`[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 [www.gpo.gov]
[FR Doc No: 2024-26679]


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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.

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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\
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    \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.
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    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: https://www.justice.gov/DMAVR.
    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:
     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

[[Page 92795]]

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 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.
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    \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.
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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

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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: https://ovc.ojp.gov/help-for-victims/help-in-your-state.
    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, https://www.oed.com/view/Entry/36263 (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`