[Federal Register Volume 70, Number 163 (Wednesday, August 24, 2005)]
[Proposed Rules]
[Pages 49518-49525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16495]


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DEPARTMENT OF JUSTICE

Office of Justice Programs

28 CFR Part 94

[OJP (OJP)--Docket No. 1368]
RIN 1121-AA63


International Terrorism Victim Expense Reimbursement Program

AGENCY: Office of Justice Programs, Justice.

ACTION: Notice of proposed rulemaking with request for comments.

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SUMMARY: The Office of Justice Programs (``OJP'') proposes the 
following regulations to implement provisions of the Victims of Crime 
Act of 1984 (the ``VOCA'') (42 U.S.C. 10601 et seq.), which authorize 
the Director of the Office for Victims of Crime (``OVC''), a component 
of OJP, to establish an International Terrorism Victim Expense 
Reimbursement Program (hereinafter referred to as the ``ITVERP'') to 
reimburse eligible ``direct'' victims of acts of international 
terrorism that occur outside the United States for ``expenses 
associated with that victimization.''

DATES: Interested parties are invited to submit written comments on 
these proposed regulations by October 24, 2005.

ADDRESSES: Please address all comments regarding these proposed 
regulations, by U.S. mail, to: ITVERP, Office for Victims of Crime, 
Office of Justice Programs, U.S. Department of Justice, 810 Seventh 
Street, NW., Washington, DC 20531; by telefacsimile (fax), on: 202-514-
2940; or by e-mail, to: [email protected]. To ensure proper handling, 
please reference OJP Docket No. 1368 on your correspondence. You may 
view an electronic version of this proposed rule at 
www.regulations.gov, and you may also comment by using the 
www.regulations.gov comment form for this regulation. When submitting 
comments electronically you must include OJP Docket No. 1368 in the 
subject box.

FOR FURTHER INFORMATION CONTACT: Carolyn Hightower, Principal Deputy 
Director, Office for Victims of Crime, Office of Justice Programs, U.S. 
Department of Justice, 810 Seventh Street, NW., Washington, DC 20531; 
by telephone, at: 1-800-363-0441; or by e-mail, at: [email protected].

SUPPLEMENTARY INFORMATION: As authorized by the VOCA, OVC generally 
provides federal financial assistance to states for the purpose of 
compensating and assisting victims of crime, provides funds for 
training and technical assistance services for victims of federal 
crimes, and provides funding and services for victims of terrorism and 
mass violence. This program is funded by fines, fees, penalty 
assessments, and bond forfeitures paid by federal offenders, as well as 
gifts from private individuals, deposited into the Crime Victims Fund 
in the U.S. Treasury.
    These proposed regulations concern the administration of the 
ITVERP, as authorized by a 2000 VOCA amendment codified at 42 U.S.C. 
10603c (the ``Statute'').

I. Background

    Over the years, hundreds of nationals of the United States, and 
officers and employees of the U.S. government, have been killed or 
injured in heinous acts of international terrorism occurring outside 
the United States. Victims of acts of international terrorism occurring 
outside the United States face unique obstacles in securing assistance, 
compensation, and support, which is more readily available to victims 
of violent crime and domestic or international terrorism occurring 
within U.S. borders. Victims and family members often face immediate 
needs, such as covering medical care, funeral and burial, short-term 
lodging, and emergency transportation expenses. Language and cultural 
barriers can impair victims' ability to secure appropriate support. 
Moreover, resources for victim assistance vary widely from one country 
to the next. Many of the countries that have established victim 
reimbursement programs compensate only their own citizens, leaving 
American citizens without benefits. Although OVC provides funding to 
states to administer victim compensation programs, the programs 
administered by each state vary considerably; survivors of the same act 
of international terrorism occurring abroad may be residents of many 
different states, and thus receive different levels of compensation for 
similar injuries. Partially in recognition of this disparity of 
treatment, VOCA was amended so that states shall no longer be required 
to compensate victims of international terrorism occurring outside the 
United States, and the federal government shall oversee an expense 
reimbursement program for these victims. See Victims of Trafficking 
Violence Protection Act, Pub. L. 106-386, div. C, Sec.  2003(c)(1), 114 
Stat. 1464, 1544 to 1546; USA PATRIOT Act, Pub. L. 107-56, tit. VI, 
subtit. B, Sec.  624(c), 115 Stat. 272, 373.

[[Page 49519]]

1. Eligibility

    To be eligible to receive a reimbursement under this program, an 
individual victim of international terrorism abroad must be (as of the 
date on which the act of international terrorism occurred) either a 
national of the United States or an officer or employee of the U.S. 
government, which could include foreign nationals working for the U.S. 
government who may be killed or injured in an international terrorist 
attack. The term ``national of the United States'' has the meaning 
given the term in section 101(a) of the Immigration and Nationality Act 
(8 U.S.C. 1101(a)). The term ``officer or employee of the United States 
Government'' is defined in Sec.  94.12 of these proposed regulations.
    In addition, the Statute expressly requires that the individual 
victim must have suffered ``direct physical or emotional injury or 
death as a result of an act of international terrorism occurring on or 
after December 21, 1988, with respect to which an investigation or 
prosecution was ongoing or was commenced after April 24, 1996.'' No 
victim, however (or victim's family) may recover under this subpart, if 
the victim is found to be ``criminally culpable'' for the terrorist 
act. For the purposes of this program, the Attorney General shall 
determine whether there is a reasonable indication that an act of 
international terrorism has occurred.

2. Direct Injury

    The Statute provides that a victim eligible for reimbursement is 
``a person who suffered direct physical or emotional injury or death'' 
as a result of an act of international terrorism. Pursuant to this 
requirement of ``direct injury,'' individuals present during the act of 
terrorism, as well as qualifying emergency responders who otherwise 
meet the eligibility requirements and deal with the immediate aftermath 
of the event, are covered. Accordingly, under the Statute, family 
members who were not present during the act of terrorism would not be 
``direct[ly]'' injured and therefore could be reimbursed only on behalf 
of a victim who was present, and not in their own right. An analogous 
provision of VOCA, however, relating to ``direct harm,'' recognizes 
that family members also can be ``direct[ly]'' injured when the 
immediate victim at the time of or as a result of the act is a minor, 
incompetent, incapacitated, or is killed. See generally 42 U.S.C. 
10607(e)(2). These regulations essentially incorporate that recognition 
into the eligibility provisions.

3. Determination of Reasonable Indication of Act of International 
Terrorism

    The determination that there is a reasonable indication that an act 
of international terrorism has occurred will ordinarily be made by the 
Attorney General, as soon as is practicable. The Attorney General may 
delegate the authority to make this determination, pursuant to 5 U.S.C. 
301 and 28 U.S.C. 510. The Attorney General or official to whom 
authority is delegated will consult with the Director of National 
Intelligence, or such official to whom authority is delegated, in 
making this determination. In certain instances in which such a 
determination is not made until after a significant amount of time has 
passed, the Director of OVC may, at his discretion, extend the deadline 
for filing a claim.
    In all cases, notice of the Attorney General's determination that 
there is a reasonable indication that an act of international terrorism 
has occurred, which would make reimbursement available under the 
ITVERP, will be posted on the OVC Web site at www.ovc.gov. Note: The 
determination that there is a reasonable indication that an act of 
international terrorism has occurred is only for the purposes of 
determining eligibility for reimbursement of expenses under this 
program. Such a determination should not be understood to apply in any 
other proceeding or matter, nor should it create any inference that 
prosecution is warranted.

4. Expense-Based Reimbursement Program

    The Statute provides that eligible victims of international 
terrorism may be reimbursed ``for expenses associated with that 
victimization.'' The language of the Statute restricts the ITVERP 
program to one that directly reimburses victims for actual out-of-
pocket expenses. As shown in a chart appended to this regulation, there 
are five major categories of expenses for which claimants can seek 
reimbursement under the ITVERP: (1) Medical, including dental and 
rehabilitation costs; (2) mental health care; (3) property loss, 
repair, and replacement; (4) funeral and burial costs; and (5) 
miscellaneous expenses. Thus, under this proposed rule, reimbursement 
is not available for lost wages or non-monetary losses, such as for 
pain and suffering, loss of enjoyment of life, loss of consortium, etc.

5. Submission of Claims

    In order to be eligible for payment, either a victim or an 
individual legally designated to represent a victim must submit 
application materials, that will have been approved in advance by the 
Office of Management and Budget (``OMB''). These materials are designed 
to be simple, but ordinarily will require submission of sufficient 
information to determine eligibility under the Statute and these 
regulations, legally justify a claim and, as appropriate, verify 
unreimbursed expenses incurred. It is anticipated that all such 
materials will be available electronically via the OVC Web site. 
Because the Statute authorizes that reimbursement may be made to 
victims of acts of international terrorism that occurred as early as 
December, 1988, there will likely be cases in which victims no longer 
have the original receipts for items or services for which they are 
seeking reimbursement. In cases of international terrorism that 
occurred before the establishment of the ITVERP (and also in cases in 
which the records have been destroyed or lost), at the discretion of 
the Director, OVC may accept an itemized list of expenses. In such 
cases, the victim, or his representative, must certify that original 
receipts are unavailable, and attest that the items and amounts 
submitted in the list are true and correct to the best of claimant's 
knowledge.
    Other individuals, such as friends, family members, or attorneys, 
may assist the victim or representative in preparation of the 
application. But, in no instance (with a limited exception for interim 
emergency payments) shall individuals who do not meet the definition of 
a ``victim'' be allowed to file a claim or accept payment under a 
claim, unless that individual is a representative of the victim. OVC 
will communicate directly with the appropriate claimant concerning the 
disposition of each claim, fully explain reasons for denial of any 
claim, and provide referrals of alternate sources of assistance, as 
appropriate.
    If necessary, a victim may submit supplemental documentation 
requesting payment for additional expenses after the initial claim is 
filed. Any intentional false claim for reimbursement may be subject to 
prosecution under 18 U.S.C. 1001 (false statement made to the United 
States Government).

6. Interim Emergency Payments

    Recognizing that victims of international terrorism abroad may have 
difficulty accessing the resources needed to address immediate 
financial needs, OJP has included a provision in

[[Page 49520]]

the proposed ITVERP regulations that would allow victims to apply for 
immediate partial reimbursement. A victim may apply for an interim 
emergency payment in cases in which the time that it would take for OVC 
to do a complete review of a claim would cause substantial hardship. 
Such payment may be used to cover immediate expenses such as those of 
medical care, funeral and burial, short-term lodging, and emergency 
transportation.

7. Limitations on Award Amounts

    A chart detailing the categories of expenses and applicable limits 
may be found below, at the end of these regulations.

8. Collateral Sources

    Under the terms of the Statute and Title VIII of the Omnibus 
Diplomatic Security and Antiterrorism Act of 1986, the amount of 
expenses reimbursed to a victim must be reduced by any amount of 
reimbursement that the victim receives under Title VIII in connection 
with the same act of international terrorism. OJP looked at the types 
of compensation and benefits that are considered collateral sources 
under Title VIII, 10 U.S.C. 1051(b), which provides that--

    Any compensation otherwise payable to a person under this 
section in connection with any disability or death shall be reduced 
by any amount payable to such person under any other program funded 
in whole or in part by the United States in connection with such 
disability or death, except that nothing in this subsection shall 
result in the reduction of any amount below zero.

    Consistent with this section, OJP has determined that sources that 
provide reimbursement for specific expenses under the ITVERP--e.g., 
health, property, and funeral insurance--are considered collateral 
sources. Life insurance proceeds are not considered a collateral 
source, as they do not compensate for specific expenses. This 
definition of collateral sources is consistent with other provisions 
relating to crime victim reimbursement programs under VOCA.
    Any lump sum payment from the United States or a foreign government 
source that provides general compensation will be considered a 
collateral source, unless that payment is in the nature of 
reimbursement for a specific category of expenses that is not covered 
under the ITVERP. For example, if a claimant receives payment from a 
government to provide compensation for a claimant's car that is 
destroyed as a result of an act of international terrorism, such 
payment is not considered a collateral source under the ITVERP, which 
does not reimburse for that particular expense.
    In cases in which another organization chooses to provide 
supplemental reimbursement in a certain category, beyond the ITVERP 
limit in that category, the supplemental reimbursement will not be 
considered a collateral source, and thus will not reduce the amount 
that the claimant receives from the ITVERP. For example, if 
reimbursement in the category of ``mental health'' were limited to 12 
months, state compensation programs providing additional compensation 
in excess of the limit under ITVERP would not be counted as collateral 
sources. Thus, for example, if an eligible victim's mental health 
expenses extended beyond 12 months, and a state wished to reimburse him 
for an additional period of time, OJP would not consider the state 
reimbursement to be a collateral source, and would not reduce the award 
under the ITVERP. The victim could receive the maximum reimbursement 
within that category under the ITVERP in addition to the state 
reimbursement.

9. Limitations on Eligibility for Reimbursement

    The Statute provides that reimbursement will be denied to ``any 
individual who is criminally culpable for the terrorist act.'' Thus, no 
victim (or family member thereof) who is responsible for an act of 
international terrorism will be allowed to be reimbursed. For example, 
neither a ``suicide bomber'' nor his family will be reimbursed 
following his injury or death.
    Similarly, reimbursement may be reduced or denied, at the 
discretion of the Director, to specific individuals whose illegal or 
grossly reckless conduct at the time of the act of international 
terrorism materially contributed to their death or injury; this is not 
intended to apply to individuals such as international relief and 
humanitarian aid workers within organizations whose primary purpose is 
to provide charitable aid or a service in the public interest--often 
under dangerous conditions.

10. Appeal Hearings

    If, after conducting a review of a claimant's written appeal, the 
Assistant Attorney General determines that an oral hearing is 
warranted, the hearing may be conducted by an individual to whom the 
Assistant Attorney General has delegated that responsibility.

11. Consultation With External Entities

    Prior to drafting these regulations, OJP consulted with individuals 
and working groups comprised of federal and state government officials, 
victims of international terrorism, victim advocates, and non-
governmental victim organizations on various concepts related to 
compensation for victims of international terrorism. OJP officially 
convened working group meetings in June 2001 and February 2002. In 
addition, many other discussions, informal meetings, and draft reviews 
were held by OJP throughout the development of these regulations, from 
February 2001 until the publication of these proposed regulations in 
the Federal Register. Federal government agencies participating in 
these working groups and discussions included the Department of State, 
the Federal Bureau of Investigation, the United States Agency for 
International Development, the Department of Defense, the Office of 
Personnel Management, and the National Transportation Safety Board. 
State crime victim compensation program representatives from New 
Jersey, Virginia, Oklahoma, and Idaho also participated in working 
group meetings, as did a representative from the National Association 
of Crime Victim Compensation Boards. OJP also sought input from victims 
who would be eligible to apply for this program.
    Whenever possible, OJP attempted to address the concerns raised 
during the working group sessions and in meetings with various groups. 
For example, in response to concerns that it would cause hardship for 
some victims who may be unable to produce receipts for expenses 
incurred, the proposed ITVERP regulations allow, at the discretion of 
the Director, victims to certify that the receipts are unavailable, and 
to provide an itemized list of expenses.
    In certain instances, however, concerns were raised that could not 
be fully addressed, such as the suggestion that, in drafting 
regulations for the ITVERP, OJP replicate the September 11th Victim 
Compensation Fund of 2001. The statute authorizing the September 11th 
Victim Compensation Fund is radically different, however, from the 
statute authorizing the ITVERP, in the scope of compensation that is 
mandated. For instance, the September 11th Victim Compensation Fund was 
not an expense-based program, as the ITVERP is required by statute to 
be. In noting that various individuals and groups participated in 
meetings and discussions with OJP staff, OJP does not wish to imply 
that these individuals or groups have or have not endorsed the

[[Page 49521]]

provisions contained within these proposed regulations.

II. Regulatory Certifications

Executive Order 12866--Regulatory Planning and Review

    This regulation has been drafted and reviewed in accordance with 
Exec. Order No. 12866, section 1(b), 58 FR 51735 (Sept. 30, 1993), 
Principles of Regulation. OJP has determined that this rule is a 
``significant regulatory action'' under Executive Order No. 12866, and 
accordingly, this rule has been reviewed by the Office of Management 
and Budget.

Executive Order 13132--Federalism

    This regulation will not have a substantial direct effect on the 
states, on the relationship between the national government and the 
states, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Exec. Order 
No.13132, 64 FR 43255 (Aug. 4, 1999), it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.

Cost/Benefit Assessment

    This rule has no cost to state, local, or tribal governments, nor 
to the private sector. The ITVERP is funded by fines, fees, penalty 
assessments, and forfeitures paid by federal offenders, as well as 
gifts from private individuals, deposited into the Crime Victims Fund 
in the U.S. Treasury, and set aside in the Antiterrorism Emergency 
Reserve Fund, whose funds may not be obligated in an amount above $50 
million in any given year. The cost to the federal government consists 
both of administrative expenses and amounts reimbursed to victims. Both 
types of costs depend on the number of claimants, prospective as well 
as retroactive. Because of the statutory cap on spending and the number 
of potential retroactive claimants (approximately 900), it is expected 
that the program may spend the statutory maximum of $50 million each 
year for the first 2-3 years of the program's operation.

Regulatory Flexibility Act

    These proposed regulations will not have a significant economic 
impact on a substantial number of small entities. These regulations 
have no cost to state, local, or tribal governments, nor to the private 
sector. The ITVERP is funded by fines, fees, penalty assessments, and 
bond forfeitures paid by federal offenders, as well as gifts from 
private individuals, deposited into the Crime Victims Fund in the U.S. 
Treasury. Therefore, an analysis of the impact of these regulations on 
such entities is not required under the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.).

Paperwork Reduction Act of 1995

    The collection of information requirements contained in these 
proposed regulations have been submitted to the Office of Management 
and Budget, pursuant to the Paperwork Reduction Act (44 U.S.C. 3506). 
Applicants seeking reimbursement from this program will be required to 
submit an official application form (the International Terrorism Victim 
Expense Reimbursement Program Application), that has been created by 
OJP. This application is a new information collection instrument that 
will be used to collect necessary information from and about the 
victims and claimants regarding expenses incurred by them, to be used 
by OJP in making a reimbursement determination. The total number of 
respondents (including both direct victims and family members) for this 
collection is estimated to be 2,000. This represents the estimated 
number of claimants who are currently eligible to request reimbursement 
under the ITVERP. The total initial public burden associated with this 
initial information collection is estimated to be approximately 1,500 
hours. The amount of time for an average respondent to respond/reply is 
estimated to be approximately 45 minutes.
    Written comments regarding the application form should be directed 
to OMB, Office of Information and Regulation Affairs, Attention: 
Department of Justice Desk Officer, Washington, DC 20503, (202) 395-
5806. Suggestions or questions regarding the application form, 
including requests for copies of the proposed information collection 
instrument with instructions, should be directed by U. S. mail, to: 
ITVERP, Office for Victims of Crime, U.S. Department of Justice, 810 
7th Street, NW., Washington, DC 20531; by facsimile at: (202) 514-6383; 
or by e-mail, at: [email protected].
    Your comments are solicited to: (1) Evaluate whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information will 
have practical utility; (2) evaluate the accuracy of the agency's 
estimate of the burden of the proposed collection of information, 
including whether the information will have practical utility; (3) 
enhance the quality, utility, and clarity of the information to be 
collected; and (4) minimize the burden of the collection of information 
on those who are to respond, including making available appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, such as permitting 
electronic submission of responses. OMB is required to make a decision 
concerning the collection of information contained in these proposed 
regulations between 30 and 60 days after publication of this document 
in the Federal Register. Therefore, to ensure full consideration by 
OMB, comments should be received within 30 days of publication. This 
does not affect the deadline for the public to submit comments to the 
Department on the proposed regulations.

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.

List of Subjects in 28 CFR Part 94

    Administrative practice and procedures; International terrorism; 
Victim compensation.

    Accordingly, for the reasons set forth in the preamble, Title 28 of 
the Code of Federal Regulations is proposed to be amended to add a new 
Part 94, to read as follows:

PART 94--CRIME VICTIM SERVICES

Subpart A--International Terrorism Victim Expense Reimbursement Program

Introduction

Sec.
94.11 Purpose.
94.12 Definitions.
94.13 Terms.

Coverage

94.21 Eligibility.
94.22 Categories of expenses.
94.23 Amount of reimbursement.
94.24 Determination of award.
94.25 Collateral sources.

Program Administration

94.31 Application procedures.
94.32 Application deadline.
94.33 Investigation and analysis of claims.

Payment of Claims

94.41 Interim emergency payment.
94.42 Repayment and waiver of repayment.

Appeal Procedures

94.51 Request for reconsideration.

[[Page 49522]]

94.52 Final agency decision.
Appendix to Subpart A
Subpart B--[Reserved]
Subpart C--[Reserved]
Subpart D--[Reserved]

    Authority: 42 U.S.C. 10603C, 10604.

Subpart A--International Terrorism Victim Expense Reimbursement 
Program

Introduction


Sec.  94.11  Purpose.

    The purpose of this subpart is to implement the provisions of VOCA, 
Title II, Sec. 1404C (42 U.S.C. 10603C), which authorize the Director 
(Director), Office for Victims of Crime (OVC), a component of the 
Office of Justice Programs (OJP), to establish a program to reimburse 
eligible victims of acts of international terrorism that occur outside 
the United States, for expenses associated with that victimization.


Sec.  94.12  Definitions.

    The following definitions shall apply to this subpart:
    (a) Child means any biological or legally-adopted child, or 
stepchild, of a deceased victim, who, at the time of the victim's 
death, is
    (1) Under the age of 18 years; or
    (2) Over 18 years of age and a student, as defined in 5 U.S.C. 
8101.
    (b) Claimant means a victim, or his representative, who is 
authorized to sign and submit an application, and receive payment for 
reimbursement, if appropriate.
    (c) Collateral sources means sources that provide reimbursement for 
specific expenses compensated under this subpart, including, without 
limitation, property, health, disability, or other insurance for 
specific expenses; Medicare or Medicaid; worker's compensation 
programs; military or veterans' benefits of a compensatory nature; 
vocational rehabilitation benefits; restitution; and other state, 
federal, foreign, and international compensation programs, except that 
any compensation received under this subpart shall be reduced by the 
amount of any lump sum payment whatsoever, received from, or in respect 
of the United States or a foreign government, unless the claimant can 
show that such payment was for a category of expenses not covered under 
this subpart.
    (d) Deceased means persons who are dead or are missing and presumed 
dead.
    (e) Dependent has the meaning given in 26 U.S.C. 152. If the victim 
was not required by law to file a U.S. federal income tax return for 
the year prior to the act of international terrorism, a person shall be 
deemed to be a victim's dependent if he was reliant on the income of 
the victim for over half of his support in that year.
    (f) Funeral and burial means those activities involved in the 
disposition of the remains of a deceased victim, to include preparation 
of the body and body tissue, refrigeration, transportation, cremation, 
procurement of a final resting place, urns, markers, flowers and 
ornamentation, costs related to memorial services, and other 
reasonably-associated activities, including travel for not more than 
two family members.
    (g) Incapacitated means substantially impaired by mental illness or 
deficiency, or by physical illness or disability, to the extent that 
personal decision-making is impossible.
    (h) Incompetent means unable to care for oneself because of mental 
illness or disability, mental retardation, or dementia.
    (i) Pursuant to 42 U.S.C. 10603C, international terrorism has the 
meaning given in 18 U.S.C. 2331. As of the date of these regulations, 
the statute defines the term to mean activities that--
    (1) Involve violent acts or acts dangerous to human life that are a 
violation of the criminal laws of the United States or of any state, or 
that would be a criminal violation if committed within the jurisdiction 
of the United States or of any state;
    (2) Appear to be intended--
    (i) To intimidate or coerce a civilian population;
    (ii) To influence the policy of a government by intimidation or 
coercion; or
    (iii) To affect the conduct of a government by mass destruction, 
assassination, or kidnaping; and
    (3) Occur primarily outside the territorial jurisdiction of the 
United States, or transcend national boundaries in terms of the means 
by which they are accomplished, the persons they appear intended to 
intimidate or coerce, or the locale in which their perpetrators operate 
or seek asylum.
    (j) Legal guardian means legal guardian, as the term is defined 
under the laws of the jurisdiction of which the ward is or was a legal 
resident, except that if the ward is or was a national of the United 
States, the legal guardianship must be pursuant to an order of a court 
of competent jurisdiction of or within the United States.
    (k) Medical expenses means costs associated with the treatment, 
cure, or mitigation of a disease, injury, or mental or emotional 
condition that is the result of an act of international terrorism. 
Allowable medical expenses include, without limitation, compensation 
for eyeglasses or other corrective lenses, dental services, 
rehabilitation costs, prosthetic or other medical devices, prescription 
medication, and other services rendered in accordance with a method of 
healing recognized by the jurisdiction in which the medical care is 
administered.
    (l) Mental health care means mental health care provided by a 
person who meets professional standards to provide these services in 
the jurisdiction in which the care is administered.
    (m) National of the United States has the meaning given in section 
101(a) of the Immigration and Nationality Act (8 U.S.C. Sec.  
1101(a)(22)). As of the date of these regulations, the statute defines 
the term to mean ``a citizen of the United States, or a person who, 
though not a citizen of the United States, owes permanent allegiance to 
the United States.''
    (n) Officer or employee of the U.S. government. (1) Officer of the 
United States government has the meaning given in 5 U.S.C. 2104.
    (2) Employee of the United States government means any person who:
    (i) Is an employee of the United States government under federal 
law; or
    (ii) Receives a salary or compensation of any kind from the United 
States government for personal services directly rendered to the United 
States, similar to those of an individual in the United States civil 
service, or is a contractor of the United States government (or an 
employee of such contractor) rendering such personal services
    (o) Outside the United States means outside any state of the United 
States, the District of Columbia, the U.S. Virgin Islands, the 
Commonwealth of Puerto Rico, Guam, American Samoa, the Commonwealth of 
the Northern Mariana Islands, and any other possession or territory of 
the United States.
    (p) Parent means a biological or legally-adoptive parent, or 
stepparent, unless his parental rights have been terminated in the 
jurisdiction where the child is or was a legal resident, except that if 
the child or either parent is a national of the United States, the 
termination must be pursuant to an order of a court of competent 
jurisdiction of or within the United States.
    (q) Property loss refers to items of personal property (other than 
medical devices, which are included in the category of ``medical 
expenses'') that are lost, destroyed, or held as evidence.
    (r) Rehabilitation costs includes reasonable costs for the 
following: Physiotherapy; occupational therapy;

[[Page 49523]]

counseling, and workplace, vehicle, and home modifications.
    (s) Representative means a family member or legal guardian 
authorized to file a claim on behalf of a victim who is less than18 
years of age, incompetent, incapacitated, or deceased, except that no 
person shall be considered a representative who was criminally culpable 
for the act of international terrorism. In the event that no family 
member or legal guardian is available to file a claim for an interim 
emergency payment on behalf of a victim, under Sec.  94.41, a U.S. 
consular officer or U.S. embassy official within the country may act as 
a representative, consistent with any limitation on his authority 
contained in 22 CFR 92.81(b).
    (t)(1) Victim has the meaning given in 42 U.S.C. 10603c(a)(3)(A). 
Generally speaking, the following shall be understood to be included 
within the meaning of victim if they are nationals of the United 
States, or officers or employees of the United States, and they 
suffered a direct physical or emotional injury as a result of an act of 
international terrorism occurring outside the United States: 
Individuals who were present during the act; individuals who were 
present during the immediate aftermath of the act; or emergency 
responders who assisted in efforts to search for and recover other 
victims.
    (2) In the event that a victim, as defined in paragraph (t)(1) of 
this section, is under 18 years of age at the time of the act, is (at 
the time of or as a result of the act) incompetent or incapacitated, or 
dies as a result of the act, ``victim'' shall include the following 
members of his family: His spouse, parents, children, and siblings; or 
another person, at the discretion of the Director.


Sec.  94.13  Terms.

    The first three provisions of 1 U.S.C. 1 (rules of construction) 
shall apply to this subpart.

Coverage


Sec.  94.21  Eligibility.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
reimbursement of qualified expenses under this subpart is available to 
a victim of international terrorism or his representative, pursuant to 
42 U.S.C. 10603c(a)(3)(A). For purposes of eligibility for this program 
only, the Attorney General shall determine whether there is a 
reasonable indication that an act was one of international terrorism, 
within the meaning of that section.
    (b) Reimbursement shall be denied to any claimant if the Director, 
in consultation with appropriate Department of Justice (DOJ) officials, 
determines that there is a reasonable indication that either the victim 
with respect to whom the claim is made or the claimant, was criminally 
culpable for the act of international terrorism.
    (c) Reimbursement may be reduced or denied to a claimant if the 
Director, in consultation with appropriate DOJ officials, determines 
that the victim with respect to whom the claim is made contributed 
materially to his own death or injury by--
    (1) Engaging in conduct that violates U.S. law or the law of the 
jurisdiction in which the act of international terrorism occurred;
    (2) Acting as a mercenary or ``soldier of fortune'';
    (3) (As a non-U.S. government employee), acting as an advisor, 
consultant, employee, or contractor, in a military or political 
capacity--
    (i) For a rebel or paramilitary organization;
    (ii) For a government not recognized by the United States; or
    (iii) In a country in which an official travel warning issued by 
the U.S. Department of State related to armed conflict was in effect at 
the time of the act of international terrorism; or
    (4) Engaging in grossly reckless conduct.


Sec.  94.22  Categories of expenses.

    (a) The following categories of expenses, generally, may be 
reimbursed, with some limitations, as noted in Sec.  94.23:
    (1) Medical care;
    (2) Mental health care;
    (3) Property loss;
    (4) Funeral and burial; and
    (5) Miscellaneous expenses (including, but not limited to, 
temporary lodging, emergency travel, and transportation).
    (b) Under this subpart, the Director shall not reimburse for 
attorneys' fees, lost wages, or non-economic losses (such as pain and 
suffering, loss of enjoyment of life, loss of consortium, etc.).


Sec.  94.23  Amount of reimbursement.

    Different categories of expenses are capped, as set forth in the 
chart in the appendix to this subpart. Those caps may be adjusted, from 
time to time, by rulemaking. The cap in effect within a particular 
expense category, at the time that the application is received, shall 
apply to the award.


Sec.  94.24  Determination of award.

    After review of each application, the Director shall determine the 
eligibility of the victim or representative and the amount, if any, 
eligible for reimbursement, specifying the reasons for such 
determination and the findings of fact and conclusions of law 
supporting it. A copy of the determination shall be mailed to the 
claimant at his last known address.


Sec.  94.25  Collateral sources.

    (a) The amount of expenses reimbursed to a claimant under this 
subpart shall be reduced by any amount that the claimant receives from 
a collateral source in connection with the same act of international 
terrorism. In cases in which a claimant receives reimbursement under 
this subpart for expenses that also will or may be reimbursed from 
another source, the claimant shall subrogate the United States to the 
claim for payment from the collateral source up to the amount for which 
the claimant was reimbursed under this subpart.
    (b) Notwithstanding paragraph (a) of this section, when a 
collateral source provides supplemental reimbursement for a specific 
expense, beyond the maximum amount reimbursed for that expense under 
this subpart, the claimant's award under this subpart shall not be 
reduced by the amount paid by the collateral source, nor shall the 
claimant be required to subrogate the United States to the claim for 
payment from the collateral source, except that in no event shall the 
combined reimbursement under this subpart and any collateral source 
exceed the actual expense.

Program Administration


Sec.  94.31  Application procedures.

    (a) To receive reimbursement, a claimant must submit a completed 
application under this program requesting payment based on an itemized 
list of expenses, and must submit original receipts. In cases involving 
incidents of terrorism preceding the establishment of this program 
where claimants may not have original receipts, and in cases in which 
the claimant certifies that the receipts have been destroyed or lost, 
the Director may, in his discretion, accept an itemized list of 
expenses. In each such case, the claimant must certify that original 
receipts are unavailable and attest that the items and amounts 
submitted in the list are true and correct to the best of his 
knowledge.
    (b) In the event that it is later determined that a fraudulent

[[Page 49524]]

certification was made, the United States may take action to recover 
any payment made under this section, and pursue criminal prosecution, 
as appropriate.


Sec.  94.32  Application deadline.

    The deadline for an application is 3 years from the date of the act 
of international terrorism. At the discretion of the Director, the 
deadline for filing a claim may be extended to a date not later than 3 
years from the date of the determination that there is a reasonable 
indication that an act of international terrorism has occurred, under 
Sec.  94.21(a). For claims related to acts of international terrorism 
that occurred after December 21, 1988, but before [EFFECTIVE DATE OF 
THE FINAL RULE], the application deadline is 3 years from [EFFECTIVE 
DATE OF THE FINAL RULE].


Sec.  94.33  Investigation and analysis of claims.

    The Director may seek an expert examination of claims submitted if 
he believes there is a reasonable basis for requesting additional 
evaluation. The claimant, in submitting an application for 
reimbursement, authorizes the Director to release information regarding 
claims or expenses listed in the application to an appropriate body for 
review. If the Director initiates an expert review, no identifying 
information for the victim or representative shall be released.

Payment of Claims


Sec.  94.41  Interim emergency payment.

    (a) Claimants may apply for an interim emergency payment, prior to 
a determination under Sec.  94.21(a). If the Director determines that 
such payment is necessary to avoid or mitigate substantial hardship 
that may result from delaying reimbursement until complete and final 
consideration of an application, such payment may be made to cover 
immediate expenses such as those of medical care, funeral and burial, 
short-term lodging, and emergency transportation.
    (b) The amount of an interim emergency payment shall be determined 
on a case-by-case basis, and shall be deducted from the final award 
amount.


Sec.  94.42  Repayment and waiver of repayment.

    (a) A victim or representative shall reimburse the program upon a 
determination by the Director that an interim emergency award or final 
award was--
    (1) Made to an ineligible victim or claimant;
    (2) Based on fraudulent information; or
    (3) An overpayment.
    (b) Except in the case of ineligibility pursuant to a determination 
by the Director, in consultation with appropriate DOJ officials, under 
Sec.  94.21(b), the Director may waive such repayment requirement in 
whole or in part, for good cause, upon request.

Appeal Procedures


Sec.  94.51  Request for reconsideration.

    A victim or representative may, within 30 days after receipt of the 
determination under Sec.  94.24, appeal the same to the Assistant 
Attorney General for the Office of Justice Programs, by submitting a 
written request for review. The Assistant Attorney General may conduct 
a review and make a determination based on the material submitted with 
the initial application, or may request additional documentation in 
order to conduct a more thorough review. In special circumstances, the 
Assistant Attorney General may determine that an oral hearing is 
warranted; in such cases, the hearing shall be held at a reasonable 
time and place.


Sec.  94.52  Final agency decision.

    In cases that are not appealed under Sec.  94.51, the Director's 
determination pursuant to Sec.  94.24 shall be the final agency 
decision. In all cases that are appealed, the Assistant Attorney 
General shall issue a notice of final determination, which shall be the 
final agency decision, setting forththe findings of fact and 
conclusions of law supporting his determination.

Appendix to Subpart A of Part 94

International Terrorism Victim Expense Reimbursement Program (ITVERP); 
Proposed Chart of Expense Categories and Limits

    There are five major categories of expenses for which claimants 
can seek reimbursement under the ITVERP: Medical, including dental 
and rehabilitation costs; mental health care; property loss, repair, 
and replacement; funeral and burial costs; and miscellaneous 
expenses.

------------------------------------------------------------------------
                                   Subcategories and
       Expense categories             conditions        Expense limits
------------------------------------------------------------------------
(a) Medical expenses, including   Victim's medical    Up to $50,000.
 dental and rehabilitation costs.  care, including
                                   treatment, cure,
                                   and mitigation of
                                   disease or
                                   injury;
                                   replacement of
                                   medical devices,
                                   including, but
                                   not limited to,
                                   eyeglasses or
                                   other corrective
                                   lenses, dental
                                   services,
                                   prosthetic
                                   devices,
                                   prescription
                                   medication; and
                                   other services
                                   rendered in
                                   accordance with a
                                   method of healing
                                   recognized by the
                                   jurisdiction in
                                   which the medical
                                   care is
                                   administered.
                                  Victim's cost for
                                   physiotherapy;
                                   occupational
                                   therapy;
                                   counseling;
                                   workplace,
                                   vehicle, and home
                                   modifications.
                                  For example, if a
                                   victim sustains a
                                   physical injury,
                                   such as blindness
                                   or paralysis
                                   which would
                                   impact his
                                   ability to
                                   perform current
                                   professional
                                   duties, physical
                                   rehabilitation to
                                   address work
                                   skills is
                                   appropriate.
---------------------------------
(b) Mental health care..........  Victim's (and,      Up to 12 months,
                                   when victim is a    but not to exceed
                                   minor,              $5,000.
                                   incompetent,
                                   incapacitated, or
                                   deceased, certain
                                   family members')
                                   mental health
                                   counseling costs.
---------------------------------

[[Page 49525]]

 
(c) Property loss, repair, and    Includes crime      Up to $10,000 to
 replacement.                      scene cleanup,      cover repair or
                                   and replacement     replacement,
                                   of personal         whichever is
                                   property (not       less.
                                   including medical
                                   devices) that is
                                   lost, destroyed,
                                   or held as
                                   evidence.
---------------------------------
(d) Funeral and burial costs....  Includes the cost   Up to $25,000.
                                   of disposition of
                                   remains,
                                   preparation of
                                   the body and body
                                   tissue,
                                   refrigeration,
                                   transportation of
                                   remains,
                                   cremation,
                                   procurement of a
                                   final resting
                                   place, urns,
                                   markers, flowers
                                   and
                                   ornamentation,
                                   costs related to
                                   memorial
                                   services, and
                                   other reasonably
                                   associated
                                   activities.
---------------------------------
(e) Miscellaneous expenses......  Temporary lodging   Up to $15,000.
                                   up to 30 days,
                                   local
                                   transportation,
                                   telephone costs,
                                   etc. Emergency
                                   travel: two
                                   family members'
                                   transportation
                                   costs to country
                                   where incident
                                   occurred to
                                   recover remains,
                                   care for victim,
                                   care for victim's
                                   dependents,
                                   accompany victim
                                   to receive
                                   medical care
                                   abroad, accompany
                                   victim back to
                                   U.S., and attend
                                   to victim's
                                   affairs in host
                                   country.
------------------------------------------------------------------------

Subpart B--[Reserved]

Subpart C--[Reserved]

Subpart D--[Reserved]

Regina B. Schofield,
Assistant Attorney General, Office of Justice Programs.
[FR Doc. 05-16495 Filed 8-23-05; 8:45 am]
BILLING CODE 4410-18-P