1. 34857
Federal Register / Vol. 71, No. 116 / Friday, June 16, 2006 / Proposed Rules
Devices for the Deaf (TDD) by contacting
1. On page 32877, column 3, correct Proposed Rule.
ACTION:
the Federal Information Relay Service at
the text of the SUMMARY paragraph to
SUMMARY: The Department of State (the 1–800–877–8339.
read as follows:
Department) is proposing new SUPPLEMENTARY INFORMATION:
SUMMARY: The following policy and
regulations to implement the
information provides clarification and
I. Introduction
certification and declaration provisions
guidance for all operator of turbojet airplanes
of the 1993 Hague Convention on The Convention is a multilateral
who hold Operations Specifications
Protection of Children and Co-operation
(OpSpecs) (excluding foreign operators), treaty that provides a framework for the
in Respect of Intercountry Adoption (the
Management Specifications (MSpecs), or a adoption of children habitually resident
part 125 Letter of Deviation Authority, for Convention) and the Intercountry in one country party to the Convention
establishing operators’ method of ensuring Adoption Act of 2000 (the IAA) with by persons habitually resident in
that sufficient landing distance exists for respect to adoption and custody another country party to the
safely making a full stop landing with an
proceedings taking place in the United Convention. It establishes procedures to
acceptable safety margin, on the runway to be
States. This proposed regulation would be followed in such adoption cases and
used, in the conditions existing at the time
govern the application process for imposes safeguards to protect the best
of arrival, and with the deceleration means
Hague Convention Certificates and
and airplane configuration to be used. interests of the children concerned. It
Hague Convention Declarations in cases provides for each country that is a party
2. On page 32880, column 2, correct
involving emigration of a child from the to the Convention to establish a Central
the text of the first full paragraph under
United States. It would also establish a Authority and permits the delegation of
the New Requirements heading to read
process for seeking certification, for certain Central Authority functions to
as the following:
purposes of Article 23 of the other entities, to the extent permitted by
Convention, that an adoption done in the law of the relevant country. With
New Requirements
the United States following a grant of certain limited exceptions, Article 23 of
The FAA will soon be issuing mandatory
custody in a Convention country of the Convention requires all Convention
OpSpec/MSpec C082, ‘‘Landing Performance
origin was done in accordance with the parties to recognize adoptions that occur
Assessments After Departure’’ for all turbojet
Convention. pursuant to the Convention, if the
operators under parts 121, 125, (including
holders of a part 125 Letter of Deviation adoption is certified by the country of
DATES: Comments must be received on
Authority), 135, and 91 subpart K. This adoption as having been made in
or before August 15, 2006.
OpSpec/MSpec will allow operations based accordance with the Convention.
ADDRESSES: You may submit comments,
on provisions as set forth in this notice. If not
The U.S. implementing legislation for
identified by docket number State/AR–
currently in compliance, all turbojet
the Convention is the IAA, which
operators shall be brought into compliance 01/97, by one of the following methods
establishes the U.S. Department of State
with this notice and the requirements of (no duplicates, please):
as the Central Authority for the United
OpSpec/MSpec C082 no later than October 1, • Federal eRulemaking Portal: http://
States. For Convention adoptions
2006. The FAA anticipates that operators will
www.regulations.gov. Follow the
be required to submit their proposed involving the emigration of a child from
instructions for submitting comments.
procedures for compliance with this notice the United States (outgoing cases),
• Electronically: You may submit
and OpSpec/MSpec to their POI no later than section 303(c) of the IAA gives the
electronic comments to
September 1, 2006. When the operator
Department responsibility for issuing an
adoptionregs@state.gov. Attachments
demonstrates the ability to comply with the
official certification that the child has
C082 authorization for landing distance must be in Microsoft Word.
been adopted, or a declaration that
• Mail: U.S. Department of State, CA/
assessments, and has complied with the
custody for the purpose of adoption has
training, and training program requirements OCS/PRI, Adoption Regulations Docket
been granted, in accordance with the
below, OpSpec/MSpec C082 should be Room, (SA–29), 2201 C Street, NW,,
issued. OpSpec/MSpec C082 will be Convention and the IAA. The IAA
Washington, DC 20520.
available from the FAA by July 20, 2006. assigns to State courts with jurisdiction
• Courier: U.S. Department of State,
over matters of adoption, or custody for
3. Page 32881, column 1, correct the CA/OCS/PRI, Adoption Regulations
purposes of adoption, the responsibility
date in the first line of the Requirements Docket Room, (SA–29), 2201 C Street,
for receiving and verifying documents
paragraph from September 1, 2006 to NW., Washington, DC, 20520. (Because
required under the Convention, making
October 1, 2006. access to the Department of State is not
certain determinations required of the
readily available to private individuals
Issued in Washington, DC, on June 12,
country of origin by the Convention,
2006. without Federal Government
and determining that the placement is
identification, do not personally deliver
James J. Ballough,
in the best interests of the child. The
comments to the Department.)
Director, Flight Standards Service.
IAA also addresses the delegation of
• Docket: Comments received before
[FR Doc. 06–5449 Filed 6–13–06; 10:48 am] Central Authority functions to entities
the close of the comment period will be
other than the Department of State,
BILLING CODE 4910–13–M
available to the public, including
providing for accreditation, temporary
information identifying the commenter.
accreditation, approval, and operating
The Department will post comments on
DEPARTMENT OF STATE under supervision as the principal ways
its public Web site at: http://
in which a private entity can be
travel.state.gov. They are also available
22 CFR Part 97 authorized to perform tasks assigned to
for public inspection by calling Delilia
the Central Authority.
[Public Notice 5443] Gibson-Martin at 202–736–9105 for an Separate regulations implement other
appointment.
RIN 1400–AC19 aspects of the Convention and the IAA,
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such as the accreditation and approval
For
FOR FURTHER INFORMATION CONTACT:
Intercountry Adoption—Issuance of
of adoption service providers to perform
further information, contact Anna Mary
Hague Convention Certificates and
adoption services in cases covered by
Coburn at 202–736–9081, or send an e-
Declarations in Convention Adoption
the Convention (22 CFR 96),
mail to adoptionregs@state.gov.
Cases
preservation of Convention records (22
Hearing- or speech-impaired persons
CFR 98), and immigration procedures
may use the Telecommunications
Department of State.
AGENCY:
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2. 34858 Federal Register / Vol. 71, No. 116 / Friday, June 16, 2006 / Proposed Rules
child) or other applicants will have to
study or a child background study. The
for Convention adoption cases (e.g., visa
demonstrate that the documents will be
Convention requires that home studies
regulations to appear at 22 CFR 42).
used to obtain a legal benefit or for
and child background studies be
Further background on the Convention
purposes of a legal proceeding. The
prepared under the responsibility of an
and the IAA is provided in the in the
Department has discretion under the
accredited body or public domestic
Preamble to the Final Rule on the
rule to determine whether to issue the
authority; correspondingly, the
Accreditation and Approval of Agencies
documents to persons in the latter
accreditation and approval standards at
and Persons under the IAA, Section I
category, which is intended to
22 CFR 96.53 provide for background
and II, 71 FR 8064–8066 (February 15,
encompass persons such as executors
studies in outgoing cases that are not
2006) and the Preamble to the Proposed
and heirs of the parties, who may need
prepared in the first instance by an
Rule on the Accreditation of Agencies
documentation for estate purposes.
accredited agency or temporarily
and Approval of Persons under the
(Legal representatives acting directly on
accredited agency to be reviewed and
Intercountry Adoption Act of 2000,
behalf of a parent or the child will be
approved by such an agency.
Sections III and IV, 68 FR 54065–54073
Convention countries may choose not covered by the first category.) The
(September 15, 2003).
to allow private entities to perform Department believes this approach
II. The Proposed Rule Central Authority functions; the strikes an appropriate balance between
This proposed rule would establish definition of foreign authorized entity protecting the privacy of participants in
the Department’s procedures for therefore includes the foreign Central the adoption process while permitting
application, adjudication, and issuance Authority itself as well as any foreign discretionary and limited access to
of Hague Convention Certificates and accredited bodies or other public or others who have a compelling need for
Hague Convention Declarations in private entities authorized under foreign the record.
outgoing cases. It also would establish a Section 97.2(b) sets forth the
law to perform the relevant Central
separate, discretionary, procedure documentary requirements for
Authority function in a Convention
pursuant to which the Department may submitting an application for a Hague
adoption case. The Web site of the
certify that an incoming case finalized Adoption Certificate or Hague Custody
Hague Conference on Private
in the United States (i.e., a case in Declaration in an outgoing case. The
International Law, www.hcch.net, lists
which custody was granted abroad but requirements include a completed
the names of entities that each
the adoption was done by a U.S. court) application form and any required fee.
Convention country has so authorized.
was done in accordance with the Section 97.2(b) also instructs
(Click on ‘‘Welcome,’’ then, in the left
Convention. The Department anticipates applicants to submit an official copy of
hand column, ‘‘Conventions,’’ then the
the adoption court’s order finding that
that this latter authority will be used 1993 Convention (No. 33), and then, in
the child is adoptable and that the
rarely, and only if an issue arises the right hand column, ‘‘Authorities.’’)
adoption or proposed adoption is in the
The terms Hague Convention
concerning recognition of the adoption
child’s best interests and granting the
Certificate and Hague Convention
by a foreign authority pursuant to
adoption or custody for purposes of
Declaration are defined as the
Article 23 of the Convention.
adoption. These findings, which will be
documents the Secretary of State (the
Definitions
made by State courts in accordance with
Secretary) will issue to attest that a
Section 97.1 sets forth definitions State law, are fundamental to any
child has been adopted or that custody
used in this section that are specific to adoption.
of a child has been granted,
this regulation, and incorporates the In addition, the proposed regulation
respectively, in the United States in
definitions set forth in 22 CFR 96.2, the instructs applicants to provide an
accordance with the Convention and the
definitional section of the accreditation official copy of the adoption court’s
IAA. Consistent with the waiver
and approval regulation, for terms findings verifying, in substance, that the
authority provided in section 502 of the
Convention and IAA requirements set
defined there. IAA, § 97.4(b) of the proposed
The term Adoption Court is defined to forth in § 97.3 have been met. This can
regulation authorizes the Secretary to
mean the State court with jurisdiction be done either in the final adoption or
issue either document, appropriately
over matters of adoption and of custody custody order or in a separate
modified, in the absence of compliance
for purposes of adoption. document. The qualifier ‘‘in substance’’
with the IAA, in the interests of justice
U.S. authorized entity and foreign is intended to make clear that the
or to prevent grave physical harm to a
authorized entity are shorthand forms to regulation does not govern the precise
child. Section 97.4(b), unlike the other
encompass the entities that may perform words the court must use, but rather the
provisions of the rule, refers to the
the case-specific Central Authority substantive finding required. If the
‘‘Secretary of State’’ acting ‘‘personally.’’
functions that may be delegated to adoption court fails to verify
Accordingly, the authority to issue an
authorized entities. In the United States, compliance with one or more
appropriately modified Hague Adoption
public domestic authorities may requirements set forth in § 97.3, the
Certificate or Hague Custody
perform these Central Authority applicant may provide authenticated
Declaration may not be delegated.
functions. In addition, private entities documentation showing compliance
Application for a Hague Adoption
that have become accredited agencies, with the requirement(s) at issue and
Certificate or a Hague Custody
temporarily accredited agencies, or explaining why verification by the
Declaration in an Outgoing Convention adoption court cannot be submitted.
approved persons, as well as agencies
Case The Department expects that cases in
operating under their supervision and
which alternative proof of Convention
Section 97.2(a) of the regulation sets
responsibility as supervised providers,
compliance is necessary will be few;
forth the procedural requirements for
in accordance with the accreditation
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applicants will be expected to take all
obtaining a Hague Adoption Certificate
and approval standards at 22 CFR 96,
reasonable steps to obtain a court order
or Hague Custody Declaration in an
are generally authorized to perform such
addressing these requirements, which,
outgoing case. Applicants must either be
Central Authority functions. However,
in some cases, may require seeking a
a party to the adoption or custody
the authority of private entities that are
supplemental or amended order from
proceedings (i.e., adoptive or
not accredited or temporarily accredited
the adoption court. The adoption court
prospective adoptive parent(s) or the
is limited when completing a home
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3. 34859
Federal Register / Vol. 71, No. 116 / Friday, June 16, 2006 / Proposed Rules
background studies and must give due
rule effectively directs the prospective
is best placed to make these findings,
consideration to the child’s upbringing
adoptive parent(s) to seek certain
and is specifically charged by the IAA
and ethnic, religious and cultural
findings from the State court in the
to make nearly all of the findings
background, as required by Convention
course of their adoption proceedings.
required.
The Department has broad authority Article 16. This paragraph also
Nearly all the findings involve subjects
under section 303(a)(3) of the IAA to implements subparagraphs (A) and (C)
that the IAA explicitly assigns to the
require the submission of any of section 303(a)(1) of the IAA.
adoption court. The Department has
Paragraph (c) requires, consistent with
information concerning the case limited the elements set forth in § 97.3
section 303(a)(1)(B) of the IAA and the
necessary to issue the Hague Adoption to those required in order to determine
Convention’s requirement that due
Certificate or Hague Custody Convention and IAA compliance.
consideration be given to domestic
Paragraph (a) provides that an
Declaration or otherwise to carry out the
placement, that reasonable efforts be
accredited agency, temporarily
duties of the United States Central
made to actively recruit and make a
accredited agency, or a public domestic
Authority. Consistent with this,
diligent search for a U.S. adoptive
authority must complete or approve a
§ 97.2(b)(4) indicates that the
family for the child and that a timely
child background study that meets the
Department may, in its discretion,
U.S. adoptive placement could not be
specific requirements of the Convention.
request additional documentation and
found. This paragraph cross-references
This provision implements section
information from the applicant. The
§ 96.54 of the accreditation and
303(a)(1)(A) of the IAA and Convention
Department anticipates using this
approval regulation, which specifies
Article 16(1). The term U.S. authorized
authority principally when evidence
particular methods of making such a
entity is not used in this provision
provided pursuant to § 97.2(b)(1)–(3) is
search, including disseminating
because child background studies
inadequate or otherwise raises a
information about the child in various
prepared by an approved person or a
suspicion of noncompliance or if
ways, listing the child on an adoption
non-accredited supervised provider—
information becomes available to the
exchange for 60 days, responding to
each of which is encompassed by ‘‘U.S.
Department independently that raises a
inquiries, and providing the child’s
authorized entity’’—or by an exempted
question of compliance. Section 97.2(c)
background study to potential U.S.
provider, must subsequently be
establishes the Department’s authority
adoptive parents. Section 96.54 also
approved by an accredited agency,
to consider applications abandoned
recognizes that there are some
temporarily accredited agency, or public
when such requested documentation or
circumstances when the procedures it
domestic authority in order to
information is not provided within 120
specifies are not appropriate;
accommodate the Convention Article
days. This provision will facilitate the
specifically, § 96.54 excludes from its
22(5) requirement that such studies be
Department’s recordkeeping and case-
scope cases in which the prospective
prepared under the responsibility of the
tracking efforts.
adoption is by relatives, or the birth
Central Authority, a public authority, or
Requirements Subject to Verification in
parent(s) have identified specific
an accredited body and the
an Outgoing Convention Case
prospective adoptive parent(s), or in
accreditation standards in 22 CFR 96,
Section 97.3 sets forth the additional other special circumstances accepted by
which provide for child background
requirements that must be satisfied in the adoption court. (For example, an
studies in outgoing cases that are not
order for the Department to conclude adoption court might determine that
prepared by an accredited or
that an adoption or grant of custody for such ‘‘special circumstances’’ existed if
temporarily accredited agency to be
purposes of adoption has been made in a public domestic authority followed
approved by such an agency. Thus, in
compliance with the Convention and alternative recruiting and search
summary, to accommodate both the
the IAA. These requirements do not procedures provided for by State law or
Convention and 22 CFR 96 and for the
replace State laws on adoption or if the particular child required a
Department to attest to Hague and IAA
custody. Rather, State law, unless speedier placement than could be found
compliance in an outgoing case, this
directly inconsistent with the domestically.)
regulation requires the child
Convention and the IAA, still applies to Paragraph (d) provides that a U.S.
background study to be completed by an
Convention adoptions and is not authorized entity must receive from a
accredited agency, temporarily
preempted. This proposed rule also foreign authorized entity a home study
accredited agency, or public domestic
does not affect the application of other prepared in accordance with applicable
authority or else subsequently be
federal laws. Specifically, the foreign law under the responsibility of
approved by such an entity. (Similarly,
Convention, the IAA, and this proposed a foreign Central Authority, foreign
home studies in such cases must be
rule do not affect the application of the accredited body, or foreign public
prepared under the responsibility of a
Indian Child Welfare Act (ICWA), authority that includes the information
foreign Central Authority, foreign
which applies to cases involving Native required by Convention Articles 5(a)
accredited body, or public foreign
American children, or any other and (b) and 15 and by section
authority.)
applicable federal laws covering 303(a)(2)(B) of the IAA. As with the
Paragraph (b) provides that a U.S.
adoptions. child background study, Convention
authorized entity must conclude that
The proposed rule does, however, add Article 22(5) restricts who may perform
the child is adoptable and, without
new Federal requirements derived this function, and this restriction is
revealing birthparent identities where
directly from the Convention and the prohibited by applicable State law, reflected in the rule.
Paragraph (e) provides that the
IAA, which must be met before the transmit to a foreign authorized entity
Central Authority or other competent
Department will issue a Hague the documentation on the child set forth
authority of the receiving country must
Convention Certificate or a Hague in Convention Article 16(2), including a
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declare that the child will be authorized
Convention Declaration. Because State determination that the envisaged
to enter and reside in the receiving
courts are best placed to determine placement is in the best interests of the
country permanently or on the same
compliance with these requirements in child. This provision also makes clear
basis as the adopting parent. This
that the U.S. authorized entity’s best
the context of adoption proceedings
reflects the requirements set forth in
interests determination must be made in
they adjudicate, and to enhance
Convention Article 5(c) and section
reference to the home and child
governmental efficiency, this proposed
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4. 34860 Federal Register / Vol. 71, No. 116 / Friday, June 16, 2006 / Proposed Rules
best interests, and have ensured that all
authorized entity must ensure that
303(a)(2)(C)(i) of the IAA. Under the
necessary guardian counseling and
Convention, this determination must be prospective adoptive parents agree to
consent has occurred. This prohibition
made by a competent authority; this the adoption, as required by Convention
on prior contact applies unless the
language, drawn from the IAA, Article 17(a). A U.S. authorized entity
adoption takes place within a family or
recognizes that in some cases the foreign and a foreign authorized entity must
the contact is in compliance with
Central Authority itself may be the both agree that the adoption may
conditions established by the
authority competent to make this proceed, as required by Convention
appropriate authority of the country of
determination. Article 17(c). (Applicants for a Hague
Paragraph (f) addresses situations in origin. Such conditions may be
Adoption Certificate or Hague Custody
which foreign law requires a foreign established either by State law or by a
Declaration will be asked to provide this
Central Authority or other foreign entity public domestic authority acting within
information for use on the certificate/
to consent to or approve an adoption its jurisdiction. When conditions have
declaration, as required by Article 23.)
before it goes forward. Convention not been established, such contacts may
A U.S. authorized entity also must take
Article 17(b) provides that, where not occur because the Convention
all appropriate measures to ensure that
required by the law of the receiving intends that such contacts be either
transfer of the child takes place in
country, the country’s Central Authority barred or subject to regulation. (Note
secure and appropriate circumstances
(or a foreign authorized entity other that this prohibition does not apply to
and, if possible, in the company of the
than the Central Authority to whom the contact by prospective adoptive
adoptive or prospective adoptive
relevant Central Authority function has parent(s) directly with the child.) The
parent(s), and arrange to obtain
been delegated) must consent to the Department is particularly interested in
permission for the child to leave the
adoption. Section 303(a)(2)(C)(ii) of the receiving comments from State, local,
United States, as required by
IAA requires submission to the U.S. and tribal authorities as to whether
Convention Articles 19(2) and 18,
adoption court of a declaration by the appropriate and sufficient conditions on
respectively. Finally, a U.S. authorized
foreign ‘‘Central Authority (or other contact between prospective adoptive
entity must arrange to keep a foreign
competent authority)’’ that it consents to parent(s) and birthparent(s) or other
authorized entity informed about the
the adoption, if such consent is persons caring for the child are
adoption process and the measures
necessary under the laws of the currently in place.
taken to complete it, as well as about the
Paragraph (k) implements paragraphs
receiving country for the adoption to progress of a placement if a
(a) and (b) of Convention Article 32,
become final. To harmonize these probationary period is required; to
which prohibit improper financial or
provisions, paragraph (f) follows the return the home study and child
other gain in relation to adoption
IAA’s approach of reading the background study to the authorities that
activities and permit only costs and
Convention term ‘‘required’’ to mean forwarded them if the transfer of the
expenses (including reasonable
‘‘necessary for the adoption to become child does not take place, and to be
professional fees) to be charged or paid.
final’’ and recognizing that the consent consulted in the event that a new
Other requirements of the Convention
of a competent authority other than a placement or alternative long-term care
need not be specifically verified by the
Central Authority might be required for the child is needed, as required by
court, either because they are not part of
under foreign law for the adoption to Convention Articles 19(3), 20, and 21.
the process for an individual adoption
become final. Paragraph (f) thus These requirements are phrased in
case, or because existing law will
provides that a foreign authorized entity terms of the U.S. authorized entity
address them adequately. For example,
or competent authority must declare
‘‘arranging’’ or ‘‘taking all appropriate
Convention Article 32(c) provides that
that it consents to the adoption if its
measures’’ for them to occur because at directors, administrators and employees
consent is necessary under the law of
the time of the adoption, the duties of adoption-related entities may not
the relevant foreign country for the
inherently will not yet have been receive unreasonably high
adoption to become final.
performed. While section 303(b)(1)(B) of remuneration. The accreditation and
Paragraphs (g) and (h), respectively,
the IAA contemplates judicial review of approval regulations address
set forth the requirements of Convention
compliance with Convention Articles 18 unreasonable remuneration of private
Article 4(c), relating to the counseling
through 21, realistically the court will
and consent of guardians of a child, and bodies (22 CFR 96.34(d)) and we have
only be able to ensure that appropriate
Article 4(d), relating to the counseling no reason to believe that the
arrangements for future compliance are
and consent, where required, of the remuneration of public employees
in place.
child. State law will continue to govern would be considered ‘‘unreasonably
Paragraph (j) implements the ‘‘no
related issues, such as who must high.’’
contact’’ rule of Article 29 of the
consent to the adoption and the
Issuance of a Hague Adoption
Convention, which is designed to
particular requirements of proper legal
Certificate or a Hague Custody
reduce the opportunities for coercion,
form for consent, unless State law is in
Declaration in an Outgoing Convention
bribery, and child buying in the consent
conflict with the Convention or the IAA,
Case
process. The Convention provides there
in which case the Convention or IAA
Section 97.4(a) provides that the
can be no contact between the
provision would govern. Notably,
Department shall issue a Hague
prospective adoptive parent(s) and the
consent of the birth mother, where
Adoption Certificate or a Hague Custody
birthparent(s), or other persons caring
required, may be given only after the
Declaration if the Department, in its
for the child, until the appropriate
birth of the child. State law allowing
discretion, is satisfied that the adoption
authorities of the receiving country have
birth mother consent to be given before
or grant of custody was made in
determined the prospective adoptive
the birth of the child would be in direct
rwilkins on PROD1PC63 with PROPOSAL_1
compliance with the Convention and
parents are eligible and suitable to adopt
conflict with the Convention and thus
IAA. Thus, even if an applicant
and the appropriate authorities of the
preempted. The Department welcomes
provides all information required by
country of origin have determined that
comments from State, local, and tribal
§ 97.2, it is within the Department’s
the child is adoptable and that, after due
authorities on this point.
discretion to deny the application if the
consideration to domestic placement,
Paragraph (i) sets forth several duties
Department is not satisfied that the
intercountry adoption is in the child’s
of a U.S. authorized entity. A U.S.
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