[Federal Register Volume 70, Number 129 (Thursday, July 7, 2005)]
[Proposed Rules]
[Pages 39206-39209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-13322]


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DEPARTMENT OF JUSTICE

28 CFR Part 45

[OAG Docket No. 112; AG Order No. 2770-2005]
RIN 1105-AB11


Procedures To Promote Compliance With Crime Victims' Rights 
Obligations

AGENCY: Department of Justice.

ACTION: Proposed rule.

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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

[[Page 39207]]

Department 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 [email protected]. 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.

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.

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 Sec.  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

[[Page 39208]]

the 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.

List of Subjects in 28 CFR Part 45

    Employee responsibilities; Victims' rights.

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

PART 45--EMPLOYEE RESPONSIBILITIES

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

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

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


Sec.  45.10  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,

[[Page 39209]]

unless 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.

    Dated: June 30, 2005.
Alberto R. Gonzales,
Attorney General.
[FR Doc. 05-13322 Filed 7-6-05; 8:45 am]
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