[Federal Register Volume 61, Number 41 (Thursday, February 29, 1996)]
[Rules and Regulations]
[Pages 7704-7706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4651]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 81
[AG Order No. 2009-96]
RIN 1105-AA38
Designation of Agencies To Receive and Investigate Reports
Required Under the Victims of Child Abuse Act
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: This rule carries out the Attorney General's responsibilities
under the child abuse reporting provisions of the Victims of Child
Abuse Act of 1990 (``VCAA''). The VCAA requires persons engaged in
certain specified professions and activities on federal lands or
facilities to report incidents of child abuse to the appropriate
federal, state, or local agency designated by the Attorney General. In
order to facilitate effective reporting, the VCAA requires the Attorney
General to ``designate an agency'' to receive and investigate such
reports of child abuse. This rule sets forth the Attorney General's
designations and certain other matters covered by the VCAA's reporting
requirements.
EFFECTIVE DATE: This rule is effective April 1, 1996.
[[Page 7705]]
FOR FURTHER INFORMATION CONTACT:
Terry R. Lord, Acting Chief, Child Exploitation and Obscenity Section,
Criminal Division, Washington, D.C. 20530, (202) 514-5780.
SUPPLEMENTARY INFORMATION:
I. Background
The child abuse reporting provisions of the Victims of Child Abuse
Act (VCAA) were enacted as section 226 of the Crime Control Act of
1990, Pub. L. No. 101-647, 104 Stat. 4806, codified at 42 U.S.C. 13001-
13041, 3796aa-3796aa-8, and 18 U.S.C. 403, 2257, and 3509. As set forth
at 42 U.S.C. 13031, the VCAA requires persons engaged in certain
professional capacities or activities on federal lands or on federally
operated facilities (as well as certain facilities covered by federal
contracts) (``covered professional'') to report incidents of child
abuse to an agency designated by the Attorney General to receive and
investigate such reports. On January 3, 1994, the Department of Justice
published a proposed rule promulgating the Attorney General's
designation of the agencies to receive and investigate these reports of
child abuse (59 FR 37). Having received and considered comments
submitted in response to the proposed rule, the Attorney General is now
promulgating a final rule on this subject.
Under the provisions of 42 U.S.C. 13031(d), the Attorney General
may designate non-federal agencies to receive and investigate the child
abuse reports, provided that the designation is formalized by a written
agreement. Under the rule, reports of child abuse made pursuant to 42
U.S.C. 13031 are to be submitted to the federal, state, tribal or local
law enforcement or child protective services agency that currently has
jurisdiction to investigate reports of child abuse or protect child
abuse victims in the federal land area or facility in question. Where
no agency currently qualifies for designation under the rule, the rule
designates the Federal Bureau of Investigation (``FBI'') to receive and
investigate the reports of child abuse until another agency qualifies
for such designation. If the child abuse reported by the covered
professional pursuant to 42 U.S.C. 13031 occurred outside the federal
area or facility in question, the designated agency receiving the
report must forward the matter to the appropriate authority with
jurisdiction over the potential offense. For example, a covered
reporting professional may, while working on federal land or in a
federally operated facility, learn of facts that give reason to suspect
that a child has suffered abuse outside the federal area in question.
In such a circumstance, the covered professional would report the abuse
in the same manner as if the abuse occurred within the federal area in
question. The rule contemplates that the designated agency receiving
the report will immediately forward the matter to the appropriate
authority with jurisdiction outside the federal area in question.
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule will not have a significant adverse economic impact on a
substantial number of small entities. This rule has not been reviewed
by the Office of Management and Budget pursuant to Executive Order
12866. This rule does not have federalism implications warranting the
preparation of a Federalism Assessment in accordance with Executive
Order 12612. This rule meets the applicable standards provided in
sections 2(a) and 2(b) of Executive Order 12778. Notice of the proposed
rule was published in the Federal Register on January 3, 1994, and
comments were solicited (59 FR 37). A discussion of comments received
pursuant to that notice follows.
II. Summary of Comments and Department's Responses
Comments on the proposed rule were received from a number of
affected federal and state agencies. Set forth below is a summary of
those comments and the Department's response to them.
Comments from the New Jersey Division of Youth and Family Services:
1. A distinction should be made between child abuse offenses
committed against children by caregivers and child assault offenses
committed by other adults.
Response: Such a distinction is not contemplated or authorized by
the underlying statutory requirement, 42 U.S.C. 13031. The statutory
reporting requirement is not qualified by any distinction concerning
the status of persons committing the abuse in question.
2. The list of ``covered professionals'' mandated to report child
abuse or neglect should be expanded to include additional employees on
federal land.
Response: This list cannot be expanded because to do so would
exceed the scope permitted by the enabling statute. See 42 U.S.C.
13031(b). The statute specifically designates the mandated reporters by
their profession or activity.
3. The proposed rule does not address the reporting of child abuse
occurring off federal land or facilities, but which becomes known to
mandated reporters employed at those locations.
Response: The rule has been clarified to mandate that covered
professionals report any incident of suspected child abuse as defined
in the statute, regardless of where the abuse occurred. If the incident
of suspected child abuse occurred outside the federal area or facility
in question, the designated agency receiving the report must forward
the matter to the appropriate authority with jurisdiction.
Comments from Family Advocacy Program, The Office of the Assistant
Secretary of Defense:
1. Federal ``covered professionals'' must be required to report
incidents of abuse or neglect regardless of where the alleged abuse
occurred.
Response: As indicated in response to comment 3 from the New Jersey
Division of Youth and Family Services, the rule has been clarified as
requested.
2. Amend Section 81.2 of the proposed rule so that the federal
agencies or administrators on federal lands or federally operated or
contracted facilities have ``primary responsibility'' for entering into
a Memorandum of Understanding or other form of formal written agreement
for the reporting of suspected cases of child abuse.
Response: The rule contemplates that the United States will take
the lead in initiating the written agreements where needed.
3. Include a requirement that the FBI ``closely coordinate''
efforts with the local law enforcement or child protective services
because the federal authorities do not have the authority to remove a
child from the home to prevent further abuse.
Response: It is contemplated that the FBI will closely coordinate
with local law enforcement and child protective services since federal
authorities usually have no jurisdiction to remove a child from the
home to prevent further abuse.
Comments from the Diplomatic Security Service, the United States
Department of State:
1. Indicate that reports of child abuse arising at the United
States diplomatic and consular posts abroad should be made to the
appropriate Special Agent or Regional Security Officer of the
Department of State's Diplomatic Security Service.
Response: The requested amendment is not necessary because, under
the current language of the proposed rule, the Diplomatic Security
Service would constitute the ``designated agency'' to receive and
investigate reports of child abuse under the circumstances described.
Section 81.2 stipulates that ``[r]eports of child abuse required by 42
[[Page 7706]]
U.S.C. 13031 shall be made to the local law enforcement agency or local
child protective services agency that has jurisdiction to investigate
reports of child abuse or to protect child abuse victims in the land
area or facility in question.'' The Diplomatic Security Service would
therefore be the ``designated agency'' in the circumstances described
in this comment, inasmuch as Section 81.5 defines local law enforcement
agency to include ``the Federal * * * law enforcement agency that has
the primary responsibility for the investigation of an instance of
alleged child abuse* * *''
Comments from the Office of Enforcement and Security Management, United
States Department of Interior:
1. Eliminate from the last sentence of section 81.2 the following:
``* * * or a Federal agency with jurisdiction for the area or facility
in question,'' and omit the requirement for a formal written agreement
with local law enforcement entities.
Response: The provisions of the enabling statute, 42 U.S.C. 13031,
preclude adoption of the suggested amendment. We understand that the
underlying concern behind the Department of Interior request is
apprehension that an administratively crippling number of agreements
would be needed in Bureau of Land Management (``BLM'') areas. However,
the Department does not interpret the term ``federal lands'' as used in
42 U.S.C. 13031 to include those lands held by the United States merely
as a proprietor as distinguished form those lands over which the United
States is empowered to exercise legislative jurisdiction. See generally
Adams v. United States, 319 U.S. 312 (1943); James v. Dravo Contracting
Co., 302 U.S. 134, 139 (1937). It is our understanding that most land
managed by BLM falls within the former category. Congress could not
reasonably have intended to include such lands within the term
``federal lands'' as used in the Victims of Child Abuse statute.
Therefore, the mandates of the rule and enabling legislation do not
apply to such merely proprietary lands managed by BLM.
List of Subjects in 28 CFR Part 81
Child abuse, Federal buildings and facilities.
For the reasons set forth in the preamble, and by virtue of the
authority vested in me as Attorney General, including 28 U.S.C. 509 and
510, 5 U.S.C. 301, and 42 U.S.C. 13031, and Public Law 101-647 (104
Stat. 4806), part 81 of chapter I of title 28 of the Code of Federal
Regulations is added as follows:
PART 81--CHILD ABUSE REPORTING DESIGNATIONS AND PROCEDURES
Sec.
81.1 Purpose.
81.2 Submission of reports; designation of agencies to receive
reports of child abuse.
81.3 Designation of Federal Bureau of Investigation.
81.4 Referral of reports where designated agency is not a law
enforcement agency.
81.5 Definitions.
Authority: 28 U.S.C. 509, 510; 42 U.S.C. 13031.
Sec. 81.1 Purpose.
The regulations in this part designate the agencies that are
authorized to receive and investigate reports of child abuse under the
provisions of section 226 of the Victims of Child Abuse Act of 1990,
Public Law 101-647, 104 Stat. 4806, codified at 42 U.S.C. 13031.
Sec. 81.2 Submission of reports; designation of agencies to receive
reports of child abuse.
Reports of child abuse required by 42 U.S.C. 13031 shall be made to
the local law enforcement agency or local child protective services
agency that has jurisdiction to investigate reports of child abuse or
to protect child abuse victims in the land area or facility in
question. Such agencies are hereby respectively designated as the
agencies to receive and investigate such reports, pursuant to 42 U.S.C.
13031(d), with respect to federal lands and federally operated or
contracted facilities within their respective jurisdictions, provided
that such agencies, if non-federal, enter into formal written
agreements to do so with the Attorney General, her delegate, or a
federal agency with jurisdiction for the area or facility in question.
If the child abuse reported by the covered professional pursuant to 42
U.S.C. 13031 occurred outside the federal area or facility in question,
the designated local law enforcement agency or local child protective
services agency receiving the report shall immediately forward the
matter to the appropriate authority with jurisdiction outside the
federal area in question.
Sec. 81.3 Designation of Federal Bureau of Investigation.
For federal lands, federally operated facilities, or federally
contracted facilities where no agency qualifies for designation under
Sec. 81.2, the Federal Bureau of Investigation is hereby designated as
the agency to receive and investigate reports of child abuse made
pursuant to 42 U.S.C. 13031 until such time as another agency qualifies
as a designated agency under Sec. 81.2.
Sec. 81.4 Referral of reports where the designated agency is not a law
enforcement agency.
Where a report of child abuse received by a designated agency that
is not a law enforcement agency involves allegations of sexual abuse,
serious physical injury, or life-threatening neglect of a child, that
agency shall immediately report such occurrence to a law enforcement
agency with authority to take emergency action to protect the child.
Sec. 81.5 Definitions.
Local child protective services agency means that agency of the
federal government, of a state, of a tribe or of a local government
that has the primary responsibility for child protection within a
particular portion of the federal lands, a particular federally
operated facility, or a particular federally contracted facility in
which children are cared for or reside.
Local law enforcement agency means that federal, state, tribal or
local law enforcement agency that has the primary responsibility for
the investigation of an instance of alleged child abuse occurring
within a particular portion of the federal lands, a particular
federally operated facility, or a particular federally contracted
facility in which children are cared for or reside.
Dated: February 18, 1996.
Janet Reno,
Attorney General.
[FR Doc. 96-4651 Filed 2-28-96; 8:45 am]
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