[Federal Register Volume 76, Number 7 (Tuesday, January 11, 2011)]
[Notices]
[Pages 1630-1640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-505]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

[Docket No. OAG 134; AG Order No. 3241-2011]
RIN 1105-AB36


Supplemental Guidelines for Sex Offender Registration and 
Notification

AGENCY: Department of Justice.

ACTION: Final guidelines.

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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: Effective Date: January 11, 2011.

[[Page 1631]]


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:

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 (42 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 proposed and solicited public comment on supplemental 
guidelines addressing these issues, which were published in the Federal 
Register on May 14, 2010, at 75 FR 27362. The public comment period 
closed on July 13, 2010.
    Following consideration of the public comments received, the 
Department of Justice is now finalizing the 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.

Summary of Comments on the Proposed Supplemental Guidelines

    About 280 separate comments were received from a wide variety of 
agencies, organizations, and individuals. Many of the comments were 
favorable to the supplemental guidelines, either generally or with 
respect to particular measures therein. The grounds of support included 
the value of the changes in the supplemental guidelines in facilitating 
jurisdictions' implementation of SORNA or enhancing the efficacy of sex 
offender registration and notification.
    Some commenters criticized the supplemental guidelines as 
potentially resulting in greater disparity among jurisdictions in sex 
offender registration or notification standards by increasing 
jurisdictions' discretion in certain areas. SORNA, however, does not 
aim at complete uniformity among jurisdictions, but rather establishes 
a national baseline of sex offender registration and notification 
standards and generally leaves jurisdictions free to adopt different 
approaches and provisions beyond the required minimum. See 73 FR at 
38032-35. The provisions in the supplemental guidelines that broaden 
jurisdictions' discretion affect limited areas, specifically, whether 
jurisdictions will publicly disclose information concerning sex 
offenders required to register on the basis of juvenile delinquency 
adjudications, and whether jurisdictions will require registration by 
sex offenders who have left the justice system but later reenter the 
system through subsequent non-felony, non-sex-offense convictions. By 
relaxing a couple of requirements that have been impediments to SORNA 
implementation in some jurisdictions, these changes further the 
nationwide implementation of the remainder of the SORNA requirements 
and hence are likely to promote greater overall uniformity among 
jurisdictions in sex offender registration and notification standards. 
Considering the foregoing, the public comments that criticized certain 
features of the supplemental guidelines as resulting in an undesirable 
loss of uniformity do not persuasively establish that there will be 
such an effect that outweighs the benefits of these changes.
    Some commenters criticized changes made in these supplemental 
guidelines as an inappropriate or impermissible exercise of legislative 
power by the Attorney General, and urged that such changes could 
properly be made only by Congress. However, SORNA expressly affords the 
Attorney General authority to expand the range of required registration 
information and to create exceptions to the required disclosure of 
registration information. See 42 U.S.C. 16914(a)(7), (b)(8), 
16918(b)(4), (c)(4), 16921(b). SORNA further charges the Attorney 
General with responsibility for issuing guidelines and regulations to 
interpret and implement SORNA and for determining whether jurisdictions 
have substantially implemented SORNA in their programs. See 42 U.S.C. 
16912(b), 16925. These authorities adequately support the measures 
adopted in these supplemental guidelines.
    Some of the comments received concerned matters outside the scope 
of these supplemental guidelines. Those comments, and the Department's 
responses thereto, include the following: (i) Some comments generally 
criticized SORNA, state sex offender registration and notification 
laws, or state laws imposing measures that SORNA does not require, such 
as residency restrictions on sex offenders, and explicitly or 
implicitly urged that such laws should be repealed or amended. The 
Attorney General has no authority to repeal or amend Federal or

[[Page 1632]]

State laws by issuing guidelines. (ii) Some comments criticized 
measures in the preexisting SORNA Guidelines that the proposed 
supplemental guidelines did not attempt to address. The final 
supplemental guidelines have not been changed on the basis of such 
comments because they did not concern matters within the scope of these 
supplemental guidelines. Moreover, these comments did not provide 
persuasive reasons for changing other requirements under SORNA or its 
implementing guidelines. (iii) Some comments raised questions regarding 
SORNA implementation by jurisdictions that did not specifically concern 
the measures adopted in these supplemental guidelines. Questions of 
this type should be addressed directly to the SMART Office. The SMART 
Office is available at all times to answer jurisdictions' questions 
regarding SORNA implementation and to assist them in such 
implementation.
    Some commenters, on varying grounds, were critical of particular 
changes made by these supplemental guidelines or urged that the changes 
do not go far enough in qualifying or supplementing SORNA's 
requirements. The main substantive comments and criticisms are most 
conveniently discussed on a topic-by-topic basis:

Juvenile Delinquents

    Many favorable comments were received concerning Part I.A of these 
supplemental guidelines, which provides that it is within 
jurisdictions' discretion whether they will publicly disclose 
information concerning juvenile delinquent sex offenders. Some 
commenters, however, urged that the Attorney General should go further 
in limiting public disclosure of such information, or that the Attorney 
General should also restrict or eliminate SORNA's registration 
requirements for juvenile delinquent sex offenders. The grounds urged 
for further changes included that, absent such changes, juvenile 
delinquent sex offenders would be improperly equated to adult sex 
offenders, stigmatized, unjustifiably subjected to lifetime 
registration, and not effectively rehabilitated in conformity with the 
objectives of juvenile justice systems.
    In assessing these comments, it must be understood that, following 
the issuance of these supplemental guidelines, there is no remaining 
requirement under SORNA that jurisdictions publicly disclose 
information about sex offenders whose predicate sex offense 
``convictions'' are juvenile delinquency adjudications. There are two 
provisions in SORNA that require public disclosure of certain 
information concerning sex offenders. One of these provisions is 42 
U.S.C. 16918, which generally requires that jurisdictions make sex 
offender information available on publicly accessible Internet sites. 
The other is 42 U.S.C. 16921(b), which requires targeted disclosures of 
sex offender information, some aspects of which could be characterized 
as involving public disclosure. Specifically, the required disclosures 
under the latter provision include disclosure to certain school, public 
housing, social service, and volunteer entities, and to other 
organizations, companies, or individuals who request notification. As a 
practical matter, the public disclosures required under Sec.  16921(b) 
may effectively merge with the Internet disclosure required under Sec.  
16918(b), because the SORNA Guidelines explain that jurisdictions may 
satisfy the public disclosure aspects of Sec.  16921(b) by including 
functions on their public sex offender Web sites that enable members of 
the public to request automatic notification when sex offenders 
commence residence, employment, or school attendance in specified 
areas. See 73 FR at 38061.
    Under both public disclosure provisions in SORNA, the Attorney 
General has express statutory authority to limit the required 
disclosure of information. See 42 U.S.C. 16918(c)(4) (``[a] 
jurisdiction may exempt from disclosure * * * any other information 
exempted from disclosure by the Attorney General''); id. Sec.  16921(b) 
(registry information to be provided to specified entities ``other than 
information exempted from disclosure by the Attorney General''). 
Moreover, under both of these provisions, the Attorney General has 
exercised his authority in these supplemental guidelines to provide 
that jurisdictions need not publicly disclose information concerning 
persons required to register on the basis of juvenile delinquency 
adjudications.
    Given this change, the effect of the remaining registration 
requirements under SORNA for certain juvenile delinquent sex offenders 
is, in essence, to enable registration authorities to track such 
offenders following their release and to make information about them 
available to law enforcement agencies. See 73 FR at 38060; Part I.A of 
these supplemental guidelines. There is no remaining requirement under 
SORNA that jurisdictions engage in any form of public disclosure or 
notification regarding juvenile delinquent sex offenders. Jurisdictions 
are free to do so, but need not do so to any greater extent than they 
may wish.
    The comments that proposed some further restriction or elimination 
of SORNA's registration requirements in relation to juveniles often 
appeared to reflect misunderstanding of the foregoing points or other 
misunderstandings regarding SORNA's provisions relating to juveniles. 
One possible misunderstanding concerns the Attorney General's legal 
authorities under SORNA. As noted above, the Attorney General has 
express statutory authority to create exceptions to the required public 
disclosure of registration information under SORNA. In contrast, SORNA 
affords the Attorney General no open-ended authority to restrict or 
eliminate registration (as opposed to information disclosure) 
requirements under SORNA. Hence, these comments misconceived the legal 
situation to the extent they assumed the Attorney General could simply 
eliminate registration requirements under SORNA in relation to 
juveniles or other classes of offenders, parallel to his authority to 
create exceptions to SORNA's information disclosure requirements.
    Regarding other apparent misunderstandings that appeared in the 
comments, the following points may help to provide a clear picture of 
SORNA's registration requirements and their effects on juveniles:
    First, SORNA's treatment of juvenile sex offenders is very 
different from its treatment of adult sex offenders. Registration is 
required on the basis of a juvenile delinquency adjudication only if 
the juvenile is at least 14 years old at the time of the offense and 
the adjudication is for an offense comparable to or more severe than 
aggravated sexual abuse as defined in Federal law or an attempt or 
conspiracy to commit such a crime. See 42 U.S.C. 16911(8). The SORNA 
Guidelines explain that it suffices for substantial implementation of 
SORNA if jurisdictions register individuals in this class who have been 
adjudicated delinquent for the most serious types of sexually 
assaultive crimes, which generally limits the required coverage to 
juveniles adjudicated delinquent for committing nonconsensual sex 
offenses involving penetration or related attempts or conspiracies. See 
73 FR at 38030, 38040-41, 38050. There is no requirement that 
jurisdictions register juveniles adjudicated delinquent for lesser 
sexual assaults or for nonviolent sexual conduct whose criminality 
depends on the age of the victim. See id. Moreover, SORNA does not 
require lifetime registration without qualification even for juveniles 
adjudicated delinquent for the most

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serious sexually assaultive crimes, but allows registration to be 
terminated after 25 years for those maintaining a clean record. See 42 
U.S.C. 16915(b)(2)(B), (3)(B); 73 FR at 38068-69.
    Second, SORNA does not bar taking account of differences between 
juveniles and adults in the manner in which registration is carried 
out. For example, SORNA requires in-person appearances to report 
certain important changes in registration information and for periodic 
verification, see 42 U.S.C. 16913(c), 16916, but this does not mean 
that juveniles must be required to appear at locations that will result 
in their being exposed to adult sex offenders or in public exposure of 
their status as sex offenders. Rather, jurisdictions have discretion as 
to how meetings between sex offenders and persons responsible for their 
registration will be carried out and may adopt different approaches for 
different classes of registrants. See 73 FR at 38065, 38067.
    Third, following the adoption of these supplemental guidelines, 
there is no requirement that jurisdictions engage in any form of public 
disclosure or notification for juvenile delinquents subject to SORNA's 
requirements. Rather, as discussed above, the effect of the remaining 
registration requirements under SORNA is essentially to enable 
registration authorities to track such delinquents following their 
release and to make information about them available to law 
enforcement.

Internet Identifiers

    Part I.B of these supplemental guidelines creates a mandatory 
exemption of sex offenders' e-mail addresses and other Internet 
identifiers from public Web site posting, a measure required by 42 
U.S.C. 16915a(c). Some commenters urged that there should be further 
restriction of the disclosure of such information. Specifically, some 
argued that jurisdictions should also be restrained from disclosing sex 
offenders' Internet identifiers by means other than public Web site 
posting, and that entities other than registration jurisdictions should 
be prohibited or prevented from disclosing such information.
    As noted, the measure concerning Internet identifiers included in 
these supplemental guidelines is required by 42 U.S.C. 16915a(c), which 
directs the Attorney General to utilize the authority provided in 42 
U.S.C. 16918(b)(4) to exempt Internet identifier information from 
disclosure. Section 16918 is the statute that directs registration 
jurisdictions to establish Internet sites that disclose information on 
registered sex offenders to the public, and subsection (b)(4) in that 
section authorizes the Attorney General to create mandatory exemptions 
of information from such disclosure. There is no corresponding 
authorization in SORNA to prohibit jurisdictions from disseminating 
registration information by means other than public Web site posting, 
or to prohibit entities other than registration jurisdictions from 
disclosing information about sex offenders.
    Looking beyond the question of legal authority, the comments 
received did not provide persuasive reasons for adopting new Federal 
restrictions on the disclosure of information about sex offenders' 
Internet identifiers, supplementary to the limitation required by 42 
U.S.C. 16915a(c) and other existing legal restrictions. As a practical 
matter, there are legitimate reasons for disclosure of such information 
by means other than public Web site posting and by entities other than 
registration jurisdictions, such as disclosure by jurisdictions or 
private individuals or entities of information about sex offenders' 
Internet identifiers to law enforcement agencies investigating sex 
crimes involving solicitation of the victims through the Internet.
    Some of the comments received included complaints or criticisms 
relating to 42 U.S.C. 16915b, which directs the Attorney General to 
establish a system enabling social networking Web sites to compare the 
Internet identifiers of their users to information in the National Sex 
Offender Registry. Section 16915b was separately enacted by the KIDS 
Act, Public Law 110-400. It is not part of SORNA. Any measures that may 
be needed in the implementation of Sec.  16915b would not belong in 
these supplemental guidelines, which are concerned with the 
implementation of SORNA.

International Travel

    Part II.A of these supplemental guidelines exercises ``[t]he 
authority under 42 U.S.C. 16914(a)(7) to expand the range of required 
registration information * * * 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.''
    Some commenters objected to this requirement on the ground that it 
would prevent sex offenders from engaging in legitimate international 
travel, because it may be necessary for sex offenders to travel abroad 
for business, familial, or other reasons without being able to 
anticipate the need three weeks in advance. However, these supplemental 
guidelines recognize that there may be circumstances in which requiring 
21 days advance notice would be unnecessary or inappropriate, and 
expressly allow jurisdictions to adopt policies accommodating such 
situations subject to approval by the SMART Office.
    Some commenters claimed that there is no authority for the Attorney 
General to adopt notice requirements concerning sex offenders leaving 
the United States, or concerning domestic travel by sex offenders, 
because 42 U.S.C. 16928 only directs the Attorney General to establish 
a system for informing relevant jurisdictions about persons entering 
the United States who are required to register under SORNA. These 
commenters apparently did not understand the legal basis for the 
Attorney General's adoption of additional requirements relating to 
reporting of travel or intended travel by sex offenders. Such 
requirements are adequately supported by 42 U.S.C. 16914(a)(7), which 
provides general authority for the Attorney General to expand the 
information sex offenders are required to provide for inclusion in sex 
offender registries. The reporting requirement relating to intended 
international travel adopted in these supplemental guidelines is 
expressly premised on Sec.  16914(a)(7), as are pre-existing reporting 
requirements adopted in the SORNA Guidelines relating to international 
and domestic travel that go beyond those expressly stated in SORNA 
itself, see 73 FR at 38056.
    Some comments expressed concern or frustration that jurisdictions 
have been presented with a moving target in their SORNA implementation 
efforts, a concern apparently felt with particular force in relation to 
the new reporting requirement regarding international travel. 
Relatively little time remains until the end of the compliance periods 
allowed under 42 U.S.C. 16924, which can create a difficult situation 
for jurisdictions attempting to carry out new requirements.
    These comments are well taken. Congress in SORNA has authorized the 
Attorney General to augment or modify SORNA's express requirements in 
certain areas, including authority to expand the range of required 
registration information and authority to create discretionary or 
mandatory exceptions to disclosure of such information. See 42 U.S.C. 
16914(a)(7), (b)(8), 16918(b)(4), (c)(4), 16921(b). These authorities 
could be exercised by the Attorney General at any time during the 
periods afforded for SORNA implementation under 42 U.S.C. 16924 or 
thereafter. Given the inclusion in

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SORNA of these express authorities to augment or modify certain SORNA 
requirements, SORNA is reasonably read so as not to require that 
jurisdictions be regarded as falling short of substantial 
implementation based on new requirements without time afforded to 
correct the deficiency. Accordingly, the SMART Office will take account 
of the novelty of requirements and the time that has been available to 
carry them out in determining whether jurisdictions have substantially 
implemented SORNA, and will afford jurisdictions a reasonable amount of 
time to implement new requirements, which may extend beyond the 
implementation deadlines otherwise applicable under SORNA. Cf. Chicago 
& Alton R.R. Co. v. Tranbarger, 238 U.S. 67, 73-74 (1915) (statute may 
be construed to allow a reasonable amount of time to take an action 
where the normal statutory time limit for taking such actions cannot 
sensibly be applied).
    The comments received included a concern that the new requirement 
relating to international travel reporting will unduly burden 
jurisdictions. This concern appears to reflect an exaggerated 
impression of the nature of the requirement and its impact on 
jurisdictions. Under pre-existing requirements of SORNA and the SORNA 
Guidelines, jurisdictions are required to obtain a range of information 
from sex offenders and to make that information available to other 
registration jurisdictions and appropriate Federal agencies, including 
information regarding domestic and international travel by sex 
offenders. See 42 U.S.C. 16913(c), 16919(b), 16921; 73 FR at 38055-56, 
38065-67. The requirement under these supplemental guidelines to obtain 
information concerning international travel by sex offenders more 
consistently does not differ fundamentally in character from these pre-
existing requirements and the mechanisms utilized in carrying out the 
pre-existing requirements can be extended and adapted to encompass this 
additional information. To the extent the concern about a resulting 
burden on jurisdictions reflects the novelty of this requirement and 
the apprehension that inadequate time will be afforded to implement it, 
the information in the preceding paragraph about how implementation of 
new requirements will be treated is responsive to the concern.
    While the comments received did not provide persuasive reasons to 
abrogate or restrict the international travel reporting requirements as 
set forth in Part II.A of the proposed supplemental guidelines, in one 
respect the provisions regarding this requirement are modified in the 
final supplemental guidelines. The proposed supplemental guidelines 
noted that, as the international tracking system continues to develop, 
the SMART Office may issue additional directions to jurisdictions to 
notify certain agencies concerning international travel by sex 
offenders. Additional direction may also be needed concerning the 
specific information sex offenders should be required to provide in 
notifying their residence jurisdictions about intended international 
travel. This is so because obtaining the bare information that a 
registrant will be going somewhere outside of the United States at some 
time three weeks or more in the future may not be sufficient to achieve 
the objectives of the international tracking system--objectives that 
include reliably tracking sex offenders as they leave and return to the 
United States, and notifying as appropriate U.S. or foreign authorities 
in foreign countries to which sex offenders travel. See 73 FR at 38066-
67. More specific information may be needed to realize these 
objectives, such as information concerning expected itinerary, 
departure and return dates, and means and purpose of travel.
    The final supplemental guidelines accordingly state that the SMART 
Office may issue additional directions concerning the information to be 
required in international travel notifications by sex offenders. To the 
extent that the SMART Office's exercise of the authority to flesh out 
the international tracking system results in new, more specific 
requirements relating to international travel reporting, the novelty of 
these requirements will be taken into account, as with other new 
requirements under SORNA as discussed above. The amount of time that 
has been available to carry out such requirements will be considered by 
the SMART Office in assessing substantial implementation and 
jurisdictions will be afforded a reasonable amount of time to carry 
them out.

Domestic Interjurisdictional Tracking

    Part II.B of the supplemental guidelines, relating to use of the 
SORNA Exchange Portal in domestic interjurisdictional sex offender 
tracking, was commented on favorably as improving and facilitating such 
tracking. There were also some general questions in the comments 
relating to use of the SORNA Exchange Portal and interjurisdictional 
notifications. As noted above, the SMART Office is available at all 
times to answer questions from jurisdictions regarding SORNA 
implementation and such questions should be addressed directly to the 
SMART Office.
    The second paragraph in Part II.B explains that regular use of the 
SORNA Exchange Portal is essential to effective interjurisdictional 
information sharing and sex offender tracking. In relation to these 
objectives, the wording of the final sentence in this paragraph in the 
proposed supplemental guidelines was unduly narrow, referring to use of 
the Portal to access messages from other jurisdictions but not to use 
of the Portal for other information sharing purposes required under 
SORNA. The sentence accordingly has been modified in the final 
supplemental guidelines to reference more generally use of the Portal 
in information sharing in conformity with guidance issued by the SMART 
Office.

Acknowledgment Forms

    Part II.C of these supplemental guidelines expands the range of 
required registration information to include the acknowledgment forms 
used to inform sex offenders of their registration obligations. 
Favorable comment was received on this change as facilitating the 
prosecution of sex offenders who violate those obligations.
    Other commenters were critical of this change on the ground that 
acknowledgment forms should be utilized to inform sex offenders of 
their registration obligations, rather than to prosecute them if they 
violate those obligations. However, there is no inconsistency in using 
the acknowledgment forms for both purposes. The forms both advise sex 
offenders of the registration requirements to which they are subject 
and can help to show that they were aware of those requirements in 
prosecutions for violations.
    Some commenters complained that the acknowledgment forms do not 
provide sufficient information, for example, because they only advise 
sex offenders of their registration obligations under state law and do 
not advise them of their registration obligations under SORNA. However, 
the SORNA standards require that sex offenders be informed of their 
duties under SORNA and that sex offenders be required to sign a form 
stating that the duty to register has been explained and understood. 
See 42 U.S.C. 16917(a); 73 FR at 38063. In jurisdictions that have 
implemented SORNA in their registration programs, the jurisdictions' 
registration laws and policies will encompass the SORNA requirements 
and sex offenders will be informed

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concerning these requirements. In any event, regardless of what 
limitations there may be in the information currently provided in 
particular jurisdictions' acknowledgment forms, that does not weigh 
against requiring the inclusion of these forms in sex offenders' 
registration information. The forms do provide sex offenders with 
information concerning their registration obligations and may be useful 
in the prosecution of violations of those obligations by helping to 
establish that sex offenders were aware of the requirement to register.

Ongoing Implementation Assurance

    Some comments objected to the requirements of Part III of the 
supplemental guidelines, relating to ``ongoing implementation 
assurance,'' on the ground that they would unduly burden jurisdictions 
and would inappropriately require the state administering agencies for 
the Byrne Justice Assistance Grant program to certify the state's SORNA 
implementation status, though these agencies are not generally 
responsible for sex offender registration matters. These comments 
reflect misunderstandings of this part of the supplemental guidelines. 
The supplemental guidelines state that Byrne grantees will need to 
establish that their systems continue to meet the SORNA standards in 
connection with the annual grant application process because such 
continuing compliance is a condition of full Byrne Grant eligibility in 
each program year. See 42 U.S.C. 16925. This does not mean that the 
state agencies responsible for Byrne Grant matters must verify the 
status of SORNA implementation. Rather, states (and other jurisdictions 
that apply for Byrne Grants) may obtain information concerning ongoing 
implementation from their agencies that generally deal with the SMART 
Office on SORNA implementation matters and include the information with 
their Byrne Grant applications.
    The requirement appearing in Part III of the supplemental 
guidelines is not new in principle. SORNA was preceded by the original 
Federal law setting national standards for sex offender registration 
and notification, the Jacob Wetterling Crimes Against Children and 
Sexually Violent Offender Registration Act. The Attorney General's 
guidelines under the Wetterling Act similarly required an annual 
determination of continuing compliance with the national standards. 
See, e.g., 64 FR 572, 587 (1999) (``After the reviewing authority has 
determined that a state is in compliance with the [Wetterling] Act, the 
state 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 Act.''). Given the connection to eligibility for 
full Byrne Grant funding under both Acts, annual determinations of 
continuing compliance are as necessary under SORNA as they were under 
the predecessor law, and in neither case should this requirement be 
unduly burdensome for jurisdictions.

Retroactive Classes

    Many commenters approved of the change in Part IV of these 
supplemental guidelines. Part IV provides that it suffices for 
substantial implementation of SORNA, with respect to sex offenders 
reentering the justice system through subsequent (non-sex offense) 
criminal convictions, if registration of such offenders by 
jurisdictions is limited to cases in which the subsequent conviction is 
for a felony. However, some commenters proposed that the requirement to 
register sex offenders whose convictions predate SORNA or SORNA's 
implementation in particular jurisdictions should be further restricted 
or eliminated. The grounds urged for such further limitation included 
the following:
    Some commenters argued that requiring sex offenders who reenter the 
justice system through subsequent (non-sex offense) criminal 
convictions to register discriminates against sex offenders because 
non-sex offenders who reenter the justice system through subsequent 
(non-sex offense) criminal convictions are not subject to such a 
requirement. However, differences in the treatment of different classes 
of offenders are not intrinsically unfair and such differences are not 
unconstitutionally discriminatory where there is a rational basis for 
the distinction. See Chapman v. United States, 500 U.S. 453, 465 
(1991). Sex offender registration by its nature involves imposing 
certain requirements on sex offenders that are not applied to non-sex 
offenders. This is so regardless of whether registration requirements 
are imposed on sex offenders whose convictions occur after SORNA's 
enactment or its implementation or on sex offenders whose convictions 
occurred at earlier times.
    Some commenters claimed that the remaining retroactivity 
requirements under SORNA would, absent further changes, have anomalous 
and unwarranted effects on juvenile delinquent sex offenders. For 
example, some comments asserted that juveniles adjudicated delinquent 
for sex offenses committed when they were below the age of 14 will have 
to be registered if they have subsequent adult convictions for (non-sex 
offense) felonies, and some claimed that public notification will be 
required concerning persons qualifying as sex offenders on the basis of 
juvenile delinquency adjudications if they have subsequent adult 
convictions for (non-sex offense) felonies. These comments reflect 
misunderstandings of SORNA and its implementing guidelines. SORNA and 
the guidelines never require registration on the basis of juvenile 
delinquency adjudications except for adjudications for offenses 
comparable to aggravated sexual abuse (or related attempt or 
conspiracy) committed when the juvenile was at least 14 years old. 
Persons with juvenile adjudications not satisfying these criteria are 
not ``sex offenders'' as defined in SORNA and are not subject to 
SORNA's requirements at all. See 42 U.S.C. 16911(1), (8). Likewise, 
following the adoption of these supplemental guidelines, public 
disclosure or notification is never required under SORNA regarding 
persons whose predicate sex offense convictions are juvenile 
delinquency adjudications.
    Some comments pointed in this connection to the decision in United 
States v. Juvenile Male, 590 F.3d 924 (9th Cir. 2010), which held that 
SORNA cannot constitutionally be applied to a sex offender on the basis 
of a Federal juvenile delinquency adjudication predating SORNA's 
enactment. However, Juvenile Male is not binding precedent for Federal 
courts outside of the Ninth Circuit and not binding precedent for state 
courts anywhere. Considered on its own terms, the decision has no 
bearing on SORNA's application to sex offenders with adult convictions. 
The Department of Justice has sought review of the Juvenile Male 
decision by the U.S. Supreme Court and, as a result, further 
proceedings in the case are pending before the U.S. Supreme Court and 
the Montana Supreme Court. See United States v. Juvenile Male, 130 
S.Ct. 2518 (2010). Considering the foregoing, there is no basis at this 
time for making changes in the implementing guidelines or rules for 
SORNA on the basis of the Juvenile Male decision.
    Some commenters expressed the concern that the remaining 
retroactivity requirements under SORNA will unduly burden 
jurisdictions. However, under the SORNA Guidelines, it suffices for 
substantial implementation of SORNA if a jurisdiction registers sex 
offenders who remain in the justice system as prisoners, supervisees, 
or registrants, or who reenter the justice system through

[[Page 1636]]

a subsequent criminal conviction. The Guidelines note that such 
offenders are within the cognizance of the jurisdiction, and the 
jurisdiction will often have independent reasons to review their 
criminal histories for penal, correctional, or registration/
notification purposes. See 73 FR at 38046. This point applies with 
greater force now that the covered class of ``reentrants'' who must be 
registered is limited to those with subsequent felony convictions, as 
provided in these supplemental guidelines.
    Various other features of SORNA and the SORNA Guidelines limit any 
resulting burden on jurisdictions. Jurisdictions are not required to 
register sex offenders in the retroactive classes whose SORNA 
registration periods have already run, and jurisdictions may credit 
such sex offenders with the time that has elapsed from their release 
(or from sentencing in case of a nonincarcerative sentence) in 
determining what, if any, remaining registration time is required, even 
if they have never actually been registered. See 73 FR at 38035-36, 
38046-47. Jurisdictions may rely on their normal methods and standards 
for obtaining and reviewing criminal history information, and on the 
information available in the records obtained by such means, in 
ascertaining SORNA registration requirements for sex offenders in the 
retroactive classes. This point applies both in determining whether 
such sex offenders need to be registered at all and in determining the 
sex offender's ``tier'' for SORNA purposes. See 73 FR at 38043, 38064. 
In relation to sex offenders in the retroactive classes, there is no 
requirement that jurisdictions make special efforts to obtain records 
or information that would not turn up through the normal type of 
criminal history searches they conduct.
    In light of these considerations, the comments received do not 
persuasively establish that the public safety benefits of registering 
in conformity with SORNA sex offenders who remain in the justice system 
as prisoners, supervisees, or registrants, or who reenter through 
subsequent felony convictions, are outweighed by a resulting burden on 
jurisdictions.

Newly Recognized Tribes

    A number of favorable comments were received about affording newly 
recognized Indian tribes the option of becoming SORNA registration 
jurisdictions, as provided in Part V of these supplemental guidelines.
    Tribal commenters urged that additional matters under SORNA 
affecting the tribes should be addressed, including particularly the 
possibility of involuntary delegation of tribal registration functions 
to the states pursuant to 42 U.S.C. 16927(a)(2)(C), which permits such 
delegation if the Attorney General determines that a tribal 
jurisdiction has not substantially implemented SORNA and is not likely 
to become capable of doing so within a reasonable amount of time. The 
comments urged that such involuntary delegations should occur only as 
an absolute last resort and through a transparent process. Comments 
submitted on behalf of state jurisdictions also expressed concern about 
the resulting burden on states if they were required to assume 
responsibility for tribal registration functions based on the failure 
of a tribe or tribes to substantially implement SORNA.
    The Department of Justice and the SMART Office fully agree that 
involuntary delegation of tribal registration functions to the states 
should occur only as a last resort, if at all. The SORNA Guidelines 
state: ``The Department of Justice hopes and expects * * * that the 
occurrence of such an involuntary delegation will never be necessary, 
given the strong interest of the tribes in effective registration and 
notification for sex offenders subject to their jurisdictions, and the 
priority that the SMART Office gives to working with all tribes and 
other jurisdictions to facilitate the implementation of SORNA's 
requirements in relation to tribal areas.'' 73 FR at 38039. This matter 
is not addressed in these supplemental guidelines because the 
Department did not solicit public comment about it in the proposed 
supplemental guidelines and further input from the affected 
jurisdictions would be desirable prior to any articulation of more 
detailed standards or procedures for such delegations.
    Some additional tribal issues were raised in the comments, 
including the need for cooperative activities between the tribes that 
are not SORNA registration jurisdictions and the states in order to 
effect the registration of sex offenders within the jurisdiction of 
such tribes, and concern that law enforcement agencies in such tribes 
will not be adequately notified or informed concerning sex offenders in 
their territories. These issues were previously raised by tribal 
commenters in the public comments on the SORNA Guidelines and they are 
addressed at some length in those Guidelines. See 73 FR at 38039, 
38049, 38060. The measures relating to these matters outlined in the 
Guidelines are integral elements of SORNA's implementation in relation 
to tribal areas and the SMART Office will continue to work with all 
tribes and state jurisdictions to ensure that they are effectively 
carried out.
    The Department of Justice and the SMART Office seek and welcome the 
counsel and views of Indian tribal governments and communities at all 
times and will continue to consult with them on SORNA implementation 
matters affecting the tribes in conformity with Executive Order 13175.

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

[[Page 1637]]

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

[[Page 1638]]

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. Likewise, the SMART Office may 
issue additional directions to jurisdictions concerning the information 
to be required in sex offenders' reports of intended international 
travel, such as information concerning expected itinerary, departure 
and return dates, and means and purpose of travel.
    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, as a necessary part of SORNA 
implementation, jurisdictions must use the SORNA Exchange Portal in 
their information sharing regarding sex offenders in conformity with 
any guidance issued by the SMART Office on use of the Portal.
    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

[[Page 1639]]

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 Sec.  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, 
statutes have been construed in some circumstances 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).
    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 Sec.  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.


[[Page 1640]]


    Dated: January 7, 2011.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-505 Filed 1-10-11; 8:45 am]
BILLING CODE 4410-18-P