`[Federal Register Volume 90, Number 12 (Tuesday, January 21, 2025)]
[Proposed Rules]
[Pages 6879-6894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-01159]


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DEPARTMENT OF JUSTICE

28 CFR Part 95

[Docket No. OAG 182; AG Order No. 6144-2025]
RIN 1105-AB70


Homicide Victims' Families' Rights Act

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice is proposing a rule to implement the 
Homicide Victims' Families' Rights Act of 2021. The proposed rule would 
explain and effectuate the Act's system for reviewing and, as 
warranted, reinvestigating murders investigated by Federal law 
enforcement agencies that remain unsolved after three years.

DATES: Written and electronic comments must be sent or submitted on or 
before March 24, 2025. Comments received by mail will be considered 
timely if they are postmarked on or before the last day of the comment 
period. The electronic Federal Docket Management System will accept 
electronic comments until midnight eastern time at the end of that day.

ADDRESSES: Comments may be mailed to Regulations Docket Clerk, Office 
of Legal Policy, U.S. Department of Justice, 950 Pennsylvania Avenue 
NW, Room 4234, Washington, DC 20530. To ensure proper handling, please 
reference RIN 1105-AB70 or Docket No. OAG 182 on your correspondence. 
You may submit comments electronically or view an electronic version of 
this proposed rule at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office 
of Legal Policy, U.S. Department of Justice, Washington, DC, 202-514-
3273.

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Posting of Public Comments. Interested persons are invited to 
participate in this rulemaking by submitting written data, views, or 
arguments on all aspects of this rule via one of the methods and by the 
deadline stated above. The Department of Justice (``Department'') also 
invites comments that relate to the economic, environmental, or 
federalism effects that might result from this rule. Comments that will 
provide the most assistance to the Department in developing these 
procedures will reference a specific portion of the 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 http://www.regulations.gov. Such information includes personally identifying 
information (``PII'') (such as your name, address, etc.).
    Interested persons are not required to submit their PII in order to 
comment on this rule. However, any PII that is submitted is subject to 
being posted to the publicly accessible website at http://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 on 
http://www.regulations.gov.
    Confidential business information identified and located as set 
forth above will not be placed in the public docket file. 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 http://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 Homicide Victims' Families' Rights Act of 2021 (``Act'' or 
``HVFRA''), which was enacted on August 3, 2022, Public Law 117-164, 
136 Stat. 1358, provides a system for the review of case files, and for 
carrying out further investigation as warranted, in murder cases 
investigated by Federal law enforcement agencies that have gone 
unsolved for over three years. The general objective of the Act is to 
facilitate the identification of the perpetrators of these ``cold 
case'' murders and thereby help to bring the perpetrators to justice 
and provide closure for the victims' families.
    The Act specifically provides for carrying out case file reviews in 
cold case murder investigations on application by certain family 
members of the victim, and for further investigation if the case file 
review concludes that a full reinvestigation would result in probative 
investigative leads. The Act also directs the collection and 
publication of statistics on the number of cold case murders and 
reports to the House and Senate Judiciary Committees on the operation 
and results of the system established by the Act.
    This proposed rule would add a new part 95 to title 28 of the Code 
of Federal Regulations to implement the Act. The new part would explain 
the Act's requirements and key concepts, and it would specify 
assignments of responsibility and procedures to ensure that the Act is 
effectively carried out.

III. Legal Authority

    The Department of Justice is issuing this rule pursuant to the 
HVFRA and the authority of the Attorney General under Executive Order 
11396, 33 FR 2689 (Feb. 7, 1968).

[[Page 6880]]

IV. Section-by-Section Analysis

    The proposed rule would provide a statement of purpose in Sec.  
95.1 and define key terms in Sec.  95.2. Section 95.3 would explain 
what is required in cold case murder file reviews. Section 95.4 would 
set out procedures for victims' family members to apply for file 
reviews and for action on the applications by the responsible 
investigative agencies. Section 95.5 would explain the Act's 
requirements relating to full reinvestigations. Section 95.6 would 
direct that case file reviews and reinvestigations be carried out in a 
cohesive manner when multiple agencies are involved. Section 95.7 would 
address consulting with and informing applicants, and keeping them up 
to date about case file reviews and reinvestigations. Section 95.8 
would articulate the Act's timing rules for successive applications. 
Sections 95.9, 95.10, and 95.11 would address the Act's requirements 
relating to compliance, data collection, and annual reports. Section 
95.12 would incorporate a provision of the Act that allows the 
withholding of information whose disclosure would have serious adverse 
effects or be unlawful. More detailed descriptions of these provisions 
follow.

A. Section 95.1--Purpose

    The Act creates a system for reviewing and, as warranted, 
reinvestigating murder cases previously investigated by Federal 
agencies in which ``all probative investigative leads have been 
exhausted'' and ``no likely perpetrator has been identified'' after 
three years, HVFRA 12(6), upon application by certain persons. Section 
95.1 would state this general purpose of the Act in terms similar to 
the Act's full title (``To provide for a system for reviewing the case 
files of cold case murders at the instance of certain persons, and for 
other purposes.'').

B. Section 95.2--Definitions

1. Paragraph (a)--Designated Person
    Section 95.2(a) would define ``designated person'' for purposes of 
the Act, which refers to the class of individuals who may apply for 
cold case murder reviews. Section 12(1) and (2) of the Act state that 
the term includes an ``immediate family member,'' defined to mean a 
parent, parent-in-law, grandparent, grandparent-in-law, sibling, 
spouse, child, or step-child of a murder victim, and ``someone 
similarly situated'' to an immediate family member, ``as defined by the 
Attorney General.'' While the express statutory definition of immediate 
family member includes a parent, child, or step-child, it does not 
include a step-parent. Pursuant to the Attorney General's authority 
under section 12(1) of the Act, Sec.  95.2(a) would define ``designated 
person'' to include a step-parent, as a person ``similarly situated'' 
to a parent, in addition to immediate family members as defined in the 
statute.
2. Paragraph (b)--Victim
    Section 95.2(b) of the proposed rule, as provided in section 12(3) 
of the Act, would define ``victim'' to mean a natural person who died 
as a result of a cold case murder.
3. Paragraph (c)--Murder
    Section 95.2(c) of the proposed rule would implement section 12(4) 
of the Act, which defines ``murder'' to mean ``any criminal offense 
under section 1111(a) of title 18, United States Code, or any offense 
the elements of which are substantially identical to such section.''
    Section 1111 of title 18 of the United States Code is the Federal 
murder offense that applies directly in cases arising in the special 
maritime and territorial jurisdiction of the United States, which 
includes Federal lands and facilities as provided in 18 U.S.C. 7(3). 
The first sentence of section 1111(a) defines ``murder'' as ``the 
unlawful killing of a human being with malice aforethought.'' Malice 
aforethought is generally understood to mean killing a person 
intentionally, knowingly, or with extreme recklessness, albeit with 
variations in the verbal formulas that courts use to explicate the 
concept. See, e.g., United States v. Begay, 33 F.4th 1081, 1091 (9th 
Cir. 2022). The second sentence of section 1111 specifies that certain 
types of murder are first-degree murder, including premeditated murders 
and murders committed in the course of other specified offenses. The 
list of predicate offenses for this purpose includes ``arson, escape, 
murder, kidnapping, treason, espionage, sabotage, aggravated sexual 
abuse or sexual abuse, child abuse, burglary, [and] robbery.'' Courts 
have interpreted the sentence in conformity with the traditional 
felony-murder doctrine, which categorically treats the specified 
offenses as involving murder if someone dies during the commission of 
the offense, without requiring any particular culpability of the 
offender with respect to resulting death. See, e.g., United States v. 
Garcia Ortiz, 528 F.3d 74, 80-81 (1st Cir. 2008); United States v. 
Tham, 118 F.3d 1501, 1508 (11th Cir. 1997).
    The inclusion of ``any criminal offense under section 1111(a) of 
title 18'' in the definition of murder in section 12(4) of the Act 
broadly brings within the scope of the Act murders committed on Federal 
lands, such as national parks and military bases. The proposed rule 
would parallel the statutory inclusion of murders that directly violate 
18 U.S.C. 1111 by providing in the first sentence of Sec.  95.2(c)(1) 
that murder ``means an offense under 18 U.S.C. 1111.''
    The second clause of the statutory definition of ``murder'' in 
section 12(4) of the Act refers to offenses whose elements are 
``substantially identical'' to section 1111(a). The first sentence of 
paragraph (c)(1) in Sec.  95.2 of the proposed rule would interpret 
this to mean other Federal offenses ``that incorporate[ ] by reference 
the elements of 18 U.S.C. 1111.'' This interpretation understands the 
``substantially identical'' language in section 12(4) of the Act to 
include offenses whose substantive elements are identical to elements 
of the substantive offense defined in 18 U.S.C. 1111(a), regardless of 
differences in jurisdictional elements. For example, the offense of 
murdering a Federal officer, in violation of 18 U.S.C. 1114(1), is 
within the scope of the HVFRA, although the basis for jurisdiction 
under 18 U.S.C. 1114 (Federal officer victim) is different from the 
basis for jurisdiction under 18 U.S.C. 1111 (special maritime and 
territorial jurisdiction).
    The requirement of substantial identity to 18 U.S.C. 1111 is 
satisfied by, and only by, offenses that appropriate the elements of 
section 1111 by cross-reference. Other Federal homicidal offenses 
(except those cross-referencing section 1111) define their elements in 
varying ways--see, e.g., 18 U.S.C. 1112 (manslaughter); 21 U.S.C. 
841(b) (up to life imprisonment for drug trafficking if death results 
from use of controlled substance)--but they are not defined to be the 
killing of a human being with malice aforethought as that concept is 
understood in section 1111. The offenses identified in Sec.  
95.2(c)(1), all of which incorporate by reference the elements of 
section 1111, provide a comprehensive compilation of the Federal 
offenses whose substantive elements match those of section 1111.
    Offenses can incorporate by reference the elements of 18 U.S.C. 
1111, and hence be ``substantially identical'' to section 1111, in 
three ways--by expressly cross-referencing section 1111, e.g., 18 
U.S.C. 1114(1); by referring to ``murder'' without further definition, 
which is understood to mean murder as defined in 18 U.S.C. 1111(a),

[[Page 6881]]

e.g., 18 U.S.C. 1153; see United States v. Antelope, 430 U.S. 641, 642-
43, 647-48 & n.9 (1977); or by referencing a broader class of crimes 
that includes 18 U.S.C. 1111, e.g., 18 U.S.C. 1152. Regardless of the 
particular way in which an offense incorporates by reference the 
elements of 18 U.S.C. 1111, offenses that satisfy this criterion are 
within the scope of the HVFRA.
    The initial language in Sec.  95.2(c)(1) includes ``an offense 
under 18 U.S.C. 1111.'' This encompasses murders committed in the 
special maritime and territorial jurisdiction of the United States, see 
18 U.S.C. 7, in which section 1111 applies directly.
    Section 95.2(c)(1)(i), which refers to 18 U.S.C. 1152 and 1153, 
confirms the Act's coverage of Indian country murders. The first 
paragraph of section 1152 says that Federal criminal laws that apply 
``in any place within the sole and exclusive jurisdiction of the United 
States . . . shall extend to the Indian Country''--the referenced 
Federal criminal laws include section 1111(a)--subject to exceptions in 
the second paragraph, such as offenses committed by Indians against 
Indians. Section 1153 reaches ``major crimes'' committed by Indians in 
Indian country, including ``murder,'' which is understood to mean 
murder as defined in section 1111(a). Section 95.2(c)(1)(i) would make 
the coverage of Indian Country murders explicit.
    Section 1114 of title 18 proscribes killings of Federal officers or 
employees performing their duties, and provides that violators shall be 
punished ``in the case of murder, as provided under section 1111.'' 
Section 1114 through this cross-reference expressly incorporates the 
elements and penalties of section 1111, satisfying in such cases the 
Act's coverage of offenses whose elements are substantially identical 
to section 1111(a). Section 95.2(c)(1)(ii) would make the Act's 
coverage of murders of Federal officers or employees in violation of 
section 1114 explicit, as well as murders of federally protected 
persons under several other provisions. The other provisions, and their 
relevant language and subdivisions that incorporate the elements of 
section 1111(a) by reference, are:
     18 U.S.C 115(b)(3) (murder under statute protecting 
certain Federal officials, former officials, and their immediate family 
members ``shall be punished as provided in section[ ] 1111'');
     18 U.S.C. 351(a) (killing of certain high level Federal 
officials ``shall be punished as provided by section[ ] 1111'');
     18 U.S.C. 1116(a) (killing of foreign official, official 
guest, or internationally protected person ``shall be punished as 
provided under section[ ] 1111'');
     18 U.S.C. 1121(a) (whoever intentionally kills a person 
aiding a Federal criminal investigation ``shall be sentenced according 
to the terms of section 1111'');
     18 U.S.C. 1503(b)(1), 1512(a)(3)(A), 1513(a)(2)(A) 
(killings under Federal obstruction of justice provisions subject to 
``the punishment provided in section[ ] 1111'');
     18 U.S.C. 1751(a) (killing of President, Vice President, 
or members of their staffs ``shall be punished as provided by section[ 
] 1111'');
     18 U.S.C. 1841(a), (b)(1) (applying section 1111 to murder 
of child in utero and applying penalties of section 1111 to intentional 
killing of child in utero under other specified provisions); and
     7 U.S.C. 2146(b); 15 U.S.C. 1825(a)(2)(C); 21 U.S.C. 
461(c), 675, 1041(b) (killing of persons while engaged in or on account 
of their performance of official duties under Federal regulatory 
schemes punishable ``as provided under section[ ] 1111'').
    Section 1119(b) of title 18, in relevant part, provides that 
killing by a U.S. national of a U.S. national who is outside the United 
States but within the jurisdiction of another country ``shall be 
punished as provided under section[ ] 1111.'' Section 2332(a)(1), 
relating to the context of terrorist murders of U.S. nationals abroad, 
provides that ``if the killing is murder (as defined in section 
1111(a))'' the perpetrator shall be ``punished by death or imprisonment 
for any term of years or for life.'' Section 95.2(c)(1)(iii) would 
expressly confirm the Act's coverage of murder offenses under these 
provisions, which proscribe killings of U.S. nationals outside of the 
United States.
    Section 95.2(c)(1)(iv) would identify other Federal murder offenses 
that satisfy the criteria for coverage by the Act. These are:
     18 U.S.C. 36(b)(2) (providing, in relation to drive-by 
shootings in the context of major drug offenses, that a killing that is 
``a first degree murder (as defined in section 1111(a))'' is punishable 
by death or imprisonment for any term of years or life and that ``a 
murder other than a first degree murder (as defined in section 
1111(a))'' is punishable by imprisonment for any term of years or 
life);
     18 U.S.C. 924(j)(1) (providing, in relation to killing 
with a firearm in a Federal crime of violence or drug trafficking 
crime, that ``if the killing is a murder (as defined in section 
1111),'' the punishment is death or imprisonment for any term of years 
or life);
     18 U.S.C. 930(c) (killings in the course of armed attacks 
in or on Federal facilities ``shall be punished as provided in section[ 
] 1111'');
     18 U.S.C. 1118 (person serving Federal life term of 
imprisonment who commits ``a first degree or second degree murder (as 
defined in section 1111)'' shall be punished by death or life 
imprisonment);
     18 U.S.C. 1120 (killing by person escaped from a Federal 
correctional institution where he was serving a life term ``shall be 
punished as provided in section[ ] 1111'');
     18 U.S.C. 1652 (U.S. citizen pirate who ``commits any 
murder . . . on the high seas . . . shall be imprisoned for life'');
     18 U.S.C. 1958 (murder for hire punishable by death or 
life imprisonment);
     18 U.S.C. 1959(a)(1) (murder in aid of racketeering 
punishable by death or life imprisonment);
     18 U.S.C. 2245 (murder in course of sex offenses 
punishable by death or up to life imprisonment);
     18 U.S.C. 3261(a) (members of, and persons accompanying, 
the armed forces who engage in conduct that would constitute a felony 
if engaged in within the special maritime and territorial jurisdiction 
of the United States--which includes murder under 18 U.S.C. 1111--shall 
be punished as provided for that offense);
     18 U.S.C. 3273(a) (certain Federal personnel stationed or 
deployed in Canada who engage in conduct that would be federally 
prosecutable had the conduct occurred within the special maritime and 
territorial jurisdiction of the United States--which includes murder 
under 18 U.S.C. 1111--shall be imprisoned as provided for that 
offense); and
     49 U.S.C. 46506(1) (individual on an aircraft in the 
special aircraft jurisdiction of the United States ``who commits an act 
that . . . if committed in the special maritime and territorial 
jurisdiction of the United States . . . would violate section . . . 
1111 . . . shall be . . . imprisoned under that section'').
    The proposed rule's definition of covered ``murder'' offenses in 
Sec.  95.2(c)(1) accords with and encompasses the types of offenses 
that the legislative history specifically references as within the 
intended scope of the Act. The Act's sponsor, Rep. Swalwell, stated 
regarding the Act: ``It also assists investigators in homicide cases 
that serve important underserved communities such as Native Americans

[[Page 6882]]

on Indian Reservations, Federal law enforcement officers killed in 
action, U.S. citizens who are murdered abroad, or homicides that take 
place on Federal land and the high seas.'' 168 Cong. Rec. H3877; see 
id. H3876 (remarks of Rep. Bentz) (``The majority of cold cases at 
issue under this bill are likely to be cases arising from Tribal 
jurisdictions.'').
    In the sponsor's statement, ``homicides that take place on Federal 
land and the high seas'' is a reference to the special maritime and 
territorial jurisdiction of the United States, see 18 U.S.C. 7, in 
which 18 U.S.C. 1111 applies directly. The prefatory language in Sec.  
95.2(c)(1), referring to ``an offense under 18 U.S.C. 1111,'' includes 
these cases. ``Native Americans on Indian Reservations'' in the 
statement refers to Indian Country cases, which are prosecuted under 18 
U.S.C. 1152 and 1153. Section 95.2(c)(1)(i), which refers to 18 U.S.C. 
1152 and 1153, confirms the Act's coverage of Indian country murders. 
``Federal law enforcement officers killed in action'' alludes to 
murders in violation of 18 U.S.C. 1114, which is included in Sec.  
95.2(c)(ii). ``U.S. citizens who are murdered abroad'' refers to the 
offenses that proscribe extraterritorial killings of U.S. nationals, 18 
U.S.C. 1119 and 2332, which are included in Sec.  95.2(c)(1)(iii).
    In addition to clarifying the types of offenses that are 
``murders'' for purposes of the Act, the proposed rule, in Sec.  
95.2(c)(2), would identify certain types of offenses that are not 
covered.
    Section 95.2(c)(2)(i) would state that murders in which the victims 
died before January 1, 1970, are not covered. This provision implements 
section 11 of the Act, which limits the Act's applicability to cold 
case murders occurring on or after January 1, 1970.
    Section 95.2(c)(2)(ii) would provide that the scope of the Act and 
the proposed rule is limited to cases involving murders in violation of 
Federal law, as opposed to offenses that violate only the laws of a 
State, the District of Columbia, or a U.S. territory. While Federal 
agencies may help State and local agencies in the investigation of non-
Federal crimes, see, e.g., 28 U.S.C. 540-540B, that does not bring 
those investigations within the scope of the Act, which is intended to 
apply ``[i]n federal cases.'' H. Rep. No. 117-280, at 6; see 168 Cong. 
Rec. H3876 (remarks of Rep. Bentz) (``[T]his bill would only apply to 
Federal cases of murder, and it wouldn't apply to murder cases 
investigated by State and local law enforcement, which are most 
cases.''). The Act was not intended to supplant the role of State and 
local law enforcement, which have primary responsibility for the 
investigation of murders under the laws of their jurisdictions and are 
best situated to review and reinvestigate cold cases involving those 
crimes; rather, the expectation was that the enactment of such a law 
for Federal cases ``will . . . serve as a crucial model for the States 
to . . . adopt a local Homicide Victims Bill of Rights.'' 168 Cong. 
Rec. H3877 (remarks of Rep. Swalwell).
    As a corollary to the limitation to cases involving Federal crimes, 
case file reviews and reinvestigation are not required in cases in 
which it has been determined that Federal jurisdiction is lacking. For 
example, suppose that a witness or informant in a Federal case is 
killed and the case is initially investigated as a possible retaliatory 
murder under 18 U.S.C. 1513. Interviews with witnesses to the incident 
show, however, that the killing resulted from the victim's provoking a 
bar fight with a stranger that turned lethal, with no connection to the 
victim's involvement in Federal proceedings. Such a case is outside the 
scope of the Act because it does not involve a murder in violation of 
Federal law.
    More broadly, Sec.  95.2(c)(2)(iii) would provide that the Act's 
scope does not include incidents in which there was no murder as 
defined in Sec.  95.2(c)(1). For example, suppose that a Federal agent 
is found dead, and the case is initially investigated as a possible 
murder in violation of 18 U.S.C. 1114 because the agent had been 
pursuing dangerous criminals who would have reason to kill him. The 
investigation is closed when a fuller examination of the evidence shows 
that the agent died of natural causes or because of an accident. Such 
cases are outside the scope of the Act because its application is 
limited to murder cases that satisfy certain criteria. See HVFRA 12(6).
    Conversely, a case may be within the scope of the Act even if it 
was not initially investigated as a murder. For example, the 
investigation may begin as a missing person case, in which it is 
uncertain whether the person is alive or dead. Or it may start as a 
case involving a fatality, but one in which the known facts are 
consistent with accidental death, suicide, or involuntary manslaughter. 
As the case progresses, however, fuller knowledge of the facts and 
circumstances indicates the commission of a murder as defined in Sec.  
95.2(c). If the other conditions defining a ``cold case murder'' are 
also satisfied, see HVFRA 12(6), such a case would be subject to the 
Act.
    The definition of ``murder'' in section 12(4) of the Act, and its 
construction in Sec.  95.2(c) of the proposed rule, also limit the 
class of Federal crimes that are subject to the Act. Beyond the 
statutes identified in Sec.  95.2(c)(1), there are many other 
provisions of Federal law that define and prescribe penalties for 
homicidal crimes. For example, 21 U.S.C. 841 prohibits producing or 
distributing a controlled substance, and it provides for imprisonment 
between 20 years and life if death results from the use of the 
controlled substance. Such provisions, though they include parts 
defining homicidal offenses, are not within the scope of the Act 
because their elements are not substantially identical to 18 U.S.C. 
1111, as required by the statutory and regulatory definition of 
``murder'' for purposes of the Act.
4. Paragraph (d)--Agency
    Section 95.2(d) of the proposed rule would track the definition of 
``agency'' in section 12(5) of the Act, which means Federal law 
enforcement entities with jurisdiction to engage in the detection, 
investigation, or prosecution of cold case murders. The proposed rule 
would explain that this definition excludes State and local law 
enforcement agencies and agencies of the District of Columbia and U.S. 
territories from the class of agencies subject to the Act.
5. Paragraph (e)--Principal Investigative Agency
    Section 95.2(e) of the proposed rule would define ``principal 
investigative agency'' to mean ``the federal investigative agency that 
had the primary responsibility for the initial investigation of a 
murder.'' Section 95.2(e) would exclude a Federal agency from this 
definition if a ``a murder was investigated by state or other non-
federal authorities and the role of federal agencies was the provision 
of investigative assistance,'' if ``a murder was investigated by a 
federal agency but thereafter state or other non-federal authorities 
assumed the primary responsibility for the investigation,'' or if the 
Federal agency is a prosecutorial agency of the Department of Justice. 
The definition would serve three purposes:
    First, more than one Federal agency may be involved in the 
investigation of a murder. The Act presupposes that the case file 
reviews and reinvestigations it requires will be carried out by the 
agency that ``conducted the initial investigation,'' as provided in 
section 10 of the Act. This is naturally understood to refer to the 
agency with the lead role in the prior investigation, as opposed to 
agencies that just assisted or played a

[[Page 6883]]

peripheral role. The agency with the lead role in the prior 
investigation logically should be responsible for receiving and acting 
on applications by family members of the victim for case file reviews. 
That agency is best situated to carry out such reviews and to undertake 
further investigation if warranted. The definition of ``principal 
investigative agency'' in the proposed rule accordingly would assign 
these functions to the Federal investigative agency that had the 
primary responsibility for the initial investigation. If it is unclear 
which of a number of Federal agencies had primary responsibility--for 
example, because different agencies had the lead role at different 
stages in the previous investigation--Sec.  95.4(c)(1) of the rule 
would make them jointly responsible for ensuring that the Act's 
requirements are carried out.
    Second, the proposed rule would make clear that the Federal 
agencies with responsibilities under the Act are Federal investigative 
agencies, as opposed to prosecutorial agencies. The prosecution of 
Federal crimes is carried out by the United States Attorneys' Offices 
and by the prosecutorial components of the Justice Department's 
litigating divisions, such as the Criminal Division and the National 
Security Division. Federal prosecutors may be involved to varying 
degrees at the investigative stage of murder cases within Federal 
jurisdiction, and they are necessarily involved where there is a need 
to secure or use legal process in the investigation, such as search 
warrants or grand jury subpoenas. Nevertheless, the functions required 
under the Act are properly carried out by investigative agencies rather 
than prosecutors, and the proposed rule would specify that the Justice 
Department's prosecutorial units are not to be considered the principal 
investigative agency in any case.
    Third, in cases in which there is concurrent State and Federal 
jurisdiction over a murder, both State and Federal authorities may be 
involved in the investigation. The question then arises whether the 
investigation was a Federal investigation, which is within the scope of 
the Act, or a State investigation, which is not. See 168 Cong. Rec. 
H3876 (remarks of Rep. Jackson Lee) (stating that the Act applies ``in 
cases investigated at the Federal level''); id. (remarks of Rep. Bentz) 
(stating that the Act ``wouldn't apply to murder cases investigated by 
State and local law enforcement'').
    The proposed rule's definition of ``principal investigative 
agency'' would provide for Federal agency responsibility where the 
Federal agency was primarily responsible for the investigation of a 
murder, but not where the investigation was pursued as a State matter 
and the role of Federal agencies was limited to providing investigative 
assistance. Federal law enforcement agencies frequently provide 
investigative assistance to their State and local counterparts, which 
may involve such measures as sharing information and intelligence, 
carrying out forensic testing and analysis, interviewing witnesses, and 
other collection of evidence and information. Federal legal process may 
also come into play, complementing and supplementing the capabilities 
of the responsible State agencies--for example, execution of Federal 
search warrants or subpoenas in places outside the State agency's 
jurisdiction, or at the early stages of an investigation that is 
ultimately pursued primarily as a State matter. The proposed rule's 
definition would make it clear that such measures in the regular 
conduct of Federal-State cooperation in criminal investigations do not 
convert State investigations into Federal investigations.
6. Paragraph (f)--Initial Investigation
    Section 95.2(f) would define ``initial investigation'' to mean 
``the investigation of a murder before it became a cold case murder.'' 
This is a technical definition that, in the context of the proposed 
rule, would assign responsibility for case file reviews and potential 
reinvestigation of a cold case murder to the agency that previously 
investigated the murder.
7. Paragraph (g)--Cold Case Murder
    Section 95.2(g) would track the definition of ``cold case murder'' 
in section 12(6) of the Act. The conditions in the definition are that 
(i) the time of the murder's commission (interpreted to mean the time 
when the victim died) was more than three years prior to the 
application for case file review, (ii) the murder was previously 
investigated by a Federal law enforcement entity, (iii) all probative 
leads have been exhausted, and (iv) no likely perpetrator has been 
identified. Murders involving multiple perpetrators in which one or 
more of them have been identified are not within the scope of the Act.
8. Paragraph (h)--Probative Leads
    Section 95.2(h) would define ``probative leads'' to mean 
``information that identifies the perpetrator or that provides a 
sufficient likelihood of enabling the identification of the perpetrator 
to warrant further investigation, in the agency's judgment and 
consistent with the agency's policies and practices regarding the use 
of investigative methods.'' This key concept in the Act determines, 
among other things, whether the results of a case file review warrant 
further investigation, and what the objective of a reinvestigation 
should be. The Act uses this term or similar phrases in a number of 
places, but with varying wording and without further definition. See 
HVFRA 2(a) (requiring case file review to determine if a full 
reinvestigation would result in ``the identification of probative 
investigative leads or a likely perpetrator''); id. (2)(b)(4) 
(requiring update of case file using the most current investigative 
standards to the extent it would ``help develop probative leads''); id. 
(2)(c) (requiring certification that ``all probative investigative 
leads have been exhausted or that a likely perpetrator will not be 
identified''); id. 4(a) (requiring reinvestigation if ``a full 
reinvestigation . . . would result in probative investigative leads''); 
id. 4(b) (requiring analysis of all evidence in a reinvestigation ``for 
the purpose of developing probative investigative leads or a likely 
perpetrator''); id. 12(6)(C) (defining ``cold case murder'' in part as 
one ``for which all probative investigative leads have been 
exhausted'').
    These provisions do not require pursuit of all possible leads, but 
only those that are ``probative.'' Determining what leads are 
``probative,'' so as to warrant further investigation, calls for 
exercises of judgment by the investigative agency. The reference to 
``probative'' leads also raises the question--probative of what?--a 
matter for which further definition is required to provide clear 
guidance to investigative agencies in discharging their 
responsibilities under the Act.
    Section 95.2(h) in the proposed rule would provide the needed 
clarification by defining this term--probative leads--to mean 
information that identifies the perpetrator, or that provides a 
sufficient likelihood of enabling the identification of the perpetrator 
so as to warrant further investigation in the agency's judgment. The 
definition is based on the contexts in which the Act uses the term or 
similar terms and the Act's general design and purpose to address and 
solve cases in which ``no likely perpetrator has been identified.'' 
HVFRA Sec.  12(6)(D). Variant terminology, ``probative investigative 
leads,'' which is used in some provisions of the Act, is understood to 
have the same meaning.
    The proposed rule's definition of ``probative leads'' also would 
specify that the agency's policies and practices

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regarding the use of investigative methods must be taken into account--
policies and practices that affect whether leads are potentially 
probative regarding the perpetrator's identity, as bearing on the 
reliability of investigative methods and what methods would actually be 
used in a reinvestigation. In the investigation of murders and other 
crimes, Federal agencies are guided and constrained by policies and 
practices that ensure the reliability and effectiveness of the methods 
utilized in the investigation, and ensure respect for legal norms and 
the privacy of persons affected by the investigation. These policies 
and practices apply in reinvestigations under the HVFRA as they do in 
other investigative contexts. To the extent that a method would not be 
utilized under the applicable policies and practices, the theoretical 
possibility of using it is not a positive factor in judging whether 
further investigation is warranted under the Act.
    For example, the legislative history of the Act emphasizes the use 
of technological improvements to solve cold cases:

    Because advances in science progress rapidly, new technology 
could have been discovered and implemented in the time since 
detectives last revisited the case. The Office of Justice Programs 
reports advancements in DNA technology are breathing new life into 
old, cold, and unsolved criminal cases. Investigators in California 
used new DNA technology to apprehend the Golden State Killer, a case 
that had remained cold for decades.

    H. Rep. No. 117-280, at 6 (internal quotation marks omitted); see 
168 Cong. Rec. H3877 (remarks of Rep. Swalwell) (``Improvements in 
technology . . . will also better equip law enforcement agencies with 
tools . . . that would assist in identifying new leads . . . to solve 
crimes'').
    As the Committee Report notes, H. Rep. No. 117-280, at 6, the 
emergence and progressive development of DNA identification technology 
has revolutionized the investigation of cold cases and has produced 
remarkable results in innumerable cases. At the same time, the use of 
DNA methods is subject to policies and practices that promote its sound 
use and guard against adverse effects. Regular DNA testing in criminal 
investigations is carried out in conformity with the rules and 
procedures of the Combined DNA Index System. See generally Maryland v. 
King, 569 U.S. 435, 442-46, 463-66 (2013). The use of forensic genetic 
genealogy--referenced in the Act's Committee Report for solving the 
Golden State Killer case--is subject to policies tailored to its 
operation and characteristics. See United States Department of Justice, 
Interim Policy, Forensic Genetic Genealogical DNA Analysis and 
Searching (Nov. 1, 2019).
    Thus, in assessing whether further investigation is warranted under 
the HVFRA, it is not sufficient to note that there is some retained 
evidence in the case to which an investigative method or technique 
might in theory be applied. The agency would also need to consider 
whether and to what extent the relevant investigative method would 
actually be used in a reinvestigation, consistent with applicable 
policy and practice, and whether it holds sufficient promise under the 
facts of the case to warrant further investigation in the agency's 
judgment. For example, if a family member of the victim sought 
reopening of a cold case murder investigation, based on a novel DNA 
identification method they read about that has not been scientifically 
validated, an agency would not be required to act on such a request 
under the HVFRA if it would not use that unproven method in other 
investigative contexts.
    The same consideration applies in relation to other methods the use 
of which is restricted or forgone under an agency's general policies 
and practices. For example, in a cold case murder, a relative of the 
victim may seek to have the victim's body exhumed for purposes of 
additional examination or forensic testing. Investigative agencies may 
not often agree with such requests. Rather, the likelihood that 
significant new information will be obtained is assessed, and any 
potential value is balanced against the sensitivity of disinterring the 
deceased. General policies and practices regarding exhumation need to 
be taken into account in assessing whether it should be done in a case 
subject to the HVFRA, as in other investigative contexts.
    While the requirement under the Act to pursue ``probative leads,'' 
as defined in Sec.  95.2(h), pertains only to matters that could 
facilitate the identification of the perpetrator, this does not limit 
the authority of any agency to carry out case file reviews or 
investigate or reinvestigate murder cases for other purposes. As with 
other aspects of the Act, this proposed rule would only articulate what 
agencies must do to comply with the Act and would not restrict their 
ability to go beyond the Act's requirements, on their own initiative or 
as requested by others. In relation to investigative leads, in 
particular, agencies are free to review and reinvestigate murder cases 
for any lawful purpose, such as learning more about the circumstances 
of a murder or what happened to the victim, regardless of whether the 
review or reinvestigation may help to identify the perpetrator.

C. Section 95.3--Case File Review

    Section 95.3 of the proposed rule would implement section 2 of the 
Act, relating to case file reviews.
    Section 95.3(a) of the proposed rule would provide for review of 
case files upon written application by one designated person, following 
section 2(a) of the Act.
    Section 95.3(b) of the proposed rule would reproduce the required 
elements of a case file review, as set forth in section 2(b) of the 
Act, and explain specifically how they should be carried out by 
reviewers. Paragraphs (1) through (3) of Sec.  95.3(b) would detail the 
requirements for reviewing what investigative steps may have been 
missed, whether witnesses should be interviewed or reinterviewed, and 
whether all appropriate forensic testing and analysis was performed in 
the first instance or if additional testing may be productive.
    Paragraph (4) in Sec.  95.3(b) would resolve ambiguous language in 
section 2(b)(4) of the Act, which requires that a case file review 
include ``an update of the case file using the most current 
investigative standards as of the date of the review to the extent it 
would help develop probative leads.'' The initial phrase in this quoted 
language, ``an update of the case file,'' might be understood to 
require technical enhancements of the case file, such as digitizing 
documents and creating links to other records. The latter language, 
``using the most current investigative standards as of the date of the 
review,'' would more naturally be understood as requiring consideration 
of whether reinvestigation in conformity with current investigative 
standards would help develop probative leads.
    Section 95.3(b)(4) of the proposed rule would give weight to the 
latter language in interpreting section 2(b)(4) of the statute because 
it is more consistent with the statutory context of case file review to 
determine whether reinvestigation is warranted, and because an intended 
aspect of the review would otherwise not be referenced in the statute. 
The other three paragraphs in section 2(b) of the Act are concerned 
respectively with whether there were missed steps in the original 
investigation, whether there were shortfalls in interviewing witnesses, 
and whether there were shortfalls in forensic testing and analysis. 
They do not require consideration of whether there were shortfalls in 
comparison with current investigative standards, though such

[[Page 6885]]

consideration should be part of case file review in unsolved murder 
cases--including in particular Indian country murders--in line with the 
legislative intent in the HVFRA:

    The majority of cold cases at issue under this bill are likely 
to be cases arising from Tribal jurisdictions . . . . [E.O. 13898] 
took steps to try to solve cold cases in Tribal jurisdictions . . . 
creat[ing] the Operation Lady Justice Task Force . . . . In its 
first year, this task force opened seven offices across the country 
to address the number of missing and murdered indigenous women. The 
task force held listening sessions, Tribal consultations, webinars, 
meetings with law enforcement, and victims' services programs, and 
formed domestic violence and sexual assault coalitions . . . . The 
task force put out guidance and protocols, developed relationships 
with entities like missing persons clearing-houses, began training 
for investigators and volunteers, and started a public awareness 
campaign . . . . This legislation is cut from similar cloth . . . .

    168 Cong. Rec. H3876-77 (remarks of Rep. Bentz); see id. H3878 
(``The HVFRA assists families and loved ones of homicide victims by . . 
. [p]roviding a full reinvestigation using the most up-to-date 
technologies and investigative standards''); About DOJ Efforts to 
Address MMIP, http://www.justice.gov/tribal/mmip/about (containing a 
description and sources regarding enhanced investigative measures, 
relating to missing or murdered indigenous persons, under E.O. 14053 
and 13898).
    Paragraph (5) of Sec.  95.3(b) would direct the reviewer to notify 
any other known Federal investigative agency that has been involved in 
the case and to consider any information provided by such other agency. 
The Act aims to ensure that reinvestigation decisions and the conduct 
of reinvestigations are informed by all available evidence. See HVFRA 
4(b), 6(a). Reaching out to other agencies that have investigated or 
participated in the investigation of a murder is instrumental to 
realizing this objective. For example, another Federal investigative 
agency may have additional information about the case because it 
initially responded to or investigated the crime before engaging the 
principal investigative agency, or because it assisted the principal 
investigative agency in carrying out its investigation. The 
requirements of Sec.  95.3(b)(5) accordingly would help to ensure that 
reinvestigation decisions and the conduct of reinvestigations are 
informed by all available evidence.
    Section 95.3(c) of the proposed rule would implement section 2(d) 
of the Act, which bars having the reviewer be a person who previously 
investigated the murder. The proposed rule would add that this 
restriction does not limit the reviewer in getting information from or 
consulting with people who were previously involved. Consulting such 
people may be especially valuable in understanding the case, and the 
reasons why things were done or not done in the previous investigation, 
and doing so does not conflict with the Act's objective of having 
``fresh eyes'' cast on the case. H. Rep. No. 117-280, at 6; 168 Cong. 
Rec. H3876, 3879 (remarks of Rep. Jackson Lee).
    Section 95.3(d) of the proposed rule would track section 2(e) of 
the Act, which requires the agency to promptly notify the applicant 
regarding receipt of the application and the applicant's rights under 
the Act.
    Section 95.3(e) of the proposed rule would implement section 2(c) 
of the Act, which states that case file review is unnecessary where the 
case ``does not satisfy the criteria for a cold case murder,'' and 
directs the agency to certify in such a case ``that final review is not 
necessary because all probative investigative leads have been exhausted 
or that a likely perpetrator will not be identified.'' The 
certification described in section 2(c) does not reflect the 
circumstances in which the criteria for a cold case murder under the 
Act are not satisfied. Rather, the criteria for a ``cold case murder'' 
are not satisfied if the murder was committed within three years prior 
to the application, the murder was not previously investigated by a 
Federal law enforcement entity, all probative investigative leads have 
not been exhausted, or a likely perpetrator has been identified. HVFRA 
12(6). To resolve this inconsistency, the proposed rule would provide 
that the agency is to certify in such a case that the cold case murder 
criteria are not satisfied and to inform the applicant of the reason 
for the denial.

D. Section 95.4--Review Procedures

    Section 95.4(a) of the proposed rule would implement section 3 of 
the Act, which requires each agency to develop a written application to 
be used in requesting case file reviews. The proposed rule would add 
that this requirement can be satisfied by an agency's adopting a 
standard form developed by the Government or another organizational 
unit of the Government.
    Section 95.4(b) would state that an application for case file 
review may be denied if it is submitted to the wrong agency, i.e., an 
agency that did not previously investigate the murder or was not the 
principal investigative agency in the investigation. However, in such a 
case, the proposed rule would require the agency that receives the 
application to advise the applicant of the problem, and, if that agency 
is aware of another Federal investigative agency that was the principal 
investigative agency, to transfer the application to the appropriate 
agency if the applicant so wishes. If no Federal agency was the 
principal investigative agency in the initial investigation, then the 
case is outside the scope of the Act, but the proposed rule would 
direct the agency to which the application was submitted to point the 
applicant toward any known State or local agency that investigated the 
case.
    Section 95.4(c)(1) would address situations in which more than one 
agency participated in the investigation of a murder. It would require 
coordination among the agencies so that there is only one case file 
review or full reinvestigation going on at any one time, following 
sections 2(f), 4(d), and 10 of the Act. The proposed rule generally 
assigns responsibility for case file reviews and reinvestigation to the 
principal investigative agency in the initial investigation. In case of 
disagreement among the agencies involved about who had primary 
responsibility for the prior investigation, Sec.  95.4(c)(1) would 
direct them to jointly consider the application and collaborate in 
carrying out any case file review or reinvestigation, or responsibility 
for those functions could be assumed by or assigned to one of the 
agencies.
    Section 95.4(c)(2) would address situations in which a family 
member of the victim submits an application for case file review, and 
then another family member submits an application with respect to the 
same victim during the pendency of the first application or a resulting 
case file review or reinvestigation. The latter application would 
conflict with the specification in section 2(a) of the Act that ``one 
designated person'' may apply for a case file review, which ensures 
that the responsible agency can deal in an orderly and efficient way 
with a single family contact. Section 95.4(c)(2) would provide that the 
agency need not take any action based on the later application, but in 
such a case the agency shall advise the later applicant that there was 
an earlier application, and the agency may consider any information 
provided by the later applicant.
    Section 95.4(c)(3) would state that only one case file review shall 
be undertaken at any one time with respect to the same cold case murder 
victim, tracking section 2(f) of the Act. The proposed rule would add 
that, for cases in which multiple applications are

[[Page 6886]]

received with respect to different victims of a murder, any resulting 
case file reviews may be consolidated. While the Act does not require 
consolidation in the latter circumstance, conducting a single unified 
case file review may further the Act's objective of ensuring that all 
available evidence is fully considered.
    Section 95.4(d) would implement section 2(g) and (h) of the Act, 
setting up a general six-month time limit for completing case file 
reviews, but allowing one extension of up to six months in certain 
circumstances.

E. Section 95.5--Full Reinvestigation

    Section 95.5(a) of the proposed rule would require a full 
reinvestigation if a case file review concludes that it would result in 
probative leads, following section 4(a) of the Act. Section 95.5(a) 
would refer to the proposed rule's definition of ``probative leads'' in 
Sec.  95.2(h), which requires reinvestigation if there is information 
that identifies the perpetrator or that provides a sufficient 
likelihood of enabling the identification of the perpetrator to warrant 
further investigation, in the agency's judgment and consistent with its 
policies and practices for use of investigative methods. In referring 
to the conclusion of a case file review, the Act contemplates, in 
accordance with its objective of solving cold case murders, that the 
agency will consider all the information it has at the time of the 
review in deciding whether to reinvestigate, including any new 
information provided by the applicant, not only information that 
appears directly in the case file. See HVFRA Sec.  6 (implying that 
newly discovered evidence would be taken into account in case file 
review and reinvestigation decisions); H. Rep. No. 117-280, at 6 
(``[N]on-law enforcement personnel finding new evidence in homicide 
cases serve as examples where a fresh perspective can help break a case 
open.''); 168 Cong. Rec. H3877 (daily ed. Mar. 28, 2022) (remarks of 
Rep. Swalwell) (explaining that the HVFRA ``requires a complete 
reexamination of the file and accompanying evidence'').
    Section 95.5(b) of the proposed rule would specify what an 
investigative agency needs to do in conducting a full reinvestigation 
under the HVFRA. Section 95.5(b) first would define a full 
reinvestigation as one in which all new probative leads are exhausted. 
This definition is based on section 12(6)(C) of the Act, which defines 
a cold case murder in part as a murder ``for which all probative 
investigative leads have been exhausted''; section 2(a) of the Act, 
which directs the agency to review the case file to determine if a full 
reinvestigation would result in ``the identification of probative 
investigative leads or a likely perpetrator''; and section 4(a) of the 
Act, which directs the agency to conduct a full reinvestigation if the 
case file review concludes that it would result in ``probative 
investigative leads.'' These provisions manifest a purpose to address 
cases that have gone cold, in the sense that previously investigated 
leads that might have resulted in the identification of the perpetrator 
have not panned out; provide means for developing new potentially 
perpetrator-identifying leads through case file review; and follow up 
on those new leads to determine whether their promise for identifying 
the perpetrator can be realized.
    Section 95.5(b) next would provide additional specifications 
regarding the conduct of full reinvestigations. Paragraph (b)(1) would 
require an investigative agency to analyze all evidence regarding the 
murder for the purpose of developing probative leads, following section 
4(b) of the Act. The evidence available to the agency at the time of an 
HVFRA reinvestigation includes the content of the case file from the 
initial investigation and associated evidence retained from the initial 
investigation; any additional information that has been provided by the 
relative of the victim who applied for the case file review or that has 
come to the agency from other sources; and any additional leads or 
information that the agency may discover or develop in the course of 
the reinvestigation. The direction of Sec.  95.5(b)(1) is to apply the 
whole body of evidence in furtherance of identifying the perpetrator.
    Paragraph (b)(2) would provide that a full reinvestigation under 
the HVFRA does not require pursuit of leads that are insufficiently 
probative with respect to the potential identification of the 
perpetrator to warrant further investigation in the agency's judgment, 
or that would require the use of investigative methods inconsistent 
with the agency's policies or practices. This is a reiteration, for 
clarity and explicitness, of limitations appearing in the definition of 
``probative leads'' in Sec.  95.2(h).
    The reinvestigation criteria of Sec.  95.5(a) and (b) of the 
proposed rule do not require investigative agencies to modify or waive 
their normal standards for initiating and conducting investigations, if 
consistent with the Act's requirements. For example, consider the 
Attorney General's Guidelines for Domestic FBI Operations (``FBI 
Guidelines'' or ``Guidelines''), http://www.justice.gov/archive/opa/docs/guidelines.pdf. These Guidelines apply only to the FBI's 
investigative activities, but other investigative agencies may have 
similar policies or guidelines. As relevant to the HVFRA, the FBI 
Guidelines authorize three levels of investigative activity: 
assessments, preliminary investigations, and full investigations. Id. 
Part II, pp. 16-22.
    An assessment may be opened to obtain information about a Federal 
crime. Assessments may be used to check out or resolve allegations or 
other information concerning Federal crimes through the relatively non-
intrusive methods authorized in assessments, such as obtaining publicly 
available information, checking government records, using online 
services and resources, and interviewing witnesses. Id. at 17-20. An 
HVFRA reinvestigation could be opened as an assessment under the 
Guidelines in any case because the reinvestigation has the purpose of 
obtaining information about the murder in question, specifically, the 
identity of the perpetrator.
    The Guidelines authorize the FBI to initiate a preliminary 
investigation if there is information or an allegation indicating that 
(i) a Federal crime may have occurred and (ii) investigation may obtain 
information relating to the crime or the involvement or role of an 
individual in the crime. Preliminary investigations may involve all 
lawful investigative methods, with the exception of electronic 
surveillance and intrusive searches. Id. Part II.B, pp. 20-22.
    In the context of the HVFRA, the FBI's initial investigation of the 
murder for which reinvestigation is sought implies that the FBI already 
has information indicating the possible commission of a Federal crime--
i.e., the murder in question--which satisfies the first precondition 
for opening a preliminary investigation. The second precondition under 
the Guidelines for opening a preliminary investigation is also 
satisfied, because the HVFRA's basis for requiring a reinvestigation is 
probative leads resulting from the case file review. This ensures that 
there is now a new lead such that further investigation may obtain 
information relating to the murder or the involvement or role of an 
individual (i.e., the heretofore unknown perpetrator) in the murder.
    Accordingly, reinvestigations under the HVFRA may be opened as 
preliminary investigations under the Guidelines. The methods excluded 
in preliminary investigations--electronic surveillance and intrusive 
searches--would then not be available. But if these methods were needed 
to pursue the

[[Page 6887]]

probative leads underlying the reinvestigation and legally permitted, 
they could be secured by opening or reopening the HVFRA reinvestigation 
as a full investigation under the Guidelines.
    The Guidelines allow the FBI to initiate a full investigation if 
there is an articulable factual basis for the investigation that 
reasonably indicates that (i) a Federal crime may have occurred and 
(ii) the investigation may obtain information relating to the crime or 
the involvement or role of an individual in the crime. Full 
investigations may involve all lawful investigative methods. Id.
    The preconditions for opening a full investigation under the 
Guidelines are likely to be satisfied in any case involving 
reinvestigation under the HVFRA. This is so because it is unlikely that 
the FBI would have previously investigated a murder, and now judges, 
following a case file review, that new leads are sufficiently likely to 
enable the identification of the perpetrator to warrant further 
investigation, in the absence of articulable facts that reasonably 
indicate that (i) the murder may have occurred and (ii) the 
reinvestigation may obtain information relating to the murder or the 
involvement or role of an individual (i.e., the heretofore unknown 
perpetrator) in the murder.
    The preconditions for opening a full investigation under the 
Guidelines will always be satisfied in HVFRA reinvestigation cases in 
which opening a full investigation under the Guidelines is needed to 
pursue the investigative methods excluded in preliminary 
investigations--electronic surveillance and intrusive searches--and use 
of those methods is legally permitted. This is so because the legal 
predication requirements for authorizing those methods, including 
probable cause, exceed the ``articulable factual basis'' required for 
opening a full investigation under the Guidelines. On the other hand, 
if the legal predication required for use of electronic surveillance or 
intrusive searches is not satisfied, use of those methods would not be 
required in an HVFRA reinvestigation, because only investigative 
methods consistent with agency policy need be used, see Sec.  
95.5(b)(2), and only lawful methods are consistent with the Guidelines.
    It follows that when the conditions for required reinvestigation 
under the HVFRA and the rule are satisfied, the conditions for 
initiating an investigation under the Guidelines for the FBI's 
investigative activities will also be satisfied. There is accordingly 
no conflict or inconsistency between investigation or reinvestigation 
in conformity with the Guidelines' standards and investigation or 
reinvestigation in conformity with the HVFRA's requirements. The same 
point would apply to other investigative agencies with investigative 
policies resembling the FBI's in relevant respects.
    Section 95.5(c) of the proposed rule would implement section 4(c) 
of the Act, which provides that a reinvestigation shall not be 
conducted by a person who previously investigated the murder. The 
proposed rule would add that this does not limit consulting with or 
obtaining information from a previously involved person, or using such 
a person in a subordinate role in the reinvestigation. Engaging people 
with previous knowledge of the case in a reinvestigation has similar 
value to engaging such persons in case file reviews, as discussed 
above, and does not conflict with the objectives of the Act.
    Section 95.5(c) does not bar a person who carried out a case file 
review under the Act from conducting or being involved in an ensuing 
reinvestigation. It only precludes reinvestigation by a person who 
previously investigated the murder. The heading of section 4(c) of the 
Act, ``Reviewer,'' does not signify the contrary. It replicates the 
heading of the corresponding provision regarding case file reviews, 
section 2(d), and reflects in both contexts a policy of ensuring that 
``fresh eyes'' will be cast on the case, H. Rep. No. 117-280, at 6; 168 
Cong. Rec. H3876, 3879 (remarks of Rep. Jackson Lee), by prohibiting 
people who previously investigated the case from conducting case file 
review and any resulting reinvestigation. This policy does not imply 
that the role of the case file reviewer in subsequent reinvestigation 
should be restricted. The legislative history of the HVFRA further 
confirms that the case file reviewer may conduct a resulting 
reinvestigation under the HVFRA. H. Rep. No.117-280, at 10 (``The 
person(s) conducting the full reinvestigation must not have previously 
investigated the cold case murder at issue, except for the case file 
review described in section 2.'') (emphasis added).
    Section 95.5(d) would provide that there can be only one full 
reinvestigation at any time with respect to the same cold case murder 
victim, tracking section 4(d) of the Act. As with case file reviews, 
the proposed rule would add that if reinvestigation is found to be 
warranted with respect to multiple victims, the resulting 
reinvestigations may be consolidated.

F. Section 95.6--Multiple Agencies

    Section 95.6, which would track section 10 of the Act, would 
require that case file reviews and reinvestigations be carried out in a 
cohesive way when more than one agency is involved, so that there is 
only one joint case file review or reinvestigation happening with 
respect to a cold case murder at any time.

G. Section 95.7--Consultation, Updates, and Explanation

    Section 95.7 would implement section 5 of the Act, regarding agency 
consultations, updates, and explanation of reinvestigation decisions.
    Section 95.7(a) and (b) would require investigative agencies to 
consult with applicants and provide them with periodic updates. With 
respect to consultation, the proposed rule would explain that this 
requires discussing the application with the applicant on at least one 
occasion.
    Section 95.7(c) would require investigative agencies to meet with 
the applicant and discuss the evidence to explain the decision whether 
or not to reinvestigate at the conclusion of a case file review. There 
are constraints on discussing the evidence in pending investigations 
with private persons, as the Act recognizes in section 9, which 
provides that information may be withheld if it would endanger the 
safety of any person, unreasonably impede an ongoing investigation, 
violate a court order, or violate legal obligations regarding privacy. 
Additional concerns about disclosing investigative information include 
potentially damaging the reputation of persons who come under 
suspicion, but may eventually be cleared, and exposing them to 
harassment and other adverse social consequences. Accordingly, Sec.  
95.7(c) would make clear that the discussion of the evidence with an 
applicant may be at an appropriate level of generality that does not 
involve disclosing the information described in section 9 of the Act 
and that is consistent with the general policies and practices 
affecting the sharing of information with murder victims' family 
members. See, e.g., The Attorney General Guidelines for Victim and 
Witness Assistance, Arts. II.B, IV.I (2022 ed.).
    Section 95.7(d) would provide that meetings required under Sec.  
95.7 may be carried out in person, or through remote video 
communication, the latter option often being more convenient for both 
the agency and victims' family members. It further states that 
consultations and updates may be

[[Page 6888]]

carried out in person, or through other means of communication, such as 
over the phone or by email.

H. Section 95.8--Subsequent Reviews

    Section 95.8 of the proposed rule would implement section 6 of the 
Act, which provides that case file reviews and reinvestigations 
generally do not have to be undertaken more frequently than at five-
year intervals.
    Paragraph (a) of Sec.  95.8 would incorporate the basic rule that 
case file reviews and reinvestigations need not be undertaken more 
frequently than at five-year intervals, subject to a proviso for 
situations in which ``there is newly discovered, materially significant 
evidence.''
    Paragraph (b) of Sec.  95.8 would explain the proviso for 
situations involving new, material evidence. The proposed rule would 
interpret this proviso in a manner consistent with the definition of 
``probative leads'' in Sec.  95.2(h). Specifically, case file reviews 
and reinvestigations may need to be undertaken at intervals of less 
than five years only if there is evidence discovered subsequent to the 
previous case file review or reinvestigation that identifies the 
perpetrator, or that provides a sufficient likelihood of enabling the 
identification of the perpetrator to warrant further investigation, in 
the agency's judgment and consistent with its policies and practices 
regarding the use of investigative methods.
    Paragraph (c) of Sec.  95.8 would resolve an inconsistency in the 
language of section 6 of the Act. Section 6(a) says that if a case is 
not reinvestigated, ``no additional case file review shall be required 
to be undertaken . . . for a period of five years.'' Section 6(b) says 
that if a full reinvestigation is completed without identifying the 
perpetrator, ``no additional case file review or full reinvestigation 
shall be undertaken . . . for a period of five years.'' In other words, 
where subsection (a) says that an agency is not required to engage in 
further review of the case for five years, subsection (b) seems to say 
that the agency cannot engage in further review of the case for five 
years.
    Considering the Act's purpose of promoting the solution of cold 
case murders, the prohibitory language of subsection (b) appears to 
reflect a drafting error that resulted from adding the ``required to 
be'' language appearing in subsection (a) but neglecting to add the 
same language in subsection (b). Cf. H.R. 3359, 117th Cong., 1st Sess., 
Sec.  7 (proposed HVFRA as originally introduced). No reason appears 
why Congress, in enacting the HVFRA, would have sought to prohibit 
agencies from exercising their broad discretion to reopen cold case 
murder investigations if a case was reinvestigated unsuccessfully under 
the HVFRA. ``Congress could not plausibly have intended'' this 
``illogical'' outcome, Stovic v. Railroad Retirement Board, 826 F.3d 
500, 505 (D.C. Cir. 2016), which would deprive agencies of their pre-
existing discretion to reopen the investigation of cold case murders at 
any time, as warranted in their judgment, and would impose a 
restriction on agency discretion to reopen murder investigations that 
does not apply to reopening investigations of any other type of crime. 
The rule would resolve the inconsistency by providing in Sec.  95.8 
that ``[a]n agency may, in its discretion, review case files, continue 
investigation, or reinvestigate notwithstanding the absence of an 
application by a designated person or the time when previous review, 
investigation, or reinvestigation occurred.''

I. Section 95.9--Procedures To Promote Compliance

    Section 95.9(a) would implement section 8 of the Act by requiring 
each agency to promulgate regulations to enforce the rights of 
designated persons under the Act and ensure compliance, including 
designation of an administrative authority to receive and investigate 
complaints, training of appropriate personnel regarding the Act, 
disciplinary sanctions for ``willful or wanton'' noncompliance, and a 
procedure for resolving complaints.
    Section 95.9(a)(1) would provide that the requirement to issue such 
regulations applies to agencies that may be the principal investigative 
agencies in murder investigations, because the proposed rule assigns 
responsibility for carrying out the Act to those agencies. The proposed 
rule would further specify that agencies need not separately promulgate 
regulations to the extent they adopt, or are subject to, regulations 
issued by another organizational unit of the Government regarding these 
matters. For example, a Department that includes a number of agencies 
that investigate murders may have Department-wide rules and processes 
regarding training and disciplinary sanctions for violations of the 
Act.
    Section 95.9(a)(2) would specify the content of the regulations 
that agencies must promulgate.
    Section 95.9(a)(3) would provide that the ``agency'' for these 
purposes may be a broader organizational unit of the Government in 
which the principal investigative agency is situated. Many provisions 
of the Act direct the responsible ``agency'' (or head of the agency) to 
take certain actions. See HVFRA 2(a) (review of case file), 2(c) 
(certification in lieu of review), 2(e) (confirmation of receipt of 
application and notice of rights), 2(g) through (h) (time limits for 
agency to conclude review), 4(a) (conduct of full reinvestigation), 5 
(agency to consult, update, and meet with the applicant), 8 (complaint 
and disciplinary functions to ensure compliance with the Act), 10 
(multiple agencies to coordinate), 13 (submission of reports to 
congressional committees). Depending on the nature of the required 
action and the operational conditions and practices of the affected 
governmental entities, it may make sense for the required actions to be 
carried out by the particular governmental component that investigated 
a case, or alternatively, at the departmental level or another broader 
level. Either approach is legitimate and consistent with the Act's 
definition of ``agency'' as ``a Federal law enforcement entity with 
jurisdiction to engage in the detection, investigation, or prosecution 
of a cold case murder,'' HVFRA 12(5), since both the individual 
component and the broader organizational unit of Government in which it 
is situated are governmental entities with law enforcement functions. 
Section 95.9(a)(3) confirms this point with respect to the training, 
complaint, and disciplinary functions described in HVFRA 8. For 
example, with respect to the requirement of section 8(b)(1) of the Act 
that the regulations designate an administrative authority ``within the 
agency to receive and investigate complaints,'' a Department may decide 
to assign this function to its Inspector General for all of its 
components, taking ``the agency'' in this context to refer to the 
Department as a whole. But it is also consistent with the Act if a 
Department decides to assign these functions to its individual 
investigative components, as Sec.  95.9(b) provides for the Department 
of Justice.
    Section 95.9(b) would implement the requirements of section 8 of 
the Act with respect to the agencies of the Department of Justice 
specifically, including the FBI, which is broadly responsible for 
investigating murders within the scope of the Act. For the Justice 
Department agencies, the training, complaint, and disciplinary matters 
required by section 8 of the Act are most appropriately carried out by 
the individual investigative agencies within the Department.
    Section 95.9(b)(1) would require each such agency to provide 
training for officers and employees involved in

[[Page 6889]]

carrying out the Act, following the requirement of section 8(b)(2) of 
the Act.
    Section 95.9(b)(2) would require each agency to designate an 
official to receive and investigate complaints of HVFRA violations, 
following the requirement of section 8(b)(1) of the Act. In some 
instances the designated official may have a conflict of interest in 
investigating a complaint, such as when the complaint relates to 
actions the designated official was involved in. In such cases, the 
proposed rule would direct the official to notify the entity within the 
agency responsible for addressing or resolving such conflicts, and 
investigation of the complaint may be assigned to a different official.
    Section 95.9(b)(3) and (4) would carry out the requirement of 
section 8(b)(4) of the Act to provide a procedure for the resolution of 
complaints under the Act.
    Section 95.9(b)(3) would provide initially that a complaint may be 
submitted in writing by the person who requested the case file review 
under section 95.3(a). Since the persons who have requested a case file 
review under the Act are the individuals who have rights under the Act, 
they are the appropriate persons to complain if the Act's requirements 
have not been complied with. This would comport with the Act's 
direction in section 8(a) that the agency must ``promulgate regulations 
to enforce the right of a designated person to request a review under 
this Act,'' and the Act's direction in section 8(b)(4) that the agency 
must provide a procedure for the resolution of complaints filed by 
``the designated person,'' i.e., the person who requested a case file 
review.
    Section 95.9(b)(3) further would provide timing rules for the 
submission of complaints. These timing rules are designed both to 
provide applicants adequate time to bring alleged violations of the Act 
to the agency's attention, and to promote the prompt investigation of 
potential violations and fairness to agency personnel who may be the 
subject of complaints. The general time limit to submit a complaint is 
one year after the complainant becomes aware of a violation. However, a 
complaint would be timely within one year of the complainant's being 
informed of the completion of a case file review or reinvestigation, 
regardless of when the complainant became aware of the violation. The 
time would be extended to five years after the application for case 
file review was submitted if the agency did not inform the applicant 
about completion of a case file review or reinvestigation, either 
because a review or reinvestigation is ongoing or because the agency 
failed to inform the applicant of the completion of a case file review 
or reinvestigation as required by Sec.  95.7(b) and (c). Section 
95.9(b)(3) also would state that a complaint submitted outside the 
specified time frames must include an explanation for why it was not 
timely submitted. If satisfied by the explanation, the agency could 
entertain an untimely complaint, but only as a matter of discretion.
    The remainder of Sec.  95.9(b)(3) would specify information to be 
included in a complaint, to the extent the complainant is able, which 
is needed to enable the agency official to investigate the complaint. 
This includes providing identifying information for the complainant, 
the case, and any agency officer or employee whose conduct is the 
subject of the complaint, together with information about the nature of 
the alleged violation, when and how it occurred, and any prior dealings 
with agency personnel about it.
    Section 95.9(b)(4) would direct the agency official to investigate 
a complaint that satisfies the proposed rule's conditions, document and 
close the investigation in conformity with agency procedures, and 
inform the complainant about the disposition of the complaint. It 
further directs the agency official to determine whether further action 
is warranted. For example, if it is determined that measures required 
by the Act were not taken, such as the consultation, updating, and 
explanation requirements of section 5 of the Act, supplying the omitted 
measures may now be warranted, and retraining or referral for 
disciplinary action may be warranted for officers and employees who 
violated the Act, depending on their culpability and the nature of the 
violation.
    Section 95.9(b)(4) would provide, however, that the complaint 
procedure is not available to entertain complaints about the initial 
investigation of the murder, or to revisit the agency's decision 
whether reinvestigation is warranted under the Act. This reflects the 
complaint procedure's function of promoting compliance with the Act and 
addressing violations of the Act. Its purposes do not include reviewing 
the conduct of the initial investigation or providing a second opinion 
whether the results of a case file review under the Act warrant 
reinvestigation.
    Section 8 of the HVFRA, which is titled ``Procedures to Promote 
Compliance,'' requires agencies to promulgate regulations that provide 
a procedure for resolving complaints ``concerning the agency's handling 
of a cold case murder investigation or the case file evaluation,'' in 
order ``to enforce the right of a designated person to request a review 
under this Act and to ensure compliance by the agency with the 
obligations described in this Act.'' This statutory language is 
naturally understood to require a complaint procedure to address 
violations of the HVFRA--not to second-guess the agency's handling of 
the initial investigation, which is not subject to the HVFRA, or to 
secure a re-examination or redetermination of whether the results of an 
HVFRA case file review warrant reinvestigation. On the latter point, 
nothing in the HVFRA suggests that the personnel responsible for the 
complaint and disciplinary process must be empowered to redetermine the 
matter and potentially override the judgment of the responsible agents 
who carried out the case file review and decided whether to conduct a 
reinvestigation. Rather, the HVFRA entitles a qualifying applicant to 
one case file review, and provides that the agency is not required to 
do another for five years, absent newly discovered and materially 
significant evidence. HVFRA 6. Section 95.9(b)(4) would make these 
points clear.
    Section 95.9(b)(4) would also specify that the agency's complaint 
procedure is not available to entertain complaints about personnel of 
other agencies, whose conduct is properly the responsibility of their 
employing agencies.
    Section 95.9(b)(5) would make the agency head or a designee the 
final arbiter of the complaint, and preclude judicial review, following 
section 8(b)(5) of the Act.
    Section 95.9(b)(6) would provide that officers or employees of the 
agency who have failed to comply with the Act may be required to 
undergo retraining or additional training, and it would carry out the 
requirement of section 8(b)(3) of the Act for disciplinary sanctions, 
including potentially suspension or termination of employment, for 
willful or wanton violations.
    Section 95.9(b)(7) would provide that the complaint process 
provisions do not authorize the agency to exercise authority over, take 
disciplinary action against, or involve officers or employees of other 
agencies. This reflects the normal division of authority and 
responsibility among Federal agencies. For example, an Assistant U.S. 
Attorney (``AUSA'') may have some involvement in an HVFRA case file 
review or reinvestigation, such as being consulted on a legal question, 
being asked to secure a warrant or subpoena, or being presented with 
the results of a reinvestigation for a decision whether to prosecute. 
As in other investigative contexts, that would not bring the

[[Page 6890]]

AUSA within the scope of the investigative agency's complaint processes 
or subject the AUSA to any authority of the investigative agency.

J. Section 95.10--Data Collection

    Section 95.10 would implement section 7 of the Act, which requires 
the National Institute of Justice to publish annual statistics 
regarding cold case murders. The proposed rule would provide that the 
Attorney General may delegate this function to the Bureau of Justice 
Statistics or another Justice Department component, which may be more 
appropriate agencies to carry out this function. Delegating statutory 
functions to other components is within the Attorney General's 
authority under 28 U.S.C. 509, 510. The proposed rule would also 
specify the relevant time frames and classes of cold case murders to be 
covered in each annual publication of statistics.

K. Section 95.11--Annual Report

    Section 95.11 would implement section 13 of the Act, which requires 
each agency to submit annual reports to the House and Senate Judiciary 
Committees describing actions taken and results achieved under the Act. 
The proposed rule would specify that the reporting requirement applies 
to agencies that may be the principal investigative agencies in the 
investigation of murders, because the rule assigns responsibility for 
carrying out the Act to those agencies, and other agencies would have 
nothing to report. The proposed rule further would provide that an 
agency need not submit a separate report if the required information 
with respect to the agency is included in a report submitted by another 
organizational unit of the Government. For example, a Department may 
wish to submit consolidated annual reports providing the required 
information for all of its investigative agencies. The latter approach 
may be more consistent with the Department's general procedures in 
dealing with Congress and more useful to the Committees than separate 
reports from individual agencies.

L. Section 95.12--Withholding Information

    Section 95.12, tracking section 9 of the Act, would make it clear 
that the Act does not require an agency to disclose information that 
would endanger the safety of any person, unreasonably impede an ongoing 
investigation, violate a court order, or violate legal obligations 
regarding privacy.

V. Regulatory Requirements

A. Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities for the purposes of 
that Act because the regulation only concerns the review and 
reinvestigation of cold case murders by Federal investigative agencies.

B. Executive Orders 12866, 13563, and 14094--Regulatory Review

    The Office of Management and Budget has determined that this 
rulemaking is a ``significant regulatory action'' under section 3(f) of 
Executive Order 12866, 58 FR 51735, 51738 (Oct. 4, 1993), but it is not 
a section 3(f)(1) significant action. Accordingly, this proposed rule 
has been submitted to the Office of Management and Budget (``OMB'') for 
review. This proposed rule has been drafted and reviewed in accordance 
with section 1(b) of Executive Order 12866, Executive Order 13563, 76 
FR 3821 (Jan. 21, 2011), and Executive Order 14094, 88 FR 21879 (Apr. 
11, 2023).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health, and safety effects, distributive impacts, and equity). 58 FR 
51735-36; 76 FR 3821. Executive Order 13563 emphasizes the importance 
of using the best available methods to quantify costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. 76 FR 
3822.
    The costs and benefits of this rulemaking, which implements the 
HVFRA's requirements, are attributable to the HVFRA itself. The costs 
include the work required in processing applications, carrying out case 
file reviews, and reinvestigating cold case murders as warranted, in 
conformity with the HVFRA. The benefits include solving cold case 
murders where the HVFRA process is successful and providing closure for 
the victims' families. No alternative regulatory approach would 
significantly reduce these costs while achieving the benefits 
constituting the legislative objective with similar effectiveness.

C. Executive Order 13132--Federalism

    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, as outlined by Executive Order 13132, 64 
FR 43255 (Aug. 10, 1999). The regulation only concerns the review and 
reinvestigation of cold case murders by Federal investigative agencies.

D. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    The Department of Justice and the Department of the Interior, in 
accordance with section 5(b) of Executive Order 13175, 65 FR 67249 
(Nov. 9, 2000), will consult with Tribal officials regarding this 
proposed regulation.

E. Executive Order 12988--Civil Justice Reform

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988, 61 FR 4729, 4731 
(Feb. 7, 1996), to specify provisions in clear language. Pursuant to 
section 3(b)(1)(I) of the Executive Order, nothing in this proposed 
rule is intended to create any legal or procedural rights enforceable 
against the United States.

F. Unfunded Mandates Reform Act of 1995

    This rule when finalized will not result in the expenditure by 
State, local and Tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (as adjusted for inflation) in 
any one year 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. The rule only 
concerns the review and reinvestigation of cold case murders by Federal 
investigative agencies.

G. Congressional Review Act

    This rule is not a ``major rule'' as defined by the Congressional 
Review Act, 5 U.S.C. 804(2).

List of Subjects in 28 CFR Part 95

    Crime, Law enforcement.

Authority and Issuance

    Accordingly, for the reasons stated in the preamble, the Department 
of Justice proposes to add 28 CFR part 95 to read as follows:

PART 95--HOMICIDE VICTIMS' FAMILIES' RIGHTS

Sec.

[[Page 6891]]

95.1 Purpose.
95.2 Definitions.
95.3 Case file review.
95.4 Review procedures.
95.5 Full reinvestigation.
95.6 Multiple agencies.
95.7 Consultation, updates, and explanation.
95.8 Subsequent reviews.
95.9 Procedures to promote compliance.
95.10 Data collection.
95.11 Annual report.
95.12 Withholding information.

    Authority:  Pub. L. 117-164, 136 Stat. 1358.


Sec.  95.1  Purpose.

    The purpose of this part is to implement the Homicide Victims' 
Families' Rights Act of 2021 (the ``Act''). The Act provides for a 
system to review the case files of cold case murders at the instance of 
certain persons and potentially carry out further investigation.


Sec.  95.2  Definitions.

    In this part:
    (a) The term ``designated person'' means a parent, step-parent, 
parent-in-law, grandparent, grandparent-in-law, sibling, spouse, child, 
or step-child of a murder victim.
    (b) The term ``victim'' means a natural person who died as a result 
of a cold case murder.
    (c)(1) The term ``murder'' means an offense under 18 U.S.C. 1111, 
or another Federal offense that incorporates by reference the elements 
of 18 U.S.C. 1111. The offenses that incorporate by reference the 
elements of 18 U.S.C. 1111 are--
    (i) A murder committed in Indian country, investigated as a crime 
potentially prosecutable under 18 U.S.C. 1152 or 1153;
    (ii) A murder in which the victim was a Federal officer or 
employee, or another person whose status or activities would make the 
person's murder a Federal crime, investigated as a crime potentially 
prosecutable under 18 U.S.C. 115, 351, 1114, 1116, 1121, 1503, 1512, 
1513, 1751, or 1841; 7 U.S.C. 2146; 15 U.S.C. 1825; or 21 U.S.C. 461, 
675, or 1041;
    (iii) A murder in which the victim was a United States national 
killed outside of the United States, investigated as a crime 
potentially prosecutable under 18 U.S.C. 1119 or 2332; and
    (iv) A murder in which the status or activities of the perpetrator, 
or the means or circumstances of the murder's commission, would make 
the murder a Federal crime, investigated as a crime potentially 
prosecutable under 18 U.S.C. 36, 924(j), 930, 1118, 1120, 1652, 1958, 
1959, 2245, 3261, or 3273; or 49 U.S.C. 46506.
    (2) The term ``murder'' does not include--
    (i) A murder in which the victim died before January 1, 1970;
    (ii) A murder that is not an offense under the laws of the United 
States, even if it is an offense under the laws of a State, the 
District of Columbia, or a territory or possession of the United 
States; or
    (iii) Any offense, conduct, or occurrence that did not involve the 
commission of a murder as defined in paragraph (c)(1) of this section.
    (d) The term ``agency'' means a Federal law enforcement entity with 
jurisdiction to engage in the detection, investigation, or prosecution 
of a cold case murder. The term ``agency'' does not include a State or 
local law enforcement entity or a law enforcement entity of the 
District of Columbia or a territory or possession of the United States.
    (e) The term ``principal investigative agency'' means the Federal 
investigative agency that had the primary responsibility for the 
initial investigation of a murder. In a case in which a murder was 
investigated by State or other non-Federal authorities and the role of 
Federal agencies was the provision of investigative assistance, and in 
a case in which a murder was investigated by a Federal agency but 
thereafter State or other non-Federal authorities assumed the primary 
responsibility for the investigation, no Federal agency was the 
principal investigative agency and the case is not within the scope of 
this part. A prosecutorial agency of the Department of Justice, though 
involved in the investigation of a murder, is not the principal 
investigative agency in any case.
    (f) The term ``initial investigation'' means the investigation of a 
murder before it became a cold case murder.
    (g) The term ``cold case murder'' means a murder--
    (1) In which the victim died more than three years prior to the 
date of an application by a designated person under Sec.  95.3;
    (2) Previously investigated by a Federal law enforcement entity;
    (3) For which all probative leads have been exhausted; and
    (4) For which no likely perpetrator has been identified.
    (h) The term ``probative leads'' means information that identifies 
the perpetrator or that provides a sufficient likelihood of enabling 
the identification of the perpetrator to warrant further investigation, 
in the agency's judgment and consistent with the agency's policies and 
practices regarding the use of investigative methods. Variant 
terminology used in some provisions of the Act, ``probative 
investigative leads,'' has the same meaning.


Sec.  95.3  Case file review.

    (a) In general. Upon written application by one designated person, 
the principal investigative agency shall review the case file regarding 
a cold case murder to determine if a full reinvestigation would result 
in probative leads.
    (b) Review. A review under paragraph (a) of this section shall 
include the following elements:
    (1) An analysis of what investigative steps or follow-up steps may 
have been missed in the initial investigation. This element requires 
the reviewer to consider whether, in the reviewer's judgment, there 
were steps or follow-up steps that should have been taken in the 
original investigation but were not taken.
    (2) An assessment of whether witnesses should be interviewed or 
reinterviewed. This element requires the reviewer to consider whether, 
in the reviewer's judgment, there were witnesses in the original 
investigation who should have been interviewed but were not 
interviewed, or who should have been asked additional questions or 
interviewed in a different manner than in the original investigation.
    (3) An examination of physical evidence to see if all appropriate 
forensic testing and analysis was performed in the first instance or if 
additional testing might produce information relevant to the 
investigation. This element has two aspects. It requires the reviewer 
to consider whether, in the reviewer's judgment, there was forensic 
testing available at the time, such as checking for latent 
fingerprints, which should have been carried out in the initial 
investigation but was not carried out. It also requires the reviewer to 
consider whether there have been advances in forensic technology or 
methods, such as more sensitive DNA testing, which were unavailable at 
the time of the initial investigation, but which would now be utilized 
in a like investigation under current policies and practices regarding 
the use of investigative methods.
    (4) An update of the case file using the most current investigative 
standards as of the date of the review to the extent it would help 
develop probative leads. This element requires the reviewer to consider 
whether additional or potentially more effective investigative measures 
would have been taken in the

[[Page 6892]]

initial investigation had current investigative standards been in 
effect. For example, two Executive Orders, E.O. 14053 and E.O. 13898, 
have been issued, in 2021 and 2019 respectively, to enhance and 
prioritize the investigation of cases involving missing or murdered 
indigenous persons. This element requires the reviewer to consider in 
such cases whether application of the current investigative standards 
would help develop probative leads.
    (5) If the reviewer is aware of another agency that investigated or 
participated in the investigation of the murder, notification of the 
other agency that the case is under review and consideration of any 
information provided by the other agency.
    (c) Reviewer. A review under paragraph (a) of this section shall 
not be conducted by a person who previously investigated the murder at 
issue. This does not limit the reviewer in seeking information from or 
consulting with a person who conducted or was involved in the initial 
investigation.
    (d) Acknowledgment. The agency shall provide in writing to the 
applicant, as soon as reasonably possible, confirmation of the agency's 
receipt of the application and notice of the applicant's rights under 
the Act.
    (e) Certification in lieu of review. The application for a case 
file review may be denied if the case does not satisfy the criteria for 
a cold case murder as defined in Sec.  95.2(g). If a case file review 
is denied on this ground, the agency shall issue a written 
certification that the case does not satisfy the criteria for a cold 
case murder and shall inform the applicant of the reason for the 
denial.


Sec.  95.4  Review procedures.

    (a) Application form. Each agency that may be the principal 
investigative agency in a cold case murder investigation shall develop 
a written application form to be used for designated persons to request 
a case file review. An agency may adopt for this purpose a standard 
form developed by the government, or by another organizational unit of 
the government, and need not separately develop an agency-specific 
form.
    (b) Responsible agency. An application for a case file review may 
be denied if it is submitted to an agency that did not previously 
investigate the murder or was not the principal investigative agency in 
the initial investigation of the murder. If a case file review is 
denied on this ground, the agency shall inform the applicant of the 
reason for the denial. If the agency is aware of another Federal agency 
that was the principal investigative agency in the initial 
investigation, the agency shall so advise the applicant and shall, if 
the applicant wishes, transfer the application to the principal 
investigative agency. If no Federal agency was the principal 
investigative agency in the initial investigation, but the agency knows 
the identity of a non-Federal entity that investigated the murder, the 
agency shall so advise the applicant.
    (c) Multiple agencies or applications. (1) If more than one agency 
participated in the investigation of a murder, the agencies shall 
coordinate any case file review or full reinvestigation so that there 
is only one joint case file review or full reinvestigation at any one 
time. An application for review shall not be denied based on 
disagreement among agencies as to which agency was the principal 
investigative agency in the initial investigation. In such a case, the 
relevant agencies shall jointly consider the application and 
collaborate in carrying out any resulting case file review or 
reinvestigation, or responsibility for those functions may be assumed 
by or assigned to one of the agencies involved.
    (2) An agency need not take any action based on an application by a 
designated person during the pendency of an application by another 
designated person with respect to the same victim, or during the 
pendency of a resulting case file review or reinvestigation, but the 
agency shall advise the applicant that there was an earlier application 
and may consider any information provided by the later applicant.
    (3) Only one case file review shall be undertaken at any one time 
with respect to the same cold case murder victim. If an agency receives 
multiple applications with respect to different victims, it may 
consolidate any resulting case file reviews.
    (d) Time limit. An agency shall complete a case file review and 
decide whether a full reinvestigation is warranted not later than six 
months after the receipt by the agency of the application resulting in 
the review. The agency may extend this time limit once for a period not 
exceeding six months if the agency finds that the number of case files 
to be reviewed makes it impracticable to comply with the time limit 
without unreasonably taking resources from other law enforcement 
activities. If the time limit is extended, the agency shall notify and 
explain its reasoning to the applicant.


Sec.  95.5  Full reinvestigation.

    (a) In general. An agency shall conduct a full reinvestigation of a 
cold case murder if review of the case file concludes that a full 
reinvestigation would result in probative leads. As provided in the 
definition of ``probative leads'' in Sec.  95.2(h), this means that a 
full reinvestigation is required if the case file review produces 
information that identifies the perpetrator or that provides a 
sufficient likelihood of enabling the identification of the perpetrator 
to warrant further investigation, in the agency's judgment and 
consistent with the agency's policies and practices regarding the use 
of investigative methods.
    (b) Full reinvestigation. A full reinvestigation for purposes of 
the Act means an investigation in which all new probative leads are 
exhausted. A full reinvestigation--
    (1) Shall include analyzing all evidence regarding the murder for 
the purpose of developing probative leads; but
    (2) Need not involve pursuing leads that do not, in the agency's 
judgment, provide a sufficient likelihood of enabling the 
identification of the perpetrator to warrant further investigation, or 
whose pursuit is not consistent with the agency's policies and 
practices regarding the use of investigative methods.
    (c) Person conducting reinvestigation. A reinvestigation shall not 
be conducted by a person who previously investigated the murder. This 
prohibition does not limit consulting with or obtaining information 
from a person involved in the previous investigation, or using such a 
person in a subordinate role in the reinvestigation.
    (d) Unified reinvestigation. Only one full reinvestigation shall be 
undertaken at any one time with respect to the same cold case murder 
victim. If reinvestigation is found to be warranted with respect to 
multiple victims, the resulting reinvestigations may be consolidated.


Sec.  95.6  Multiple agencies.

    If more than one agency conducted the initial investigation of a 
cold case murder, each agency shall coordinate with the other agency or 
agencies any case file review or full reinvestigation so that there is 
only one case file review or full reinvestigation occurring at a time, 
as provided in Sec. Sec.  95.4(c) and 95.5(d).


Sec.  95.7  Consultation, updates, and explanation.

    (a) Consultation. The agency shall consult with the designated 
person who filed an application for case file review. This means 
discussing the application with the applicant on at least one occasion.

[[Page 6893]]

    (b) Updates. The agency shall provide the applicant with periodic 
updates during any case file review or full reinvestigation. The 
required update shall include informing the applicant whether the 
review or reinvestigation is in progress or has been completed.
    (c) Explanation of decision. At the conclusion of a case file 
review, the agency shall meet with the applicant and discuss the 
evidence to explain the decision whether or not to engage in a full 
reinvestigation. Discussion of the evidence and explanation of the 
decision do not require disclosure of information described in Sec.  
95.12 or other information that would not generally be shared with a 
victim's family members in the investigation of a murder.
    (d) Means of communication. Meetings required under this section 
may be carried out in person or through remote video communication. 
Consultations and updates may be carried out in person or through any 
other means of communication.


Sec.  95.8  Subsequent reviews.

    (a) In general. If an agency concludes following a case file review 
that a full reinvestigation is not warranted, or if a full 
reinvestigation is undertaken and completed without identifying a 
likely perpetrator, no additional case file review or reinvestigation 
is required to be undertaken with respect to a cold case murder for a 
period of five years, unless there is newly discovered, materially 
significant evidence.
    (b) New material evidence. For purposes of the Act, newly 
discovered, materially significant evidence means evidence discovered 
subsequent to the previous case file review or reinvestigation that 
identifies the perpetrator or that provides a sufficient likelihood of 
enabling the identification of the perpetrator to warrant further 
investigation, in the agency's judgment and consistent with the 
agency's policies and practices regarding the use of investigative 
methods.
    (c) Discretionary authority. An agency may, in its discretion, 
review case files, continue investigation, or reinvestigate 
notwithstanding the absence of an application by a designated person or 
the time when previous review, investigation, or reinvestigation 
occurred.


Sec.  95.9  Procedures to promote compliance.

    (a) In general--(1) Regulations. The Act provides that, not later 
than August 3, 2023, each agency shall promulgate regulations to 
enforce the right of a designated person to request a review under the 
Act and to ensure compliance by the agency with the obligations 
described in the Act. This requirement applies to any agency that may 
be the principal investigative agency in a murder investigation. An 
agency is not required to separately promulgate regulations to the 
extent it adopts, or is subject to, regulations issued by another 
organizational unit of the government regarding the matters described 
in this section.
    (2) Content of regulations. The Act provides that the regulations 
promulgated under paragraph (a)(1) of this section shall--
    (i) Designate an administrative authority within the agency to 
receive and investigate complaints relating to case file reviews and 
reinvestigations and provide a procedure for the resolution of such 
complaints;
    (ii) Require a course of training for appropriate employees and 
officers within the agency regarding the procedures, responsibilities, 
and obligations under the Act;
    (iii) Contain disciplinary sanctions, which may include suspension 
or termination from employment, for employees of the agency who have 
willfully or wantonly failed to comply with the Act; and
    (iv) Provide that the head of the agency, or a designee, shall be 
the final arbiter of the complaint, and that there shall be no judicial 
review of the final decision of the head of the agency or designee by a 
complainant.
    (3) Agency. For purposes of paragraphs (a)(1) and (2) of this 
section, the ``agency'' may be a broader organizational unit of the 
government in which the principal investigative agency is situated.
    (b) Department of Justice. The following shall apply to each agency 
of the Department of Justice that may be the principal investigative 
agency in a cold case murder investigation:
    (1) The agency shall require a course of training regarding the 
procedures, responsibilities, and obligations required under the Act 
for agency officers and employees whose involvement in carrying out the 
Act warrants such training.
    (2) The agency shall designate an official within the agency to 
receive and investigate complaints alleging that the agency engaged in 
a violation of the Act relating to case file review or reinvestigation 
of a cold case murder. If investigation of a complaint by the official 
could create a conflict of interest, the official shall notify the 
appropriate individual or office within the agency and investigation of 
the complaint may be assigned to a different official.
    (3) A complaint under this subsection must be submitted in writing 
by a person who applied for case file review under Sec.  95.3(a). The 
complaint must be submitted within one year of the complainant's 
knowledge of a violation or receipt of information from the agency 
indicating completion of a case file review or reinvestigation, but if 
no such information has been received from the agency, then within five 
years of the submission of the application for case file review. A 
complaint submitted outside these time frames must include an 
explanation for why it was not timely submitted, which will be 
considered in deciding whether to accept the application. The complaint 
shall contain, to the extent known to, or reasonably available to, that 
person, the following information:
    (i) The name and contact information of the complainant.
    (ii) The investigative case number or name of the murder victim.
    (iii) Any tracking number or other identifier of the complainant's 
application for case file review under Sec.  95.3(a).
    (iv) If the complaint pertains to a specific officer or employee of 
the agency, that person's name and contact information, or other 
identifying information if the complainant is not able to provide name 
and contact information.
    (v) Information about the alleged violation of the Act sufficient 
to enable the agency official to conduct an investigation including: 
the nature of the violation; when and how it occurred; whether, when, 
and how the complainant notified an agency officer or employee of the 
alleged violation; and any actions taken by an agency officer or 
employee in response to such notification.
    (4) The agency official shall investigate a complaint that 
satisfies the conditions set forth in paragraph (b)(3) of this section, 
determine whether further action is warranted, document and close the 
investigation of the complaint in conformity with agency procedures, 
and inform the complainant about the disposition of the complaint. 
However, the complaint procedure under this subsection is not available 
to present complaints about the conduct of the initial investigation, 
to present complaints about the conduct of an officer or employee of 
another agency, or to secure a reexamination or redetermination of the 
agency's decision whether a reinvestigation is warranted under the Act.
    (5) The head of the agency or a designee shall be the final arbiter 
of the

[[Page 6894]]

complaint and there shall be no judicial review of that person's final 
decision.
    (6) An officer or employee of the agency who has failed to comply 
with the Act may be required to undergo retraining or additional 
training. All disciplinary actions authorized by the agency or the 
Department of Justice may be taken, as appropriate, including 
suspension or termination from employment, for officers or employees of 
the agency who are determined to have willfully or wantonly failed to 
comply with the Act.
    (7) The provisions of paragraph (b) of this section do not 
authorize the agency to exercise authority over, take disciplinary 
action against, or involve in its complaint or disciplinary processes, 
an officer or employee of another agency.


Sec.  95.10  Data collection.

    (a) Publication of statistics. Not later than August 3, 2025, and 
annually thereafter, the National Institute of Justice shall publish 
statistics on the number of cold case murders. The Attorney General may 
delegate this function to the Bureau of Justice Statistics or another 
component of the Department of Justice.
    (b) Content of published statistics. The statistics published 
pursuant to paragraph (a) of this section shall, at a minimum, be 
disaggregated by the circumstances of the cold case murder, including 
the classification of the offense, and by agency.
    (c) Annual publications. The statistics published in each year 
shall provide the required information for--
    (i) Cold case murders in which the murder occurred after the 
enactment of the Act and no likely perpetrator was identified by the 
end of the preceding year; and
    (ii) Cold case murders in which an application for review under 
Sec.  95.3(a) was filed before the end of the preceding year and no 
likely perpetrator was identified by the end of that year.


Sec.  95.11  Annual report.

    (a) In general. The Act provides that each agency shall submit an 
annual report to the Committees on the Judiciary of the House of 
Representatives and of the Senate describing actions taken and results 
achieved under this Act during the previous year. This requirement 
applies to any agency that may be the principal investigative agency in 
a murder investigation. An individual agency need not submit a separate 
report if the required information with respect to the agency is 
included in a report submitted to the Committees by another 
organizational unit of the government.
    (b) Contents of report. The Act provides that the report described 
in paragraph (a) of this section shall include--
    (1) The number of written applications filed with the agency 
pursuant to section 2(a) of the Act and Sec.  95.3(a);
    (2) The number of extensions granted, and an explanation of reasons 
provided under section 2(h) of the Act and Sec.  95.4(d);
    (3) The number of full reinvestigations initiated and closed 
pursuant to section 4 of the Act and Sec.  95.5; and
    (4) Statistics and individualized information on topics that 
include identified suspects, arrests, charges, and convictions for 
reviews under section 2 of the Act and Sec.  95.3 and reinvestigations 
under section 4 of the Act and Sec.  95.5.


Sec.  95.12  Withholding information.

    Nothing in the Act or this part requires an agency to provide 
information that would endanger the safety of any person, unreasonably 
impede an ongoing investigation, violate a court order, or violate 
legal obligations regarding privacy.

    Dated: January 13, 2025.
Merrick B. Garland,
Attorney General.
[FR Doc. 2025-01159 Filed 1-16-25; 8:45 am]
BILLING CODE 4410-18-P`