If an agency or person fails to provide requested documents or 
information, or to make employees available as requested, or engages in 
deliberate destruction of documentation, or provides false or 
misleading documents or information, the accrediting entity may deny 
accreditation or approval or, in the case of an accredited agency or 
approved person, take appropriate adverse action against the agency or 
person solely on that basis.
    (c) In providing adoption services, the agency or person complies 
fully with the laws of each jurisdiction in which it operates and with 
the Convention, the IAA and the UAA. The agency or person does not 
provide adoption services in any State unless authorized to do so, 
where such authorization is required.
    (d) In providing adoption services, the agency or person complies 
fully with the laws of each foreign country in which it operates. The 
agency or person does not provide adoption services in a foreign 
country unless authorized by the foreign country to do so, where such 
authorization is required.

Licensing and Corporate Governance


Sec.  96.30   State licensing.

    (a) The agency or person is properly licensed or otherwise 
authorized by State law to provide adoption services in at least one 
State.
    (b) The agency or person follows applicable State licensing and 
regulatory requirements in all jurisdictions in which it provides 
adoption services.
    (c) If it provides adoption services in a State in which it is not 
itself licensed or authorized to provide such services, the agency or 
person does so only:

[[Page 74512]]

    (1) Through agencies or persons that are licensed or authorized by 
State law to provide adoption services in that State and that are 
exempted providers or acting as supervised providers; or
    (2) Through public domestic authorities.
    (d) In the case of a person, the individual or for-profit entity is 
not prohibited by State law from providing adoption services in any 
State where it is providing adoption services, and does not provide 
adoption services in foreign countries that prohibit individuals or 
for-profit entities from providing adoption services.


Sec.  96.31   Corporate structure.

    (a) The agency qualifies for nonprofit tax treatment under section 
501(c)(3) of the Internal Revenue Code of 1986, as amended, or 
qualifies for nonprofit status under the laws of any State.
    (b) The person is an individual or is a for-profit entity organized 
as a corporation, company, association, firm, partnership, society, or 
joint stock company, or other legal entity under the laws of any State.


Sec.  96.32   Internal structure and oversight.

    (a) The agency or person has (or, in the case of an individual, is) 
a chief executive officer or equivalent official who is qualified by 
education, adoption service experience, and management credentials to 
ensure effective use of resources and coordinated delivery of the 
services provided by the agency or person, and has authority and 
responsibility for management and oversight of the staff and any 
supervised providers in carrying out the adoption-related functions of 
the organization.
    (b) The agency or person has a board of directors or a similar 
governing body that establishes and approves its mission, policies, 
budget, and programs; provides leadership to secure the resources 
needed to support its programs; includes one or more individuals with 
experience in adoption, including but not limited to, adoptees, birth 
parents, prospective adoptive parent(s), and adoptive parents; and 
appoints and oversees the performance of its chief executive officer or 
equivalent official. This standard does not apply where the person is 
an individual practitioner.
    (c) The agency or person keeps records of the meetings and 
deliberations of its governing body and of its major decisions 
affecting the delivery of adoption services for a period of not less 
than 25 years. The agency or person shall also maintain records 
relating to the selection, monitoring, and oversight of supervised 
providers, financial transactions to and from foreign countries, and 
records pursuant to Sec.  96.41 for a period of not less than 25 years.
    (d) The agency or person has in place procedures and standards, 
pursuant to Sec. Sec.  96.45 and 96.46, for the selection, monitoring, 
and oversight of supervised providers.
    (e) The agency or person discloses to the accrediting entity the 
following information:
    (1) Any other names by which the agency or person is or has been 
known, under either its current or any former form of organization, and 
the addresses and phone numbers used when such names were used;
    (2) The name, address, and phone number of each current director, 
manager, and employee of the agency or person, and, for any such 
individual who previously served as a director, manager, or employee of 
another provider of adoption services, the name, address, and phone 
number of such other provider;
    (3) The name, address, and phone number of any entity it uses or 
intends to use as a supervised provider; and
    (4) The name, address, and phone number of all agencies or persons, 
non-profit organizations, or for-profit organizations that share with 
it any leadership, officers, board of directors, or family 
relationships, if such agency, person, or organization provides any 
service to, or receives any payment from, the agency or person.

Financial and Risk Management


Sec.  96.33   Budget, audit, insurance, and risk assessment 
requirements.

    (a) The agency or person operates under a budget approved by its 
governing body, if applicable, for management of its funds. The budget 
discloses all remuneration (including perquisites) paid to the agency's 
or person's board of directors, managers, employees, and supervised 
providers.
    (b) The agency's or person's finances are subject to annual 
internal review and oversight and are subject to independent audits 
every four years. The agency or person submits copies of internal 
financial review reports for inspection by the accrediting entity each 
year.
    (c) The agency or person submits copies of each audit, as well as 
any accompanying management letter or qualified opinion letter, for 
inspection by the accrediting entity.
    (d) The agency or person meets the financial reporting requirements 
of Federal and State laws and regulations.
    (e) The agency's or person's balance sheets show that it operates 
on a sound financial basis and maintains on average sufficient cash 
reserves, assets, or other liquid assets to meet its operating expenses 
for two months, taking into account its projected volume of cases and 
its size, scope, and financial commitments.
    (f) The agency or person has a plan to transfer its intercountry 
adoption cases to an accredited agency or approved person if it ceases 
to provide or is no longer permitted to provide adoption services in 
intercountry adoption cases. The plan includes provisions for an 
organized transfer and reimbursement to clients of funds paid for 
services not yet rendered.
    (g) If it accepts charitable donations, the agency or person has 
safeguards in place to ensure that such donations do not influence 
child placement decisions in any way.
    (h) The agency or person assesses the risks it assumes, including 
by reviewing information on the availability of insurance coverage for 
intercountry adoption-related activities. The agency or person uses the 
assessment to meet the requirements in paragraph (i) of this section 
and as the basis for determining the type and amount of professional, 
general, directors' and officers', errors and omissions, and other 
liability insurance to carry.
    (i) The agency or person maintains professional liability insurance 
in amounts reasonably related to its exposure to risk, but in no case 
in an amount less than $1,000,000 in the aggregate.
    (j) The agency's or person's chief executive officer, chief 
financial officer, and other officers or employees with direct 
responsibility for financial transactions or financial management of 
the agency or person are bonded.


Sec.  96.34   Compensation.

    (a) The agency or person does not compensate or plan to compensate 
directly or indirectly, any individual or entity involved in an 
intercountry adoption with an incentive fee or contingent fee for each 
child located or placed for adoption.
    (b) The agency or person compensates its directors, officers, 
employees, and supervised providers or any other agent, individual, or 
entity involved in an intercountry adoption only for services actually 
rendered and only on a fee-for-service, hourly wage, or salary basis 
rather than a contingent fee basis.
    (c) The agency or person does not make any payments, promise 
payment, or give other consideration to any individual or entity 
directly or indirectly involved in provision of adoption services in a 
particular case,

[[Page 74513]]

except for salaries or fees for services actually rendered and 
reimbursement for costs incurred. This does not prohibit an agency or 
person from providing in-kind or other donations not intended to 
influence or affect a particular adoption.
    (d) The fees, wages, or salaries paid to the directors, officers, 
employees, and supervised providers, or any other agent, individual, or 
entity involved in intercountry adoption on behalf of the agency or 
person, are not unreasonably high in relation to the services actually 
rendered, taking into account what such services actually cost in the 
country in which the services are provided; the location, number, and 
qualifications of staff; workload requirements; budget; and size of the 
agency or person.
    (e) Any other compensation paid or provided to the agency's or 
person's directors or members of its governing body is not unreasonably 
high in relation to the services rendered, taking into account the same 
factors listed in paragraph (d) of this section and its for-profit or 
nonprofit status.
    (f) The agency or person identifies all vendors to whom clients are 
referred for non-adoption services and discloses to the accrediting 
entity and the agency's or person's clients, any corporate or financial 
arrangements and any family relationships with such vendors.

Ethical Practices and Responsibilities


Sec.  96.35   Suitability of agencies and persons to provide adoption 
services.

    (a) The agency or person provides adoption services ethically and 
in accordance with the Convention's principles of:
    (1) Ensuring that intercountry adoptions take place in the best 
interests of children; and
    (2) Preventing the abduction, exploitation, sale, or trafficking of 
children.
    (b) In order to permit the accrediting entity to evaluate the 
suitability of an agency or person for accreditation or approval, the 
agency or person discloses to the accrediting entity the following 
information related to the agency or person, under its current or any 
former name:
    (1) Any instances in which the agency or person has lost the right 
to provide adoption services in any State or country, including the 
basis for such action(s);
    (2) Any instances in which the agency or person was debarred or 
otherwise denied the authority to provide adoption services in any 
State or country, including the basis and disposition of such 
action(s);
    (3) Any licensing suspensions for cause or other negative sanctions 
by oversight bodies against the agency or person, including the basis 
and disposition of such action(s);
    (4) For the prior ten-year period, any disciplinary action(s) 
against the agency or person by a licensing or accrediting body, 
including the basis and disposition of such action(s);
    (5) For the prior ten-year period, any written complaint(s) related 
to the provision of adoption related services, including the basis and 
disposition of such complaints, against the agency or person filed with 
any State or Federal or foreign regulatory body or court and of which 
the agency or person was notified;
    (6) For the prior ten-year period, any known past or pending 
investigation(s) by Federal authorities, public domestic authorities, 
or by foreign authorities, criminal charge(s), child abuse charge(s), 
or lawsuit(s) against the agency or person, related to the provision of 
child welfare or adoption-related services, and the basis and 
disposition of such action(s);
    (7) Any instances where the agency or person has been found guilty 
of any crime under Federal, State, or foreign law or has been found to 
have committed any civil or administrative violation involving 
financial irregularities under Federal, State, or foreign law;
    (8) For the prior five-year period, any instances where the agency 
or person has filed for bankruptcy;
    (9) Descriptions of any businesses or activities that may be 
inconsistent with the principles of the Convention and that have been 
or are currently carried out by the agency or person, affiliate 
organizations, or by any organization in which the agency or person has 
an ownership or controlling interest.
    (c) In order to permit the accrediting entity to evaluate the 
suitability of an agency or person for accreditation or approval, the 
agency or person (for its current or any former names) discloses to the 
accrediting entity the following information about its individual 
directors, officers, and employees:
    (1) For the prior ten-year period, any conduct by any such 
individual related to the provision of adoption-related services that 
was subject to external disciplinary proceeding(s);
    (2) Any convictions, formal disciplinary actions or known, current 
investigations of any such individual for acts involving financial 
irregularities;
    (3) The results of a State criminal background check and a child 
abuse clearance for any such individual in the United States in a 
senior management position or who works directly with parent(s) and/or 
children (unless such checks have been included in the State licensing 
process); and
    (4) Descriptions of any businesses or activities that may be 
inconsistent with the principles of the Convention and that are known 
to have been or are currently carried out by current individual 
directors, officers, or employees of the agency or person.
    (d) In order to permit the accrediting entity to evaluate the 
suitability of a person who is an individual practitioner for approval, 
the individual:
    (1) Provides the results of a State criminal background check and a 
child abuse clearance to the accrediting entity;
    (2) If a lawyer, for every jurisdiction in which he or she has ever 
been admitted to the Bar, provides a certificate of good standing or an 
explanation of why he or she is not in good standing, accompanied by 
any relevant documentation, and immediately reports to the accrediting 
entity any disciplinary action considered by a State bar association, 
regardless of whether the action relates to intercountry adoption; and
    (3) If a social worker, for every jurisdiction in which he or she 
has been licensed, provides a certificate of good standing or an 
explanation of why he or she is not in good standing, accompanied by 
any relevant documentation.
    (e) In order to permit the accrediting entity to monitor the 
suitability of an agency or person, the agency or person must disclose 
any changes in the information required by this section within 30 
business days of becoming aware of the change.


Sec.  96.36   Prohibition on child buying and inducement.

    (a) The agency or person prohibits its employees and agents from 
giving money or other consideration, directly or indirectly, to a 
child's parent(s), other individual(s), or an entity as payment for the 
child or as an inducement to release the child.
    (b) The agency or person has written policies and procedures in 
place reflecting the prohibitions in paragraph (a) of this section and 
reinforces them in its employee training programs. In order to monitor 
compliance, the agency's or person's policies and procedures require 
its employees, providers, and agents to retain a record of all payments 
or fees tendered in connection with an intercountry adoption and the 
purposes for which they were paid for as long as adoption records are 
kept in accordance

[[Page 74514]]

with Sec.  96.42, and provide a copy thereof to the agency or person.

Professional Qualifications and Training for Employees


Sec.  96.37   Education and experience requirements for social service 
personnel.

    (a) Appropriate qualifications and credentials.The agency or person 
only uses employees with appropriate qualifications and credentials to 
perform, in connection with an intercountry adoption, adoption-related 
social service functions that require the application of clinical 
skills and judgment (home studies, child background studies, 
counseling, parent preparation, post-placement, and other similar 
services).
    (b) State licensing, regulatory requirements. The agency's or 
person's employees meet any State licensing or regulatory requirements 
for the services they are providing.
    (c) Application of clinical skills and judgment, training or 
experience. The agency's or person's executive director, the supervisor 
overseeing a case, or the social service employee providing adoption-
related social services that require the application of clinical skills 
and judgment (home studies, child background studies, counseling, 
parent preparation, post-placement, and other similar services) has 
training or experience in the professional delivery of intercountry 
adoption services.
    (d) Supervisors. The agency's or person's social work supervisors 
have prior experience in family and children's services, adoption, or 
intercountry adoption and either:
    (1) A master's degree from an accredited program of social work;
    (2) A master's degree (or doctorate) in a related human service 
field, including, but not limited to, psychology, psychiatry, 
psychiatric nursing, counseling, rehabilitation counseling, or pastoral 
counseling; or
    (3) In the case of a social work supervisor who was an incumbent at 
the time the Convention entered into force for the United States, the 
supervisor had significant skills and experience in intercountry 
adoption and had regular access for consultation purposes to an 
individual with the qualifications listed in paragraphs (d)(1) or 
(d)(2) of this section.
    (e) Non-supervisory employees. The agency's or person's non-
supervisory employees providing adoption-related social services that 
require the application of clinical skills and judgment other than home 
studies or child background studies have either:
    (1) A master's degree from an accredited program of social work or 
in another human service field; or
    (2) A bachelor's degree from an accredited program of social work; 
or a combination of a bachelor's degree in any field and prior 
experience in family and children's services, adoption, or intercountry 
adoption; and
    (3) Are supervised by an employee of the agency or person who meets 
the requirements for supervisors in paragraph (d) of this section.
    (f) Home studies. The agency's or person's employees who conduct 
home studies:
    (1) Are authorized or licensed to complete a home study under the 
laws of the States in which they practice;
    (2) Meet the requirements for home study preparers in 8 CFR 
204.301; and
    (3) Are supervised by an employee of the agency or person who meets 
the requirements in paragraph (d) of this section.
    (g) Child background studies. The agency's or person's employees 
who prepare child background studies:
    (1) Are authorized or licensed to complete a child background study 
under the laws of the States in which they practice; and
    (2) Are supervised by an employee of the agency or person who meets 
the requirements in paragraph (d) of this section.


Sec.  96.38   Training requirements for social service personnel.

    (a) The agency or person provides newly hired employees who have 
adoption-related responsibilities involving the application of clinical 
skills and judgment (home studies, child background studies, counseling 
services, parent preparation, post-placement, and other similar 
services) with a comprehensive orientation to intercountry adoption 
that includes training on:
    (1) The requirements of the Convention, the IAA, the UAA, the 
regulations implementing the IAA and the UAA, and other applicable 
Federal regulations;
    (2) The INA provisions applicable to the immigration of children 
described in INA 101(b)(1)(F) and (G) and the applicable regulations 
contained in 8 CFR 204.3 and 204.300 through 204.314;
    (3) The adoption laws of any foreign country where the agency or 
person provides adoption services;
    (4) Relevant State laws;
    (5) Ethical considerations in intercountry adoption and 
prohibitions on child-buying;
    (6) The agency's or person's goals, ethical and professional 
guidelines, organizational lines of accountability, policies, and 
procedures; and
    (7) The cultural diversity of the population(s) served by the 
agency or person.
    (b) In addition to the orientation training required under 
paragraph (a) of this section, the agency or person provides initial 
training to newly hired or current employees whose responsibilities 
include providing adoption-related social services that involve the 
application of clinical skills and judgment (home studies, child 
background studies, counseling services, parent preparation, post-
placement, and other similar services) that addresses:
    (1) The factors in foreign countries that lead to children needing 
adoptive families;
    (2) Feelings of separation, grief, and loss experienced by the 
child with respect to the family of origin;
    (3) Adverse childhood experiences, attachment, and post-traumatic 
stress disorders;
    (4) Physical, psychological, cognitive, and emotional issues facing 
children who have experienced trauma, abuse, including sexual abuse, or 
neglect, and/or whose parents' parental rights have been terminated, 
and the increased risk of such issues in older children;
    (5) The long-term impact of institutionalization on child 
development;
    (6) Outcomes for children placed for adoption internationally and 
the benefits of permanent family placements over other forms of 
government care;
    (7) The most frequent sociological, medical, and psychological 
problems experienced by children from the countries served by the 
agency or person, and the possibility that such problems may not be 
reflected in the medical reports transmitted to prospective adoptive 
parents;
    (8) The process of developing emotional ties to an adoptive family;
    (9) Acculturation and assimilation issues, including those arising 
from factors such as race, ethnicity, religion, and culture and the 
impact of having been adopted internationally; and
    (10) Child, adolescent, and adult development as affected by 
adoption.
    (c) The agency or person ensures that employees who provide 
adoption-related social services that involve the application of 
clinical skills and judgment (home studies, child background studies, 
counseling services, parent preparation, post-placement, and other 
similar services) also receive, in addition to the orientation and 
initial training

[[Page 74515]]

described in paragraphs (a) and (b) of this section, no less than 30 
hours of training every two years, or more if required by State law, on 
current and emerging adoption practice issues through participation in 
seminars, conferences, documented distance learning courses, and other 
similar programs. Continuing education hours required under State law 
may count toward the 30 hours of training as long as the training is 
related to current and emerging adoption practice issues.
    (d) The agency or person exempts newly hired employees from 
elements of the orientation and initial training required in paragraphs 
(a) and (b) of this section if the newly hired individual was, within 
the previous two years, employed by an accredited or approved adoption 
service provider where they had received orientation training pursuant 
to paragraphs (a) and (b) of this section and Sec. Sec.  96.39 and 
96.40.

Information Disclosure, Fee Practices, and Quality Control Policies and 
Practices


Sec.  96.39   Information disclosure and quality control practices.

    (a) The agency or person fully discloses in writing to the general 
public upon request and to prospective client(s) upon initial contact:
    (1) Its adoption service policies and practices, including general 
eligibility criteria and fees, including fees for supervised and 
exempted providers;
    (2) A sample written adoption services contract substantially like 
the one that the prospective client(s) will be expected to sign should 
they proceed;
    (b) The agency or person discloses to client(s) and prospective 
client(s) that the following information is available upon request and 
makes such information available when requested:
    (1) The number of its adoption placements per year for the prior 
three calendar years, and the number and percentage of those placements 
that remain intact, are disrupted, or have been dissolved as of the 
time the information is provided;
    (2) The number of parents who apply to adopt on a yearly basis, 
based on data for the prior three calendar years; and
    (3) The number of children eligible for adoption and awaiting an 
adoptive placement referral via the agency or person.
    (c) The agency or person does not give preferential treatment to 
its board members, contributors, volunteers, employees, agents, 
consultants, or independent contractors with respect to the placement 
of children for adoption and has a written policy to this effect.
    (d) The agency or person requires a client to sign a waiver of 
liability as part of the adoption service contract only where that 
waiver complies with applicable State law. and these regulations. Any 
waiver required is limited and specific, based on risks that have been 
discussed and explained to the client in the adoption services 
contract.
    (e) The agency or person cooperates with reviews, inspections, and 
audits by the accrediting entity or the Secretary.
    (f) The agency or person uses the internet in the placement of 
individual children eligible for adoption only where:
    (1) Such use is not prohibited by applicable State or Federal law 
or by the laws of the child's country of origin;
    (2) Such use is subject to controls to avoid misuse and links to 
any sites that reflect practices that involve the sale, abduction, 
exploitation, or trafficking of children;
    (3) Such use, if it includes photographs, is designed to identify 
children either who are currently waiting for adoption or who have 
already been adopted or placed for adoption (and who are clearly so 
identified); and
    (4) Such use does not serve as a substitute for the direct 
provision of adoption services, including services to the child, the 
prospective adoptive parent(s), and/or the birth parent(s).


Sec.  96.40   Fee policies and procedures.

    (a) In general. On its website, the agency or person discloses the 
following:
    (1) A written schedule of expected fees and estimated expenses 
conforming to each of the categories of adoption expenses in the United 
States found in paragraph (b) of this section and in foreign countries 
found in paragraph (c) of this section; and
    (2) An explanation of the conditions under which fees or expenses 
may be charged, waived, or reduced, a statement that fees or expenses 
will be refunded for any service not provided, and information 
regarding when and how the fees and expenses must be paid.
    (3) If prospective adoptive parent(s) contact an agency or person 
after initiating or completing an adoption on their own behalf, the 
agency or person identifies in writing which adoption service(s) it 
will provide and the expected total fees and estimated expenses for 
each remaining service, or the fees for acting as a primary provider.
    (b) Expected fees and estimated expenses in the United States: 
Before providing any adoption service to prospective adoptive 
parent(s), the agency or person itemizes and discloses in writing the 
expected fees and expenses in the United States in connection with an 
intercountry adoption, including, but not limited to, the following:
    (1) Home study, training, preparation, post-placement and post-
adoption reporting and expenses. (i) Expected fees and estimated 
expenses for home study preparation and approval, whether the home 
study is to be prepared directly by the agency or person itself, or 
prepared by a supervised provider, exempted provider, or approved 
person, and approved as required under Sec.  96.47(c), or prepared by a 
public domestic authority and the agency or person collects the 
associated fees;
    (ii) Expected fees and estimated expenses for training and 
preparation of the prospective adoptive parents; and
    (iii) Expected fees and estimated expenses for preparation of post-
placement and/or post-adoption reports.
    (2) Medical expenses related to the child. Expected fees and 
estimated expenses for pre-adoption consultation, examinations, 
opinions, or certificates from medical professionals in the United 
States.
    (3) Overhead and operating costs. (i) Operational costs and 
estimated expenses incurred in the United States that will be charged 
on a pro rata basis related to operating programs in the foreign 
country, such as but not limited to the agency's or person's employee 
travel to the foreign country; and
    (ii) Operational costs that will be charged on a pro rata basis to 
include personnel costs for personnel in the United States, 
administrative overhead, communications and publications costs, 
training and education for personnel, and other operational costs.
    (4) Legal and court fees. Expected fees and estimated expenses 
provided for a specific adoption:
    (i) For anticipated legal services provided in the United States; 
and
    (ii) For U.S. court or other adjudicative fees.
    (5) Travel expenses. If any travel, transportation, or 
accommodation services are to be arranged by the agency or person for 
the prospective adoptive parent(s), the expected fees and estimated 
expenses for these services; if travel, transportation, or 
accommodation services are not arranged by the agency or person for the 
prospective adoptive parents, an estimate of the direct cost to the 
prospective adoptive parents of travel, transportation, or 
accommodation services. The disclosure of estimated

[[Page 74516]]

direct costs of travel-related expenses incurred by prospective 
adoptive parents excludes de minimis travel expenses, such as, but not 
limited to, same day travel in the prospective adoptive parent's own 
vehicle.
    (6) Fees for provision of adoption services. Expected fees and 
estimated expenses for providers of adoption services, including:
    (i) Supervised providers in the United States; and
    (ii) Exempted providers in the United States.
    (7) Translation and documentation expenses. Expected fees and 
estimated expenses for obtaining any necessary documents and for any 
translation of documents related to the adoption, along with 
information on whether the prospective adoptive parent(s) will be 
expected to pay such costs directly or to third parties, or through the 
agency or person. This category includes, but is not limited to, costs 
for obtaining, translating, or copying records or documents required to 
complete the adoption; costs for the child's court documents, passport, 
adoption certificate and other documents related to the adoption; and 
costs for authentications, for notarizations and for certifications in 
the United States.
    (c) Expected fees and estimated expenses in a foreign country of 
origin. Before providing any adoption service to prospective adoptive 
parent(s), the agency or person itemizes and discloses in writing the 
expected fees and expenses in connection with an intercountry adoption 
in the foreign country as follows:
    (1) Medical expenses related to the child. Expected fees and 
estimated expenses for consultations, examinations, opinions, or 
certificates from medical professionals in the foreign country.
    (2) Fees to cover overhead and operating costs. Operational costs 
that will be charged on a pro rata basis in the foreign country, such 
as overhead or operating expenses in support of the agency's or 
person's foreign activities relating to intercountry adoption in 
general.
    (3) Legal and court fees. Expected fees and estimated expenses 
provided for a specific adoption:
    (i) For anticipated legal services in the foreign country; and
    (ii) For foreign court or other adjudicative fees.
    (4) Support for child welfare. Any fixed contribution, amount, or 
percentage that prospective adoptive parent(s) will be expected or 
required to make to child protection or child welfare service programs 
in the foreign country, including, but not limited to, contributions to 
orphanages or child welfare centers for food, clothing, shelter, 
medical care, or foster care services. The disclosure must include an 
explanation of the intended use of the contribution and the manner in 
which the contribution will be recorded and accounted for. Any such 
required contribution shall comply with the requirements of Sec.  
96.36. The agency or person collecting such amounts shall ensure:
    (i) That payments made to child protection or child welfare service 
programs comply with the requirements of Sec.  96.36 and are not 
unreasonably high in relation to the actual cost of goods or services 
in the country in which the goods or services are provided; and
    (ii) The agency or person does not require prospective adoptive 
parents to pay regular fees or contributions that are connected to the 
care of a particular child or are based on the length of time an 
adoption takes to complete. The agency or person shall not arrange, 
facilitate, or encourage such payments directly between prospective 
adoptive parents or any individual, entity, or orphanage.
    (5) Travel expenses. Expected fees and estimated expenses incurred 
in the foreign country for travel, guide, interpretation, 
accommodations, or other services provided to prospective adoptive 
parents in the foreign country and arranged by the agency or person, 
and for which the prospective adoptive parents would be responsible.
    (6) Fees for provision of adoption services. Expected fees and 
estimated expenses for providers of adoption services, including 
supervised providers in the foreign country, specifying in its adoption 
services contract that the primary provider will bill prospective 
adoptive parents for fees and expenses of foreign supervised providers. 
Likewise, the primary provider will pay foreign supervised providers 
for services rendered to prospective adoptive parents, leaving no 
direct billing by or payment to foreign supervised providers.
    (7) Fees for other individuals or entities. (i) Expected fees and 
estimated expenses to or for the Central Authority, competent 
authority, or public foreign authority of the government of the foreign 
country, including but not limited to fees charged for services 
rendered or for processing fees; and
    (ii) Expected fees and estimated expenses paid to other individuals 
or entities in the foreign country either directly or through the 
agency or person or its supervised or other provider.
    (8) Translation and document expenses. Expected fees and estimated 
expenses for obtaining any necessary documents and for any translation 
of documents related to the adoption, along with information on whether 
prospective adoptive parents will be expected to pay such costs 
directly or to third parties, or through the agency or person. This 
category includes, but is not limited to, costs for obtaining, 
translating, or copying records or documents required to complete the 
adoption, costs for the child's court documents, passport, adoption 
certificate, and other documents related to the adoption, and costs for 
authentications, notarizations, certifications in the foreign country;
    (d) All other fees and estimated expenses. All other fees and 
estimated expenses not recorded and disclosed in paragraph (c) of this 
section must be recorded as part of paragraph (b) of this section, 
including expected fees and estimated expenses charged to prospective 
adoptive parents residing in a third country or in the foreign country.
    (e) Informing the accrediting entity of expected fees and estimated 
expenses. Agencies and persons shall provide the accrediting entity 
with an itemized schedule of fees for each country for which the agency 
or person has an intercountry adoption program that includes the fee 
information established in paragraphs (b) and (c) of this section.
    (f) Segregation of client fees for services not yet rendered. The 
agency or person will segregate client fees collected for services not 
yet rendered. These segregated funds shall not be included in the 
agency or person's cash reserves or assets for purposes of meeting the 
balance sheets requirements of Sec.  96.33(e). The agency or person 
also specifies in its adoption services contract that funds advanced to 
cover fees or expenses will be refunded for any service not provided. 
Refunds must be issued within 60 days unless State law requires refunds 
within a shorter time period.
    (g) Disclosing fees for special services. When the agency or person 
uses part of its fees to provide special services, such as cultural 
programs for adoptee(s), scholarships, or other services, it discloses 
this practice to prospective adoptive parents in advance of providing 
any adoption services and gives prospective adoptive parents a general 
description of the programs supported by such funds.
    (h) Transferring funds to foreign counties. The agency or person 
has mechanisms in place for transferring funds to foreign countries 
when the financial institutions of the foreign

[[Page 74517]]

country so permit and for obtaining written receipts for such 
transfers, so that direct cash transactions by prospective adoptive 
parents to pay for adoption services provided in the country are 
minimized or unnecessary and consistent with paragraph (i) of this 
section.
    (i) Unforeseen additional fees and expenses. The agency or person 
does not customarily charge additional fees and expenses beyond those 
disclosed in the adoption services contract and has a written policy to 
this effect. In the event that unforeseen additional fees and expenses 
are incurred, the agency or person charges such additional fees and 
expenses only under the following conditions:
    (1) It discloses the fees and expenses in writing to the 
prospective adoptive parents;
    (2) It obtains the specific consent of prospective adoptive parents 
prior to expending any funds in excess of $1,000 for which the agency 
or person will hold prospective adoptive parents responsible; and.
    (3) It provides written receipts to prospective adoptive parents 
for fees and expenses paid directly by the agency or person in the 
foreign country and retains copies of such receipts.
    (j) Returning fees to prospective adoptive parents. The agency or 
person returns any funds to which prospective adoptive parents may be 
entitled within 60 days of the completion of the delivery of services.

Responding to Complaints and Records and Reports Management


Sec.  96.41   Procedures for responding to complaints and improving 
service delivery.

    (a) The agency or person has written complaint policies and 
procedures that incorporate the standards in paragraphs (b) through (h) 
of this section and provides a copy of such policies and procedures, 
including contact information for the Complaint Registry, to clients at 
the time the adoption services contract is signed.
    (b) The agency or person accepts complaints from any individual or 
entity. The agency or person advises such individuals or entities of 
the additional procedures available to them under subpart J of this 
part and the accrediting entity's policies and procedures if they are 
dissatisfied with the agency's or person's response to their complaint.
    (c) The agency or person responds in writing to complaints received 
pursuant to paragraph (b) of this section within 30 days of receipt and 
provides expedited review of such complaints that are time-sensitive or 
that involve allegations of fraud.
    (d) The agency or person maintains a written record of each 
complaint received pursuant to paragraph (b) of this section and the 
steps taken to investigate and respond to it and makes this record 
available to the accrediting entity or the Secretary upon request.
    (e) The agency or person does not take any action to discourage an 
individual or entity from, or retaliate against an individual or entity 
for: Making a complaint; expressing a grievance; providing information 
in writing or interviews to an accrediting entity on the agency's or 
person's performance; or questioning the conduct of or expressing an 
opinion about the performance of an agency or person.
    (f) The agency or person provides to the accrediting entity and the 
Secretary, on a semi-annual basis, a summary of all complaints received 
pursuant to paragraph (b) of this section during the preceding six 
months (including the number of complaints received and how each 
complaint was resolved) and an assessment of any discernible patterns 
in complaints received against the agency or person pursuant to 
paragraph (b) of this section, along with information about what 
systemic changes, if any, were made or are planned by the agency or 
person in response to such patterns.
    (g) The agency or person provides any information about complaints 
received pursuant to paragraph (b) of this section as may be requested 
by the accrediting entity or the Secretary.
    (h) The agency or person has a quality improvement program 
appropriate to its size and circumstances through which it makes 
systematic efforts to improve its adoption services as needed. The 
agency or person uses quality improvement methods such as reviewing 
complaint data, using client satisfaction surveys, or comparing the 
agency's or person's practices and performance against the data 
contained in the Secretary's annual reports to Congress on intercountry 
adoptions.


Sec.  96.42   Retention, preservation, and disclosure of adoption 
records.

    (a) The agency or person retains or archives adoption records in a 
safe, secure, and retrievable manner for the period of time required by 
applicable State law.
    (b) The agency or person makes readily available to the adoptee and 
the adoptive parent(s) of minor children upon request all information 
in its custody about the adoptee's health history or background, to the 
extent permitted by State law.
    (c) The agency or person ensures that personal data gathered or 
transmitted in connection with an adoption is used only for the 
purposes for which the information was gathered and safeguards 
sensitive individual information.
    (d) The agency or person has a plan that is consistent with the 
provisions of this section, the plan required under Sec.  96.33, and 
applicable State law for transferring custody of adoption records that 
are subject to retention or archival requirements to an appropriate 
custodian, and ensuring the accessibility of those adoption records, in 
the event that the agency or person ceases to provide or is no longer 
permitted to provide adoption services in intercountry adoption cases.
    (e) The agency or person notifies the accrediting entity and the 
Secretary in writing within 30 days of the time it ceases to provide or 
is no longer permitted to provide adoption services and provides 
information about the transfer of its adoption records.


Sec.  96.43   Case tracking, data management, and reporting.

    (a) When acting as the primary provider, the agency or person 
maintains all the data required in this section in a format approved by 
the accrediting entity and provides it to the accrediting entity on an 
annual basis.
    (b) When acting as the primary provider, the agency or person 
routinely generates and maintains reports as follows:
    (1) For cases involving children immigrating to the United States, 
information and reports on the total number of Convention and non-
Convention adoptions undertaken by the agency or person each year and, 
for each case:
    (i) The foreign country from which the child emigrated;
    (ii) The State to which the child immigrated;
    (iii) The State or foreign country in which the adoption was 
finalized;
    (iv) The age of the child; and
    (v) The date of the child's placement for adoption.
    (2) For cases involving children emigrating from the United States, 
information and reports on the total number of Convention and non-
Convention adoptions undertaken by the agency or person each year and, 
for each case:
    (i) The State from which the child emigrated;
    (ii) The foreign country to which the child immigrated;
    (iii) The State or foreign country in which the adoption was 
finalized;

[[Page 74518]]

    (iv) The age of the child; and
    (v) The date of the child's placement for adoption.
    (3) For each disrupted placement involving an intercountry 
adoption, information and reports about the disruption, including 
information on:
    (i) The child's country of origin;
    (ii) The State to which the child immigrated, if applicable;
    (iii) The age of the child;
    (iv) The date of the child's placement for adoption;
    (v) The citizenship of the child;
    (vi) The location of the child's adoption documentation and 
documentation relating to the citizenship or immigration status of the 
child;
    (vii) The last known physical location of the child;
    (viii) The name of legal guardian(s) or physical custodian(s) of 
the child;
    (ix) The reason(s) for and resolution(s) of the disruption of the 
placement for adoption, including information on the child's secondary 
placement for adoption and final legal adoption;
    (x) The names of the agencies or persons that handled the placement 
for adoption;
    (xi) The plans for the child; and
    (xii) Which authorities have been notified of the disruption.
    (4) Wherever possible, for each dissolution of an intercountry 
adoption, information and reports on the dissolution, including 
information on:
    (i) The child's country of origin;
    (ii) The State to which the child immigrated, if applicable;
    (iii) The age of the child;
    (iv) The date of the child's placement for adoption;
    (v) The citizenship of the child;
    (vi) The location of the child's adoption documentation and 
documentation relating to the citizenship or immigration status of the 
child;
    (vii) The last known physical location of the child;
    (viii) The name of legal guardians or physical custodian of the 
child;
    (ix) The reason(s) for and resolution(s) of the dissolution of the 
adoption, to the extent known by the agency or person;
    (x) The names of the agencies or persons that handled the placement 
for adoption;
    (xi) The plans for the child; and
    (xii) Which authorities have been notified of the dissolution.
    (5) Information on the shortest, longest, and average length of 
time it takes to complete an intercountry adoption, set forth by the 
child's country of origin, calculated from the time the child is 
matched with the prospective adoptive parent(s) until the time the 
adoption is finalized by a judicial or administrative body, excluding 
any period for appeal.
    (6) Information on the range of adoption fees and expenses, 
including the lowest, highest, average, and the median of such fees and 
expenses charged to prospective adoptive parents for intercountry 
adoptions involving children immigrating to the United States in 
connection with their adoption for each category in Sec.  96.40(b) and 
(c).
    (c) If the agency or person provides adoption services in cases not 
subject to the Convention that involve a child emigrating from the 
United States for the purpose of adoption or after an adoption has been 
finalized, it provides such information as required by the Secretary 
directly to the Secretary and demonstrates to the accrediting entity 
that it has provided this information.
    (d) The agency or person provides any of the information described 
in paragraphs (a) through (c) of this section to the accrediting entity 
or the Secretary upon request.

Service Planning and Delivery


Sec.  96.44   Acting as primary provider.

    (a) When required by Sec.  96.14(a), the agency or person acts as 
primary provider and adheres to the provisions in Sec.  96.14(b) 
through (e). When acting as the primary provider, the agency or person 
develops and implements a service plan for providing all adoption 
services and provides all such services, either directly or through 
arrangements with supervised providers, exempted providers, public 
domestic authorities, competent authorities, Central Authorities, 
public foreign authorities, or, to the extent permitted by Sec.  
96.14(c), other foreign providers (agencies, persons, or other non-
governmental entities).
    (b) The agency or person has an organizational structure, financial 
and personnel resources, and policies and procedures in place that 
demonstrate that the agency or person is capable of acting as a primary 
provider in any intercountry adoption case and, when acting as the 
primary provider, provides appropriate supervision to supervised 
providers, and verifies the work of other foreign providers in 
accordance with Sec. Sec.  96.45 and 96.46.


Sec.  96.45   Using supervised providers in the United States.

    (a) The agency or person, when acting as the primary provider and 
using supervised providers in the United States to provide adoption 
services, ensures that each such supervised provider:
    (1) Is in compliance with applicable State licensing and regulatory 
requirements in all jurisdictions in which it provides adoption 
services;
    (2) In providing any adoption service, complies with the 
Convention, the IAA, the UAA, and regulations implementing the IAA and 
the UAA;
    (3) Does not engage in practices inconsistent with the Convention's 
principles of furthering the best interests of the child and preventing 
the sale, abduction, exploitation, or trafficking of children; and
    (4) Before entering into an agreement with the primary provider for 
the provision of adoption services, discloses to the primary provider 
the suitability information listed in Sec.  96.35.
    (b) The agency or person, when acting as the primary provider and 
using supervised providers in the United States to provide adoption 
services, ensures that each such supervised provider operates under a 
written agreement with the primary provider that:
    (1) Identifies clearly the adoption service(s) to be provided by 
the supervised provider and requires that the service(s) be provided in 
accordance with the applicable service standard(s) for accreditation 
and approval (for example: home study (Sec.  96.47); parent training 
(Sec.  96.48); child background studies and consent (Sec.  96.53));
    (2) Requires the supervised provider to comply with the following 
standards regardless of the type of adoption services it is providing: 
Sec.  96.36 (prohibition on child buying), Sec.  96.34 (compensation), 
Sec.  96.38 (employee training), Sec.  96.39(d) (waivers of liability), 
and Sec.  96.41(b) through (e) (complaints);
    (3) Identifies specifically the lines of authority between the 
primary provider and the supervised provider, the employee of the 
primary provider who will be responsible for supervision, and the 
employee of the supervised provider who will be responsible for 
ensuring compliance with the written agreement;
    (4) States clearly the compensation arrangement for the services to 
be provided and the fees and expenses to be charged by the supervised 
provider;
    (5) Specifies whether the supervised provider's fees and expenses 
will be billed to and paid by the client(s) directly or billed to the 
client through the primary provider;
    (6) Provides that, if billing the client(s) directly for its 
service, the supervised provider will give the client(s) an itemized 
bill of all fees and expenses to be paid, with a written explanation of 
how and when such fees and expenses will be refunded if the

[[Page 74519]]

service is not completed, and will return any funds collected to which 
the client(s) may be entitled within 60 days of the completion of the 
delivery of services;
    (7) Requires the supervised provider to meet the same personnel 
qualifications as accredited agencies and approved persons, as provided 
for in Sec.  96.37, except that, for purposes of Sec.  96.37(e)(3), 
(f)(3), and (g)(2), the work of the employee must be supervised by an 
employee of an accredited agency or approved person;
    (8) Requires the supervised provider to limit the use of and 
safeguard personal data gathered or transmitted in connection with an 
adoption, as provided for in Sec.  96.42;
    (9) Requires the supervised provider to respond within a reasonable 
period of time to any request for information from the primary 
provider, the Secretary, or an accrediting entity;
    (10) Requires the supervised provider to provide the primary 
provider on a timely basis any data that is necessary to comply with 
the primary provider's reporting requirements;
    (11) Requires the supervised provider to disclose promptly to the 
primary provider any changes in the suitability information required by 
Sec.  96.35; and
    (12) Permits suspension or termination of the agreement on 
reasonable notice if the primary provider has grounds to believe that 
the supervised provider is not in compliance with the agreement or the 
requirements of this section.


Sec.  96.46   Using providers in foreign countries.

    (a) The agency or person, when acting as the primary provider and 
using foreign supervised providers to provide adoption services in 
foreign countries, ensures that each such foreign supervised provider:
    (1) Is in compliance with the laws of the foreign country in which 
it operates;
    (2) Does not engage in practices inconsistent with the Convention's 
principles of furthering the best interests of the child and preventing 
the sale, abduction, exploitation, or trafficking of children;
    (3) Before entering into an agreement with the primary provider for 
the provision of adoption services, discloses to the primary provider 
the suitability information listed in Sec.  96.35, taking into account 
the authorities in the foreign country that are analogous to the 
authorities identified in that section;
    (4) Does not have a pattern of licensing suspensions or other 
sanctions and has not lost the right to provide adoption services in 
any jurisdiction for reasons germane to the Convention or the 
Convention's principles of furthering the best interests of the child 
and preventing the abduction, exploitation, sale, or trafficking of 
children; and
    (5) Is accredited in the foreign country in which it operates, if 
such accreditation is required by the laws of that foreign country to 
perform the adoption services it is providing.
    (b) The agency or person, when acting as the primary provider and 
using foreign supervised providers to provide adoption services in 
foreign countries, ensures that each such foreign supervised provider 
operates under a written agreement with the primary provider that:
    (1) Identifies clearly the adoption service(s) to be provided by 
the foreign supervised provider;
    (2) Requires the foreign supervised provider, if responsible for 
obtaining medical or social information on the child, to comply with 
the standards in Sec.  96.49(d) through (j);
    (3) Requires the foreign supervised provider to adhere to the 
standard in Sec.  96.36(a) prohibiting child buying and to have written 
policies and procedures in place reflecting the prohibitions in Sec.  
96.36(a) and to reinforce them in training programs for its employees 
and agents;
    (4) Requires the foreign supervised provider to compensate its 
directors, officers, and employees who provide intercountry adoption 
services on a fee-for-service, hourly wage, or salary basis, rather 
than based on whether a child is placed for adoption, located for an 
adoptive placement, or on a similar contingent fee basis;
    (5) Identifies specifically the lines of authority between the 
primary provider and the foreign supervised provider, the employee of 
the primary provider who will be responsible for supervision, and the 
employee of the supervised provider who will be responsible for 
ensuring compliance with the written agreement;
    (6) States clearly the compensation arrangement for the services to 
be provided and the fees and expenses to be charged by the foreign 
supervised provider;
    (7) Specifies that the foreign supervised provider's fees and 
expenses will be billed to and paid by the client(s) through the 
primary provider;
    (8) Requires the foreign supervised provider to respond within a 
reasonable period of time to any request for information from the 
primary provider, the Secretary, or the accrediting entity that issued 
the primary provider's accreditation or approval;
    (9) Requires the foreign supervised provider to provide the primary 
provider on a timely basis any data that is necessary to comply with 
the primary provider's reporting requirements;
    (10) Requires the foreign supervised provider to disclose promptly 
to the primary provider any changes in the suitability information 
required by Sec.  96.35; and
    (11) Permits suspension or termination of the agreement on 
reasonable notice if the primary provider has grounds to believe that 
the foreign supervised provider is not in compliance with the agreement 
or the requirements of this section.
    (c) The agency or person, when acting as the primary provider and, 
in accordance with Sec.  96.14, using foreign providers that are not 
under its supervision, verifies, through review of the relevant 
documentation and other appropriate steps, that:
    (1) Any necessary consent to termination of parental rights or to 
adoption obtained by the foreign provider was obtained in accordance 
with applicable foreign law and Article 4 of the Convention;
    (2) Any background study and report on a child in a case involving 
immigration to the United States (an incoming case) performed by the 
foreign provider was performed in accordance with applicable foreign 
law and Article 16 of the Convention.
    (3) Any home study and report on prospective adoptive parents in a 
case involving emigration from the United States (an outgoing case) 
performed by the foreign provider was performed in accordance with 
applicable foreign law and Article 15 of the Convention.

Standards for Cases in Which a Child Is Immigrating to the United 
States (Incoming Cases)


Sec.  96.47   Preparation of home studies in incoming cases.

    (a) The agency or person ensures that a home study on the 
prospective adoptive parent(s) (which for purposes of this section 
includes the initial report and any supplemental updates(s) submitted 
to DHS) is completed that includes the following:
    (1) Information about the identity, eligibility and suitability of 
the prospective adoptive parent(s) to adopt, background, family and 
medical history, social environment, reasons for adoption, ability to 
undertake an intercountry adoption, and the characteristics of the 
children for whom the prospective adoptive parent(s) would be qualified 
to care (specifying in particular whether they are willing and

[[Page 74520]]

able to care for a child with special needs);
    (2) A determination of the eligibility and suitability of the 
prospective adoptive parent(s) to adopt;
    (3) A statement describing the counseling and training provided to 
the prospective adoptive parent(s);
    (4) The results of a criminal background check on the prospective 
adoptive parent(s) and any other individual for whom a check is 
required by 8 CFR 204.311;
    (5) A full and complete statement of all facts relevant to the 
eligibility and suitability of the prospective adoptive parent(s) to 
adopt a child under any specific requirements identified to the 
Secretary by the Central Authority of the child's country of origin; 
and
    (6) A statement in each copy of the home study that it is a true 
and accurate copy of the home study that was provided to the 
prospective adoptive parent(s) or DHS.
    (b) The agency or person ensures that the home study is performed 
in accordance with 8 CFR 204.311 and any applicable State law.
    (c) Where the home study is not performed in the first instance by 
an accredited agency, the agency or person ensures that the home study 
is reviewed and approved in writing by an accredited agency. The 
written approval must include a determination that the home study:
    (1) Includes all of the information required by paragraph (a) of 
this section and is performed in accordance with 8 CFR 204.311, and 
applicable State law; and
    (2) Was performed by an individual who meets the requirements in 
Sec.  96.37(f), or, if the individual is an exempted provider, ensures 
that the individual meets the requirements for home study providers 
established by 8 CFR 204.301.
    (d) The agency or person takes all appropriate measures to ensure 
the timely transmission of the same home study that was provided to the 
prospective adoptive parent(s) or to DHS to the Central Authority of 
the child's country of origin (or to an alternative authority 
designated by that Central Authority).
    (e) If, based on new information relating to paragraph (a)(1) of 
this section or 8 CFR 204.311, the agency or person withdraws its 
recommendation of the prospective adoptive parent(s) for adoption, or 
the agency that reviewed and approved a home study withdraws any such 
approval of the home study required under paragraph (c) of this 
section, the agency or person must:
    (1) Notify the prospective adoptive parent(s), and if applicable, 
the home study preparer, of its withdrawal and the reasons for its 
withdrawal, in writing, within 5 business days of the decision, and 
prior to notifying USCIS;
    (2) Notify USCIS of its withdrawal of its recommendation and/or 
approval and the reasons for its withdrawal, in writing, and within 5 
business days of notifying the prospective adoptive parent(s), in 
accordance with the agency's or person's ethical practices and 
responsibilities under Sec.  96.35(a);
    (3) Maintain written records of the withdrawal of its 
recommendation and/or approval and the good cause reasons for the 
withdrawal;
    (4) Handle fees for services not yet performed in accordance with 
Sec.  96.40; and
    (5) Comply with any applicable State law requirements and notify 
any State competent authority discussed in 8 CFR 204.311(t).


Sec.  96.48   Preparation and training of prospective adoptive 
parent(s) in incoming cases.

    (a) The agency or person provides prospective adoptive parent(s) 
with at least ten hours (independent of the home study) of preparation 
and training, as described in paragraphs (b) and (c) of this section, 
designed to promote a successful intercountry adoption. The agency or 
person provides such training before the prospective adoptive parent(s) 
travel to adopt the child or the child is placed with the prospective 
adoptive parent(s) for adoption.
    (b) The training provided by the agency or person addresses the 
following topics:
    (1) The intercountry adoption process, the general characteristics 
and needs of children awaiting adoption, and the in-country conditions 
that affect children in the foreign country from which the prospective 
adoptive parent(s) plan to adopt;
    (2) The effects on children of malnutrition, relevant environmental 
toxins, maternal substance abuse, and of any other known genetic, 
health, emotional, and developmental risk factors associated with 
children from the expected country of origin;
    (3) Information about the impact on a child of leaving familiar 
ties and surroundings, as appropriate to the expected age of the child;
    (4) Data on institutionalized children and the impact of 
institutionalization on children, including the effect on children of 
the length of time spent in an institution and of the type of care 
provided in the expected country of origin;
    (5) Information on attachment disorders and other emotional 
problems that institutionalized or traumatized children and children 
with a history of multiple caregivers may experience, before and after 
their adoption;
    (6) Information on the laws and adoption processes of the expected 
country of origin, including foreseeable delays and impediments to 
finalization of an adoption;
    (7) Information on the long-term implications for a family that has 
become multicultural through intercountry adoption; and
    (8) An explanation of any reporting requirements associated with 
intercountry adoptions, including any post-placement or post-adoption 
reports required by the expected country of origin.
    (c) The agency or person also provides the prospective adoptive 
parent(s) with training that allows them to be as fully prepared as 
possible for the adoption of a particular child. This includes 
counseling on:
    (1) The child's history and cultural, racial, religious, ethnic, 
and linguistic background;
    (2) The known health risks in the specific region or country where 
the child resides; and
    (3) Any other medical, social, background, birth history, 
educational data, developmental history, or any other data known about 
the particular child.
    (d) The agency or person provides such training through appropriate 
methods, including:
    (1) Collaboration among agencies or persons to share resources to 
meet the training needs of prospective adoptive parents;
    (2) Group seminars offered by the agency or person or other 
agencies or training entities;
    (3) Individual counseling sessions;
    (4) Video, computer-assisted, or distance learning methods using 
standardized curricula; or
    (5) In cases where training cannot otherwise be provided, an 
extended home study process, with a system for evaluating the 
thoroughness with which the topics have been covered.
    (e) The agency or person provides additional in-person, 
individualized counseling and preparation, as needed, to meet the needs 
of the prospective adoptive parent(s) in light of the particular child 
to be adopted and his or her special needs, and any other training or 
counseling needed in light of the child background study or the home 
study.
    (f) The agency or person provides the prospective adoptive 
parent(s) with

[[Page 74521]]

information about print, internet, and other resources available for 
continuing to acquire information about common behavioral, medical, and 
other issues; connecting with parent support groups, adoption clinics 
and experts; and seeking appropriate help when needed.
    (g) The agency or person exempts prospective adoptive parent(s) 
from all or part of the training and preparation that would normally be 
required for a specific adoption only when the agency or person 
determines that the prospective adoptive parent(s) have received 
adequate prior training or have prior experience as parent(s) of 
children adopted from abroad.
    (h) The agency or person records the nature and extent of the 
training and preparation provided to the prospective adoptive parent(s) 
in the adoption record.


Sec.  96.49  Provision of medical and social information in incoming 
cases.

    (a) The agency or person provides a copy of the child's medical 
records (including, to the fullest extent practicable, a correct and 
complete English-language translation of such records) to the 
prospective adoptive parent(s) as early as possible, but no later than 
two weeks before either the adoption or placement for adoption, or the 
date on which the prospective adoptive parent(s) travel to the foreign 
country to complete all procedures in such country relating to the 
adoption or placement for adoption, whichever is earlier.
    (b) Where any medical record provided pursuant to paragraph (a) of 
this section is a summary or compilation of other medical records, the 
agency or person includes those underlying medical records in the 
medical records provided pursuant to paragraph (a) of this section if 
they are available.
    (c) The agency or person provides the prospective adoptive 
parent(s) with any untranslated medical reports or videotapes or other 
reports and provides an opportunity for the client(s) to arrange for 
their own translation of the records, including a translation into a 
language other than English, if needed.
    (d) The agency or person itself uses reasonable efforts, or 
requires its supervised provider in the child's country of origin who 
is responsible for obtaining medical information about the child on 
behalf of the agency or person to use reasonable efforts, to obtain 
available information, including in particular:
    (1) The date that the foreign country or other child welfare 
authority assumed custody of the child and the child's condition at 
that time;
    (2) History of any significant illnesses, hospitalizations, special 
needs, and changes in the child's condition since the foreign country 
or other child welfare authority assumed custody of the child;
    (3) Growth data, including prenatal and birth history, and 
developmental status over time and current developmental data at the 
time of the child's referral for adoption; and
    (4) Specific information on the known health risks in the specific 
region or country where the child resides.
    (e) When the agency or person provides medical information, other 
than the information provided by public foreign authorities, to the 
prospective adoptive parent(s) from an examination by a physician or 
from an observation of the child by someone who is not a physician, the 
agency or person uses reasonable efforts to include the following:
    (1) The name and credentials of the physician who performed the 
examination or the individual who observed the child;
    (2) The date of the examination or observation; how the report's 
information was retained and verified; and if anyone directly 
responsible for the child's care has reviewed the report;
    (3) If the medical information includes references, descriptions, 
or observations made by any individual other than the physician who 
performed the examination or the individual who performed the 
observation, the identity of that individual, the individual's 
training, and information on what data and perceptions the individual 
used to draw his or her conclusions;
    (4) A review of hospitalizations, significant illnesses, and other 
significant medical events, and the reasons for them;
    (5) Information about the full range of any tests performed on the 
child, including tests addressing known risk factors in the child's 
country of origin; and
    (6) Current health information.
    (f) The agency or person itself uses reasonable efforts, or 
requires its supervised provider in the child's country of origin who 
is responsible for obtaining social information about the child on 
behalf of the agency or person to use reasonable efforts, to obtain 
available information, including in particular:
    (1) Information about the child's birth family and prenatal history 
and cultural, racial, religious, ethnic, and linguistic background;
    (2) Information about all of the child's past and current 
placements prior to adoption, including, but not limited to any social 
work or court reports on the child and any information on who assumed 
custody and provided care for the child; and
    (3) Information about any birth siblings whose existence is known 
to the agency or person, or its supervised provider, including 
information about such siblings' whereabouts.
    (g) Where any of the information listed in paragraphs (d), (e), and 
(f) of this section cannot be obtained, the agency or person documents 
in the adoption record the efforts made to obtain the information and 
why it was not obtainable. The agency or person continues to use 
reasonable efforts to secure those medical or social records that could 
not be obtained up until the adoption is finalized.
    (h) Where available, the agency or person provides information for 
contacting the examining physician or the individual who made the 
observations to any physician engaged by the prospective adoptive 
parent(s), upon request.
    (i) The agency or person ensures that any videotapes and 
photographs of the child taken by the agency or person (including by 
their supervised providers) are identified by the date on which the 
videotape or photograph was recorded or taken and that they were made 
in compliance with the laws in the country where recorded or taken.
    (j) The agency or person does not withhold from or misrepresent to 
the prospective adoptive parent(s) any available medical, social, or 
other pertinent information concerning the child.
    (k) The agency or person does not withdraw a referral until the 
prospective adoptive parent(s) have had two weeks (unless extenuating 
circumstances involving the child's best interests require a more 
expedited decision) to consider the needs of the child and their 
ability to meet those needs, and to obtain physician review of medical 
information and other descriptive information, including videotapes of 
the child if available.


Sec.  96.50  Placement and post-placement monitoring until final 
adoption in incoming cases.

    (a) The agency or person takes all appropriate measures to ensure 
that the transfer of the child takes place in secure and appropriate 
circumstances, with properly trained and qualified escorts, if used, 
and, if possible, in the company of the prospective adoptive parent(s).

[[Page 74522]]

    (b) In the post-placement phase, the agency or person monitors and 
supervises the child's placement to ensure that the placement remains 
in the best interests of the child, and ensures that at least the 
number of home visits required by State law or by the child's country 
of origin are performed, whichever is greater.
    (c) When a placement for adoption is in crisis in the post-
placement phase in the United States, the agency or person takes all 
appropriate measures to:
    (1) Provide or arrange for counseling by an individual or entity 
with appropriate skills to assist the family in dealing with the 
problems that have arisen;
    (2) Inform the parents of local and State laws, legal procedures 
and resources pertaining to disruption and dissolution and appropriate 
measures for making another placement of the child;
    (3) Explain potential risks and implications for the child; and
    (4) Provide resources for addressing potential future crises 
including disruption and dissolution.
    (d) When a placement for adoption is in crisis in the post-
placement phase in the foreign country, the agency or person takes all 
appropriate measures to:
    (1) Provide or arrange for counseling by an individual or entity 
with appropriate skills to assist the family in dealing with the 
problems that have arisen;
    (2) Inform the parents of applicable foreign laws, legal procedures 
and resources pertaining to disruption and dissolution;
    (3) Inform the parents of applicable State and federal laws and 
guidelines pertaining to disruption and dissolution;
    (4) Explain potential risks and implications for the child; and
    (5) Provide resources for addressing potential future crises, 
including disruption and dissolution.
    (e) The agency or person notifies the Secretary and, in 
consultation with the Secretary, informs the Central Authority of the 
child's country of origin within 24 hours of discovering a parent's 
intent to disrupt the placement.
    (f) If the placement is disrupted in the United States, the agency 
or person:
    (1) Assumes responsibility for making another placement of the 
child, in consideration of the best interests of the child and the 
impact of the new placement on any siblings;
    (2) Ensures any new placement includes information about sibling 
relationships, outstanding post-placement reporting requirements, and 
the child's citizenship status; and
    (3) Notifies the Secretary and, in consultation with the Secretary, 
informs the Central Authority of the child's country of origin of the 
disruption of the placement, within 24 hours of discovering such 
information.
    (g) If the placement is disrupted in the foreign country, the 
agency or person:
    (1) Ensures the safe and timely transfer or temporary placement of 
the child;
    (2) Notifies local child welfare authorities within 24 hours of 
discovering such information, and sooner if possible, to ensure the 
safe and appropriate placement of the child;
    (3) Notifies the Secretary and, in consultation with the Secretary, 
informs the Central Authority of the child's country of origin of the 
disruption of the placement, within 24 hours of discovering such 
information. In the event that a visa interview is scheduled within the 
24 hour notification period, or has already taken place, the agency or 
person notifies the Secretary immediately; and
    (4) If authorized to place the child with a new family, ensures any 
new placement includes information about the disruption and its 
consequences and the existence of any sibling relationships.
    (h) The agency or person acts promptly and in accordance with any 
applicable legal requirements to remove the child when the placement 
may no longer be in the child's best interests, to provide temporary 
care, to find an eventual adoptive placement for the child, and, in 
consultation with the Secretary, to inform the Central Authority of the 
child's country of origin about any new prospective adoptive parent(s).
    (1) In all cases where removal of a child from a placement is 
considered, the agency or person considers the child's views when 
appropriate in light of the child's age and maturity and, when required 
by foreign or State law, obtains the consent of the child prior to 
removal.
    (2) With respect to a child placed for adoption in the United 
States, the agency or person does not transfer, or advise or facilitate 
the transfer of, the child from the United States to the country of 
origin unless it has informed the Secretary and, in consultation with 
the Secretary, has informed the Central Authority of the country of 
origin, and the Secretary and the Central Authority have approved the 
return in writing.
    (i) The agency or person includes in the adoption services contract 
with the prospective adoptive parent(s) a plan describing the agency's 
or person's responsibilities if a placement for adoption is disrupted. 
This plan addresses:
    (1) Who will have legal and financial responsibility for transfer 
of custody in an emergency or in the case of impending disruption and 
for the care of the child;
    (2) If the disruption takes place after the child has arrived in 
the United States, under what circumstances the child will, as a last 
resort, be returned to the child's country of origin, if that is 
determined to be in the child's best interests;
    (3) How the child's wishes, age, length of time in the United 
States, and other pertinent factors will be taken into account; and
    (4) How the Central Authority of the child's country of origin and 
the Secretary will be notified.
    (j) The agency or person provides post-placement reports until 
final adoption of a child to the foreign country when required by the 
foreign country. Where such reports are required, the agency or person:
    (1) Informs the prospective adoptive parent(s) in the adoption 
services contract of the requirement prior to the referral of the child 
for adoption;
    (2) Informs the prospective adoptive parent(s) that they will be 
required to provide all necessary information for the report(s); and
    (3) Discloses who will prepare the reports and the fees that will 
be charged.
    (k) The agency or person takes steps to:
    (1) Ensure that an order declaring the adoption as final is sought 
by the prospective adoptive parent(s), and in Convention adoptions is 
entered in compliance with section 301(c) of the IAA (42 U.S.C. 
14931(c)); and
    (2) Notify the Secretary of the finalization of the adoption within 
30 days of the entry of the order.


Sec.  96.51  Post-adoption services in incoming cases.

    (a) The agency or person takes all appropriate measures to ensure 
that the transfer of the child takes place in secure and appropriate 
circumstances, with properly trained and qualified escorts, if used, 
and, if possible, in the company of the adoptive parent(s).
    (b) The agency or person informs the prospective adoptive parent(s) 
whether post-adoption services, including any post-adoption reporting, 
are included in the agency's or person's fees, and if not, enumerates 
the cost the agency or person would charge for such services. The 
agency or person also informs the prospective adoptive parent(s) in the

[[Page 74523]]

adoption services contract whether it will provide services if an 
adoption is dissolved, and, if it indicates it will, it provides a plan 
describing the agency's or person's responsibilities or if it will not, 
provides information about local, State, and other entities that may be 
consulted for assistance in the event an adoption is dissolved.
    (c) When post-adoption reports are required by the child's country 
of origin, the agency or person includes a requirement for such reports 
in the adoption services contract and makes good-faith efforts to 
encourage adoptive parents to provide such reports.
    (d) The agency or person does not return from the United States an 
adopted child whose adoption has been dissolved unless the Central 
Authority of the country of origin and the Secretary have approved the 
return in writing.


Sec.  96.52  Performance of communication and coordination functions in 
incoming cases.

    (a)(1) The agency or person keeps the Central Authority of the 
foreign country and the Secretary informed when developments or new 
information become known that relate to material facts about:
    (i) The child or case;
    (ii) The suitability or conduct of its supervised providers;
    (iii) The suitability and eligibility of adoptive parents; or
    (iv) Any indications that the placement may not be in the best 
interests of the child, as well as about the progress of the placement 
if a probationary period is required.
    (2) In the case of information developed or new information 
relating to the suitability and eligibility of adoptive parents, inform 
USCIS, the sole authority for making suitability determinations.
    (b) The agency or person takes all appropriate measures, consistent 
with the procedures of the U.S. Central Authority and of the foreign 
country, to:
    (1) Transmit on a timely basis the home study, including any 
updates and amendments, to the Central Authority or other competent 
authority of the child's country of origin;
    (2) Obtain the child background study, proof that the necessary 
consents to the child's adoption have been obtained, and the necessary 
determination that the prospective placement is in the child's best 
interests, from the Central Authority or other competent authority in 
the child's country of origin;
    (3) Provide confirmation that the prospective adoptive parent(s) 
agree to the adoption to the Central Authority or other competent 
authority in the child's country of origin; and
    (4) Transmit the determination that the child is or will be 
authorized to enter and reside permanently in the United States to the 
Central Authority or other competent authority in the child's country 
of origin, or confirm that this information has been transmitted to the 
foreign country's Central Authority or other competent authority by the 
U.S. Central Authority.
    (c) The agency or person takes all necessary and appropriate 
measures, consistent with the procedures of the foreign country, to 
obtain permission for the child to leave his or her country of origin 
and to enter and reside permanently in the United States.
    (d) When transfer of the child does not take place, or when 
requested by the Secretary or a foreign Central Authority, the agency 
or person returns the original home study on the prospective adoptive 
parent(s) and/or the original child background study to the authorities 
that forwarded them.
    (e) The agency or person takes all necessary and appropriate 
measures to perform any tasks in an intercountry adoption case that the 
Secretary has identified, consistent with this part, as required to 
comply with the Convention, the IAA, the UAA, or any regulations 
implementing the IAA and the UAA.

Standards for Convention Cases in Which a Child Is Emigrating From the 
United States (Outgoing Cases)


Sec.  96.53  Background studies on the child and consents in outgoing 
Convention cases.

    (a) The agency or person takes all appropriate measures to ensure 
that a child background study is performed that includes information 
about the child's identity, adoptability, background, social 
environment, family history, medical history (including that of the 
child's family), and any special needs of the child. The child 
background study must include the following:
    (1) Information that demonstrates that consents were obtained in 
accordance with paragraph (c) of this section;
    (2) Information that demonstrates consideration of the child's 
wishes and opinions in accordance with paragraph (d) of this section; 
and
    (3) Information that confirms that the child background study was 
prepared either by an exempted provider or by an individual who meets 
the requirements set forth in Sec.  96.37(g).
    (b) Where the child background study is not prepared in the first 
instance by an accredited agency, the agency or person ensures that the 
child background study is reviewed and approved in writing by an 
accredited agency. The written approval must include a determination 
that the background study includes all the information required by 
paragraph (a) of this section.
    (c) The agency or person takes all appropriate measures to ensure 
that consents have been obtained as follows:
    (1) The persons, institutions, and authorities whose consent is 
necessary for adoption have been counseled as necessary and duly 
informed of the effects of their consent, in particular, whether or not 
an adoption will result in the termination of the legal relationship 
between the child and his or her family of origin;
    (2) All such persons, institutions, and authorities have given 
their consents;
    (3) The consents have been expressed or evidenced in writing in the 
required legal form, have been given freely, were not induced by 
payments or compensation of any kind, and have not been withdrawn;
    (4) The consent of the mother, where required, was executed after 
the birth of the child;
    (5) The child, as appropriate in light of his or her age and 
maturity, has been counseled and duly informed of the effects of the 
adoption and of his or her consent to the adoption; and
    (6) The child's consent, where required, has been given freely, in 
the required legal form, and expressed or evidenced in writing and not 
induced by payment or compensation of any kind.
    (d) If the child is 12 years of age or older, or as otherwise 
provided by State law, the agency or person gives due consideration to 
the child's wishes or opinions before determining that an intercountry 
placement is in the child's best interests.
    (e) The agency or person prior to the child's adoption takes all 
appropriate measures to transmit to the Central Authority or other 
competent authority or accredited bodies of the Convention country the 
child background study, proof that the necessary consents have been 
obtained, and the reasons for its determination that the placement is 
in the child's best interests. In doing so, the agency or person, as 
required by Article 16(2) of the Convention, does not reveal the 
identity of the mother or the father if these identities may not be 
disclosed under State law.

[[Page 74524]]

Sec.  96.54  Placement standards in outgoing Convention cases.

    (a) The agency or person makes reasonable efforts to find a timely 
adoptive placement for the child in the United States by:
    (1) Disseminating information on the child and the child's 
availability for adoption through print, media, and internet resources, 
including resources designed to communicate with potential prospective 
adoptive parents throughout the United States;
    (2) Listing information about the child on a national or State 
adoption exchange or registry for at least 60 calendar days after the 
birth of the child;
    (3) Responding to all inquiries about adoption of the child; and
    (4) Providing a copy of the child background study to potential 
U.S. prospective adoptive parents.
    (b) The agency or person documents all efforts to comply with 
paragraph (a) of this section.
    (c) If the child is not placed for adoption in the United States, 
the agency or person demonstrates to the satisfaction of the State 
court with jurisdiction over the adoption that reasonable efforts to 
find a timely and qualified adoptive placement for the child in the 
United States were made.
    (d) In placing the child for adoption, the agency or person:
    (1) To the extent consistent with State law, the Convention, the 
IAA, and these regulations, makes diligent efforts to place siblings 
together for adoption and, where placement together is not possible, to 
arrange for contact between separated siblings, unless it is in the 
best interests of one of the siblings that such efforts or contact not 
take place; and
    (2) Complies with all applicable requirements of the Indian Child 
Welfare Act, 25 U.S.C. 1901 et seq.
    (e) The agency or person complies with any State law requirements 
pertaining to the provision and payment of independent legal counsel 
for birth parents. If State law requires full disclosure to the birth 
parent(s) that the child is to be adopted by a parent or parents 
residing outside the United States, the agency or person provides such 
disclosure.
    (f) The agency or person takes all appropriate measures to give due 
consideration to the child's upbringing and to his or her ethnic, 
religious, and cultural background.
    (g) When particular prospective adoptive parent(s) in a Convention 
country have been identified, the agency or person takes all 
appropriate measures to determine whether the envisaged placement is in 
the best interests of the child, on the basis of the child background 
study and the home study on the prospective adoptive parent(s).
    (h) The agency or person thoroughly prepares the child for the 
transition to the Convention country, using age-appropriate services 
that address the child's likely feelings of separation, grief, and loss 
and difficulties in making any cultural, religious, racial, ethnic, or 
linguistic adjustment.
    (i) The agency or person takes all appropriate measures to ensure 
that the transfer of the child takes place in secure and appropriate 
circumstances, with properly trained and qualified escorts, if used, 
and, if possible, in the company of the adoptive parent(s) or the 
prospective adoptive parent(s);
    (j) Before the placement for adoption proceeds, the agency or 
person identifies the entity in the receiving country that will provide 
post-placement supervision and reports, if required by State law, and 
ensures that the child's adoption record contains the information 
necessary for contacting that entity.
    (k) The agency or person ensures that the child's adoption record 
includes the order granting the adoption or legal custody for the 
purpose of adoption in the Convention country.
    (l) The agency or person consults with the Secretary before 
arranging for the return to the United States of any child who has 
emigrated to a Convention country in connection with the child's 
adoption.


Sec.  96.55  Performance of Convention communication and coordination 
functions in outgoing Convention cases.

    (a) The agency or person keeps the Central Authority of the 
Convention country and the Secretary informed as necessary about the 
adoption process and the measures taken to complete it, as well as 
about the progress of the placement if a probationary period is 
required.
    (b) The agency or person ensures that:
    (1) Copies of all documents from the State court proceedings, 
including the order granting the adoption or legal custody, are 
provided to the Secretary;
    (2) Any additional information on the adoption is transmitted to 
the Secretary promptly upon request; and
    (3) It otherwise facilitates, as requested, the Secretary's ability 
to provide the certification that the child has been adopted or that 
custody has been granted for the purpose of adoption, in accordance 
with the Convention and the IAA.
    (c) When transfer of the child does not take place, or when 
requested by the Secretary or a foreign Central Authority, the agency 
or person returns the original home study on the prospective adoptive 
parent(s) and/or the original child background study to the authorities 
that forwarded them.
    (d) The agency or person provides to the State court with 
jurisdiction over the adoption:
    (1) Proof that consents have been given as required in Sec.  
96.53(c);
    (2) A copy in English or certified English translation of the home 
study on the prospective adoptive parent(s) in the Convention country, 
and the determination by the agency or person that the placement with 
the prospective adoptive parent(s) is in the child's best interests;
    (3) Evidence that the prospective adoptive parent(s) in the 
Convention country agree to the adoption;
    (4) Evidence that the child will be authorized to enter and reside 
permanently in the Convention country or on the same basis as that of 
the prospective adoptive parent(s); and
    (5) Evidence that the Central Authority of the Convention country 
has agreed to the adoption, if such consent is necessary under its laws 
for the adoption to become final.
    (e) The agency or person makes the showing required by Sec.  
96.54(c) to the State court with jurisdiction over the adoption.
    (f) The agency or person takes all necessary and appropriate 
measures to perform any tasks in a Convention adoption case that the 
Secretary has identified, consistent with this Part, as required to 
comply with the Convention, the IAA, or any regulations implementing 
the IAA.


Sec.  96.56  [Reserved]

0
7. Revise subpart L to read as follows:
Subpart L--Oversight of Accredited Agencies and Approved Persons by the 
Secretary
Sec.
96.81 Scope.
96.82 The Secretary's response to actions by the accrediting entity.
96.83 Suspension or cancellation of accreditation or approval by the 
Secretary.
96.84 Reinstatement of accreditation or approval after suspension or 
cancellation by the Secretary.
96.85 Temporary and permanent debarment by the Secretary.
96.86 Length of debarment period and reapplication after temporary 
debarment.
96.87 Responsibilities of the accredited agency, approved person, 
and accrediting entity following suspension, cancellation, or 
debarment by the Secretary.
96.88 Procedures for debarment with prior notice.

[[Page 74525]]

96.89 Procedures for debarment effective immediately.
96.90 Review of suspension, cancellation, or debarment by the 
Secretary.

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


Sec.  96.81  Scope.

    The provisions in this subpart establish the procedures governing 
adverse action by the Secretary against accredited agencies and 
approved persons.


Sec.  96.82  The Secretary's response to actions by the accrediting 
entity.

    (a) There is no administrative review by the Secretary of an 
accrediting entity's decision to deny accreditation or approval, nor of 
any decision by an accrediting entity to take an adverse action.
    (b) When informed by an accrediting entity that an agency has been 
accredited or a person has been approved, the Secretary will take 
appropriate steps to ensure that relevant information about the 
accredited agency or approved person is provided to the Permanent 
Bureau of the Hague Conference on Private International Law. When 
informed by an accrediting entity that it has taken an adverse action 
that impacts an agency's or person's accreditation or approval status, 
the Secretary will take appropriate steps to inform the Permanent 
Bureau of the Hague Conference on Private International Law.


Sec.  96.83  Suspension or cancellation of accreditation or approval by 
the Secretary.

    (a) The Secretary must suspend or cancel the accreditation or 
approval granted by an accrediting entity when the Secretary finds, in 
the Secretary's discretion, that the agency or person is substantially 
out of compliance with the standards in subpart F of this part and that 
the accrediting entity has failed or refused, after consultation with 
the Secretary, to take appropriate enforcement action.
    (b) The agency or person shall be provided with written notice of 
cancellation or suspension by the Secretary, which shall include:
    (1) The reasons for the suspension or cancellation in terms 
sufficient to put the agency or person on notice of the conduct or 
transaction(s) upon which it is based;
    (2) The standards in subpart F of this part with which the agency 
or person is out of compliance;
    (3) The effect of the suspension or cancellation, including the 
agency's or person's responsibility to cease providing adoption 
services and, if applicable, its responsibilities with respect to the 
transfer of cases and the return of fees.
    (4) The Department will also provide the agency or person copies of 
any evidence relied on by the Department in support of the suspension 
or cancellation.
    (c) If the Secretary suspends or cancels the accreditation or 
approval of an agency or person, the Secretary will take appropriate 
steps to notify the accrediting entity(ies), USCIS, the Permanent 
Bureau of the Hague Conference on Private International Law, State 
licensing authorities, the Central authorities in the countries where 
the agency or person operates, and other authorities as appropriate.


Sec.  96.84   Reinstatement of accreditation or approval after 
suspension or cancellation by the Secretary.

    (a) An agency or person who has been the subject of a suspension or 
cancellation by the Secretary may, within 20 days after receipt of the 
notice of suspension or cancellation, submit a written statement 
including any reasons why it believes the adverse action is 
unwarranted. Such statement must include any supporting materials that 
the agency or person wishes to be considered in support of its 
submission. If the agency or person does not submit such a statement 
within 30 days, the Department's decision will become final.
    (b) Upon review and consideration of the agency or person's 
submission and the evidence relied on by the Department, the Secretary 
shall determine whether or not to withdraw the cancellation or 
suspension. The Secretary shall withdraw the suspension or cancellation 
if he or she finds that the determination that the agency or person is 
substantially out of compliance with applicable requirements is not 
supported by substantial evidence. The agency or person will be 
notified of this decision within 30 days of the Department's receipt of 
the written statement described in paragraph (a) of this section. If 
the Secretary withdraws a suspension or cancellation under this 
paragraph, the Secretary will also take appropriate steps to notify the 
entities referenced in Sec.  96.83(c).
    (c) An agency or person may petition the Secretary for relief from 
the Secretary's suspension or cancellation of its accreditation or 
approval on the grounds that the deficiencies necessitating the 
suspension or cancellation have been corrected. If the Secretary is 
satisfied that the deficiencies that led to the suspension or 
cancellation have been corrected, the Secretary shall, in the case of a 
suspension, terminate the suspension or, in the case of a cancellation, 
notify the agency or person that it may reapply for accreditation or 
approval to the same accrediting entity that handled its prior 
application for accreditation or approval. If that accrediting entity 
is no longer providing accreditation or approval services, the agency 
or person may reapply to any accrediting entity with jurisdiction over 
its application. If the Secretary terminates a suspension or permits an 
agency or person to reapply for accreditation or approval, the 
Secretary will so notify the appropriate accrediting entity. If the 
Secretary terminates a suspension, the Secretary will also take 
appropriate steps to notify the entities referenced in Sec.  96.83(c).
    (d) Nothing in this section shall be construed to prevent the 
Secretary from withdrawing a cancellation or suspension if the 
Secretary concludes that the action was based on a mistake of fact or 
was otherwise in error. Upon taking such action, the Secretary will 
take appropriate steps to notify the accrediting entity(ies) and the 
entities referenced in Sec.  96.83(c).


Sec.  96.85   Temporary and permanent debarment by the Secretary.

    (a) The Secretary may temporarily or permanently debar an agency 
from accreditation or a person from approval on the Secretary's own 
initiative, at the request of DHS, or at the request of an accrediting 
entity. An agency or person that is debarred pursuant to this section 
ceases to be accredited or approved.
    (b) The Secretary may issue a debarment order only if the 
Secretary, in the Secretary's discretion, determines that:
    (1) There is substantial evidence that the agency or person is out 
of compliance with the standards in subpart F of this part; and
    (2) There has been a pattern of serious, willful, or grossly 
negligent failures to comply with the standards in subpart F of this 
part, or there are other aggravating circumstances indicating that 
continued accreditation or approval would not be in the best interests 
of the children and families concerned. For purposes of this paragraph:
    (i) ``The children and families concerned'' include any children 
and any families whose interests have been or may be affected by the 
agency's or person's actions.
    (ii) In determining whether the agency's or person's continued 
accreditation or approval would not be in the best interests of the 
children and families concerned, the Secretary may

[[Page 74526]]

consider whether the agency's or person's continued accreditation would 
be detrimental to the ability of U.S. citizens to adopt children 
through intercountry adoption in the future.
    (3) A failure to comply with Sec.  96.47 (home study requirements) 
shall constitute a ``serious failure to comply'' unless it is shown by 
clear and convincing evidence that such noncompliance had neither the 
purpose nor the effect of determining the outcome of a decision or 
proceeding by a court or other competent authority in the United States 
or the child's country of origin; and
    (i) Repeated serious, willful, or grossly negligent failures to 
comply with Sec.  96.47 (home study requirements) by an agency or 
person after consultation between the Secretary and the accrediting 
entity with respect to previous noncompliance by such agency or person 
shall constitute a pattern of serious, willful, or grossly negligent 
failures to comply.
    (ii) [Reserved].
    (c) The Secretary shall initiate a debarment proceeding by notice 
of proposed debarment, in accordance with the procedures in Sec.  
96.88, unless the Secretary finds that it is necessary that debarment 
be effective immediately because the agency's or person's continued 
accreditation would pose a substantial risk of significant harm to 
children or families. If the Secretary finds that it is necessary that 
debarment be effective immediately, the procedures in Sec.  96.89 shall 
govern such debarment.


Sec.  96.86   Length of debarment period and reapplication after 
temporary debarment.

    (a) In the case of a temporary debarment order, the order will take 
effect on the date specified in the order and will specify a date, not 
earlier than three years later, on or after which the agency or person 
may petition the Secretary for withdrawal of the temporary debarment. 
If the Secretary withdraws the temporary debarment, the agency or 
person may then reapply for accreditation or approval to the same 
accrediting entity that handled its prior application for accreditation 
or approval. If that accrediting entity is no longer providing 
accreditation or approval services, the agency or person may apply to 
any accrediting entity with jurisdiction over its application.
    (b) In the case of a permanent debarment order, the order will take 
effect on the date specified in the order. The agency or person will 
not be permitted to apply again to an accrediting entity for 
accreditation or approval, or to the Secretary for termination of the 
debarment.
    (c) Nothing in this section shall be construed to prevent the 
Secretary from withdrawing a debarment if the Secretary concludes that 
the action was based on a mistake of fact or was otherwise in error. 
Upon taking such action, the Secretary will take appropriate steps to 
notify the accrediting entity(ies) and the entities referenced in Sec.  
96.83(c).


Sec.  96.87   Responsibilities of the accredited agency, approved 
person, and accrediting entity following suspension, cancellation, or 
debarment by the Secretary.

    If the Secretary suspends or cancels the accreditation or approval 
of an agency or person, or debars an agency or person, the agency or 
person must cease to provide adoption services in all intercountry 
adoption cases. In the case of suspension, the agency or person must 
consult with the accrediting entity about whether to transfer its 
intercountry adoption cases and adoption records. In the case of 
cancellation or debarment, the agency or person must execute the plans 
required by Sec. Sec.  96.33(f) and 96.42(d) under the oversight of the 
accrediting entity, and transfer its intercountry adoption cases and 
adoption records to other accredited agencies or approved persons or, 
where required by State law, to the State repository for such records.
    (a) When the agency or person does not transfer such intercountry 
adoption cases or adoption records in accordance with the plans or as 
otherwise agreed by the accrediting entity, the accrediting entity will 
so advise the Secretary who, with the assistance of the accrediting 
entity, will coordinate efforts to identify other accredited agencies 
or approved persons to assume responsibility for the cases, and to 
transfer the records to other accredited agencies or approved persons, 
or to public domestic authorities, as appropriate.
    (b) If the Secretary cancels the accreditation or approval of an 
agency or person, or debars an agency or person, the accrediting entity 
shall refuse to renew any pending applications for renewal of 
accreditation or approval.


Sec.  96.88   Procedures for debarment with prior notice.

    Unless the Secretary finds that it is necessary that debarment be 
effective immediately because the agency's or person's continued 
accreditation would risk significant harm to children or families, an 
agency or person shall be provided with notice of the proposed 
debarment and an opportunity to contest the proposed debarment, in 
accordance with the provisions of this section:
    (a) A debarment proceeding shall be initiated by notice from the 
Department to the agency or person that includes:
    (1) A statement that debarment is being considered under Sec.  
96.85;
    (2) The reasons for the proposed debarment in terms sufficient to 
put the agency or person on notice of the conduct or transaction(s) 
upon which it is based;
    (3) The standards in subpart F of this part with which the 
Secretary believes the agency or person is out of compliance;
    (4) The provisions of this section and any other procedures, if 
applicable, governing the debarment proceedings, including specifically 
the right to request a hearing, when applicable; and
    (5) The potential effect of a debarment, including the agency's or 
person's responsibilities with respect to ceasing to provide adoption 
services, transferring cases, and returning fees.
    (b) If the agency or person elects to contest the proposed 
debarment, it may do so in accordance with the following procedures:
    (1) Within 45 days after receipt of the notice of proposed 
debarment, the agency or person may submit a written statement in 
opposition to the proposed debarment. Such statement may include any 
evidence on which the agency or person intends to rely in opposition to 
the proposed debarment. Such statement may also include a request for a 
hearing. If a request for a hearing is not included with agency or 
person's statement, no hearing will be held, and the Secretary's 
debarment decision will be based upon his or her review of the written 
record only.
    (2) Within 45 days after its receipt of the agency's or person's 
written statement, the Department will give the agency or person copies 
of the evidence relied on in support of the debarment action. In 
addition, the Department may choose to provide a written statement in 
response to the agency's or person's submission.
    (3) If a hearing was not timely requested in accordance with 
paragraph (b)(1) of this section, then the agency or person may, within 
45 days of its receipt of the Department's response described in 
paragraph (b)(2) of this section, submit a further statement in reply, 
which may, if appropriate, include additional evidence.
    (4) If a hearing was requested in accordance with paragraph (b)(1) 
of this section, then the agency or person will, within 30 days of its 
receipt of the Department's response described in paragraph (b)(2) of 
this section, produce

[[Page 74527]]

to the Department all physical or documentary evidence on which it will 
rely at the hearing.
    (5) The statements described in this paragraph, and any evidence 
submitted therewith, will be made part of the record of the proceeding, 
and if no hearing was timely requested, will constitute the entire 
record of the proceeding.
    (c) If a hearing was timely requested in accordance with paragraph 
(b)(1) of this section, the Department will, within 60 days of its 
receipt of the written statement described in paragraph (b)(1) of this 
section, give the agency or person written notice of the date, time, 
and place of the hearing. The proposed date of the hearing must be at 
least 30 days after the agency or person has received the evidence 
described in paragraph (b)(2) of this section, and at least 30 days 
after the agency or person has received the written notice described in 
this paragraph. The Department will make reasonable efforts to hold the 
hearing within 120 days of the date the Department receives the 
agency's or person's written request.
    (1) The Department will name a hearing officer, who will generally 
be a Department employee from the Bureau of Consular Affairs. The 
hearing officer will make only preliminary findings of fact and submit 
recommendations based on the record of the proceeding to the Secretary.
    (2) The hearing shall take place in Washington, DC. The agency or 
person may appear in person (if an individual), or be represented by an 
organizational representative (if an agency), or with or through an 
attorney admitted to practice in any State of the United States, the 
District of Columbia, or any territory or possession of the United 
States. The agency or person is responsible for all costs associated 
with attending the hearing.
    (3) There is no right to subpoena witnesses or to conduct discovery 
in connection with the hearing. However, the agency or person may 
testify in person, offer evidence on its own behalf, present witnesses, 
and make arguments at the hearing. The agency or person is responsible 
for all costs associated with the presentation of its case. The 
Department may present witnesses, offer evidence, and make arguments on 
its behalf. The Department is responsible for all costs associated with 
the presentation of its case.
    (4) Any evidence not produced in accordance with paragraph (b) of 
this section will not be considered by the hearing officer or be made 
part of the record of the proceeding, unless the hearing officer, in 
his or her discretion, elects to accept it. The hearing officer shall 
state his or her reasons for accepting evidence under this 
subparagraph. The hearing officer shall not accept under this 
subparagraph any evidence offered by a party that could have been 
produced by that party in accordance with paragraph (b) of this 
section.
    (5) The hearing is informal and permissive. As such, the provisions 
of 5 U.S.C. 554 et seq. do not apply to the hearing. Formal rules of 
evidence also do not apply; however, the hearing officer may impose 
reasonable restrictions on relevancy, materiality, and competency of 
evidence presented. Testimony will be under oath or by affirmation 
under penalty of perjury. The hearing officer may not consider any 
information that is not also made available to the agency or person and 
made a part of the record of the proceeding.
    (6) If any witness is unable to appear, the hearing officer may, in 
his or her discretion, permit the witness to testify via teleconference 
or accept an affidavit or sworn deposition testimony of the witness, 
the cost for which will be the responsibility of the requesting party, 
subject to such limits as the hearing officer deems appropriate.
    (7) A qualified reporter will make a complete verbatim transcript 
of the hearing. The agency or person may review and purchase a copy of 
the transcript directly from the reporter. The hearing transcript and 
all the information and documents received by the hearing officer, 
whether or not deemed relevant, will be made part of the record of the 
proceeding. The hearing officer's preliminary findings and 
recommendations are deliberative and shall not be considered part of 
the record unless adopted by the Secretary.
    (d) Upon review and consideration of the complete record of the 
proceeding and the preliminary findings of fact and recommendations of 
the hearing officer, if applicable, the Secretary shall determine 
whether or not to impose the debarment. The Secretary shall render his 
or her decision within a reasonable period of time after the date for 
submission of the agency's or person's reply statement described in 
paragraph (b)(3) of this section, if no hearing was requested; or after 
the close of the hearing described in paragraph (c) of this section, if 
a hearing was held.
    (1) The standard of proof applicable to a debarment proceeding 
under this subpart is substantial evidence. The Department bears the 
burden to establish that substantial evidence exists:
    (i) That the agency or person is out of compliance with some or all 
of the standards identified in the notice of proposed debarment; and
    (ii) That there is either a pattern of serious, willful, or grossly 
negligent failures to comply, or other aggravating circumstances 
indicating that continued accreditation or approval would not be in the 
best interests of the children and families concerned.
    (2) The Secretary is not limited to the specific conduct or 
transactions identified in the notice of proposed debarment, but may 
consider any evidence in the record of the proceeding that supplies 
substantial evidence of a violation of the standards identified in the 
notice of proposed debarment.
    (e) If the Secretary decides to impose debarment, the agency or 
person shall be given prompt notice:
    (1) Referring to the notice of proposed debarment;
    (2) Specifying the reasons for debarment;
    (3) Stating the effect of debarment, including the debarred 
agency's or person's responsibilities with respect to ceasing to 
provide adoption services, transferring cases, and returning fees; and
    (4) Stating the period of debarment, including effective dates.
    (f) The decision of the Secretary is final and is not subject to 
further administrative review.
    (g) If the Secretary decides not to impose debarment, the agency or 
person shall be given prompt notice of that decision. A decision not to 
impose debarment shall be without prejudice to any adverse action 
imposed, or that may be imposed, on the agency or person by an 
accrediting entity.


Sec.  96.89   Procedures for debarment effective immediately.

    If the Secretary finds that the agency's or person's continued 
accreditation would risk significant harm to children or families, and 
that debarment should be effective immediately, the Secretary shall 
debar the agency or person from accreditation by providing written 
notice of debarment to the agency or person.

[[Page 74528]]

    (a) The notice of debarment shall include:
    (1) A statement that the agency or person is debarred in accordance 
with Sec.  96.85;
    (2) The reasons for the debarment in terms sufficient to put the 
agency or person on notice of the conduct or transaction(s) upon which 
it is based;
    (3) The standards in subpart F of this part with which the 
Secretary believes the agency or person is out of compliance;
    (4) The period of the debarment, including effective dates;
    (5) The effect of the debarment, including the debarred agency's or 
person's obligations; and
    (6) The provisions of this section and any other procedures, if 
applicable, governing proceedings to contest the debarment action, 
including specifically the right to request a hearing, when applicable.
    (b) If the agency or person elects to contest the Department's 
debarment action, it may do so in accordance with the following 
procedures:
    (1) Within 30 days after receipt of the notice of debarment, the 
debarred agency or person may submit a written statement in opposition 
to the debarment. Such statement may include any evidence on which the 
debarred agency or person intends to rely in opposition to the 
debarment. Such statement may also include a request for a hearing. If 
a request for hearing is not included with the agency or person's 
statement, no hearing will be held, and the Secretary's debarment 
decision will be based upon his or her review of the written record 
only.
    (2) Within 30 days after its receipt of the agency's or person's 
written statement, the Department will give the debarred agency or 
person copies of the evidence relied on in support of the debarment 
action. In addition, the Department may choose to provide a written 
statement in response to the debarred agency's or person's submission.
    (3) The debarred agency or person may, within 30 days of its 
receipt of the Department's response described in paragraph (b)(2) of 
this section, submit a further statement in reply. The debarred agency 
or person will include with its reply, or will produce to the 
Department if it elects not to submit a reply, any additional physical 
or documentary evidence on which it will rely at the hearing.
    (4) The statements described in this paragraph, and any evidence 
submitted therewith, will be made part of the record of the proceeding, 
and if no hearing was timely requested, will constitute the entire 
record of the proceeding.
    (c) If a hearing was timely requested in accordance with paragraph 
(b)(1) of this section, the provisions of Sec.  96.88(c) shall apply, 
except that the Department will give notice of the date, time, and 
place of the hearing within 30 days of its receipt of the debarred 
agency's or person's written statement described in paragraph (b)(1) of 
this section, and will make reasonable efforts to hold the hearing 
within 90 days of such receipt.
    (d) Upon review and consideration of the complete record of the 
proceeding and the preliminary findings of fact and recommendations of 
the hearing officer, the Secretary shall confirm the debarment, if he 
or she determines that it is supported by substantial evidence, or 
shall withdraw the debarment, if he or she determines that it is not 
supported by substantial evidence. The Secretary shall render his or 
her decision within 30 days of the date for submission of the debarred 
agency's or person's reply statement described in paragraph (b)(3) of 
this section, if no hearing was requested; or within 45 days of the 
close of the hearing, if a hearing was held.
    (1) The Department bears the burden to establish that substantial 
evidence exists:
    (i) That the debarred agency or person is out of compliance with 
some or all of the standards identified in the notice of debarment; and
    (ii) That there is either a pattern of serious, willful, or grossly 
negligent failures to comply, or other aggravating circumstances 
indicating that continued accreditation or approval would not be in the 
best interests of the children and families concerned.
    (2) The Secretary is not limited to the specific conduct or 
transactions identified in the notice of debarment, but may consider 
any evidence in the record of the proceeding that supplies substantial 
evidence of a violation of the standards identified in the notice of 
debarment.
    (3) If the Secretary decides to confirm the debarment, the agency 
or person shall be given prompt notice:
    (i) Referring to the notice of debarment;
    (ii) Stating that the debarment is confirmed;
    (iii) Specifying the reasons for the decision to confirm the 
debarment; and
    (iv) Stating the period, including effective dates, of the 
debarment, if different from those set forth in the notice of 
debarment.
    (e) The decision of the Secretary is final and is not subject to 
further administrative review.
    (f) If the Secretary decides to withdraw the debarment, the agency 
or person shall be given prompt notice of that decision. A decision not 
to impose debarment shall be without prejudice to any adverse action 
imposed, or that may be imposed, on the agency or person by an 
accrediting entity.


Sec.  96.90   Review of suspension, cancellation, or debarment by the 
Secretary.

    (a) Except to the extent provided by the procedures in Sec. Sec.  
96.84, 96.88, and 96.89, an adverse action by the Secretary shall not 
be subject to administrative review.
    (b) Section 204(d) of the IAA (42 U.S.C. 14924(d)) provides for 
judicial review of final actions by the Secretary. When any petition 
brought under section 204(d) raises as an issue whether the 
deficiencies necessitating a suspension or cancellation of 
accreditation or approval have been corrected, procedures maintained by 
the Secretary pursuant to Sec.  96.84(b) must first be exhausted. A 
suspension or cancellation of accreditation or approval and a debarment 
(whether temporary or permanent) by the Secretary are final actions 
subject to judicial review. Other actions by the Secretary are not 
final actions and are not subject to judicial review.
    (c) In accordance with section 204(d) of the IAA (42 U.S.C. 
14924(d)), an agency or person that has been suspended, cancelled, or 
temporarily or permanently debarred by the Secretary 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 
person resides or the agency is located, pursuant to 5 U.S.C. 706, to 
set aside the action.
0
8. Revise subpart M to read as follows:
Subpart M--Dissemination and Reporting of Information by Accrediting 
Entities
Sec.
96.91 Scope.
96.92 Dissemination of information to the public about accreditation 
and approval status.
96.93 Dissemination of information to the public about complaints 
against accredited agencies and approved persons.
96.94 Reports to the Secretary about accredited agencies and 
approved persons and their activities.
96.95-96.99 [Reserved].

[[Page 74529]]

Subpart M--Dissemination and Reporting of Information by 
Accrediting Entities


Sec.  96.91  Scope.

    The provisions in this subpart govern the dissemination and 
reporting of information on accredited agencies and approved persons by 
accrediting entities.


Sec.  96.92   Dissemination of information to the public about 
accreditation and approval status.

    (a) Each accrediting entity must maintain and make available to the 
public at least monthly the following information:
    (1) The name, address, and contact information for each agency and 
person that has been accredited or approved;
    (2) The names of agencies and persons that have been denied 
accreditation or approval that have not subsequently been accredited or 
approved;
    (3) The names of agencies and persons that have been subject to 
suspension, cancellation, refusal to renew accreditation or approval, 
or debarment by an accrediting entity or the Secretary;
    (4) Other information specifically authorized in writing by the 
accredited agency or approved person to be disclosed to the public;
    (5) Confirmation of whether or not a specific agency or person has 
a pending application for accreditation or approval, and, if so, the 
date of the application and whether it is under active consideration or 
whether a decision on the application has been deferred; and
    (6) If an agency or person has been subject to suspension, 
cancellation, refusal to renew accreditation or approval, or debarment, 
a brief statement of the reasons for the action, including, where 
relevant, the identity and conduct of any foreign supervised providers.
    (b) [Reserved]


Sec.  96.93   Dissemination of information to the public about 
complaints against accredited agencies and approved persons.

    Each accrediting entity must maintain a written record documenting 
each complaint received and the steps taken in response to it. This 
information may be disclosed to the public as follows:
    (a) Each accrediting entity must confirm, upon inquiry from a 
member of the public, whether there have been any substantiated 
complaints against an accredited agency or approved person, and if so, 
provide information about the status and nature of any such complaints.
    (b) Each accrediting entity must have procedures for disclosing 
information about complaints that are substantiated.


Sec.  96.94   Reports to the Secretary about accredited agencies and 
approved persons and their activities.

    (a) Each accrediting entity must make annual reports to the 
Secretary on the information it collects from accredited agencies and 
approved persons pursuant to Sec.  96.43. Each accrediting entity must 
make semi-annual reports to the Secretary that summarize for the 
preceding six-month period the following information:
    (1) The accreditation and approval status of its applicants, 
accredited agencies, and approved persons;
    (2) Any instances where it has denied accreditation or approval;
    (3) Any adverse actions it has taken against an accredited agency 
or approved person;
    (4) All substantiated complaints against its accredited agencies 
and approved persons and the impact of such complaints on their 
accreditation or approval status;
    (5) The number, nature, and outcome of complaint reviews carried 
out by the accrediting entity as well as the shortest, longest, 
average, and median length of time expended to complete complaint 
reviews;
    (6) Any discernible patterns in complaints it has received about 
specific agencies or persons, as well as any discernible patterns of 
complaints in the aggregate;
    (7) A list of cases involving disruption, dissolution, unregulated 
custody transfer, and serious harm to the child, by agency or person 
and by country or origin, and any discernible patterns in these cases; 
and
    (8) A summary of unsubstantiated complaints, and those which the 
accrediting entity declined to review.
    (b) In addition to the reporting requirements contained in Sec.  
96.72, an accrediting entity must immediately notify the Secretary in 
writing:
    (1) When it learns an accredited agency or approved person has:
    (i) Ceased to provide adoption services;
    (ii) Transferred its intercountry adoption cases and adoption 
records; or
    (iii) Withdrawn a pending application for renewal of accreditation 
or approval;
    (2) When it accredits an agency or approves a person;
    (3) When it renews the accreditation or approval of an agency or 
person; or
    (4) When it takes an adverse action against an accredited agency or 
approved person that impacts its accreditation or approval status.


Sec.  Sec.  96.95-96.99   [Reserved].

0
9. Add reserved subparts N, O, P, and Q.
0
10. Add subpart R, consisting of Sec. Sec.  96.100 and 96.1010, to read 
as follows:

Subpart R--Alternative Procedures for the Intercountry Adoption of 
Relatives


Sec.  96.100  Alternative procedures for the intercountry adoption of 
relatives.

    In a case where the child is being adopted by a relative as defined 
in Sec.  96.2:
    (a) The primary provider, in accordance with Sec.  96.44, develops 
and implements a service plan for providing adoption service 3 
(performing and reporting on the home study and child background study, 
according to the provisions in Sec. Sec.  96.47 and 96.53), adoption 
service 5 (monitoring a case after a child has been placed with 
prospective adoptive parent(s) until final adoption), and adoption 
service 6 (when necessary because of a disruption before final 
adoption, assuming custody and providing child care or any other social 
service pending an alternative placement, according to the provisions 
in Sec. Sec.  96.50 and 96.51); and provides all such services in 
accordance with Sec.  96.44.
    (b) The primary provider includes in the service plan any 
additional adoption services found in the definition of adoption 
services in Sec.  96.2 only if they will be provided by the primary 
provider or one of its supervised providers.
    (c) The primary provider verifies that the prospective adoptive 
parents have met the training requirements outlined in Sec.  96.48 in 
incoming cases before the finalization of the adoption or the granting 
of legal custody for purposes of emigration and adoption in the United 
States. In cases where the adoption or legal custody grant occurred 
prior to the primary provider's involvement in the case, the primary 
provider must verify such training requirements have been met as soon 
as practicable.
    (d) The provisions in Sec.  96.54 relating to reasonable efforts to 
find a timely adoptive placement for the child in the United States do 
not apply.
    (e) All services provided pursuant to this section must be 
performed in accordance with the Convention, the IAA, the UAA, and the 
regulations implementing the IAA and the UAA.


Sec.  96.101  Applicability date.

    The provisions of this subpart are applicable beginning [DATE THREE

[[Page 74530]]

MONTHS AFTER EFFECTIVE DATE OF FINAL RULE].

Carl Risch,
Assistant Secretary of State for Consular Affairs, Department of State.

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

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[FR Doc. 2020-24391 Filed 11-19-20; 8:45 am]
BILLING CODE 4710-06-C