02-27257. Guidelines for the Campus Sex Crimes Prevention Act Amendment to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act

AGENCY:

Department of Justice.

ACTION:

Final guidelines.

SUMMARY:

The United States Department of Justice is publishing Final Guidelines to implement an amendment to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act enacted by the Campus Sex Crimes Prevention Act.

EFFECTIVE DATE:

October 25, 2002.

FOR FURTHER INFORMATION CONTACT:

C. Camille Cain, Deputy Director for Programs, Bureau of Justice Assistance, 810 Seventh Street NW, Washington, D.C. 20531. Telephone: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796, 2038 (codified at 42 U.S.C. 14071) contains the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (the “Wetterling Act”). The Wetterling Act sets minimum national standards for state sex offender registration and community notification programs, and directs the Attorney General to issue guidelines for such programs. The current Wetterling Act guidelines were published in the Federal Register at 64 FR 572 (Jan. 5, 1999), with corrections at 64 FR 3590 (Jan. 22, 1999). States that fail to comply with the Wetterling Act's requirements (as implemented and explained in the Attorney General's guidelines) are subject to a mandatory 10% reduction of the formula grant funding available under the Edward Byrne Memorial State and Local Law Enforcement Assistance Program (42 U.S.C. 3756), which is administered by the Bureau of Justice Assistance of the Department of Justice.

Subsequent to the publication of the current Wetterling Act guidelines, Congress amended the Wetterling Act in the Campus Sex Crimes Prevention Act (the “CSCPA”), Pub. L. 106-386, div. B, § 1601, 114 Stat. 1464, 1537 (2000). The CSCPA provides special requirements relating to registration and community notification for sex offenders who are enrolled in or work at institutions of higher education. The CSCPA amendment to the Wetterling Act takes effect two years after its enactment date of October 28, 2000.

Supplementary guidelines are necessary to take account of the CSCPA amendment to the Wetterling Act. On March 8, 2002, the U.S. Department of Justice published Proposed Guidelines in the Federal Register (67 FR 10758) for that purpose.

Summary of Comments on the Proposed Guidelines

Following the publication of the Proposed Guidelines, the Department received several comments, all of which were carefully considered in finalizing the guidelines. A summary of the comments and responses to them are provided in the following paragraphs.

A. Availability of Information to the Campus Community

A number of comments noted that the Proposed Guidelines did not discuss the requirement under the CSCPA that information concerning the presence of registered sex offenders be made available to campus communities, and recommended that this requirement be articulated more clearly in the Final Guidelines. Comments to this effect were received from Senator Jon Kyl, the sponsor of the CSCPA, and from Daniel S. Carter, Senior Vice President of Security On Campus, Inc.

This issue was not addressed at length in the Proposed Guidelines because responsibility for implementation of the CSCPA is divided between the Attorney General and the Secretary of Education, and this issue relates to federal education law amendments that are within the purview of the Secretary of Education.

In part, the CSCPA added a new subsection to the Wetterling Act, 42 U.S.C. 14071(j), which requires states to obtain information concerning registrants' enrollment or employment at institutions of higher education, and to provide this information to campus police departments or other appropriate law enforcement agencies. The Attorney General is responsible for issuing guidelines relating to the Wetterling Act amendment of the CSCPA as part of his general responsibility for the issuance of guidelines under the Wetterling Act. See 42 U.S.C. 14071(a). The detailed discussion in the Proposed Guidelines was accordingly limited to the portions of the CSCPA that affect the Wetterling Act. The Proposed Guidelines explained: “These guidelines relate solely to the provisions of the CSCPA that amended the Wetterling Act, and hence affect state eligibility for full Byrne Grant funding.”

The Proposed Guidelines, however, also noted: “In addition to adding subsection (j) to the Wetterling Act, the CSCPA amended federal education laws to ensure the availability to the campus community of information concerning the presence of registered sex offenders.” 67 FR at 10759. The Department of Education is responsible for the issuance of regulations relating to those laws.

The CSCPA's education law amendments include the addition of a new provision, section 485(f)(1)(I) of the Higher Education Act of 1965 (20 U.S.C. 1092(f)(1)(I)). This provision requires a statement advising the campus community where it can obtain the information identifying registered sex offenders who are enrolled or employed at the institution of higher education—information that the state is required to provide to the campus police department or other appropriate law enforcement agency pursuant to 42 U.S.C. 14071(j):

(I) A statement advising the campus community where law enforcement agency information provided by a State under section 170101(j) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14071(j)), concerning registered sex offenders may be obtained, such as the law enforcement office of the institution, a local law enforcement agency with jurisdiction for the campus, or a computer network address.

In addition, the CSCPA added a provision to section 444(b) of the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. 1232g(b)(7)(A)), which specifies that that Act does not prohibit educational institutions from disclosing information provided to them concerning registered sex offenders.

Thus, under the CSCPA's provisions, information identifying the registered sex offenders at an institution of higher education must be provided to the campus police department or other appropriate law enforcement agency, and the campus community must be advised where it can obtain this information. The net effect of these provisions is that information identifying the registered sex offenders at an institution of higher education must be made available to the campus community by some means, for otherwise it would be impossible to comply with the requirement that the campus community be advised where this information can be obtained. The CSCPA affords discretion concerning the specific means by which this information will be made available to the campus community, and indicates more specifically by way of illustration that permissible options would include making the information available at an appropriate law enforcement office, or making the information available online. See 20 U.S.C. 1092(f)(1)(I) (quoted above).

In addition to the special provisions of the CSCPA concerning the availability of sex offender information to campus communities, the general community notification provision of the Wetterling Act, 42 U.S.C. 14072(e)(2), applies to registered sex offenders who are enrolled or employed at institutions of higher education just as it applies to other registered sex offenders. Subsection (e)(2) requires that relevant information be released concerning registrants as necessary to protect the public. The Attorney General's guidelines for the Wetterling Act explain the meaning and application of this requirement. See 64 FR 572, 581-82.

B. Mandatory or Discretionary Character of the CSCPA's Standards

James Thomas, Executive Director of the Pennsylvania Commission on Crime and Delinquency, provided comments on behalf of the Commonwealth of Pennsylvania. In part, the comments suggested that the CSCPA does not require states to obtain information concerning registered sex offenders' enrollment or employment at institutions of higher education, or to provide such information to law enforcement agencies.

Pennsylvania's comments pointed out that 42 U.S.C. 14071(j)(1)(A) states that persons required to register shall provide notice relating to their enrollment or employment at institutions of higher education “as required under State law,” and that 42 U.S.C. 14071(j)(1)(B) provides that such persons shall report changes in their enrollment or employment status “in the manner provided by State law.” The comments interpreted these phrases to mean that the states have discretion under the CSCPA's standards as to whether they will impose such obligations on registrants at all. In support of this interpretation, the comments stated that other federal statutes uniformly use the phrase “as required under State law” in referring to pre-existing state duties—citing 12 U.S.C. 1813(m)(4); 15 U.S.C. 1612(d); 26 U.S.C. 832(b)(7)(E)—rather than with the intent to impose a new federal obligation on states. (Only one of the cited statutes uses the exact phrase “as required under State law”; the other two use “as required by State law.”) The comments also asserted that the phrase “in the manner provided by State law” is not used elsewhere in the United States Code.

However, the phrase “in the manner provided by State law” is used at an earlier point in the Wetterling Act itself, as part of a provision requiring change-of-address notice by registrants. Specifically, 42 U.S.C. 14071(b)(4) provides that a change of address by a person required to register under the Wetterling Act shall be reported by the person “in the manner provided by State law,” and that “State procedures shall ensure” that the updated address information is promptly made available to an appropriate law enforcement agency and entered into the appropriate state records or data system. This provision does not mean that states have discretion under the Wetterling Act's standards as to whether or not they will require change of address notice by registrants, but only conveys state discretion as to the manner in which this notice will be effected—for example, specifying which particular agency or official must be given the notice. See 64 FR 572, 580 (explanation of 42 U.S.C. 14071(b)(4) in Attorney General's guidelines).

In parallel fashion, 42 U.S.C. 14071(j)(1)(B) provides that a change of enrollment or employment status shall be reported by the person “in the manner provided by State law,” and that “State procedures shall ensure” that the updated information is promptly made available to an appropriate law enforcement agency and entered into the appropriate state records or data system. The similarity of language evidences a similarity of legislative intent. Like 42 U.S.C. 14071(b)(4), 42 U.S.C. 14071(j)(1)(B) conveys state discretion concerning the particular manner in which changes in registration information will be reported, but does not convey discretion as to whether or not the reporting of such information will be required at all.

The other qualifying phrase noted in Pennsylvania's comments appears in 42 U.S.C. 14071(j)(1)(A), which says that, in addition to any other requirements of the Wetterling Act, a person who is required to register shall provide notice “as required under State law” concerning enrollment or employment at an institution of higher education in the state. In effect, the comments suggest that “as required under State law” should be read to mean: “if required under State law.”

The phrase “as required under State law” does not appear verbatim elsewhere in the Wetterling Act, but a similar phrase—“as provided by State law”—appears in 42 U.S.C. 14071(b)(1)(A)(ii)-(iii). Section 14071(b)(1)(A)(ii)-(iii) requires state officials to advise registrants that if they change address, they must “report the change of address as provided by State law.” This phrase does not mean that registrants are to be told that they have an obligation to report a change of address only if the state, in its discretion, chooses to impose such an obligation by state law. Rather, “as provided by State law” in § 14071(b)(1)(A)(ii)-(iii) evidently has the same meaning as “in the manner provided by State law” in § 14071(b)(4), referring to the specification by state law of the particular manner in which change of address information is to be reported.

Similarly, the requirement under § 14071(j)(1)(A) that registrants are to provide notice “as required under State law” means that they are to provide notice in the manner required under state law, not if required under state law. The parallel usages elsewhere in the Wetterling Act are more persuasive on this point than the appearance of “as required under [or by] State law” in a few statutes (cited in Pennsylvania's comments) that use that phrase in entirely different contexts and that have no relationship to the Wetterling Act or its subject matter.

Beyond the foregoing textual points, the interpretation suggested in Pennsylvania's comments is clearly inconsistent with the understanding presented to Congress in its consideration of the CSCPA:

The purpose of [the CSCPA] is to guarantee that, when a convicted sex offender enrolls or begins employment at a college or university, members of the campus community will have the information they need to protect themselves. . . . The Campus Sex Crimes Prevention Act provides that offenders must register the name of any higher education institution where they enroll as a student or commence employment. It also requires that this information be promptly made available to law enforcement agencies in the jurisdictions where the institutions of higher education are located. . . .

In order to ensure that the information is readily accessible to the campus community, the Campus Sex Crimes Prevention Act requires colleges and universities to provide the campus community with clear guidance as to where this information can be found, and clarifies that federal laws governing the privacy of education records do not prevent campus security agencies or other administrators from disclosing such information.

146 Cong. Rec. S10216 (Oct. 11, 2000) (remarks of Senator Kyl).

In contrast, under the interpretation suggested in Pennsylvania's comments, the CSCPA would not guarantee that information concerning the presence of registered sex offenders at institutions of higher education is obtained by or made available to anyone, because the decision whether to collect such information would be left to the discretion of individual states.

In addition to the interpretive issues discussed above, the comments received from Pennsylvania expressed a number of concerns about the practical impact of the CSCPA amendment to the Wetterling Act. Specifically, the comments expressed concern that: (1) Requiring employment and schooling information from registrants will complicate the registration process and result in fewer offenders registering properly and providing the required notifications concerning changes; (2) legislation will be needed to effectively implement the new requirements; and (3) the new requirements will have a fiscal impact in a tight budgetary situation, including the expense of modifying the registration database to add the fields and logic necessary to store and process the new data, and additional staff for the State Police Megan's Law section because of increased workload. The comments stated that Pennsylvania had not had sufficient time to implement the proposed guidelines and requested an extension of the implementation deadline, or if that could not be effected, an extension of the effective date of the reduction of Byrne Grant funding in case of noncompliance.

In response, the Department of Justice notes that the requirement to obtain information from registrants concerning enrollment or employment at institutions of higher education, and to make this information available to appropriate law enforcement agencies, is integral to the CSCPA amendment to the Wetterling Act and cannot be changed by the guidelines. States have considerable latitude as to the particular procedures to be used in carrying out these requirements, and may adopt procedures consistent with the statute and guidelines that minimize resulting costs and burdens in the context of their registration systems. As with other provisions of the Wetterling Act, the Department provides advice and consultation to states on request concerning the consistency of measures they are considering to implement subsection (j) with the statute and the guidelines.

Under the original provisions of the Wetterling Act and most previous amendments, the legislation allowed states three years to come into compliance, and authorized the Attorney General to grant an additional two years to states that were making good faith efforts to come into compliance. See 64 FR at 572 (explanation of deadlines in Attorney General's guidelines). However, the CSCPA provides that its amendment to the Wetterling Act takes effect two years after enactment, and does not give the Attorney General authority to grant additional time. The Department is accordingly required to reduce by 10% any formula Byrne Grant award to a state made after October 27, 2002, if the state is not in compliance with the requirements of 42 U.S.C. 14071(j) at the time of the award. Since the deadline is statutory and not subject to extension by the Attorney General, any request for additional time would need to be addressed to Congress.

C. Comments From the American Council on Education

David Ward, President of the American Council on Education (ACE), sent a letter on behalf of the ACE expressing support for the proposed guidelines for the CSCPA amendment to the Wetterling Act. The letter advised that the ACE had worked with Senator Kyl and other members of Congress in developing the CSCPA so that community members at institutions of higher education could have access to information regarding registered sex offenders enrolled or employed at a particular college or university; that the ACE intended to offer more detailed comments to the Department of Education as it develops guidelines to ensure the availability of information concerning the presence of registered sex offenders; and that the proposed guidelines from the Department of Justice accurately and appropriately represent the intention of the law and that the ACE does not recommend any changes.

D. Comments From a Kansas Respondent

Tiffany Muller, Sexual Assault Advocacy Coordinator at the Kansas Coalition Against Sexual and Domestic Violence (hereafter, the “Kansas Coalition”), submitted comments reflecting discussion of the CSCPA by a Sexual Assault Task Group made up of representatives from rape crisis centers and other interested agencies. The comments stated that the CSCPA was well received in Kansas, and that it provides a number of benefits, but that there were concerns about implementation and effectiveness in light of other current barriers. The specific concerns and suggestions were as follows:

1. Time for Registration in Interstate Situations

The comments from the Kansas Coalition asked how the duration of registration, and the related requirement to report attendance at a university, would be handled in situations involving multiple states with different registration periods—e.g., a situation in which a person was initially registered in a state that requires registration for 10 years, but then attends a university in a neighboring state that requires registration for 15 years.

One type of situation this question covers is that in which a sex offender is convicted and initially registered in one state, but then changes his residence to another state and attends a university in the new state of residence. Under the standards of the CSCPA amendment to the Wetterling Act, the offender would be required to notify the new state of residence concerning his enrollment or employment at institutions of higher education in that state for however long he is required to register in that state. See 42 U.S.C. 14071(j) (“a person who is required to register in a State” shall provide notice concerning enrollment or employment at an institution of higher education in that state).

A second type of situation the question may refer to is one in which a sex offender continues to reside in the state in which he is convicted and initially registered, but attends a university in another state. This situation falls under another provision of the Wetterling Act, 42 U.S.C. 14071(b)(7)(B), which relates to registration by a state of non-residents who are in the state for purposes of employment or school attendance. The state of employment or school attendance must accept registration information from such non-residents for as long as they are required to be registered in their states of residence under the Wetterling Act's standards. See 64 FR 572, 585 (explanation of subsection (b)(7)(B) in Attorney General's guidelines).

The question may also be seeking more general information about the Wetterling Act's requirements regarding the duration of registration in interstate situations. In general, the Wetterling Act's standards require registration of at least 10 years for offenders in the offense categories covered by the Act, and lifetime registration for certain types of offenders. See 42 U.S.C. 14071(b)(6); 64 FR 572, 576, 582-83, 584. These requirements apply regardless of whether the registrant moves from one state to another. If an offender who is subject only to the limited (ten-year) registration requirement of the Wetterling Act changes his state of residence, the new state of residence may give him credit towards satisfaction of the ten-year requirement based on the amount of time he was registered in the previous state of residence. See 64 FR 572, 578, 580. In all circumstances, states are free to require registration for longer periods than the minimum required under the Wetterling Act's standards. See 64 FR 572, 575.

2. Breakdown in Communication

The comments from the Kansas Coalition stated that in some cities a campus police department would have immediate jurisdiction over the campus, but often would not patrol some student housing, and that campus police in Kansas often do not share information with local police departments. The comments suggested that the concerns raised by this breakdown in communication might be addressed by notifying both the campus and local law enforcement.

On this point, the Proposed Guidelines, and the Final Guidelines below, make it clear that states are free to notify both a campus police department and other law enforcement agencies: “Regardless of whether an institution of higher education has its own law enforcement unit, the Wetterling Act does not limit the discretion of states to make information concerning registrants enrolled or working at the institution available to other law enforcement agencies as well.”

3. Use of Pamphlets in Notification

The comments from the Kansas Coalition suggested that schools could distribute pamphlets to help notify people that information is available about such matters as crime rates and registered offenders at institutions of higher education.

This comment relates to the means of carrying out provisions of the Higher Education Act of 1965, including the CSCPA amendment to that Act (20 U.S.C. 1092(f)(1)(I)), rather than to the CSCPA amendment to the Wetterling Act.

4. Standardized Guidelines

The comments from the Kansas Coalition noted a suggestion that states should have more standardized sex offender registration guidelines.

On this point, it may be noted that the Wetterling Act, and the Attorney General's guidelines for the Wetterling Act, provide minimum national standards for state sex offender registration programs, and thereby establish a baseline of common features for the state programs.

5. Monitoring of Offenders

The comments from the Kansas Coalition expressed concern that it would be fairly easy for offenders to be without monitoring—especially those in a very transient college population—since updates come from the offenders themselves and states are only required to check in with registered offenders once a year.

The Wetterling Act's standards require annual address verification for registrants generally, but quarterly address verification for certain registrants. States are free to check or verify address information and other registration information with greater frequency than the minimum required by the Wetterling Act. See 42 U.S.C. 14071(b)(3); 64 FR 572, 575, 581, 584.

6. Inaccurate Reporting

The comments from the Kansas Coalition stated that many campuses are not accurately reporting and continue to cover up incidences of sexual assault, and that these same campuses may be resistant to reporting registered offenders to the public.

This comment relates to compliance with provisions of the Higher Education Act of 1965, including the CSCPA amendment to that Act (20 U.S.C. 1092(f)(1)(I)), rather than to the CSCPA amendment to the Wetterling Act.

E. Comments From a Tennessee Respondent

Tim Burchett, a state senator in Tennessee, sent a letter stating that he had recently learned that the U.S. Department of Justice, in a brief filed with the Supreme Court, had articulated a requirement that campus sex offender notifications must be made categorically without regard to any risk assessment. Senator Burchett stated that he had sponsored the law in Tennessee designed to achieve compliance with the campus notification requirements of the CSCPA, and that he wanted to make sure that Tennessee's law will meet this new requirement.

Senator Burchett further stated that Tennessee will make categorical notifications on campus for all registrants after the Tennessee law's effective date of October 27, 2002, and that for convictions prior to that date release of the information is at the discretion of law enforcement. He asked whether this would meet the CSCPA's requirements, or whether further amendment of the law would be needed requiring categorical notifications without regard to conviction date. He also suggested that it would be very helpful if an explanation of the categorical notification requirement could be included in the Final Guidelines, so that states will know exactly what is needed for compliance.

In three briefs filed with the Supreme Court, the Department of Justice has noted the CSCPA's requirements relating to the availability to campus communities of information concerning the presence of registered sex offenders. See Brief for the United States as Amicus Curiae Supporting Petitioner, at 2-3, 10, in Connecticut Department of Public Safety v. Doe, No. 01-1231 (April 2002) (amicus brief supporting the granting of certiorari); Brief for the United States as Amicus Curiae Supporting Petitioners, at 2, 6, 22-23, in Godfrey v. Doe, No. 01-729 (June 2002) (amicus brief supporting petitioners on the merits); Brief for the United States as Amicus Curiae Supporting Petitioners, at 4-5, 27-28, in Connecticut Department of Public Safety v. Doe, No. 01-1231 (July 2002) (amicus brief supporting petitioners on the merits). These requirements are categorical in that information must be made available to a campus community concerning the identities of all registered sex offenders who are enrolled or employed at the institution of higher education. As explained above, this follows from the requirement of 42 U.S.C. 14071(j) that information identifying all registrants at an institution of higher education must be provided to the campus police department or other appropriate law enforcement agency, together with the requirement of 20 U.S.C. 1092(f)(1)(I) that the campus community must be told where it can obtain this information.

The Wetterling Act's requirements generally apply to registrants who are convicted at any time after a state's establishment of a registration system that conforms to these requirements. Hence, a state must at a minimum apply the requirements of 42 U.S.C. 14071(j) to all persons registered on the basis of convictions occurring after the effective date of state legislation that implements the requirements of 42 U.S.C. 14071(j) in the state's registration system. States are also free to apply the requirements of 42 U.S.C. 14071(j) more broadly to persons registered on the basis of convictions occurring before the enactment or effectiveness of such state legislation. See 64 FR 572, 575, 581, 583.

Final Guidelines

The Campus Sex Crimes Prevention Act (CSCPA) provisions appear in subsection (j) of the Wetterling Act (42 U.S.C. 14071(j)). As provided in subsection (j), any person required to register under a state sex offender registration program must notify the state concerning each institution of higher education (i.e., post-secondary school) in the state at which the person is a student or works, and of each change in enrollment or employment status of the person at such an institution. States can comply with the Wetterling Act's requirements concerning these registrants, in part, by: (1) Advising registrants concerning these specific obligations when they are generally advised of their registration obligations, as discussed in part II.A of the January 5, 1999, Wetterling Act guidelines (64 FR 572, 579), (2) including in the registration information obtained from each registrant information concerning any enrollment or employment at an institution of higher education in the state, and (3) establishing procedures for registrants to notify the state concerning any subsequent commencement or termination of enrollment or employment at an institution of higher education in the state. The failure of a registrant to notify the state concerning enrollment or employment at an institution of higher education or the termination of such enrollment or employment would constitute a failure to register or keep such registration current for purposes of subsection (d) of the Wetterling Act (42 U.S.C. 14071(d)), and must be subject to criminal penalties as provided in that subsection.

Under the requirements of subsection (j) of the Wetterling Act, state procedures must also ensure that information concerning a registrant enrolled or working at an institution of higher education is promptly made available to a law enforcement agency having jurisdiction where the institution is located, and entered into the appropriate state records or data system. This requirement applies both to any information initially obtained from registrants concerning enrollment or employment at institutions of higher education in the state, and information concerning subsequent changes in such enrollment or employment status. As paragraph (3) of subsection (j) makes clear, subsection (j) does not place any burden on an educational institution to request information about registrants enrolled or employed at the institution from the state, and the requirement that the state make the information available to a law enforcement agency having jurisdiction where the institution is located is not contingent on a request from the institution.

Subsection (j)'s requirement to promptly make the information available to a law enforcement agency having jurisdiction where the institution is located is supplementary to the requirement under subsection (b)(2)(A) and (4) of the Wetterling Act (42 U.S.C. 14071(b)(2)(A), (4)) to promptly make information concerning registrants available to a law enforcement agency having jurisdiction where the registrant resides. The legislative history of the CSCPA explains subsection (j)'s requirement as follows:

Once information about an offender's enrollment * * * or employment * * * [at] * * * an institution of higher education has been provided to a state's sex offender registration program, that information should be shared with that school's law enforcement unit as soon as possible.

The reason for this is simple. An institution's law enforcement unit will have the most direct responsibility for protecting that school's community and daily contact with those that should be informed about the presence of the convicted offender.

If an institution does not have a campus police department, or other form of state recognized law enforcement agency, the sex offender information could then be shared with a local law enforcement agency having primary jurisdiction for the campus.

146 Cong. Rec. S10216 (Oct. 11, 2000) (remarks of Senator Kyl).

Thus, if an institution of higher education has a campus police department or other form of state recognized law enforcement agency, state procedures must ensure that information concerning the enrollment or employment of registrants at that institution (and subsequent changes in registrants' enrollment or employment status) is promptly made available to the campus police department or law enforcement agency. If there is no such department or agency at the institution, then state procedures must ensure that this information is promptly made available to some other law enforcement agency having jurisdiction where the institution is located. Regardless of whether an institution of higher education has its own law enforcement unit, the Wetterling Act does not limit the discretion of states to make information concerning registrants enrolled or working at the institution available to other law enforcement agencies as well.

The language of subsection (j) refers specifically to any registrant who “is employed, carries on a vocation, or is a student” at an institution of higher education in the state. These terms have defined meanings set forth in subsection (a)(3)(F)-(G) of the Wetterling Act (42 U.S.C. 14071(a)(3)(F)-(G)). In light of these definitions, the registrants to whom the requirements of subsection (j) apply are those who: (1) are enrolled in any institution of higher education in the state on a full-time or part-time basis, or (2) have any sort of full-time or part-time employment at an institution of higher education in the state, with or without compensation, for more than 14 days, or for an aggregate period exceeding thirty days in a calendar year.

The CSCPA provisions in subsection (j) of the Wetterling Act are supplementary to, and do not limit or supersede, the provisions in subsection (b)(7)(B) of the Wetterling Act that require states to accept registration information from offenders who reside outside a state but come into the state in order to work or attend school. Subsection (b)(7)(B) applies only to non-resident workers and students, but it is not limited in scope to those who work at or attend institutions of higher education (as opposed to other places of employment or schools). The requirements under subsection (b)(7)(B) are explained in part V.B.2 of the January 5, 1999, Wetterling Act guidelines (64 FR 572, 585).

The CSCPA's effective date for its amendment to the Wetterling Act is two years after enactment. Hence, following October 27, 2002, Byrne Formula Grant awards to states that are not in compliance with subsection (j) of the Wetterling Act will be subject to a mandatory 10% reduction. If a state's funding is reduced because of a failure to comply with the CSCPA amendment to the Wetterling Act or other Wetterling Act requirements by an applicable deadline, the state may regain eligibility for full funding thereafter by establishing compliance with all applicable requirements of the Wetterling Act. States are encouraged to submit information concerning existing and proposed sex offender registration provisions relating to compliance with the CSCPA amendment as soon as possible.

After the reviewing authority has determined that a state is in compliance with the Wetterling Act, the state has a continuing obligation to maintain its system's consistency with the Wetterling Act's standards, and will be required as part of the Byrne Formula Grant application process in subsequent program years to certify that the state remains in compliance with the Wetterling Act.

These guidelines relate solely to the provisions of the CSCPA that amended the Wetterling Act, and hence affect state eligibility for full Byrne Grant funding. In addition to adding subsection (j) to the Wetterling Act, the CSCPA amended federal education laws to ensure the availability to the campus community of information concerning the presence of registered sex offenders. The Department of Education is responsible for the issuance of regulations relating to those laws.

As noted above, the general guidelines for the Wetterling Act were published on January 5, 1999, and appear at 64 FR 572, with corrections at 64 FR 3590 (Jan. 22, 1999). The new CSCPA provisions in subsection (j), which these supplementary guidelines address, are only one part of the Wetterling Act. States must comply with all of the Wetterling Act's requirements in order to maintain eligibility for full Byrne Grant funding.

Dated: October 22, 2002.

Larry D. Thompson,

Acting Attorney General.