Implementing the Child Pornography Victims Reserve, 36516-36524 [2023-11637]

Agencies

• Department of Justice

[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 [www.gpo.gov]
[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.
     Federal Rulemaking Portal (preferred): https://www.regulations.gov. Follow the website instructions for submitting 
comments.
     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 
www.regulations.gov. 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 www.regulations.gov 
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 https://www.regulations.gov. 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:
     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.
     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.
     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.
     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, https://www.oed.com/view/Entry/36263 (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