Rule2024-26679
Implementing the Child Pornography Victims Reserve
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 25, 2024
Effective
November 25, 2024
Issuing agencies
Justice Department
Abstract
This final rule finalizes with changes the Notice of Proposed Rulemaking ("NPRM") published by Department of Justice ("Department" or "DOJ") to implement the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, which established the Child Pornography Victims Reserve to provide defined monetary assistance to eligible individuals who are depicted in child pornography that is the basis for certain convictions.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 227 (Monday, November 25, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 227 (Monday, November 25, 2024)]
[Rules and Regulations]
[Pages 92794-92804]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-26679]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 81
[Docket No. CRM 120; AG Order No. 6090-2024]
RIN 1105-AB57
Implementing the Child Pornography Victims Reserve
AGENCY: Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule finalizes with changes the Notice of Proposed
Rulemaking (``NPRM'') published by Department of Justice
(``Department'' or ``DOJ'') to implement the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018, which established the Child
Pornography Victims Reserve to provide defined monetary assistance to
eligible individuals who are depicted in child pornography that is the
basis for certain convictions.
DATES: This final rule is effective November 25, 2024.
FOR FURTHER INFORMATION CONTACT: Catherine Pierce, Senior Advisor,
Office for Victims of Crime, 810 7th Street NW, Rm. 2246, Washington,
DC 20531, telephone (202) 307-6785 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Executive Summary
Congress 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 under chapter 110 of title 18. The Amy, Vicky, and
Andy Child Pornography Victim Assistance Act of 2018 (``the AVAA'' or
``the Act''), 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 final rule, will make a
payment from the Reserve to such child pornography victims based on
orders obtained in United States district courts.\1\
---------------------------------------------------------------------------
\1\ This rule uses the term ``child pornography,'' instead of
the currently preferred term ``child sexual abuse material,'' to
match the language used in the Act. To avoid using the term ``child
pornography'' in resource and application materials directed to
potential claimants, however, the Department will describe the Child
Pornography Victims Reserve established by the Act as the ``Defined
Monetary Assistance Victims Reserve'' in such resource and
application materials.
---------------------------------------------------------------------------
The Department published an NPRM on June 5, 2023, Implementing the
Child Pornography Victims Reserve, 88 FR 36516, proposing to implement
the AVAA, and received public comments.
The Department is now issuing this final 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 final rule outlines procedures for persons to
request to apply through the Department for a court order determining
eligibility and directing payment of defined monetary assistance. It is
not intended to limit how a claimant might seek an order for defined
monetary assistance directly from a court.
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 under 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 (or an
authorized representative, if applicable) 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: <a href="https://www.justice.gov/DMAVR">https://www.justice.gov/DMAVR</a>.
The final rule also sets forth procedures by which persons may
submit requests to the Department, including 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 final 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 of 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.
II. 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 child pornography. See 18 U.S.C. 2259. Restitution is
imposed upon an individual criminal defendant by a Federal court in
connection with 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
[[Page 92795]]
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 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 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 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,
obtain a one-time payment of defined monetary assistance, or both,
depending on the circumstances. 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 Part IV of this preamble.
[[Page 92796]]
III. Discussion of Comments Received on the NPRM
Notice of the proposed rule was published in the Federal Register
on June 5, 2023. Before the comment period closed on August 4, 2023,
comments were received from 11 commenters.\2\ These comments were
largely supportive of the rule and focused primarily on seeking
additional information about how the Department plans to implement the
rule. The Department has made a few amendments to the rule in response
to some of the comments. The Department also amended Sec. 81.55(c) to
clarify that claimants should not submit videos, in addition to not
submitting images, of child pornography as supporting information
because transmitting videos of child pornography could also potentially
violate Federal law. A discussion of comments received, and the
Department's responses, follows.
---------------------------------------------------------------------------
\2\ The Department also received one web submission from a
person who indicated that the person's comment was included as an
attachment. No attachment was included, however, and the Department
did not receive any response from the submitter after inquiring
about the apparently missing attachment.
---------------------------------------------------------------------------
A. Comment From the Administrative Office of the United States Courts
(``AO'')
1. The AO stated that the proposed rule does ``not provide
specifics as to the information the Department will require victims to
provide as part of th[e] application process'' and does ``not address
how the applications will be presented to the courts for a
determination of eligibility.'' Another commenter similarly stated that
the rule should provide that the Department's website contain certain
specified information and be accessible for at least 30 days before
``program commencement.''
Response. The proposed rule stated that the Department, through its
website, will set out the specific information that a claimant will be
required to submit. The Department declines to amend the rule to
require that the website be accessible for 30 days before requests for
applications to a court can be submitted, given uncertainty about the
time it will take to build the new website and portal; requiring a
fixed amount of time before submission of requests would delay the
ability of eligible victims to submit their requests through the
Department if they choose to do so. The Department will address how
applications will be presented to the courts through internal guidance.
The Department anticipates that it and the AO will continue to
collaborate on the implementation of the Reserve.
B. Comments From the National Center for Missing & Exploited Children
(``NCMEC'')
1. NCMEC stated that the proposed rule is ``largely silent . . .
regarding the timing and details of the process for when DOJ will
present a victim's claim for payment to a federal court'' and that,
absent more specific deadlines or assurances of promptness, the
Department's process may be delayed, which would in turn impede victims
from obtaining payment. Two commenters stated that the proposed rule
should contain specific time limitations by which the Department will
act in connection with a claimant's request for payment from the
Reserve.
Response. The statute does not provide any deadline or limitations
period for submitting a claim for defined monetary assistance to a
court. The Department likewise declines to impose a deadline or
limitations period on itself because it lacks sufficient information at
this time to do so. It does not know, for example, the number of
individuals who will request that the Department apply for an order of
defined monetary assistance, the number of claims that will be pending
in court at any given moment, or the extent to which the Department
will need to adopt additional internal measures to ensure that only
those individuals determined by a court to be eligible for payment
under the statute receive such payment. The Department does, however,
commit itself to taking reasonable measures to ensure prompt payment to
eligible individuals. Moreover, and in any event, the procedures set
forth in this rule do not limit a claimant's ability to request an
order for defined monetary assistance directly from a court.
2. NCMEC stated that the proposed rule does ``not provide any
details or even basic descriptions of what actual information a
survivor will be required to submit to DOJ to support a claim.''
Relatedly, NCMEC stated that the proposed rule should make clear that
although a victim can fairly be required to provide some information in
support of a claim for payment from the Reserve, ``the research and
effort needed to draft a suitable federal court submission in this
situation remains DOJ's responsibility.''
Response. A court will ultimately determine what information is
necessary to support a claim for defined monetary assistance, and this
rule does not limit a claimant's ability to request an order for
defined monetary assistance directly from a court. If a claimant
requests that the Department submit an application for an order for
defined monetary assistance on the claimant's behalf, and the
Department determines under the procedures set forth in this rule that
it will do so, the Department will use reasonable efforts to facilitate
the submission of the application to the court. In general, where the
Department is presenting an application to a court to determine a
claimant's eligibility, the research and drafting of the court
submission remains the responsibility of the Department attorney
representing the Government. However, the claimant is responsible for
providing the information to support their claim and for providing
responses to follow-up requests for information from the Department.
The proposed rule requested comment on the appropriate criteria to
be included in the claim form and noted that, to enable the Department
to collect information from claimants to facilitate applications to
courts and payments from the Reserve, the Department would submit an
information collection request and publish a notice of a new Privacy
Act system of records upon publication of the final rule. 88 FR at
36521. These procedural requirements are set forth by law, and the
Department declines to change the rule to provide for a different
process. Following this process, the Department anticipates posting a
``claim form'' on its website that will allow claimants (1) to request
that the Department present an application to the court or (2) if a
claimant already has a court order determining eligibility and
directing payment, to provide the information necessary for the
Department to facilitate that payment.
The proposed rule further explained that the Department's website
will set forth the information that a claimant will be required to
submit to the Department in furtherance of a claim for payment from the
Reserve. Because the information required may be modified by the
courts, the Department needs the flexibility to update its claim form
in response to case law as it develops. And because the Department
believes that the website will be sufficient to provide appropriate
information to claimants, no change will be made to the rule in that
respect. The Department notes that, in general, it will collect
information to establish the identity of the claimant, the basis for
the claim for eligibility for defined monetary assistance, the identity
and authority of the person submitting the form, and the identity of
any attorney representing the claimant
[[Page 92797]]
or person submitting the form, if applicable.
3. NCMEC stated that the proposed rule should contain ``more
specific and concrete language . . . about the efforts'' the Department
will take to ensure a claimant's privacy. Another commenter also
expressed concerns about protections for claimant privacy.
Response. In response to this comment, the Department is revising
the final rule to state that the Department will not publicly disclose
any claimant's personally identifiable information, except as necessary
to process a request or as required by law or court order. More
generally, the Department will undertake to protect all victims'
privacy consistent with applicable laws, rules, and Department policies
and procedures. See, e.g., 18 U.S.C. 3509(d)(1) (providing for
confidentiality of information that discloses the name or any other
information concerning a child); 18 U.S.C. 3771(a)(8) (stating victims'
right to be treated with respect for privacy); see also 5 U.S.C. 552a
(Privacy Act).
4. NCMEC stated that the proposed rule ``contain[s] no indication
of how DOJ will interpret constitutional and statutory disclosure
obligations to defendants or whether disclosure of victim information
will be handled differently if a claim is submitted to the court after
a defendant has already been sentenced.''
Response. The AVAA establishes an entitlement to defined monetary
payment to a victim of a ``defendant who was convicted of trafficking
in child pornography.'' 18 U.S.C. 2259(d)(1)(B). The Department
interprets the conviction component of this requirement to mean a final
judgment of conviction, after sentencing, although the Department may
submit an application for an order of defined monetary assistance for
the court to decide in conjunction with a defendant's sentencing. The
Department does not anticipate handling victim information differently
based on whether a defendant has been sentenced. Moreover, the
Department cannot opine in advance on how a particular constitutional
or statutory provision will apply to the facts of a specific case. The
Department will, however, abide by all constitutional and statutory
disclosure obligations and, as noted above, protect all victims'
privacy consistent with applicable laws, rules, and Department policies
and procedures.
5. NCMEC stated that the proposed rule should require the
Department to ``submit any facially valid application'' to the court
and ``leave it to the court alone to make'' eligibility determinations.
Response. The Department declines to modify the rule as suggested.
Because the Department is obligated to administer the Reserve in a
manner consistent with the AVAA and other applicable law, the
Department declines to adopt a requirement that it submit any facially
valid application. Instead, the Department will take reasonable steps
to ensure that defined monetary assistance is paid only to claimants
who qualify for payment under the statute, and it will determine
whether to support a claimant's application accordingly. Moreover, the
procedures set forth in this rule do not limit a claimant's ability to
request an order for defined monetary assistance directly from a court.
In addition, the AVAA establishes, and the rule already provides, that
courts have the sole authority to determine whether an individual is
entitled to payment under the statute.
C. Other Comments
1. One commenter stated that the proposed rule should provide that
the Department must seek to obtain an order of payment within 90 days
after the claimant's request is complete, absent extraordinary
circumstances.
Response. Due to uncertainty regarding the number of individuals
who will request that the Department apply for payment, the number of
claims that will be pending at any given moment, and the Department's
need to ensure that only those individuals determined by a court to be
eligible for payment under the statute receive such payment, the
Department has decided not to impose specific timelines on itself. The
Department does, however, commit itself to taking reasonable measures
to ensure prompt payment to eligible individuals.
2. One commenter suggested that the proposed rule make clear that
victims of open or closed (or ``completed'') cases are entitled to seek
payment and that the Department will consider both open and closed or
``completed'' cases in determining the claimant's eligibility for
payment.
Response. The statute does not distinguish between victims in open
and closed cases. The Department has revised the final rule to clarify
that victims of open or closed cases are eligible to seek payment under
the statute. Although victims in open or closed cases may request that
the Department apply for a court order of payment from the Reserve, the
requirements for eligibility for payment are established by statute,
and satisfaction of those requirements are determined by a court. One
of the requirements for eligibility is that the claimant is a victim of
a defendant who has been convicted of trafficking in child pornography.
3. One commenter stated that the proposed rule should make clear
that if the Department determines that it will recommend against
payment to a claimant, the Department: (1) will give the claimant at
least 14 days advance notice before informing the court of its
position; (2) will meet and confer with the claimant and give
meaningful consideration to the claimant's concerns; and (3) will, if
the Department maintains its position, inform the claimant that the
claimant can seek payment through the court independent of the
Department.
Response. The Department has revised the final rule to clarify that
if the Department determines that it will recommend against the court
ordering payment, the Department will make reasonable efforts to inform
the claimant (or the claimant's authorized representative, if
applicable) of that recommendation prior to providing that
recommendation to the court. However, due to uncertainty regarding the
number of individuals who will request that the Department apply for
payment, the number of claims that will be pending at any given moment,
and the Department's need to ensure that only those individuals
determined by a court to be eligible for payment under the statute
receive such payment, the Department cannot commit itself to acting
within a prescribed time limit. A claimant may submit a new application
to the Department to correct shortcomings in an earlier application, so
long as the new application contains material, additional information
supporting the claimant's eligibility for defined monetary assistance.
A claimant may also choose to present an application without proceeding
through the Department under this final rule.
4. Two commenters stated that the proposed rule should make clear
that payment can be paid to a claimant's representative. One of those
commenters further offered that the rule should state what documentary
evidence is required for the Department to deem a representative
``authorized.''
Response. The Department has revised the final rule to clarify that
payment can be made to a victim's authorized representative, where
appropriate. See 18 U.S.C. 2259(c)(4) (``In the case of a victim who is
under 18 years of age, incompetent, incapacitated, or deceased, the
legal guardian of the victim or representative
[[Page 92798]]
of the victim's estate, another family member, or any other person
appointed as suitable by the court, may assume the crime victim's
rights under this section.''). The Department's website will provide
information concerning the types of documentation that will suffice to
prove that a representative is ``authorized.''
5. One commenter stated that the proposed rule should, at least
with respect to claims supported by a verified Federal judgment or
restitution order, provide for a ``presumption of eligibility''
regarding those claims.
Response. The statute establishes the criteria for eligibility and
does not include a presumption of eligibility. A court ultimately
determines whether a claimant is eligible.
6. One commenter stated that the proposed rule should make clear
``that criminal restitution or civil damages amounts collected before
submitting a claim . . . need not be deducted from the defined monetary
assistance remitted to the claimant.''
Response. The AVAA contains provisions outlining the relationship
between payment from the Reserve and payment in the form of
restitution. See 18 U.S.C. 2259(d)(2)-(3). Section 2259(d)(2)(C)
specifies that the amount a victim received in defined monetary
assistance must be deducted from the total amount of losses
subsequently sought in restitution. The Department has added a
statement in the rule to make it clear that this statutory deduction
applies only to restitution sought after a victim receives defined
monetary assistance. The amount of restitution received need not be
deducted from the amount of defined monetary assistance. Once a victim
has collected restitution in an amount greater than the amount of
defined monetary assistance, however, the victim would be ineligible
for defined monetary assistance in any amount.
Regarding amounts received before the receipt of defined monetary
assistance, section 2259(d)(3) provides that ``[a] victim who has
collected payment of restitution pursuant to this section in an amount
greater than the amount [of defined monetary assistance] shall be
ineligible to receive defined monetary assistance.'' In preparing this
final rule, the Department determined that the discussion regarding
this provision in the preamble of the NPRM, see 88 FR at 36519, was
incorrect because it assumed that a victim who received restitution in
an amount equal to the amount of defined monetary assistance would be
ineligible to seek defined monetary assistance. This assumption is
incorrect because the statute provides for ineligibility only if the
victim has collected restitution in an amount ``greater than'' the
amount of defined monetary assistance. The Department clarifies here
that the examples in the preamble of the NPRM were inaccurate and that
a victim who has received restitution in an amount less than or equal
to the amount of defined monetary assistance may continue to seek the
full amount of defined monetary assistance.
7. One commenter stated that the proposed rule should clarify
``all'' potential reasons that the Department might cite as a basis to
decline a request for payment.
Response. The Department is committed to taking reasonable measures
to ensure that eligible claimants receive payment from the Reserve,
consistent with the statute. Because the Department is unable to
predict all possible requests that it might receive, the Department
declines to provide an exhaustive list of reasons why the Department
would decline a request to support an application for payment.
Moreover, only a court, not the Department, can order, or decline to
order, payment to a claimant.
8. One commenter stated that the proposed rule should make clear
that funds paid out from the Reserve ``ought not be considered taxable
income as a matter of public policy.''
Response. The Department does not have the authority to determine
what is considered taxable income. The Internal Revenue Code defines
income and provides specific items that are excluded from income. As a
general rule, unless a payment or benefit is specifically excluded, it
is considered income.
9. One commenter stated that claimants may have a difficult time
submitting the necessary documentation to the Department and
recommended that the rule ``give greater deference to delaying the
adjudication of requests than the returning of them.''
Response. The Department is committed to taking reasonable measures
to ensure that eligible victims receive payment from the Reserve,
consistent with the statute. In that respect, the Department is
committed to working with claimants to obtain missing information
before returning a request to them. The rule provides that the
Department will make ``reasonable efforts'' to request missing
information from a claimant and will make ``reasonable efforts'' to
identify a Federal criminal case in which a claimant's application
might be submitted. The Department under the rule accordingly has
discretion to determine, based on the claimant's circumstances, whether
to delay the return of an application to allow a claimant additional
time to submit documentation. If, however, after reasonable efforts,
the Department is unable to obtain the necessary information or
identify such a case, it cannot present the claimant's application to a
court and will return the request to the claimant. The Department does
not ``adjudicate'' the application in doing so. Neither this rule nor
the Department's return of a request limits the claimant's ability to
present an application to a court. Moreover, a claimant may submit a
new application to the Department to correct shortcomings in an earlier
application, so long as the new application contains material,
additional information supporting the claimant's eligibility for
defined monetary assistance.
10. One commenter recommended that the Department inform victims of
their right potentially to obtain compensation from ``their particular
state jurisdiction.''
Response. The Department declines to amend the rule to include
information about other sources of compensation because this rule
focuses on defined monetary assistance. The Department already provides
information about other victim compensation and assistance on its
website: <a href="https://ovc.ojp.gov/help-for-victims/help-in-your-state">https://ovc.ojp.gov/help-for-victims/help-in-your-state</a>.
11. One commenter stated that the proposed rule should require the
creation of a system ``to notify potential claimants'' of their
``potential eligibility'' for payment.
Response. The Department declines to amend the rule to require
creation of a notification system. The AVAA does not provide for the
creation of such a system, and the Department does not possess the
information necessary to set up a system of that nature. For example,
the Department does not regularly track restitution payments and thus
would not know whether a claimant has already received more than the
amount of defined monetary assistance in restitution, which would make
the claimant ineligible under the statute. Moreover, a court, not the
Department, determines whether a claimant is eligible.
IV. 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
[[Page 92799]]
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 has established the process set forth in this final rule to
allow claimants to request that the Department facilitate obtainment of
the requisite district court order for the victim.
A. Request and Review Process
This final rule is designed to assist claimants in obtaining court
determinations of eligibility for payment of defined monetary
assistance from the Reserve. As discussed more fully below, defined
monetary assistance is distinct from court-ordered restitution.
Under the final rule, claimants may choose to request that the
Department present an application to a court for the court's
determination of eligibility for defined monetary assistance. 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 or videos of child pornography. A request is complete where it
is supported by all information required by the claim 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 a visual depiction of the claimant was involved. The
Department will consider any cases 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
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 application 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. If the Department determines that it will recommend
against the court ordering payment, the Department will make reasonable
efforts to inform the claimant (or the claimant's authorized
representative, if applicable) of such recommendation prior to any
presentation of the claimant's application to the court.
In the event that the Department disagrees with the court's
eligibility determination, the Department may decide to seek appellate
review of a ruling by a district court regarding the claimant's
eligibility for defined monetary assistance. The Department will make
reasonable efforts to consult with the claimant (or the claimant's
authorized representative, if applicable), on the issue of seeking
appellate review.
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 appellate
review is taken or such appellate review 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 material, 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 (or an authorized representative, if applicable) 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 deceased
claimants for whom defined monetary assistance is sought from the
Reserve, or their personally identifiable information, except as
necessary to
[[Page 92800]]
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 may be introduced in a Federal criminal proceeding where the
amount of the victim's losses is at issue.
In Department filings, the Department will protect the
confidentiality of names and other personally identifiable information,
including by submitting filings under seal, consistent with applicable
law, rules, and Department policies and procedures.
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 or equal to the amount of defined
monetary assistance (i.e., less than or equal to $35,000, adjusted for
inflation as of the date of application and 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 July 22, 2024) (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
greater than 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 victim
collects more than $35,000 (inflation-adjusted) in restitution. 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 concerning the amount of recovery collected pursuant to 18 U.S.C.
2259. See 18 U.S.C. 2259(b)(2)(C), (d)(2)(C). Collection of forms of
monetary recovery other than restitution, such as from a civil suit,
does not affect a victim's eligibility for defined monetary assistance.
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 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
subsequently 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 eligible ``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 Final 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 section 81.52, the term has the statutory
definition at 18 U.S.C. 2256, 2259, 2259A, or 2259B.
Section 81.53 provides certain requirements for eligibility for a
[[Page 92801]]
payment from the Reserve, including burden of proof and eligibility
exclusions, and specifies the effect of collecting defined monetary
assistance on later requests for restitution.
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 and other personally identifiable
information during the course of the request process.
V. Regulatory Analyses
A. Administrative Procedure Act
This final 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 believed that comments from the public
would be useful in developing these regulatory changes. Consequently,
on June 5, 2023, 88 FR 36516, the Department published a notice of
proposed rulemaking and solicited public comments on this matter. The
comments received and the Department's responses thereto are set forth
in Part III above.
B. Executive Orders 12866, 13563, and 14094 (Regulatory Review)
This final rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation; in accordance with Executive Order
13563, ``Improving Regulation and Regulatory Review,'' section 1(b),
General Principles of Regulation; and in accordance with Executive
Order 14094, ``Modernizing Regulatory Review''.
This final rule is not a ``significant regulatory action'' under
section 3(f) of Executive Order 12866. The rule 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 final rule making any changes to those standards.
As set forth in the cost-benefit analysis below, this final rule
will not have the economic effects described in section 3(f)(1) of
Executive Order 12866.
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 distributed 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 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 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.
[[Page 92802]]
F. Paperwork Reduction Act of 1995
This final 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 for review and clearance in accordance with the
procedures of the Paperwork Reduction Act of 1995.
G. Privacy Act of 1974
The Department 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).
H. Severability
It is the Department's intent that if any provision of this 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
workable and 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, and for the reasons stated in the preamble, 28
CFR part 81 is amended as follows:
PART 81--CHILD ABUSE AND CHILD PORNOGRAPHY REPORTING DESIGNATIONS
AND PROCEDURES, AND CHILD PORNOGRAPHY VICTIMS RESERVE
0
1. The authority citation for part 81 continues to read as follows:
Authority: 28 U.S.C. 509, 510; 42 U.S.C. 13031, 13032.
0
2. Revise the heading for part 81 to read as set forth above.
Sec. Sec. 81.1 through 81.5 [Designated as Subpart A]
0
3. Designate Sec. Sec. 81.1 through 81.5 as subpart A.
0
4. Add a heading for newly designated subpart A to read as follows:
Subpart A--Child Abuse and Child Pornography Reporting Designations
and Procedures
Sec. Sec. 81.14 through 81.50 [Added and Reserved]
0
5. Amend subpart B by adding and reserving Sec. Sec. 81.14 through
81.50.
0
6. Add 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 representative of an
estate.
81.57 Request and order processing.
81.58 Signatures and certifications.
81.59 Privacy.
Authority: 18 U.S.C. 2259, 2259A, 2259B; 28 U.S.C. 509, 510; 34
U.S.C. 20101(d), 20341.
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 authority of the Department of
Justice (``the Department'') 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 (or an authorized representative, if applicable)
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). The Department may also refer to the Reserve
as the Defined Monetary Assistance Victims Reserve.
(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, ask the
claimant (or the claimant's authorized representative, if applicable)
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
[[Page 92803]]
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. An
appropriate case may be an open or closed case. 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, in accordance with 18 U.S.C.
2259(d)(1)(D).
(c) Payment. The Department shall pay to the victim (or the
victim's authorized representative, if 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 18 U.S.C. chapter 110, 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).
(e) Effect on restitution. If a victim has received defined
monetary assistance and, after receiving that defined monetary
assistance, seeks restitution, the amount the victim received in
defined monetary assistance must be deducted when determining the full
amount of the victim's losses for purposes of restitution. See 18
U.S.C. 2259(d)(2)(C).
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. If the Department has already returned the request to the
claimant, the claimant may submit a new request, so long as such
request contains material, additional information supporting the
claimant's eligibility for defined monetary assistance.
(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. The Department's
website will provide instruction about what information is required in
support of a claim. 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.
(c) To avoid a potential violation of Federal law, claimants (or
authorized representatives, if applicable) shall not send images or
videos 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
deceased claimant 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 deceased 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 are 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 deceased
claimant; to the executor, administrator, and beneficiaries of the
deceased claimant'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
deceased claimant.
(2) Personal delivery or transmission by certified mail, return
receipt requested, shall be deemed sufficient notice under this
subpart. The
[[Page 92804]]
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
deceased claimant 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 the claimant (or authorized
representative, if applicable) to resolve any gaps in the request's
supporting information.
(b) The Department will then use reasonable efforts to identify an
open or closed 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 (or the claimant's
authorized representative, if applicable). 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. If the Department
determines that it will recommend against the court ordering payment,
the Department will make reasonable efforts to inform the claimant (or
the claimant's authorized representative, if applicable) of such
recommendation prior to any presentation of the application to the
court.
(c) If a court issues an order requiring payment to any claimant,
the Department will process payment of defined monetary assistance to
the claimant or, where appropriate, to the claimant's authorized
representative, 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 (or the claimant's authorized representative, if applicable).
The Department may decide to seek appellate review of a ruling by a
district court regarding a claimant's eligibility for defined monetary
assistance. The Department will make reasonable efforts to consult with
the claimant (or the claimant's authorized representative, if
applicable) on the issue of appellate review.
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 claim 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 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 may 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, if applicable) who have
requested defined monetary assistance from the Reserve under this
program, or their other personally identifiable information, except as
necessary to process a request or application or pursuant to law or
court order.
Dated: November 8, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-26679 Filed 11-22-24; 8:45 am]
BILLING CODE 4410-14-P
</pre></body>
</html>Indexed from Federal Register on November 25, 2024.
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.