2010-11665. Supplemental Guidelines for Sex Offender Registration and Notification

AGENCY:

Department of Justice.

ACTION:

Notice; Proposed guidelines.

SUMMARY:

The Sex Offender Registration and Notification Act (SORNA) establishes minimum national standards for sex offender registration and notification. The Attorney General issued the National Guidelines for Sex Offender Registration and Notification (“SORNA Guidelines” or “Guidelines”) on July 2, 2008, to provide guidance and assistance to jurisdictions in implementing the SORNA standards in their sex offender registration and notification programs. These supplemental guidelines augment or modify certain features of the SORNA Guidelines in order to make a change required by the KIDS Act and to address other issues arising in jurisdictions' implementation of the SORNA requirements. The matters addressed include certain aspects of public Web site posting of sex offender information, interjurisdictional tracking and information sharing regarding sex offenders, the review process concerning jurisdictions' SORNA implementation, the classes of sex offenders to be registered by jurisdictions retroactively, and the treatment of Indian tribes newly recognized by the Federal Government subsequent to the enactment of SORNA.

DATES:

Written comments must be postmarked and electronic comments must be submitted on or before July 13, 2010. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after Midnight Eastern Time on the last day of the comment period.

ADDRESSES:

Comments may be mailed to Linda M. Baldwin, Director, SMART Office, Office of Justice Programs, United States Department of Justice, 810 7th Street, NW., Washington, DC 20531. To ensure proper handling, please reference OAG Docket No. 134 on your correspondence. You may submit comments electronically or view an electronic version of these proposed guidelines at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Linda M. Baldwin, Director, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking; Office of Justice Programs, United States Department of Justice, Washington, DC, 202-305-2463.

SUPPLEMENTARY INFORMATION:

Posting of Public Comments

Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

The reason the Department is requesting electronic comments before Midnight Eastern Time on the day the comment period closes is that the inter-agency Regulations.gov/Federal Docket Management System (FDMS), which receives electronic comments, terminates the public's ability to submit comments at Midnight on the day the comment period closes. Commenters in time zones other than Eastern may want to take this fact into account so that their electronic comments can be received. The constraints imposed by the Regulations.gov/FDMS system do not apply to U.S. postal comments, which will be considered as timely filed if they are postmarked before Midnight on the day the comment period closes.

Overview

The Sex Offender Registration and Notification Act, which is title I of the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, was enacted on July 27, 2006. SORNA (46 U.S.C. 16901 et seq.) establishes minimum national standards for sex offender registration and notification in the jurisdictions to which it applies. “Jurisdictions” in the relevant sense are the 50 states, the District of Columbia, the five principal U.S. territories, and Indian tribes that satisfy certain criteria. 42 U.S.C. 16911(10). SORNA directs the Attorney General to issue guidelines and regulations to interpret and implement SORNA. See id. 16912(b).

To this end, the Attorney General issued the National Guidelines for Sex Offender Registration and Notification, 73 FR 38030, on July 2, 2008. The SORNA standards are administered by the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART Office”), which assists all jurisdictions in their SORNA implementation efforts and determines whether jurisdictions have successfully completed these efforts. See 42 U.S.C. 16945; 73 FR at 38044, 38047-48.

Since the publication of the SORNA Guidelines, issues have arisen in SORNA implementation that require that some aspects of the Guidelines be augmented or modified. Consequently, the Department of Justice is proposing these supplemental guidelines, which do the following:

(1) Allow jurisdictions, in their discretion, to exempt information concerning sex offenders required to register on the basis of juvenile delinquency adjudications from public Web site posting.

(2) Require jurisdictions to exempt sex offenders' e-mail addresses and other Internet identifiers from public Web site posting, pursuant to the KIDS Act, 42 U.S.C. 16915a.

(3) Require jurisdictions to have sex offenders report international travel 21 days in advance of such travel and to submit information concerning such travel to the appropriate Federal agencies and databases.

(4) Clarify the means to be utilized to ensure consistent interjurisdictional information sharing and tracking of sex offenders.

(5) Expand required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations.

(6) Provide additional information concerning the review process for determining that jurisdictions have substantially implemented the SORNA requirements in their programs and continue to comply with these requirements.

(7) Afford jurisdictions greater latitude regarding the registration of sex offenders who have fully exited the justice system but later reenter through a new (non-sex-offense) criminal conviction by providing that jurisdictions may limit such registration to cases in which the new conviction is for a felony.

(8) Provide, for Indian tribes that are newly recognized by the Federal government following the enactment of SORNA, authorization and time frames for such tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA.

Proposed Supplemental Guidelines for Sex Offender Registration and Notification

Contents

I. Public Notification

A. Juvenile Delinquents

B. Internet Identifiers

II. Interjurisdictional Tracking and Information Sharing

A. International Travel

B. Domestic Interjurisdictional Tracking

C. Acknowledgment Forms

III. Ongoing Implementation Assurance

IV. Retroactive Classes

V. Newly Recognized Tribes

I. Public Notification

A. Juvenile Delinquents

SORNA includes as covered “sex offender[s]” juveniles at least 14 years old who are adjudicated delinquent for particularly serious sex offenses. See 42 U.S.C. 16911(1), (8). While the SORNA Guidelines endeavored to facilitate jurisdictions' compliance with this aspect of SORNA, see 73 FR at 38030, 38040-41, 38050, resistance by some jurisdictions to public disclosure of information about sex offenders in this class has continued to be one of the largest impediments to SORNA implementation.

Hence, the Attorney General is exercising his authority under 42 U.S.C. 16918(c)(4) to create additional discretionary exemptions from public Web site disclosure to allow jurisdictions to exempt from public Web site disclosure information concerning sex offenders required to register on the basis of juvenile delinquency adjudications. This change creates a new discretionary, not mandatory, exemption from public Web site disclosure. It does not limit the discretion of jurisdictions to include information concerning sex offenders required to register on the basis of juvenile delinquency adjudications on their public Web sites if they so wish.

The change regarding public Web site disclosure does not authorize treating sex offenders required to register on the basis of juvenile delinquency adjudications differently from sex offenders with adult convictions in other respects. Whether a case involves a juvenile delinquency adjudication in the category covered by SORNA or an adult conviction, SORNA's registration requirements remain applicable, see 42 U.S.C. 16913-16, as do the requirements to transmit or make available registration information to the national (non-public) databases of sex offender information, to law enforcement and supervision agencies, and to registration authorities in other jurisdictions, see 73 FR at 38060.

Jurisdictions are not required to provide registration information concerning sex offenders required to register on the basis of juvenile delinquency adjudications to the entities described in the SORNA Guidelines at 73 FR 38061, i.e., certain school, public housing, social service, and volunteer entities, and other organizations, companies, or individuals who request notification. This reflects an exercise of the Attorney General's authority to create exceptions to required information disclosure under 42 U.S.C. 16921(b). Accordingly, if a jurisdiction decides not to include information on a juvenile delinquent sex offender on its public Web site, as is allowed by these supplemental guidelines, information on the sex offender does not have to be disclosed to these entities.

B. Internet Identifiers

The KIDS Act, which was enacted in 2008, directed the Attorney General to utilize pre-existing legal authorities under SORNA to adopt certain measures relating to sex offenders' “Internet identifiers,” defined to mean e-mail addresses and other designations used for self-identification or routing in Internet communication or posting. The KIDS Act requires the Attorney General to (i) include appropriate Internet identifier information in the registration information sex offenders are required to provide, (ii) specify the time and manner for keeping that information current, (iii) exempt such information from public Web site posting, and (iv) ensure that procedures are in place to notify sex offenders of resulting obligations. See 42 U.S.C. 16915a.

The SORNA Guidelines incorporate requirements (i)-(ii) and (iv), as described above. See 73 FR at 38055 (Internet identifiers to be included in registration information), 38066 (reporting of changes in Internet identifiers), 38063-65 (notifying sex offenders of SORNA requirements). However, while the Guidelines discouraged the inclusion of sex offenders' Internet identifiers on the public Web sites, they did not adopt a mandatory exclusion of this information from public Web site posting, which the KIDS Act now requires. See 42 U.S.C. 16915a(c); 73 FR at 38059-60.

The authority under 42 U.S.C. 16918(b)(4) to create additional mandatory exemptions from public Web site disclosure is accordingly exercised to exempt sex offenders' Internet identifiers from public Web site posting. This means that jurisdictions cannot, consistent with SORNA, include sex offenders' Internet identifiers (such as e-mail addresses) in the sex offenders' public Web site postings or otherwise list or post sex offenders' Internet identifiers on the public sex offender Web sites.

This change does not limit jurisdictions' retention and use of sex offenders' Internet identifier information for purposes other than public disclosure, including submission of the information to the national (non-public) databases of sex offender information, sharing of the information with law enforcement and supervision agencies, and sharing of the information with registration authorities in other jurisdictions. See 73 FR at 38060. The change also does not limit the discretion of jurisdictions to include on their public Web sites functions by which members of the public can ascertain whether a specified e-mail address or other Internet identifier is reported as that of a registered sex offender, see id. at 38059-60, or to disclose Internet identifier information to any one by means other than public Web site posting.

The exemption of sex offenders' Internet identifiers from public Web site disclosure does not override or limit the requirement that sex offenders' names, including any aliases, be included in their public Web site postings. See 73 FR at 38059. A sex offender's use of his name or an alias to identify himself or for other purposes in Internet communications or postings does not exempt the name or alias from public Web site disclosure.

II. Interjurisdictional Tracking and Information Sharing

A. International Travel

Certain features of SORNA and the SORNA Guidelines require the Department of Justice, in conjunction with other Federal agencies, to develop reliable means for identifying and tracking sex offenders who enter or leave the United States. See 42 U.S.C. 16928; 73 FR at 38066-67. To that end, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions if they intend to commence residence, employment, or school attendance outside of the United States, and that jurisdictions that are so informed must notify the U.S. Marshals Service and update the sex offender's registration information in the national databases. See 73 FR at 38067. (Regarding the general requirement to provide registration information for inclusion in the National Sex Offender Registry and other appropriate databases at the national level, see 42 U.S.C. 16921(b)(1); 73 FR at 38060.) In addition, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions about lodging at places away from their residences for seven days or more, regardless of whether that results from domestic or international travel. See 73 FR at 38056, 38066.

Since the issuance of the Guidelines, the SMART Office has continued to work with other agencies of the Department of Justice, the Department of Homeland Security, the Department of State, and the Department of Defense on the development of a system for consistently identifying and tracking sex offenders who engage in international travel. Although, as noted, the current Guidelines require reporting of international travel information in certain circumstances, the existing requirements are not sufficient to provide the information needed for tracking such travel consistently.

The authority under 42 U.S.C. 16914(a)(7) to expand the range of required registration information is accordingly exercised to provide that registrants must be required to inform their residence jurisdictions of intended travel outside of the United States at least 21 days in advance of such travel. Pursuant to 42 U.S.C. 16921(b), jurisdictions so informed must provide the international travel information to the U.S. Marshals Service, and must transmit or make available that information to national databases, law enforcement and supervision agencies, and other jurisdictions as provided in the Guidelines. See 73 FR at 38060. Jurisdictions need not disclose international travel information to the entities described in the SORNA Guidelines at 73 FR 38061─i.e., certain school, public housing, social service, and volunteer entities, and other organizations, companies, or individuals who request notification. See 42 U.S.C. 16921(b). As the international tracking system continues to develop, the SMART Office may issue additional directions to jurisdictions to provide notification concerning international travel by sex offenders, such as notice to Interpol, or notice to Department of Defense agencies concerning sex offenders who may live on U.S. military bases abroad.

While notice of international travel will generally be required as described above, it is recognized that requiring 21 days advance notice may occasionally be unnecessary or inappropriate. For example, a sex offender may need to travel abroad unexpectedly because of a family or work emergency. Or separate advance notice of intended international trips may be unworkable and pointlessly burdensome for a sex offender who lives in a northern border state and commutes to Canada for work on a daily basis. Jurisdictions that wish to accommodate such situations should include information about their policies or practices in this area in their submissions to the SMART Office and the SMART Office will determine whether they adequately serve SORNA's international tracking objectives.

B. Domestic Interjurisdictional Tracking

SORNA and the SORNA Guidelines require interjurisdictional sharing of registration information in various contexts and SORNA directs the Attorney General, in consultation with the jurisdictions, to develop and support software facilitating the immediate exchange of information among jurisdictions. See 42 U.S.C. 16913(c), 16919(b), 16921(b)(3), 16923; 73 FR at 38047, 38062-68. The SMART Office accordingly has created and maintains the SORNA Exchange Portal, which enables the immediate exchange of information about registered sex offenders among the jurisdictions.

Regular use of this tool is essential to ensuring that information is reliably shared among jurisdictions and that interjurisdictional tracking of sex offenders occurs consistently and effectively as SORNA contemplates. For example, if a jurisdiction sends notice that a sex offender has reported an intention to change his residence to another jurisdiction, but the destination jurisdiction fails to access the notice promptly, the sex offender's failure to appear or register in the destination jurisdiction may go unnoticed or detection of the violation may be delayed. Accordingly, to be approved as having substantially implemented SORNA, jurisdictions must, at a minimum, have a policy of regularly accessing the SORNA Exchange Portal to receive messages from other jurisdictions.

Technological improvements may facilitate the creation of new tools that may eventually replace the existing SORNA Exchange Portal. If that occurs, the SMART Office may issue directions to jurisdictions concerning the use of these new tools that jurisdictions will need to follow to be approved as substantially implementing SORNA.

C. Acknowledgment Forms

SORNA provides that sex offenders are to be informed of their registration obligations and required to sign acknowledgments that this information has been provided upon their initial registration. See 42 U.S.C. 16917. Even before the enactment of SORNA, similar requirements were included in the predecessor national standards for sex offender registration and notification of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (42 U.S.C. 14071(b)(1)(A), prior to its repeal by SORNA).

SORNA requires jurisdictions to provide criminal penalties for sex offenders who fail to comply with SORNA's requirements, see 42 U.S.C. 16913(e), and Federal criminal liability is authorized for sex offenders who knowingly fail to register or update a registration as required by SORNA under circumstances supporting Federal jurisdiction, see 18 U.S.C. 2250. Successful prosecution of sex offenders for registration violations under these provisions may require proof that they were aware of a requirement to register.

The acknowledgment forms signed by sex offenders regarding their registration obligations are likely to be the most consistently available and definitive proof of such knowledge. Including these forms in registration information will make them readily available in the jurisdictions in which sex offenders are initially registered, and will make them available to other jurisdictions pursuant to the provisions of SORNA and the Guidelines for transmission of registration information to other jurisdictions. See 42 U.S.C. 16921(b)(3); 73 FR at 38060.

The authority under 42 U.S.C. 16914(b)(8) to expand the range of required registration information is accordingly exercised to require that sex offenders' signed acknowledgment forms be included in their registration information. The existing Guidelines already provide that acknowledgment forms covering the SORNA requirements are to be obtained from registrants as part of the SORNA implementation process and thereafter. See 73 FR at 38063-65. As with other forms of documentary registration information, the inclusion of these forms in registration information can be effected by scanning the forms and including the resulting electronic documents in the registry databases or by including links or information that provides access to other databases in which the signed acknowledgments are available in electronic form. See 73 FR at 38055.

III. Ongoing Implementation Assurance

The SORNA Guidelines explain that the SMART Office will determine whether jurisdictions have substantially implemented the SORNA requirements in their programs and that jurisdictions are to provide submissions to the SMART Office to facilitate this determination. See 42 U.S.C. 16924-25; 73 FR at 38047-48.

SORNA itself and the Guidelines assume throughout that jurisdictions must implement SORNA in practice, not just on paper, and the Guidelines provide many directions and suggestions for putting the SORNA standards into effect. See, e.g., 42 U.S.C. 16911(9), 16912(a), 16913(c), 16914(b), 16917, 16918, 16921(b), 16922; 73 FR at 38059-61, 38063-70. The Department of Justice and the SMART Office are making available to jurisdictions a wide range of practical aids to SORNA implementation, including software and communication systems to facilitate the exchange of sex offender information among jurisdictions and other technology and documentary tools. See 42 U.S.C. 16923; 73 FR at 38031-32, 38047.

Hence, implementation of SORNA is not just a matter of adopting laws or rules that facially direct the performance of the measures required by SORNA. It entails actually carrying out those measures and, as noted, various forms of guidance and assistance have been provided to that end. Accordingly, in reviewing jurisdictions' requests for approval as having substantially implemented SORNA, the SMART Office will not be limited to facial examination of registration laws and policies, but rather will undertake such inquiry as is needed to ensure that jurisdictions are substantially implementing SORNA's requirements in practice. Jurisdictions can facilitate approval of their systems by including in their submissions to the SMART Office information concerning practical implementation measures and mechanisms, in addition to relevant laws and rules, such as policy and procedure manuals, description of infrastructure and technology resources, and information about personnel and budgetary measures relating to the operation of the jurisdiction's registration and notification system. The SMART Office may require jurisdictions to provide additional information, beyond that proffered in their submissions, as needed for a determination.

Jurisdictions that have substantially implemented SORNA have a continuing obligation to maintain their system's consistency with current SORNA standards. Those that are grantees under the Byrne Justice Assistance Grant program will be required in connection with the annual grant application process to establish that their systems continue to meet SORNA standards. This will entail providing information as directed by the SMART Office, in addition to the information otherwise included in Byrne Grant applications, so that the SMART Office can verify continuing implementation. Jurisdictions that do not apply for Byrne Grants will also be required to demonstrate periodically that their systems continue to meet SORNA standards as directed by the SMART Office, and to provide such information as the SMART Office may require to make this determination.

If a jurisdiction's Byrne Justice Assistance Grant funding is reduced because of non-implementation of SORNA, it may regain eligibility for full funding in later program years by substantially implementing SORNA in such later years. The SMART Office will continue to work with all jurisdictions to ensure substantial implementation of SORNA and verify that they continue to meet the requirements of SORNA on an ongoing basis.

IV. Retroactive Classes

SORNA's requirements apply to all sex offenders, regardless of when they were convicted. See 28 CFR 72.3. However, the SORNA Guidelines state that it will be deemed sufficient for substantial implementation if jurisdictions register sex offenders with pre-SORNA or pre-SORNA-implementation sex offense convictions who remain in the system as prisoners, supervisees, or registrants, or who reenter the system through a subsequent criminal conviction. See 73 FR at 38035-36, 38043, 38046-47, 38063-64. This feature of the Guidelines reflects an assumption that it may not be possible for jurisdictions to identify and register all sex offenders who fall within the SORNA registration categories, particularly where they have left the justice system and merged into the general population long ago, but that it will be feasible for jurisdictions to do so in relation to sex offenders who remain in the justice system or reenter it through a subsequent criminal conviction. See 73 FR at 38046.

Experience supports a qualification of this assumption in relation to sex offenders who have fully exited the justice system but later reenter it through a subsequent criminal conviction for a non-sex offense that is relatively minor in character. (Where the subsequent conviction is for a sex offense it independently requires registration under SORNA.) In many jurisdictions the volume of misdemeanor prosecutions is large and most such cases may need to be disposed of in a manner that leaves little time or opportunity for examining the defendant's criminal history and ascertaining whether it contains some past sex offense conviction that would entail a present registration requirement under SORNA. In contrast, where the subsequent offense is a serious crime, ordinary practice is likely to involve closer scrutiny of the defendant's past criminal conduct, and ascertaining whether it includes a prior conviction requiring registration under SORNA should not entail an onerous new burden on jurisdictions.

These supplemental guidelines accordingly are modifying the requirements for substantial implementation of SORNA in relation to sex offenders who have fully exited the justice system, i.e., those who are no longer prisoners, supervisees, or registrants. It will be sufficient if a jurisdiction registers such offenders who reenter the system through a subsequent criminal conviction in cases in which the subsequent criminal conviction is for a felony, i.e., for an offense for which the statutory maximum penalty exceeds a year of imprisonment. This allowance is limited to cases in which the subsequent conviction is for a non-sex offense. As noted above, a later conviction for a sex offense independently requires registration under SORNA, regardless of whether it is a felony or a misdemeanor.

This allowance only establishes the minimum required for substantial implementation of SORNA in this context. Jurisdictions remain free to look more broadly and to establish systems to identify and register sex offenders who reenter the justice system through misdemeanor convictions, or even those who do not reenter the system through later criminal convictions but fall within the registration categories of SORNA or the jurisdiction's registration law.

V. Newly Recognized Tribes

SORNA affords eligible federally-recognized Indian tribes a one-year period, running from the date of SORNA's enactment on July 27, 2006, to elect whether to become SORNA registration jurisdictions or to delegate their registration functions to the states within which they are located. See 42 U.S.C. 16927(a)(1), (2)(B); 73 FR at 38049-50. In principle there is no reason why an Indian tribe that initially receives recognition by the Federal government following the enactment of SORNA should be treated differently for SORNA purposes from other federally recognized tribes. But if such a tribe is initially recognized more than a year after the enactment of SORNA, then the limitation period of § 16927 will have passed before the tribe became the kind of entity (a federally recognized tribe) that may be eligible to become a SORNA registration jurisdiction.

Where the normal starting point of a statutory time limit for taking an action cannot sensibly be applied to a certain entity, the statute may be construed to allow the entity a reasonable amount of time to take the action. See Chicago & Alton R.R. Co. v. Tranbarger, 238 U.S. 67, 73-74 (1915); see also Taylor v. Horn, 504 F.3d 416, 426 (3d Cir. 2007) (running statutory time limit from later point where normal starting point was already past).

This principle will be applied to 42 U.S.C. 16927 to allow Indian tribes that receive Federal recognition following the enactment of SORNA a reasonable amount of time to elect whether to become SORNA registration jurisdictions as provided in that section, and to allow such tribes a reasonable amount of time for substantial implementation of SORNA if they elect to be SORNA registration jurisdictions. In assessing what constitutes a reasonable amount of time for these purposes, the Department of Justice will look to the amount of time SORNA generally affords for tribal elections and for jurisdictions' implementation of the SORNA requirements. Hence, a tribe receiving Federal recognition after SORNA's enactment that otherwise qualifies to make the election under § 16927(a) will be afforded a period of one year to make the election, running from the date of the tribe's recognition or the date of publication of these supplemental guidelines, whichever is later. Likewise, such a tribe will be afforded a period of three years for SORNA implementation, running from the same starting point, subject to up to two possible one-year extensions. See 42 U.S.C. 16924.

Dated: May 11, 2010.

Eric H. Holder, Jr.,

Attorney General.