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Proposed Rule

Procedures To Promote Compliance With Crime Victims' Rights Obligations

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Information about this document as published in the Federal Register.

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AGENCY:

Department of Justice.

ACTION:

Proposed rule.

SUMMARY:

This proposed rule implements section 102(f) of the Justice for All Act, establishing procedures to promote compliance with crime victims' rights statutes by Department of Justice employees.

DATES:

Written comments must be received on or before September 6, 2005.

ADDRESSES:

Written comments may be submitted to: Mary Beth Buchanan, Director, Executive Office for United States Attorneys, United States Start Printed Page 39207Department of Justice, Washington, DC 20530; Attn: “OAG Docket No. 112.”

E-mail comments may be electronically submitted to http://www.regulations.gov by using the electronic comment form provided on that site or to cvraregs.eousa@usdoj.gov. Comments submitted electronically must include “OAG Docket No. 112” or “RIN 1105-AB11” in the subject line. You may also view an electronic version of this rule at the http://www.regulations.gov site.

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FOR FURTHER INFORMATION CONTACT:

Mary Beth Buchanan, Director, Executive Office for United States Attorneys, United States Department of Justice, Washington, DC 20530, (202) 514-2121.

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SUPPLEMENTARY INFORMATION:

Congress enacted, and the President signed, the Justice for All Act (“Act”), which became effective October 30, 2004. Section 102 of the Act, 18 U.S.C. 3771 (“section 3771”), codifies crime victims” rights, requires officers and employees of the Department of Justice (“Department”) and other government departments and agencies to exercise best efforts to accord victims those rights, establishes enforcement measures for those rights, and requires the Attorney General to promulgate regulations within one year of the Act's effective date to promote compliance by responsible Department of Justice officials with their obligations regarding victims' rights. Section 3771(f) states that the regulations must: (a) Designate an administrative authority within the Department to receive and investigate complaints relating to the provision or violation of the rights of a crime victim by Department employees; (b) require a course of training for Department employees and offices that fail to comply with their obligations regarding victims' rights; (c) contain disciplinary sanctions for willful and wanton failure to comply with obligations regarding victims' rights; and (d) provide that the Attorney General or his designee shall be the final arbiter of a complaint.

In order to implement this statutory directive, this proposed rule creates a new section in part 45, Employee Responsibilities, of title 28, Judicial Administration, of the Code of Federal Regulations. Proposed § 45.10 creates the office of the Victims' Rights Ombudsman (VRO) within the Executive Office for United States Attorneys (EOUSA) and designates the VRO as the administrative authority within the Department to receive and investigate complaints relating to the provision or violation of the rights of a crime victim. The proposed rule authorizes the VRO to designate points of contact (POCs) in each office of the Department to perform initial investigations and review of complaints, in order to allow for complaints to be addressed at the most local level.

For purposes of the new section, victims of crime are defined identically to the definition in the Justice for All Act, and victims' rights are defined as those established in the Act.

The proposed rule then establishes a procedure for filing complaints, investigations of those complaints, and imposition of disciplinary sanctions against employees where warranted.

The proposed rule requires that a complaint must be in writing and must contain sufficient information to enable an investigation of the complaint by the POC. Complaints must be filed within 30 days of the alleged violation of a victim's rights, unless the victim demonstrates good cause for the delay. The precise requirements for the investigation will be established by internal Department policy guidance. At the end of the investigation, the POC will prepare a written report of the results of the investigation, including a signed statement by the victim as to whether or not he is satisfied that his complaint has been resolved. In either case, however, the report will be forwarded to the VRO for review. The VRO will then decide whether (a) No further action is necessary; (b) further investigation, to be conducted by the VRO, is necessary; or (c) the employee should be required to undergo training or be subject to disciplinary sanctions. The VRO's determination will not be dependent on the victim's satisfaction, although it may be taken into account. The VRO will be the final arbiter of whether the complaint has been adequately addressed.

If the VRO determines that no further action is necessary, the matter will be closed.

The VRO, upon either review of the POC's investigation or his own further investigation, may require an employee to undergo training on the obligations of Department employees regarding victims' rights. If, upon either review of the POC's investigation or his own further investigation, the VRO determines that the employee has willfully or wantonly violated a crime victim's rights, the VRO is authorized to recommend, in conformity with laws and regulations regarding employee discipline, a range of disciplinary sanctions to the head of the office in which the employee is located, or to the official who has been designated by Department of Justice regulations and procedures to take action on disciplinary matters for that office. The head of that office of the Department of Justice, or the other official designated by Department of Justice regulations and procedures to take action on disciplinary matters for that office, shall be the final decision-maker regarding the disciplinary sanction to be imposed.

Because of restrictions on the release of information regarding the status of Department employees and the need to balance the rights of the victim with the rights of the employee, the victim shall be notified of the results of the investigation only at the discretion of the VRO and in accordance with relevant statutes and regulations regarding privacy of Federal employees.

Both the POC and the VRO are required to refer to the Office of the Inspector General (OIG) or the Office of Professional Responsibility (OPR) any matters that fall under those offices' jurisdictions that may come to light in the POC's or the VRO's investigation.

An appendix listing the contact information for the VRO and the POCs of each relevant office of the Department of Justice will be attached to the final rule, when published.

Regulatory Procedures

Regulatory Flexibility Act

Because this proposed rule affects only internal Department procedures, the Department states that this rule, if promulgated as a final rule, will not have any effect on small businesses of the type described in 5 U.S.C. 605. Accordingly, the Department has not prepared an initial Regulatory Flexibility Act analysis in accordance with 5 U.S.C. 603.

Executive Order 12866

The Department of Justice has reviewed this rule in light of Executive Order 12866, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f)(4), Regulatory Planning and Review. Accordingly, this rule has been reviewed by the Office of Management and Budget.

In particular, the Department has assessed both the costs and benefits of this rule as required by Executive Order 12866 section 1(b)(6) and has made a reasoned determination that the benefits of this regulation justify its costs. The costs that the Department considered included the costs to victims of submitting complaints to the POC and VRO, the costs to the employees of participating in the complaint and disciplinary process, and the costs to Start Printed Page 39208the Federal Government of creating and maintaining the VRO office. The benefits considered by the Department are that the purpose of the Act and of these regulations is to protect victims' rights. The Department believes that the costs imposed by these regulations are justified by the benefits.

Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, 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.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act

This proposed rule is exempt from the requirements of the Paperwork Reduction Act under 5 CFR 1320.4(1) because it relates to the conduct of a Federal criminal investigation or prosecution.

All comments and suggestions relating to the Paperwork Reduction Act, or questions regarding additional information, should be directed to Brenda Dyer, Clearance Officer, Policy and Planning Staff, Justice Management Division, Department of Justice, 601 D Street, NW., Washington, DC 20530.

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List of Subjects in 28 CFR Part 45

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Accordingly, for the reasons stated in the preamble, the Department of Justice proposes to amend 28 CFR chapter I part 45 as follows:

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PART 45—EMPLOYEE RESPONSIBILITIES

1. The authority citation for part 45 is revised to read as follows:

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Authority: 5 U.S.C. 301, 7301; 18 U.S.C. 207, 3771; 28 U.S.C. 503, 528; DOJ Order 1735.1.

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2. Part 45 is amended by adding new § 45.10 to read as follows:

Procedures to promote compliance with crime victims' rights obligations.

(a) Definitions. The following definitions shall apply with respect to this section, which implements the provisions of the Justice for All Act that relate to protection of the rights of crime victims. See 18 U.S.C. 3771.

Crime victim means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim's rights, but in no event shall the defendant be named as such guardian or representative.

Crime victims' rights means those rights provided in 18 U.S.C. 3771.

Employee of the Department of Justice means an attorney, investigator, law enforcement officer, or other personnel employed by any division or office of the Department of Justice whose regular course of duties includes direct interaction with crime victims, not including a contractor.

Office of the Department of Justice means a component of the Department of Justice whose employees directly interact with crime victims in the regular course of their duties.

(b) The Attorney General shall designate an official within the Executive Office for United States Attorneys (EOUSA) to receive and investigate complaints alleging the failure of Department of Justice employees to provide rights to crime victims under 18 U.S.C. 3771. The official shall be called the Department of Justice Victims' Rights Ombudsman (VRO). The VRO shall then designate, in consultation with each office of the Department of Justice, an official in each office to serve as the initial point of contact (POC) for complainants.

(c) Complaint process. (1) Complaints must be submitted in writing to the POC of the relevant office or offices of the Department of Justice. If a complaint alleges a violation by the POC, the complaint must be forwarded by the POC to the VRO.

(2) Complaints shall contain:

(i) The name and personal contact information of the crime victim who allegedly was denied one or more crime victims' rights;

(ii) The name and contact information of the Department of Justice employee who is the subject of the complaint, or other identifying information if the complainant is not able to provide the name and contact information;

(iii) The district court case number;

(iv) The name of the defendant in the case;

(v) The right or rights listed in 18 U.S.C. 3771 that the Department of Justice employee is alleged to have violated; and

(vi) Specific information regarding the circumstances of the alleged violation sufficient to enable the POC to conduct an investigation, including, but not limited to: The date of the alleged violation; an explanation of how the alleged violation occurred; whether the complainant notified the Department of Justice employee of the alleged violation; how and when such notification was provided to the Department of Justice employee; and actions taken by the Department of Justice employee in response to the notification.

(3) Complaints must be submitted within 30 days of the alleged violation, unless the victim demonstrates good cause for the delay.

(4)(i) In response to a complaint that provides the information required under paragraph (c)(2) of this section and that makes a prima facie case of a violation of a right under 18 U.S.C. 3771, the POC shall investigate the allegation(s) in the complaint.

(ii) The POC shall send a written report of the results of the investigation to the VRO, along with a statement by the victim as to whether or not the victim is satisfied that the complaint has been resolved. The report shall not be available for review by the complainant or the Department of Justice employee, Start Printed Page 39209unless required by other Federal personnel laws or regulations.

(5) Upon receipt of the POC's report of the investigation, the VRO shall determine whether to close the complaint without further action, whether further investigation is warranted, or whether action in accordance with paragraphs (d) or (e) of this section is necessary.

(6) Where the VRO concludes that further investigation is warranted, he may conduct such further investigation. Upon conclusion of the investigation, the VRO may close the complaint if he determines that no further action is warranted or may take action under paragraph (d) or (e) of this section.

(7) The VRO shall be the final arbiter of the complaint.

(8) A complainant may not seek judicial review of the VRO's determination regarding the complaint.

(9) To the extent permissible in accordance with the Privacy Act and other relevant statutes and regulations regarding release of information by the Federal Government, the VRO, in his discretion, may notify the complainant of the result of the investigation.

(10) The POC and the VRO shall refer to the Office of the Inspector General and to the Office of Professional Responsibility any matters that fall under those offices' respective jurisdictions that come to light in an investigation.

(d) If the VRO deems it necessary in response to an investigation, he may require employees or offices of the Department of Justice to undergo training on victims' rights.

(e) Disciplinary procedures. (1) If, based on the investigation, the VRO determines that a Department of Justice employee has wantonly or willfully failed to provide the complainant with a right listed in 18 U.S.C. 3771, the VRO shall recommend, in conformity with laws and regulations regarding employee discipline, a range of disciplinary sanctions to the head of the office of the Department of Justice in which the employee is located, or to the official who has been designated by Department of Justice regulations and procedures to take action on disciplinary matters for that office. The head of that office of the Department of Justice, or the other official designated by Department of Justice regulations and procedures to take action on disciplinary matters for that office, shall be the final decision-maker regarding the disciplinary sanction to be imposed, in accordance with applicable laws and regulations.

(2) Disciplinary sanctions available under paragraph (e)(1) of this section include all sanctions provided under the Department of Justice Human Resources Order, 1200.1, part 3, chapter 1.

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Dated: June 30, 2005.

Alberto R. Gonzales,

Attorney General.

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[FR Doc. 05-13322 Filed 7-6-05; 8:45 am]

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