Proposed Rule2023-11637
Implementing the Child Pornography Victims Reserve
Primary source
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Published
June 5, 2023
Issuing agencies
Justice Department
Abstract
By this rule, the Department of Justice ("the Department") is proposing regulations that implement the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 ("the AVAA Act" or "the Act"). The Act established the Child Pornography Victims Reserve ("Reserve") to provide defined monetary assistance to eligible individuals who are depicted in child pornography that is the basis for certain convictions. The Reserve provides payment to such child pornography victims based on orders obtained in United States district courts. By statute, eligibility determinations are made by courts. Under this proposed rule, a claimant may choose to request that the Department present an application for a court order. This proposed rule provides procedures for the submission of requests and court orders to the Department related to payments from the Reserve. The Department will provide payment from the Reserve to the victim pursuant to a court order issued, upon receipt of the order and the requisite information from the claimant following instructions on the Department's website for this program.
Full Text
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<title>Federal Register, Volume 88 Issue 107 (Monday, June 5, 2023)</title>
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[Federal Register Volume 88, Number 107 (Monday, June 5, 2023)]
[Proposed Rules]
[Pages 36516-36524]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-11637]
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DEPARTMENT OF JUSTICE
28 CFR Part 81
[Docket No. CRM 120; AG Order No. 5665-2023]
RIN 1105-AB57
Implementing the Child Pornography Victims Reserve
AGENCY: Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: By this rule, the Department of Justice (``the Department'')
is proposing regulations that implement the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018 (``the AVAA Act'' or ``the
Act''). The Act established the Child Pornography Victims Reserve
(``Reserve'') to provide defined monetary assistance to eligible
individuals who are depicted in child pornography that is the basis for
certain convictions. The Reserve provides payment to such child
pornography victims based on orders obtained in United States district
courts. By statute, eligibility determinations are made by courts.
Under this proposed rule, a claimant may choose to request that the
Department present an application for a court order. This proposed rule
provides procedures for the submission of requests and court orders to
the Department related to payments from the Reserve. The Department
will provide payment from the Reserve to the victim pursuant to a court
order issued, upon receipt of the order and the requisite information
from the claimant following instructions on the Department's website
for this program.
DATES: Written and electronic comments must be sent or submitted on or
before August 4, 2023. Comments received by mail will be considered
timely if they are postmarked or otherwise indicate a mailing or
shipping date on or before the last day of the comment period. The
electronic Federal Docket Management System will accept electronic
comments prior to Midnight Eastern Time at the end of that day.
ADDRESSES: If you wish to provide comments regarding this rulemaking,
you must submit those comments, identified by the agency name, and
reference Docket No. CRM 120, by one of the two methods below.
<bullet> Federal Rulemaking Portal (preferred): <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the website instructions for submitting
comments.
<bullet> Mail: Paper comments that duplicate an electronic
submission are unnecessary. If you wish to submit a paper comment in
lieu of electronic submission, please direct the mail or shipment to
the following: Mr. Steve Grocki, Child Exploitation and Obscenity
Section, U.S. Department of Justice, 1301 New York Ave NW, Suite 1100,
Washington, DC 20530.
To ensure proper handling, please reference the agency name and
Docket No. CRM 120 on your correspondence. Mailed items must be
postmarked or otherwise indicate a shipping date on or before the
submission deadline.
FOR FURTHER INFORMATION CONTACT: Catherine Pierce, Senior Advisor,
Office for Victims of Crime, telephone (202) 307-6785 (not a toll-free
number).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
proposed rule via one of the methods and by the deadline stated above.
All comments must be submitted in English or be accompanied by an
English translation. The Department of Justice also invites comments
that relate to the economic, environmental, or federalism effects that
might result from this rulemaking. In addition, the Department seeks
comments on appropriate criteria to be included in the request form to
the Department to ensure that claimants or their authorized
representatives are who they purport to be and are not fraudulent.
Comments that will provide the most assistance to the Department in
developing these procedures will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change.
Please note that all comments received are considered part of the
public record and made available for public inspection at
<a href="http://www.regulations.gov">www.regulations.gov</a>. Interested persons are not required to submit
their personally identifying information (``PII'') in order to comment
on this proposed rule. However, any PII that is submitted is subject to
being posted to the publicly accessible website at <a href="http://www.regulations.gov">www.regulations.gov</a>
without redaction.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted
online.
Additionally, the Department may withhold from public viewing
information provided in comments that it determines may impact the
privacy of an individual or is offensive. For additional information,
please read the Privacy Act notice that is available via the link in
the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>. To inspect the agency's
public docket file in person, you must make an appointment with the
agency. Please see the FOR FURTHER INFORMATION CONTACT paragraph above
for agency contact information.
II. Overview
The Child Pornography Victims Reserve was established to provide
defined monetary assistance to eligible individuals who are depicted in
child pornography that is the basis for certain
[[Page 36517]]
convictions under 18 U.S.C. chapter 110. The Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018, Public Law 115-299, secs. 4-
5, 132 Stat 4383, 4385-88, codified at 18 U.S.C. 2259, 2259A, and
2259B, and 34 U.S.C. 20101(d). Under 18 U.S.C. 2259(d), a United States
district court may order payment from the Reserve to a victim of a
defendant convicted in Federal court of trafficking in child
pornography depicting that victim. The Department, pursuant to this
proposed rule, will make a payment from the Reserve to such child
pornography victims based on orders obtained in United States district
courts.
The Department is issuing this proposed rule pursuant to 18 U.S.C.
2259B(c), which provides that the Attorney General shall issue
regulations to implement the payment of defined monetary assistance out
of the Reserve. This proposed rule outlines procedures for persons to
request to apply through the Department for the defined monetary
assistance. As set forth in more detail below, if a claimant chooses to
proceed through the Department, the Department may present the
claimant's application for a court order. (``Claimant'' means the
person who claims to be a victim of trafficking in child pornography
and to be eligible for the defined monetary assistance at 18 U.S.C.
2259(d), and ``victim'' or ``victim of trafficking in child
pornography'' means a person whom a Federal court has determined, under
18 U.S.C. 2259(d)(1)(B), to be a victim of trafficking in child
pornography.) The Department will provide payment from the Reserve to
the victim pursuant to a court order issued under 18 U.S.C.
2259(d)(1)(C), upon receipt of the order and the requisite information
from the claimant following instructions on the Department's website
for this program.
The proposed rule also sets forth procedures by which persons may
submit requests to the Department through their attorney, a legal
guardian (in the case of claimants under the age of 18 or who are
incompetent, incapacitated, or deceased), or a representative
authorized by the claimant, which includes a personal representative of
an estate (for deceased claimants) (collectively, ``authorized
representative''). The proposed rule is procedural in nature,
implementing a process by which a claimant may request that the
Department facilitate the claimant's request that a court make a
determination of eligibility pursuant to the eligibility requirements
in the Act. It does not create new rights or impose obligations
independent of the statute, and it does not create an attorney-client
relationship between the claimant and any Department attorney.
III. Background
Under Federal law, victims of child pornography offenses are
entitled to full and timely restitution from defendants charged and
convicted in Federal court, including restitution for losses caused by
conduct such as the possession, receipt, viewing, transportation, and
distribution of these images. See 18 U.S.C. 2259. Restitution is
imposed upon an individual criminal defendant by a Federal court at the
time of sentencing, and the obligation to pay restitution is part of
the defendant's criminal sentence. See id.; see also 18 U.S.C. 3663A.
The Federal Government bears the burden of proving that the defendant
owes restitution to a victim, although a defendant can agree to pay
restitution as part of a plea agreement. In order for a court to impose
a restitution obligation on a child pornography trafficking defendant,
the Federal Government, represented by the prosecutor, must prove the
following:
<bullet> Victim status: This element means that the person seeking
restitution is a victim, i.e., that the person has been harmed as a
result of the commission of a Federal child pornography trafficking
crime.
<bullet> Losses: This element refers to the amount of losses
incurred by the victim, both since the offense took place and that are
reasonably projected to be incurred in the future. There is no
statutory limit on how much restitution may be ordered to be paid to a
victim, but there must be a sufficient evidentiary basis to prove that
all of the losses have been or are reasonably projected to be incurred.
The statute permits recovery for the following types of losses: medical
services relating to physical, psychiatric, or psychological care;
physical and occupational therapy or rehabilitation; necessary
transportation, temporary housing, and child care expenses; lost
income; reasonable attorneys' fees, as well as other costs incurred;
and any other relevant losses incurred by the victim. 18 U.S.C.
2259(c)(2). Restitution losses are limited to actual monetary losses
and should not be confused with amounts of money a victim might be
awarded for pain and suffering or punitive damages in a civil tort
lawsuit.
<bullet> Causation: As discussed in more detail below, this element
requires proof that the losses were caused in the aggregate by the
trade in child pornography depicting the victim.
<bullet> Amount: In cases where multiple defendants contributed to
the victim's losses, the court must determine how much each individual
defendant should pay to the victim.
In all Federal cases, restitution is obtained on a case-by-case
basis. Because child pornography can be possessed and shared by many
different unrelated criminal defendants and distributed repeatedly, a
single child pornography trafficking victim may receive restitution
orders in hundreds of individual criminal cases being brought in
different Federal courts all over the country. Under current law, each
of these defendants is ordered to pay some portion of the victim's
overall losses. Once the victim has collected payment for the full
amount of the victim's losses from one or more defendants, no further
restitution orders can be imposed on additional defendants on the
victim's behalf unless new losses are incurred. See 18 U.S.C.
2259(b)(2)(C).
In 2009, a victim sought restitution for the first time, not from
the individual who sexually abused her and produced and shared the
images, but from individuals who subsequently traded and collected
those images. A small number of other child pornography victims
subsequently sought similar restitution. Federal prosecutors across the
country were soon seeking restitution for victims in Federal courts in
child pornography possession, receipt, and distribution cases.
Despite the Department's overall success in obtaining orders of
restitution for these victims, courts were inconsistent in their
approach to restitution claims. Some courts struggled to determine
whether an individual defendant convicted of possession, receipt, or
distribution proximately caused a victim's losses. If a defendant was
only one of thousands who harmed the victim, then some courts indicated
that the defendant could not be said to have caused the victim's losses
because those losses would be essentially the same if that particular
defendant had never committed the crime. On that logic, some courts
simply denied the restitution requests. Others demanded a showing as to
how much an individual defendant's crime incrementally increased the
victim's losses, imposing a generally insurmountable evidentiary
burden. Among courts that awarded restitution, many grappled with how
to determine the amount that the defendant should pay to the victim.
These issues were brought to the Supreme Court in Paroline v.
United States, 572 U.S. 434 (2014). After finding that section 2259
required proof of proximate causation for all the categories of losses
referenced in the
[[Page 36518]]
statute, the Court summed up the problem this way:
In this case . . . , a showing of but-for causation cannot be
made. . . . From the victim's perspective, Paroline was just one of
thousands of anonymous possessors. . . . [I]t is not possible to
prove that her losses would be less (and by how much) but for one
possessor's individual role in the large, loosely connected network
through which her images circulate. Even without Paroline's offense,
thousands would have viewed and would in the future view the
victim's images, so it cannot be shown that her trauma and attendant
losses would have been any different but for Paroline's offense.
Id. at 450 (internal citations omitted).
To resolve this dilemma, the Court adopted the less demanding
aggregate causation standard:
[A]lternative and less demanding causal standards are necessary
in certain circumstances to vindicate the law's purposes. It would
be anomalous to turn away a person harmed by the combined acts of
many wrongdoers simply because none of those wrongdoers alone caused
the harm. And it would be nonsensical to adopt a rule whereby
individuals hurt by the combined wrongful acts of many (and thus in
many instances hurt more badly than otherwise) would have no
redress, whereas individuals hurt by the acts of one person alone
would have a remedy.
Id. at 452. Therefore, the Court concluded:
In this special context, where it can be shown both that a
defendant possessed a victim's images and that a victim has
outstanding losses caused by the continuing traffic in those images
but where it is impossible to trace a particular amount of those
losses to the individual defendant by recourse to a more traditional
causal inquiry, a court applying Sec. 2259 should order restitution
in an amount that comports with the defendant's relative role in the
causal process that underlies the victim's general losses.
Id. at 458. The Court then considered how district courts might
determine the amount a given defendant should pay a victim in
restitution. To provide guidance, the Court cited a number of factors
courts might consider, including ``the number of past criminal
defendants found to have contributed to the victim's general losses; .
. . whether the defendant reproduced or distributed images of the
victim; whether the defendant had any connection to the initial
production of the images; how many images of the victim the defendant
possessed; and other facts relevant to the defendant's relative causal
role.'' Id. at 460.
The Department is not aware of any district court judge since
Paroline denying a restitution request in a child pornography
possession, receipt, or distribution case for insufficient proof of
causation. The aggregate causation standard is easily understood and
applied. To the extent that restitution is contested, the dispute is
often solely over how much a defendant should be ordered to pay a given
victim.
Nonetheless, even after Paroline, few victims exercised their right
to restitution. It appeared that the process of tracking hundreds of
cases around the country over the course of years was too burdensome.
Almost all victims seeking restitution in child pornography trafficking
cases hire an attorney to help coordinate the logistics. In addition,
although the government bears the burden of proving restitution, in
order to submit estimates of future losses, many victims hire
psychological experts and economic analysts to help prepare their
claims. The necessity of engaging multiple experts has served as a
barrier that prevents victims from seeking restitution at all.
Congress therefore enacted the AVAA Act to create an alternative
system to allow victims of trafficking in child pornography to obtain
some measure of compensation (called ``defined monetary assistance'')
without having to prove their losses. The process of obtaining defined
monetary assistance is an alternative to the traditional means of
seeking restitution as part of a Federal prosecution. Providing the
defined monetary assistance alternative is meant to ameliorate the
structural impediments that prevent victims from claiming restitution
while preserving the option of obtaining full restitution for those who
wish to do so. Under the terms of the statute, victims of these types
of child pornography offenses can choose whether to present their full
restitution claims in court through prosecutors, as is currently done,
or to obtain a one-time payment of defined monetary assistance. The
amount of defined monetary assistance in 2019 was $35,000, but the
amount is adjusted for inflation over time. 18 U.S.C. 2259(d)(1)(D).
The Act provides that the ``Attorney General shall administer'' the
Reserve. See 18 U.S.C. 2259B(c). The determination regarding victim
eligibility for the payment is made by the court. The procedural
details of the Department's administration of the Reserve and the
substantive law applicable to the court's determination are discussed
in Section IV of this preamble.
IV. Proposed Process To Obtain Defined Monetary Assistance From the
Reserve
Pursuant to 18 U.S.C. 2259(d)(1)(B) and (C), a district court
determines whether a claimant is eligible to receive defined monetary
assistance, and, if it makes such a finding, orders payment of defined
monetary assistance to the victim or the victim's authorized
representative. The Act does not specify any application process, but
it does authorize the Attorney General to administer the Reserve.
Pursuant to this authorization, the Department proposes to establish
the process set forth in this proposed rule to allow claimants to
request that the Department facilitate obtainment of the requisite
district court order for the victim.
A. Proposed Request and Review Process
This proposed rule is designed to assist claimants in obtaining
court determinations of eligibility for payment of defined monetary
assistance from the Reserve. Under the proposed rule, claimants may
choose to request that the Department present an application to a court
for the court's determination of eligibility. The Department will
review the request and may follow up as needed to seek additional
information from the claimant or the claimant's authorized
representative in order to resolve any gaps in the claimant's
supporting information. It is the claimant's responsibility to present
evidence sufficient to establish a complete request, but in no instance
will the claimant be required to send--nor shall the claimant send--any
images of child pornography. A request is complete where it is
supported by all information required by the request form and by
responses to follow-up requests for information. The Department will
not present an application based on a request that is incomplete or
duplicative of a request that the Department has already received. The
Department will provide notice to a claimant if it decides not to
present the requested application to the court.
After the Department receives a claimant's request, and the
Department has exhausted reasonable efforts to obtain any needed
additional information from the claimant, the Department will use
reasonable efforts to identify a Federal child pornography trafficking
case in which an image of the claimant appears. The Department will
consider any case(s) identified by the claimant as well as any in which
the Department has independent information linking the claimant to a
Federal child pornography trafficking case. If, based on the
information in the request, the claimant might be eligible for defined
monetary assistance as a result of more than one case, the
[[Page 36519]]
Department, in its sole discretion, will decide in which case it will
present the application.
It may take time for the Department to identify an appropriate case
to seek the required court order or to determine which of several
potential cases is the most appropriate. The Department will endeavor
to obtain the order in a timely manner.
B. Presentment of an Application for an Order Affirming Eligibility
Once the Department identifies an appropriate case, the Department
will present the claimant's application to the district court, which
may then issue an order affirming the claimant's eligibility for
payment. The mere presentment of an application to a court does not
imply that the Department has taken a position on the ultimate merits
of the application. The Department may or may not (as it deems
appropriate) present the application with an accompanying
recommendation--for example, the Department may include a
recommendation that the court grant the motion where the Department is
persuaded that the statutory standard for payment is met. Conversely,
the Department may recommend that the court deny the application if it
is not persuaded that the statutory standard for payment is met.
In the event that an application is denied by the district court,
the Department may decide to appeal a ruling by a district court
denying the claimant's eligibility for defined monetary assistance. The
Department will make reasonable efforts to consult with the claimant
(and the claimant's authorized representative, if applicable), on the
issue of appeal.
Depending on the basis for the court's ruling, the Department may
seek to present the claim underlying a denied application in another
case when it would be appropriate to do so. The Department will make
reasonable efforts to consult with the claimant (or the claimant's
authorized representative, if applicable) about any decision to present
a claim in another case.
If an application is denied by the district court, no appeal is
taken or such appeal is unsuccessful, and the claim underlying an
application is not presented in another case, the claimant will not
receive defined monetary assistance on the basis of the claimant's
request to the Department. If the claimant resubmits a request to the
Department with additional supporting information, the Department may
present that new application as consistent with these regulations.
C. Payment
Once the court issues an order of payment, the Department will pay
the victim the defined monetary assistance from the Reserve, as
specified in the order. Payment will typically be made via electronic
funds transfer facilitated by the Department of the Treasury, but the
Department may use other methods (e.g., physical check) depending on
the circumstances and technology or systems in place at the time of
payment. Any money received may be subject to Federal, state, or local
taxes.
D. Limits on Attorney Representative Fees and Costs
There is no fee to submit a request to the Department when seeking
defined monetary assistance from the Reserve, and a claimant (or
authorized representative, if applicable) may submit a request for
defined monetary assistance without being represented by an attorney.
Nonetheless, a claimant (or authorized representative, if applicable)
may hire an attorney for this purpose; it will be entirely the
claimant's or authorized representative's decision whether to do so.
Under 18 U.S.C. 2259(d)(4), if the claimant or authorized
representative is represented by counsel, the attorney shall not
charge, receive, or collect, and the court may not approve, any payment
of fees and costs that in the aggregate exceeds 15 percent of any
defined monetary assistance paid under the Act on such claim. An
attorney who violates this provision is subject to fine, imprisonment
of up to one year, or both.
E. Privacy
Claimant submissions will not be made public and will be protected
and used only in accordance with applicable law, including the Privacy
Act of 1974, 5 U.S.C. 552a. Pursuant to 5 U.S.C. 552a, 18 U.S.C.
3509(d)(1), and 18 U.S.C. 3771(a)(8), the Department will not disclose
to the public the names of the individuals who have requested defined
monetary assistance from the Reserve or the names of the decedents for
whom defined monetary assistance is sought from the Reserve, except as
necessary to process a request or application or obtain a court order,
to bring a criminal or civil case against an individual for obtaining
defined monetary assistance by fraud, or pursuant to law or court
order. However, the fact that a victim has received defined monetary
assistance must be introduced in a Federal criminal proceeding where
the amount of the victim's losses is at issue.
The process of providing a claimant with access to information held
by the government will be subject to all applicable laws and
regulations, including the Privacy Act of 1974, 5 U.S.C. 552a, and
subpart B of part 16 of title 28, Code of Federal Regulations.
F. Victim Choice as to Defined Monetary Assistance Versus Restitution
Victims may choose to pursue restitution; to pursue defined
monetary assistance; or to pursue some combination of the two, whether
in the same case or in multiple cases, as appropriate. 18 U.S.C.
2259(d)(3) provides that a victim who has previously collected
restitution in an amount greater than the amount of the defined
monetary assistance available under section 2259(d)(1)(D) is ineligible
to seek defined monetary assistance. A victim who has collected
restitution in an amount less than the amount of defined monetary
assistance (i.e., less than $35,000, adjusted for inflation as
described above) is eligible to seek defined monetary assistance.
Although the statute does not define the term ``collected,'' the word
``collected'' ordinarily means amounts actually received, not merely
amounts ordered but not yet paid. See, e.g., Collect, Oxford English
Dictionary, <a href="https://www.oed.com/view/Entry/36263">https://www.oed.com/view/Entry/36263</a> (last visited Feb. 26,
2023) (defining ``collect'' to mean ``to receive money''). There is
often a lag between order and payment. The amount collected is the
aggregated payment from all defendants. Once victims have collected an
amount of restitution equal to the amount of defined monetary
assistance, they become ineligible to obtain defined monetary
assistance. For example, a defendant may have been ordered to pay a
victim $50,000 in restitution, but the victim to date might have
received only $5,000. That victim would remain eligible for defined
monetary assistance until the $35,000 (inflation-adjusted) collection
threshold is reached. If a victim obtains orders for restitution, and
then receives defined monetary assistance, the amount of the defined
monetary assistance must be disclosed if the victim is later asked to
provide information to a court pursuant to 18 U.S.C. 2259(b)(2)(C)
concerning the amount of restitution collected. See also 18 U.S.C.
2259(d)(2)(C).
G. One-Time Defined Monetary Assistance Payment; Effect on Restitution
and Civil Remedies
Under 18 U.S.C. 2259(d)(2)(A), a victim may receive a payment of
defined monetary assistance only once. Even after receiving such a
payment, a
[[Page 36520]]
victim can, under 18 U.S.C. 2259(d)(2)(B), decide to seek restitution
in court pursuant to 18 U.S.C. 2259. However, 18 U.S.C. 2259(d)(2)(C)
specifies that the amount a victim received in defined monetary
assistance must be deducted from the total amount of losses sought in
restitution. For example, if a victim obtains defined monetary
assistance in the amount of $35,000, and in a later case pursues a
restitution claim for $100,000, the maximum amount recoverable on the
latter claim would be $65,000.
Obtaining restitution or defined monetary assistance does not bar
victims from seeking a civil remedy, such as under 18 U.S.C. 2255,
although either may impact the amount the victims recover in a civil
suit.
H. Statutory Requirements for Eligibility
Defined monetary assistance is available to ``any victim of . . .
trafficking in child pornography.'' 18 U.S.C. 2259(d)(1)(A). The Act
imposes three requirements for payment of defined monetary assistance.
First, the claimant must appear in child pornography that has been
trafficked. ``Trafficking in child pornography'' is defined in 18
U.S.C. 2259(c)(3) by reference to statutes that prohibit advertising,
transporting, distributing, receiving, or possessing child pornography,
or accessing child pornography with intent to view it.
Second, at least one defendant must have been convicted in Federal
court of conduct (advertising, transporting, distributing, receiving,
or possessing child pornography, or accessing child pornography with
intent to view it) involving a visual depiction of the claimant. The
Act imposes no time limits on when the conviction must have occurred.
Any qualifying conviction serves as a basis for establishing a
claimant's eligibility for defined monetary assistance, so long as
there is sufficient evidence to obtain a court order as required under
the statute.
Sometimes the evidence may suggest that the defendant possessed
child pornography depicting a particular victim, but the defendant's
conviction was for a different crime. This could happen if child
pornography involving Victim A was found on a defendant's computer, but
the defendant was actually convicted of producing child pornography of
Victim B or distributing child pornography depicting Victim C. Victim A
would not be entitled to defined monetary assistance based upon that
case, though Victim A might be eligible in a different case.
A single conviction is sufficient to establish a claimant's
eligibility. There is no need under the Act to prove that the claimant
was a victim in more than one conviction for trafficking in child
pornography.
Third, the claimant must appear in a visual depiction that shows
``sexually explicit conduct'' as defined in 18 U.S.C. 2256(2)(A) and
must have been under the age of 18 at the time the visual depiction was
created.
Not all images of children being traded online meet this definition
of sexually explicit conduct. As one example, some individuals may
appear in imagery that is illegal under State law, but that is not
prohibited under Federal law. Because such images do not depict
``sexually explicit conduct'' as defined in section 2256, individuals
appearing in such material would not be eligible for defined monetary
assistance. In order to obtain defined monetary assistance, the
claimant would need to establish that a defendant was convicted of a
Federal offense involving the sexually explicit imagery.
A claimant need not be a United States citizen and need not reside
in the United States in order to be eligible for defined monetary
assistance.
I. Section-by-Section Overview of Proposed Rule
Section 81.51 sets forth the statutory basis for and the purpose of
the Reserve, as well as the statutory one-time payment amount.
Section 81.52 provides the definitions applicable to this subpart.
If a term is not defined in Sec. 81.52, the term would have the
statutory definition at 18 U.S.C. 2256, 2259, 2259A, or 2259B.
Section 81.53 provides certain requirements for eligibility for a
payment from the Reserve, including burden of proof and eligibility
exclusions.
Section 81.54 provides a description for how persons may submit
requests to the Department for funds from the Reserve using an online
portal located on the Department's website for this program. Additional
information as to how to submit a request to the Department will be
available on the website.
Section 81.55 explains that the claimant must follow the directions
on the Department's website for this program to submit a request to the
Department for monetary assistance. Failure to submit all required
documentation would potentially result in delay of the adjudication or
return of the request by the Department.
Section 81.56 details the procedures to determine a personal
representative to request and receive funds on the claimant's behalf.
Section 81.57 provides the process by which requests submitted to
the Department for defined monetary assistance and court orders
requiring payment will be processed by the Department.
Section 81.58 sets forth signatures and certifications required for
a request to the Department to be considered complete.
Section 81.59 provides information related to privacy and
confidentiality of claimants' names during the course of the request
process.
V. Regulatory Analyses
A. Administrative Procedure Act
This proposed rule concerns matters relating to ``benefits,'' 5
U.S.C. 553(a)(2), and also to ``rules of . . . agency procedure,'' 5
U.S.C. 553(b)(A). Therefore, it is exempt from the requirement of prior
notice and comment and from a delay in its effective date.
Nevertheless, the Department believes that comments from the public may
be useful in developing these proposed regulatory changes.
Consequently, it is publishing this rule as a notice of proposed
rulemaking and is soliciting public comments on this proposal.
B. Executive Orders 12866 and 13563
This proposed rule has been drafted and reviewed in accordance with
Executive Orders 12866 and 13563. This proposed rule is not a
``significant regulatory action'' under section 3(f) of Executive Order
12866. The rulemaking is primarily procedural, dealing with the
administrative process of submitting requests to the Department for
defined monetary assistance. The key eligibility standards are set
forth in the statute, and the Department is not by this proposed rule
making any changes to those standards.
As set forth in the cost-benefit analysis below, this proposed rule
will not have the economic effects described in section 3(f) of
Executive Order 12866. It will not create any inconsistency or
interference with an action taken or planned by another agency because
the statutory authorization for this program directs the Attorney
General (and, thus, the Department, and not any other agency) to
administer the program. It does not affect entitlements, grants, user
fees, or loan programs, nor does it raise novel legal or policy issues
because the proposed rule is primarily procedural, describing the
Department's implementation of the statutory eligibility criteria.
[[Page 36521]]
This regulation has no cost to State, local, or Tribal governments,
or to the private sector. The Child Pornography Victims Reserve is
funded by assessments paid by certain Federal offenders, as well as
gifts, bequests, or donations from private individuals, deposited into
the Crime Victims Fund in the United States Treasury and set aside in
the Reserve; those funds may not be obligated in an amount above $10
million in any given year. See 18 U.S.C. 2259B(a); 34 U.S.C.
20101(d)(6).
The cost to the Federal Government consists both of administrative
expenses and amounts reimbursed to victims. Both types of costs depend
on the number of claimants, including both prospective and retroactive
claimants.
Although spending is anticipated to be higher in the initial years
as a result of the number of potential retroactive claimants, the
program will not spend more than the statutory maximum of $10 million
each fiscal year. That is, even if claimants submit requests for
defined monetary assistance that, in the aggregate, exceed $10 million
in one year, the Department will spend no more than $10 million, and
will pay only those claims that can be satisfied from that amount. In
such a circumstance, claims will be paid based on the date on which
courts ordered the payments, with the earliest-ordered payments made
first. See 18 U.S.C. 2259B(b). Once the Department has paid out the
allotted $10 million dollars in any given fiscal year, the requests
that remain unpaid will roll over into the next fiscal year and will be
processed in the original order in which they were ordered. The
Department will also follow the same order-of-payment procedure in any
other situation in which the Reserve has insufficient funds to make all
of the payments ordered under section 2259(d).
The Department has assessed the benefits and costs anticipated from
this rulemaking and has considered whether there are reasonably
feasible alternatives to this rulemaking, including whether there are
reasonably viable non-regulatory actions that could be taken in lieu of
this rulemaking. The purpose of this rulemaking is to provide the legal
and administrative framework for defined monetary assistance to be
given to any individual (or an authorized representative of such
individual) who is determined by a Federal court to be a victim of
trafficking in child pornography as defined by 18 U.S.C. 2259(c) and
(d). The Department concludes that there are no viable non-regulatory
actions that it could take to implement the AVAA Act in a fair and
efficient manner.
C. Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, under Executive Order 13132,
the Department has determined that this regulation does not have
sufficient federalism implications to warrant the preparation of a
federalism impact statement.
D. Regulatory Flexibility Act
The Department certifies that this proposed rule will not have a
significant economic impact upon a substantial number of small
entities. This regulation pertains to defined monetary assistance for
eligible individuals who are depicted in child pornography that is the
basis for certain convictions under 18 U.S.C. chapter 110. The Reserve
will provide payment to such child pornography victims based on orders
obtained in U.S. district courts.
E. Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local,
and Tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year (adjusted annually for inflation),
and it will not significantly or uniquely affect small governments.
Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
F. Congressional Review Act
This proposed regulation will not constitute a major rule as
defined by the Congressional Review Act, 5 U.S.C. 804. This regulation
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
G. Paperwork Reduction Act of 1995
This proposed rule implements 18 U.S.C. 2259, 2259A, 2259B, and 34
U.S.C. 20101(d), which establish the Reserve and define eligibility for
payments from the Reserve. In order to evaluate requests and provide
defined monetary assistance, the Department must collect certain
information from individuals who are depicted in child pornography that
is the basis for certain convictions under 18 U.S.C. chapter 110, or
from their authorized representatives. Accordingly, the Department's
Executive Office for United States Attorneys will submit an information
collection request upon publication of the final rule to the Office of
Management and Budget for review and clearance in accordance with the
procedures of the Paperwork Reduction Act of 1995.
H. Privacy Act of 1974
The Department's Office of Justice Programs will publish a notice
of a new Privacy Act system of records upon publication of the final
rule, which will become effective upon publication, subject to a 30-day
comment period for the routine uses claimed in the notice. In the
interim, disclosures necessary to process requests will be made only
with the prior written consent of claimants or as otherwise authorized
under 5 U.S.C. 552a(b).
I. Severability
It is the Department's intent that if any provision of this
proposed rule is held to be invalid or unenforceable by its terms, or
as applied to any person or circumstance, the remainder of the
provision or rule shall be construed so as to give it the maximum
effect permitted by law, unless such holding shall be one of utter
invalidity or unenforceability, in which event such provision shall be
deemed severable from this part and shall not affect the remainder
thereof or the application of such provision to other persons not
similarly situated or to other, dissimilar circumstances.
List of Subjects in 28 CFR Part 81
Child abuse, child pornography, victims, restitution, benefits.
By the authority vested in the Attorney General under 5 U.S.C. 301
and 28 U.S.C. 509, 510, 28 CFR part 81 is proposed to be amended as
follows:
PART 81--CHILD ABUSE AND CHILD PORNOGRAPHY REPORTING DESIGNATIONS
AND PROCEDURES, AND CHILD PORNOGRAPHY VICTIMS RESERVE
0
1. The authority citation is revised to read as follows:
Authority: 18 U.S.C. 2259, 2259A, 2259B; 28 U.S.C. 509, 510; 34
U.S.C. 20101(d), 20341.
0
2. Revise the heading for part 81 to read as set forth above.
Sec. Sec. 81.14 through 81.50 [Reserved]
0
3. Amend subpart B by adding and reserving Sec. Sec. 81.14 through
81.50.
[[Page 36522]]
0
4. Amend part 81 by adding subpart C to read as follows:
Subpart C--Child Pornography Victims Reserve
Sec.
81.51 Child Pornography Victims Reserve.
81.52 Definitions.
81.53 Eligibility.
81.54 Submission of requests to the Department.
81.55 Supporting information.
81.56 Procedures for determining the personal representatives of an
estate.
81.57 Request and order processing.
81.58 Signatures and certifications.
81.59 Privacy.
Sec. 81.51 Child Pornography Victims Reserve.
The Child Pornography Victims Reserve (``Reserve'') was established
on December 7, 2018, to provide a source of defined monetary assistance
for eligible victims of trafficking in child pornography, pursuant to
18 U.S.C. 2259(d). Pursuant to the Department of Justice's (``the
Department's'') authority to administer the Reserve, the Department
will--
(a) Accept a request that the Department seek a court order for a
determination of eligibility for defined monetary assistance from a
claimant who chooses to proceed through the Department;
(b) Process such request and use reasonable efforts to follow up
with such claimant to obtain information sufficient for a court to
determine the claimant's eligibility for defined monetary assistance;
(c) Upon confirming that the request to the Department is complete
and not duplicative of a previously received request, use reasonable
efforts to identify a Federal child pornography trafficking case in
which an image of the identified victim appears and in which the
Department may present an application for court determination of the
claimant's eligibility; and
(d) Pay a claimant pursuant to a Federal court order determining
that such claimant is eligible to receive defined monetary assistance.
Sec. 81.52 Definitions.
(a) If a term is not defined in this section, the statutory
definition at 18 U.S.C. 2256, 2259, 2259A, or 2259B applies to the
submission and processing of requests to the Department.
(b) Authorized representative means an attorney or legal guardian
(for claimants under age 18, incompetent, or incapacitated) of a
claimant, the personal representative of a deceased claimant's estate,
any other person appointed as a representative of a claimant by a
Federal court pursuant to 18 U.S.C. 2259(c)(4), or a personal
representative designated by the claimant to act on the claimant's
behalf.
(c) Claimant means the person who claims to be a victim of
trafficking in child pornography and to be eligible for the defined
monetary assistance at 18 U.S.C. 2259(d).
(d) Reserve means the Child Pornography Victims Reserve set forth
in 34 U.S.C. 20101(d)(6).
(e) Victim or victim of trafficking in child pornography means a
person whom a Federal court has determined, under 18 U.S.C.
2259(d)(1)(B), to be a victim of trafficking in child pornography.
Sec. 81.53 Eligibility.
(a) Presentment of claims for payment to Federal courts. If a
claimant chooses to submit a request to the Department, the Department
shall review a properly submitted request and, as necessary, will ask
the claimant for additional information to support the request. Once
the Department confirms the request is complete and not duplicative of
a previously received request, the Department will use reasonable
efforts to find an appropriate case in which to present the claim by
means of an application for an order of payment of defined monetary
assistance in a Federal court. If the Department is unable to locate an
appropriate case, it will notify the claimant and may decline to
present the claim. If the Department presents the claimant's
application to a court, the Department may include a recommendation as
to whether the court should grant or deny the application.
(b) Determination by a court. A Federal court will make the
determination, under 18 U.S.C. 2259(d)(1)(B), as to whether a claimant
is entitled to defined monetary assistance from the Reserve and, if so,
shall order payment in the amount specified in 18 U.S.C. 2259(d)(1)(D).
This amount is $35,000 as adjusted for inflation from December 7, 2018,
based on the date of the court's order.
(c) Payment. The Department shall pay to the victim (or the
victim's authorized representative, as applicable) from the Reserve the
defined monetary assistance set forth in 18 U.S.C. 2259, in accordance
with the applicable Federal court order and consistent with 18 U.S.C.
2259B(b).
(d) Exclusions. (1) A victim may obtain defined monetary assistance
under 18 U.S.C. 2259(d) only once. See 18 U.S.C. 2259(d)(2)(A).
(2) In no event shall an individual who is convicted of an act
described in chapter 110 of Title 18, with respect to the victim,
receive any defined monetary assistance from the Reserve on behalf of
the victim. See 18 U.S.C. 2259(c)(4).
(3) Claimants who have collected restitution payments in excess of
$35,000 (as adjusted for inflation from December 7, 2018) pursuant to
18 U.S.C. 2259 are not eligible to receive defined monetary assistance
under this program. See 18 U.S.C. 2259(d)(3).
Sec. 81.54 Submission of requests to the Department.
(a) Requests submitted to the Department must be submitted in the
form and manner, and supported by documentation, specified from time to
time by the Department. The Department's website will contain
directions on how to access the claims system for defined monetary
assistance.
(b) Requests may be submitted to the Department at any time. The
Department may decline to present to a court any application based on a
request that duplicates a previously received request. A request
duplicates a previously received request if it is submitted by or in
connection with the same claimant and is premised on the same conduct
as the previously received request. If a claimant obtains new
information relevant to a claim after submitting a request, the
claimant should amend that request rather than submitting a new
request.
(c) If a claimant is represented by an authorized representative,
the request to the Department and any supporting information may be
submitted to the Department by that authorized representative. The
authorized representative must submit a separate request on behalf of
each represented claimant.
Sec. 81.55 Supporting information.
(a) As part of a request to the Department, the claimant should
submit information as instructed by the Department. Failure to submit
all required information may result in delay or a decision by the
Department not to present the claimant's application to a court.
(b) All information supporting the request should be updated as
necessary while the request to the Department is pending, including the
amounts of any restitution collected, address changes, changes to
information needed to process payment to the claimant, and any other
pertinent information that may be relevant to the request.
[[Page 36523]]
(c) To avoid a potential violation of Federal law, claimants (or
authorized representatives, if applicable) should not send images of
child pornography when providing supporting information.
Sec. 81.56 Procedures for determining the personal representative of
an estate.
(a) In general. For any request to the Department by the estate of
a deceased claimant, the personal representative of the estate, who
will be the authorized representative for purposes of defined monetary
assistance from the Reserve, shall be determined as follows:
(1) First preference will be given to an individual appointed by a
court of competent jurisdiction as the personal representative of the
decedent or as the executor or administrator of the deceased claimant's
will or estate.
(2) In the event that no personal representative or executor or
administrator has been appointed by any court of competent
jurisdiction, and such issue is not the subject of pending litigation
or other dispute, the next preferred personal representative for
purposes of defined monetary assistance from the Reserve will be the
person named by the deceased claimant in the claimant's will as the
executor or administrator of the deceased claimant's estate.
(3) In the event that no will exists, the next preference for
personal representative for purposes of defined monetary assistance
from the Reserve will be the first person in the line of succession for
inheritance established by the laws of the deceased claimant's domicile
governing intestacy. In the case where state law provides for two or
more persons to inherit in equal shares (e.g., parents or siblings),
the defined monetary assistance payment will be split accordingly.
(4) In the event that none of the individuals described in
paragraphs (a)(1) through (3) of this section is available to serve as
personal representative, any other person may seek to be appointed by a
court of competent jurisdiction as the personal representative for
purposes of defined monetary assistance from the Reserve. Upon
appointment, that person will serve as personal representative.
(b) Notice to beneficiaries. (1) Any purported personal
representative must, before submitting a request to the Department,
provide written notice of the intent to submit a request and the
procedures in paragraph (c) of this section to object to such status as
personal representative to the immediate family of the decedent; to the
executor, administrator, and beneficiaries of the decedent's will; and
to any other persons who may reasonably be expected to assert an
interest in an award or to have a cause of action to recover damages
relating to the wrongful death of the decedent.
(2) Personal delivery or transmission by certified mail, return
receipt requested, shall be deemed sufficient notice under this
subpart. The purported personal representative must certify that such
notice (or other notice that the Department deems appropriate) has been
given.
(c) Objections to personal representatives. Objections to the
authority of an individual to file as the personal representative of a
decedent may be submitted to the Department, as instructed on the
Department's website for this program, by parties who assert a
financial interest in the award. Any such objection must be submitted
within 30 days following receipt of notice by the personal
representative as defined under this section. If timely submitted, such
objections shall be treated as evidence of a ``dispute'' under
paragraph (d) of this section.
(d) Disputes as to the identity of the personal representative. The
Department will not, and shall not be required to, arbitrate, litigate,
or otherwise resolve any dispute as to the identity of the personal
representative. In the event of a dispute over the appropriate personal
representative, the Department may suspend or return a request to the
claimant without prejudice to its later resubmission and may withhold
any payment until the dispute is resolved either by agreement of the
disputing parties or by a court of competent jurisdiction.
Alternatively, the disputing parties may agree in writing to the
identity of a personal representative to act on their behalf, who may
seek and accept defined monetary assistance from the Reserve while the
disputing parties work to settle their dispute.
Sec. 81.57 Request and order processing.
(a) Upon receipt of a request to the Department, the Department
will review it and may follow up with claimants (or authorized
representatives) to resolve any gaps in the request's supporting
information.
(b) The Department will then use reasonable efforts to identify a
Federal criminal case involving the claimant to present the claimant's
application (with supporting information, as appropriate) for a court
to determine the claimant's eligibility to receive defined monetary
assistance. If the Department is unable to locate such a case, it will
notify the claimant. If the Department presents the claimant's
application to a court, in its sole discretion, the Department may or
may not present the claim with an accompanying recommendation that the
court order payment or not.
(c) If a court issues an order requiring payment to any claimant,
the Department will process payment of defined monetary assistance to
the victim in accordance with the order in the amount specified
therein, upon receipt of the order and the requisite information from
the claimant following instructions on the Department's website for
this program. Failure to submit all required information to the
Department may result in delay of payment.
(d) If the court issues an order denying eligibility based on an
application submitted by the Department, the Department will notify the
claimant. The Department may decide to appeal a ruling by a district
court denying the Department's motion to establish a claimant's
eligibility for defined monetary assistance. The Department will make
reasonable efforts to consult with the claimant (and the claimant's
authorized representative, if applicable) on the issue of appeal.
Sec. 81.58 Signatures and certifications.
A request to the Department will be deemed submitted when it is
submitted online at the Department's website for this program; or, as
provided in accordance with Sec. 81.54, consistent with the
instructions on the request form. By submitting the request, the
claimant (or, if submitted by an authorized representative, the
authorized representative) acknowledges and certifies as to each of the
following:
(a) Veracity of request. The claimant certifies, under oath,
subject to penalty of perjury or in a manner that meets the
requirements of 28 U.S.C. 1746, that the information provided in the
request and any documents submitted in support of the request are true
and accurate to the best of the claimant's knowledge, and the claimant
agrees that any defined monetary assistance paid from the Reserve is
expressly conditioned upon the truthfulness and accuracy of the
information and documentation submitted in support of the request.
Where a claimant is represented by an authorized representative, that
representative must have authority to certify the request on behalf of
the claimant.
(b) Potential criminal penalties. The claimant understands that
false statements or claims made in connection with the request may
result in fines, imprisonment, and any other remedy available by law to
the Federal Government, including fines and
[[Page 36524]]
imprisonment as provided in 18 U.S.C. 1001 and treble damages and civil
penalties under the False Claims Act, 31 U.S.C. 3729, et seq. Requests
that appear to be potentially fraudulent or to contain false
information will be forwarded to Federal, state, and local law
enforcement authorities for possible investigation and prosecution.
(c) Limitation on attorney fees. If a claimant is represented by
counsel, no attorney shall charge, receive, or collect any payment of
fees and costs that in the aggregate exceeds 15 percent of any defined
monetary assistance paid on such application. An attorney who violates
this provision is subject to fine, imprisonment of up to one year, or
both.
Sec. 81.59 Privacy.
The Department will not disclose to the public the names of the
claimants (or their authorized representatives) who have requested
defined monetary assistance from the Reserve under this program, except
as necessary to process a request or application or pursuant to law or
court order.
Dated: May 24, 2023.
Merrick B. Garland,
Attorney General.
[FR Doc. 2023-11637 Filed 6-2-23; 8:45 am]
BILLING CODE 4410-14-P
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</html>Indexed from Federal Register on June 5, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.