Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81849 

the Santa Maria Valley viticultural area 

that includes the expansion area. 

TTB Finding 

After careful review of the petition 

and the comments received, TTB finds 

that the evidence submitted supports 

the expansion of the Santa Maria Valley 

viticultural area. Accordingly, under the 

authority of the Federal Alcohol 

Administration Act and part 4 of our 

regulations, we expand the Santa Maria 

Valley American viticultural area in 

Santa Barbara and San Luis Obispo 

Counties, California, effective 30 days 

from the publication date of this 

document. 

Boundary Description 

See the narrative boundary 

description of the viticultural area in the 

regulatory text published at the end of 

this document. 

Maps 

The maps for determining the 

boundary of the viticultural area are 

listed below in the regulatory text. 

Impact on Current Wine Labels 

The expansion of the Santa Maria 

Valley viticultural area will not affect 

currently approved wine labels. The 

approval of this expansion may allow 

additional vintners to use ‘‘Santa Maria 

Valley’’ as an appellation of origin on 

their wine labels. Part 4 of the TTB 

regulations prohibits any label reference 

on a wine that indicates or implies an 

origin other than the wine’s true place 

of origin. For a wine to be labeled with 

a viticultural area name or with a brand 

name that includes a viticultural area 

name or other term identified as 

viticulturally significant in part 9 of the 

TTB regulations, at least 85 percent of 

the wine must be derived from grapes 

grown within the area represented by 

that name or other term, and the wine 

must meet the other conditions listed in 

27 CFR 4.25(e)(3). Different rules apply 

if a wine has a brand name containing 

a viticultural area name or other 

viticulturally significant term that was 

used as a brand name on a label 

approved before July 7, 1986. See 27 

CFR 4.39(i)(2) for details. 

Regulatory Flexibility Act 

We certify that this regulation will not 

have a significant economic impact on 

a substantial number of small entities. 

This regulation imposes no new 

reporting, recordkeeping, or other 

administrative requirement. Any benefit 

derived from the use of a viticultural 

area name is the result of a proprietor’s 

efforts and consumer acceptance of 

wines from that area. Therefore, no 

regulatory flexibility analysis is 

required. 

Executive Order 12866 

This rule is not a significant 

regulatory action as defined by 

Executive Order 12866. Therefore, it 

requires no regulatory assessment. 

Drafting Information 

N.A. Sutton of the Regulations and 

Rulings Division drafted this notice. 

List of Subjects in 27 CFR Part 9 

Wine. 

The Regulatory Amendment 

■ For the reasons discussed in the 

preamble, we amend title 27 CFR, 

chapter 1, part 9, as follows: 

PART 9—AMERICAN VITICULTURAL 

AREAS 

■ 1. The authority citation for part 9 

continues to read as follows: 

Authority: 27 U.S.C. 205. 

Subpart C—Approved American 

Viticultural Areas 

■ 2. Section 9.28 is revised to read as 

follows: 

§ 9.28 Santa Maria Valley. 

(a) Name. The name of the viticultural 

area described in this section is ‘‘Santa 

Maria Valley’’. For purposes of part 4 of 

this chapter, ‘‘Santa Maria Valley’’ is a 

term of viticultural significance. 

(b) Approved maps. The six United 

States Geological Survey maps used to 

determine the boundary of the Santa 

Maria Valley viticultural area are titled: 

(1) Orcutt Quadrangle, CaliforniaSanta Barbara Co., 7.5 minute series, 

1959, photorevised 1967 and 1974, 

photoinspected 1978; 

(2) Santa Maria Quadrangle, 

California, 7.5 minute series, 1959, 

photorevised 1982; 

(3) ‘‘San Luis Obispo’’, N.I. 10–3, 

series V 502, scale 1: 250,000; 

(4) ‘‘Santa Maria’’, N.I. 10–6, 9, series 

V 502, scale 1: 250,000; 

(5) Foxen Canyon Quadrangle, 

California-Santa Barbara Co., 7.5-minute 

series, 1995; and 

(6) Sisquoc Quadrangle, CaliforniaSanta Barbara Co., 7.5 minute series, 

1959, photoinspected 1974. 

(c) Boundary. The Santa Maria Valley 

viticultural area is located in Santa 

Barbara and San Luis Obispo Counties, 

California. The boundary of the Santa 

Maria Valley viticultural area is as 

follows: 

(1) Begin on the Orcutt quadrangle 

map at the intersection of U.S. Route 

101 and Clark Avenue, section 18 north 

boundary line, T9N/R33W, then 

proceed generally north along U.S. 

Route 101 approximately 10 miles onto 

the Santa Maria quadrangle map to U.S. 

Route 101’s intersection with State 

Route 166 (east), T10N/R34W; then 

(2) Proceed generally northeast along 

State Route 166 (east) onto the San Luis 

Obispo N.I. 10–3 map to State Route 

166’s intersection with the section line 

southwest of Chimney Canyon, T11N/ 

R32W; then 

(3) Proceed south in a straight line 

onto the Santa Maria N.I. 10–6 map to 

the 3,016-foot summit of Los Coches 

Mountain; then 

(4) Proceed southeast in a straight line 

onto the Foxen Canyon quadrangle map 

to the 2,822-foot summit of Bone 

Mountain, T9N/R32W; then 

(5) Proceed south-southwest in a 

straight line approximately 6 miles to 

the line’s intersection with secondary 

highways Foxen Canyon Road and 

Alisos Canyon Road and a marked 

1,116-foot elevation point, T8N/R32W; 

then 

(6) Proceed west-northwest in a 

straight line approximately 6 miles onto 

the Sisquoc quadrangle map to the 

southeast corner of section 4, T8N/ 

R32W; then 

(7) Proceed west-northwest in a 

straight line approximately 6.2 miles, 

crossing over the Solomon Hills, to the 

line’s intersection with U.S. Route 101 

and a private, unnamed light-duty road 

that meanders east into the Cat Canyon 

Oil Field, T9N/R33W; then 

(8) Proceed north 3.75 miles along 

U.S. Route 101 onto the Orcutt 

quadrangle map and return to the point 

of beginning. 

Signed: August 24, 2010. 

John J. Manfreda, 

Administrator. 

Approved: September 21, 2010. 

Timothy E. Skud, 

Deputy Assistant Secretary (Tax, Trade, and 

Tariff Policy). 

[FR Doc. 2010–32873 Filed 12–28–10; 8:45 am] 

BILLING CODE 4810–31–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 72 

[Docket No. OAG 117; AG Order No. 3239– 

2010] 

RIN 1105–AB22 

Office of the Attorney General; 

Applicability of the Sex Offender 

Registration and Notification Act 

AGENCY: Department of Justice. 

ACTION: Final rule. 


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81850 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

SUMMARY: By this rule, the Department 

of Justice is finalizing an interim rule 

specifying that the requirements of the 

Sex Offender Registration and 

Notification Act, title I of Public Law 

109–248, apply to all sex offenders, 

including sex offenders convicted of the 

offense for which registration is 

required before the enactment of that 

Act. 

DATES: Effective Date: This rule is 

effective January 28, 2011. 

FOR FURTHER INFORMATION CONTACT: Paul 

R. Almanza, Deputy Chief, Child 

Exploitation and Obscenity Section, 

Criminal Division, United States 

Department of Justice, Washington, DC, 

202–514–5780. 

SUPPLEMENTARY INFORMATION: The 

Department of Justice by this 

publication is finalizing an interim rule 

regarding the scope of application of the 

Sex Offender Registration and 

Notification Act (SORNA), title I of 

Public Law 109–248 (codified at 42 

U.S.C. 16901 et seq.). The interim rule, 

Applicability of the Sex Offender 

Registration and Notification Act, was 

published on February 28, 2007, at 72 

FR 8894. The interim rule solicited 

public comments and the comment 

period ended on April 30, 2007. 

The preamble to the interim rule 

explained that SORNA establishes 

national standards for sex offender 

registration and notification. The 

preamble further explained that 

SORNA’s requirements are of two sorts. 

First, SORNA directly imposes 

registration obligations on sex offenders 

as a matter of federal law and provides 

for federal enforcement of these 

obligations under circumstances 

supporting federal jurisdiction. These 

federal registration obligations on sex 

offenders have been in force since the 

enactment of SORNA. Second, SORNA 

establishes minimum national standards 

for non-federal jurisdictions to 

incorporate in their sex offender 

registration and notification programs. 

The relevant ‘‘jurisdictions’’ as defined 

by SORNA are the 50 States, the District 

of Columbia, the principal territories, 

and Indian tribes to the extent provided 

in 42 U.S.C. 16927. See 42 U.S.C. 

16911(10). Jurisdictions that do not 

substantially implement SORNA’s 

requirements in their programs within 

the time specified by SORNA are subject 

to a 10% reduction of certain justice 

assistance funding. SORNA affords 

jurisdictions a three-year period for 

substantial implementation of the 

SORNA standards, subject to extension 

for up to an additional two years in the 

Attorney General’s discretion. See 42 

U.S.C. 16924–25. 

The preamble to the interim rule took 

the position that SORNA applies of its 

own force to all sex offenders regardless 

of when they were convicted of their sex 

offenses. It also stated that rulemaking 

was immediately necessary to 

‘‘foreclos[e] any dispute as to whether 

SORNA is applicable where the 

conviction for the predicate sex offense 

occurred prior to the enactment of 

SORNA.’’ 72 FR at 8896. The rule noted 

that this issue was ‘‘of fundamental 

importance to the initial operation of 

SORNA, and to its practical scope for 

many years, since it determines the 

applicability of SORNA’s requirements 

to virtually the entire existing sex 

offender population.’’ Id. In light of 

these considerations, the Attorney 

General exercised his rulemaking 

authority under SORNA, see 42 U.S.C. 

16912(b), 16913(d); 28 CFR 72.1, to 

specify that ‘‘[t]he requirements of the 

Sex Offender Registration and 

Notification Act apply to all sex 

offenders, including sex offenders 

convicted of the offense for which 

registration is required prior to the 

enactment of that Act.’’ 28 CFR 72.3; see 

72 FR at 8896. 

In issuing the interim rule, the 

Attorney General determined that there 

was good cause for receiving public 

comment after, rather than before, the 

rule’s initial publication and for 

dispensing with the normal 30-day 

delay in effectiveness because of the 

urgency of eliminating any possible 

uncertainty regarding SORNA’s 

applicability to sex offenders whose 

convictions predate SORNA’s 

enactment. See 72 FR at 8896–97. 

Accordingly, the Attorney General 

issued the rule as an interim rule with 

immediate effectiveness. See id. 

Following the publication of the 

interim rule, the Attorney General 

published proposed guidelines to 

provide guidance and assistance to the 

states and other jurisdictions in 

incorporating the SORNA requirements 

into their sex offender registration and 

notification programs. See 72 FR 30209 

(May 30, 2007). The proposed 

guidelines solicited public comment 

and the comment period ended on 

August 1, 2007. Following consideration 

of the comments received, the Attorney 

General issued the final National 

Guidelines for Sex Offender Registration 

and Notification (hereafter, the ‘‘SORNA 

Guidelines’’ or ‘‘Guidelines’’) on July 2, 

2008, appearing at 73 FR 38030. The 

Guidelines, like the interim rule, state 

that SORNA applies to all sex offenders 

regardless of when they were convicted, 

and they provide guidance to 

jurisdictions regarding the registration 

of sex offenders whose convictions 

predate the enactment of SORNA. See 

73 FR at 38031, 38035–36, 38046–47, 

38063–64. 

In United States v. Utesch, 596 F.3d 

302, 310–11 (6th Cir. 2010), the United 

States Court of Appeals for the Sixth 

Circuit held that the SORNA Guidelines 

are, independently of the interim rule, 

a valid final rule providing that SORNA 

applies to all sex offenders, including 

those whose convictions predate 

SORNA. This rulemaking reflects no 

disagreement with that conclusion but 

rather aims to eliminate any possible 

uncertainty or dispute concerning the 

scope of SORNA’s application by 

finalizing the interim rule. This 

publication does not reflect agreement 

with the conclusions of an earlier 

decision of the Sixth Circuit holding 

that the interim rule was invalid at the 

time of its publication and that SORNA 

does not apply retroactively of its own 

force. See United States v. Cain, 583 

F.3d 408, 413–24 (6th Cir. 2009). 

Summary of Comments 

The public comments on the interim 

rule were similar to comments received 

on the portions of the proposed SORNA 

Guidelines addressing SORNA’s 

application to sex offenders with 

convictions predating SORNA’s 

enactment. Accordingly, as discussed 

below, the preamble to the final SORNA 

Guidelines, see 73 FR at 38031, 38035– 

36, 38043, and various features of the 

Guidelines themselves, address the 

concerns raised by the comments on the 

interim rule. 

Many of the commenters on the 

interim rule assumed that the Attorney 

General made a discretionary decision 

to apply SORNA to sex offenders with 

pre-SORNA convictions and argued in 

effect that the Attorney General should 

reverse the decision based on their 

policy objections. The Department of 

Justice does not agree that the criticisms 

raised in these comments are wellfounded. By authorizing the Attorney 

General ‘‘to specify the applicability of 

the requirements of [SORNA] to sex 

offenders convicted before the 

enactment of [SORNA],’’ 42 U.S.C. 

16913(d), Congress at the very least 

placed it within the Attorney General’s 

discretion to apply SORNA’s 

requirements to sex offenders with preSORNA convictions if he determines (as 

he has) that the public benefits of doing 

so outweigh any adverse effects. The 

preamble to the interim rule, 72 FR at 

8895–97, and the remainder of this 

summary, explain the considerations 

justifying the Attorney General’s 

conclusion on this point. Accordingly, 

the Attorney General’s issuance and 

finalization of the interim rule have a 


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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81851 

sound legal basis, regardless of whether 

(i) SORNA’s requirements apply of their 

own force to sex offenders with preSORNA convictions, and the interim 

rule merely confirmed that fact, or (ii) 

the applicability of SORNA’s 

requirements to sex offenders with preSORNA convictions depends on 

rulemaking by the Attorney General. 

Misunderstandings of SORNA 

Some of the comments on the interim 

rule reflected misunderstandings of 

SORNA’s requirements. Many of these 

comments included assertions or 

assumptions that SORNA adopts a onesize-fits-all approach that treats all 

persons convicted of sexual offenses in 

the same way. However, SORNA’s 

registration and notification 

requirements apply only to persons 

convicted of ‘‘sex offense[s]’’—a defined 

term that does not include all crimes of 

a sexual nature. See 42 U.S.C. 16911(5)– 

(8); 73 FR at 38037, 38051–52. Within 

the class of ‘‘sex offender[s]’’ required to 

register under SORNA because of their 

conviction for ‘‘sex offense[s],’’ SORNA 

distinguishes three tiers of offenders 

based on the nature and seriousness of 

the predicate sex offense and the 

offender’s history of recidivism. 

Offenders in different tiers are treated 

differently under SORNA’s standards in 

relation to length of registration, 

frequency of required in-person 

appearances to verify registration 

information, and public notification. 

See 42 U.S.C. 16911(1)–(4), 16915–16, 

16918(c)(1). Another common 

misconception in the comments was 

that SORNA restricts where sex 

offenders may live. However, SORNA is 

concerned with obtaining and 

disseminating information about sex 

offenders and does not prescribe 

limitations on sex offenders’ places of 

residence, locations, or activities. See 42 

U.S.C. 16913–21; 73 FR at 38032. 

Some of the public comments 

reflected misconceptions about 

SORNA’s provisions relating to juvenile 

sex offenders, stating or assuming that 

there is little or no difference between 

SORNA’s treatment of adult and 

juvenile offenders. However, SORNA 

requires registration much more 

narrowly on the basis of juvenile 

delinquency adjudications than on the 

basis of adult convictions. Juvenile 

delinquency adjudications count as 

‘‘convictions’’ that trigger SORNA’s 

requirements only if the juvenile is at 

least 14 years old at the time of the 

offense and the offense is comparable to 

or more severe than aggravated sexual 

abuse as described in 18 U.S.C. 2241 (or 

an attempt or conspiracy to commit 

such an offense). See 42 U.S.C. 

16911(8); 73 FR at 38030, 38032, 38040– 

41, 38050. 

Hence, SORNA’s registration 

requirements based on juvenile 

delinquency adjudications are limited to 

cases involving the commission of 

particularly serious sex offenses by 

juveniles who were at least 14 years old 

at the time of the offense. In addition, 

even for juveniles in this category, 

SORNA permits the reduction of their 

registration periods from life to 25 years 

if certain conditions are satisfied, a 

reduction that is not available to sex 

offenders with adult convictions for 

such crimes. See 42 U.S.C. 

16915(b)(2)(B), (3)(B). 

SORNA’s Effect on Sex Offenders 

Some of the comments received 

criticized SORNA as lacking valid 

policy support or as being 

counterproductive. Some commenters 

raised such criticisms in relation to 

SORNA’s effects on covered sex 

offenders generally, while other 

commenters focused their criticisms on 

SORNA’s application to juvenile sex 

offenders. The commenters often 

expressed particular concerns about the 

adverse effects of registration and 

notification on sex offenders and their 

families in such areas as housing, 

employment, personal security, 

education, and social relations. 

In raising these concerns, some 

commenters may have been under an 

exaggerated impression of what 

SORNA’s application to sex offenders 

with pre-SORNA convictions entails. 

The consequences are not boundless or 

indiscriminate. SORNA reserves its 

requirement of lifetime registration for 

the most serious category of sex 

offenders (‘‘tier III’’), and even in this 

category the registration period may be 

reduced to 25 years in certain 

circumstances if the registration 

requirement is based on a juvenile 

delinquency adjudication. The 

registration period for tier II offenders is 

25 years, and the registration period for 

tier I offenders is 15 years, which may 

be reduced to 10 years in certain 

circumstances. See 42 U.S.C. 16915. The 

registration period begins to run when 

a sex offender is released from 

imprisonment for the predicate sex 

offense, or at the time of sentencing in 

connection with a nonincarcerative 

sentence. See 73 FR at 38068. Hence, for 

example, if a person was released from 

imprisonment in 1980 for a sex offense 

that places him in tier II, his SORNA 

registration period based on that offense 

ended in 2005—whether or not he was 

ever actually registered for the offense— 

and he is subject to no present 

registration requirement based on 

SORNA, absent conviction for other sex 

offenses. This limits the potential 

impact of SORNA’s applicability to sex 

offenders with pre-SORNA convictions. 

See 73 FR at 38036, 38046–47, 38068– 

69 (discussing limits on duration of 

registration and other practical 

limitations on SORNA’s effect on sex 

offenders with pre-SORNA convictions). 

Turning to the underlying substantive 

issues, Congress’s enactment of SORNA 

reflects a general legislative judgment 

that the public safety benefits of 

SORNA’s requirements outweigh any 

adverse effects. The effects of SORNA’s 

requirements on sex offenders, and the 

public safety concerns sex offenders 

present, are similar, whether a sex 

offender’s conviction occurred before or 

after SORNA’s enactment. Accordingly, 

the interests opposing and supporting 

registration—any adverse effect or 

burden of SORNA’s requirements on sex 

offenders weighed against the public 

safety interests furthered by those 

requirements—are much the same 

whether the class of sex offenders with 

pre-SORNA convictions or the class of 

sex offenders with post-SORNA 

convictions is considered. See 72 FR at 

8896–97 (noting frustration of SORNA’s 

public safety objectives if sex offenders 

with pre-SORNA convictions were 

exempt from SORNA’s requirements); 

73 FR at 38035–36 (noting similarity of 

effects on sex offenders and public 

safety interests regardless of when the 

predicate sex offense convictions 

occurred). Hence, the Attorney General 

was and is justified in concluding that 

the balance comes out the same for the 

two classes and, accordingly, in 

exercising his authority to ‘‘specify the 

applicability of the requirements of 

[SORNA] to sex offenders convicted 

before the enactment’’ of SORNA, 42 

U.S.C. 16913(d), to provide that SORNA 

applies to sex offenders with preSORNA convictions. 28 CFR 72.3. 

Some commenters argued that the 

application of SORNA to sex offenders 

with pre-SORNA convictions would 

violate the Constitution’s prohibition of 

ex post facto laws or other provisions of 

the Constitution. However, the SORNA 

requirements are non-punitive 

regulatory measures adopted for public 

safety purposes, and accordingly do not 

implicate the Constitution’s prohibition 

of ex post facto laws. See 42 U.S.C. 

16901; 72 FR at 8896; 73 FR at 38036, 

38044–46. The comments received 

identified no persuasive distinction for 

ex post facto purposes between the 

SORNA requirements and the sex 

offender registration and notification 

measures upheld by the Supreme Court 

against ex post facto challenge in Smith 

v. Doe, 538 U.S. 84 (2003), and also did 


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81852 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

not identify any persuasive reason to 

believe that either SORNA’s 

requirements or their application to sex 

offenders with pre-SORNA convictions 

violates any other provision of the 

Constitution. This was so regardless of 

whether the general class of sex 

offenders or the limited class of juvenile 

delinquents qualifying as covered sex 

offenders under SORNA is considered. 

Some commenters argued that 

applying SORNA’s requirements to sex 

offenders with pre-SORNA convictions 

(or with pre-SORNA juvenile 

adjudications counting as ‘‘convictions’’ 

for SORNA purposes) would be unfair 

because the applicability of those 

requirements could not have been 

anticipated at the time of the offender’s 

conviction for the predicate sex offense. 

However, fairness does not require that, 

when an offender’s case is adjudicated, 

it must be possible to anticipate future 

regulatory measures that may be 

adopted in relation to persons like him 

to protect public safety. See 73 FR at 

38036. The government may not yet 

have developed effective regulatory 

measures to address the public safety 

concerns presented by certain types of 

offenders at the time of their offenses or 

convictions. That does not constitute a 

commitment to those offenders by the 

government that it will not develop 

such measures and apply them to the 

offenders at a later time, cf., e.g., Smith 

v. Doe, 538 U.S. at 89–91 (registration 

requirements applied to sex offenders 

with convictions predating enactment of 

the registration law), and does not 

constitute a commitment to those 

offenders by the government that it will 

refrain from later strengthening or 

improving existing regulatory measures 

in light of lessons learned from 

experience. Moreover, on the other side 

of the balance, fairness is also due to 

persons who may be victimized by sex 

offenses that could be prevented by 

applying SORNA’s requirements to sex 

offenders with pre-SORNA convictions. 

See 73 FR at 38044–45 (discussing role 

of registration and notification measures 

in solving and preventing sex offenses). 

If such crimes occur, the harm to the 

victims is no less because the offender’s 

previous sex offense conviction or 

convictions occurred before SORNA’s 

enactment rather than after. 

The conclusion does not differ when 

the treatment of juvenile delinquent sex 

offenders under SORNA is considered 

specifically. Both for sex offenders with 

adult convictions and for those 

adjudicated delinquent, the effects of 

registration requirements on the 

offenders and the public safety concerns 

the offenders present are similar 

regardless of whether their case 

dispositions occurred before or after the 

enactment of SORNA. Hence, as with 

adult sex offenders, the Attorney 

General was and is justified in 

concluding that the balance of interests 

does not differ materially depending on 

the timing of the adjudication in 

relation to SORNA’s enactment and that 

SORNA’s requirements should apply to 

juvenile delinquent sex offenders with 

pre-SORNA adjudications as well as to 

those with post-SORNA adjudications. 

In relation to juvenile delinquent sex 

offenders, the operation of registration 

systems may entail a relaxation of 

confidentiality requirements that might 

otherwise apply in juvenile 

proceedings, but that is the case 

whether the delinquency adjudications 

occur before or after SORNA’s 

enactment. The confidentiality of 

juvenile proceedings is generally a 

matter of legislative discretion. With 

respect to juveniles at least 14 years old 

adjudicated delinquent for particularly 

serious sex offenses, Congress has made 

a policy judgment that the public safety 

interests warrant a departure from strict 

juvenile confidentiality policies. See 42 

U.S.C. 16911(8); H.R. Rep. No. 218, 

109th Cong., 1st Sess. Pt. 1, at 25 (2005) 

(‘‘While the Committee recognizes that 

States typically protect the identity of a 

juvenile who commits criminal acts, in 

the case of sexual offenses, the balance 

needs to change; no longer should the 

rights of the juvenile offender outweigh 

the rights of the community and victims 

to be free from additional sexual 

crimes.’’). 

Thus, as reflected in the interim rule 

and this finalizing rulemaking, it is the 

Attorney General’s view that applying 

SORNA’s requirements to sex offenders 

with pre-SORNA convictions, including 

sex offenders required to register on the 

basis of juvenile delinquency 

adjudications, appropriately effectuates 

Congress’s purposes in enacting 

SORNA. See 72 FR at 8895–97; 73 FR 

at 38031–32, 38035–36, 38038, 38040. 

SORNA’s Effects on Jurisdictions 

The scope of SORNA’s application to 

sex offenders has implications for 

jurisdictions because the states and 

other covered jurisdictions are generally 

expected to incorporate offenders to 

whom SORNA applies into their sex 

offender registration programs. See 42 

U.S.C. 16911(9), 16912(a), 16924–25; 72 

FR at 8895; 73 FR at 38048. In light of 

this consequence, some of the public 

comments on the interim rule objected 

that jurisdictions would have difficulty 

in identifying, locating, notifying, and 

registering sex offenders required to 

register under SORNA who were 

convicted many years ago and who have 

since merged into the general 

population. These concerns about 

potential burdens on jurisdictions, 

however, were considered in the 

development of the SORNA Guidelines 

and are addressed through various 

features of the Guidelines. 

The Guidelines recognize that it may 

not be feasible for a jurisdiction to 

identify and register all sex offenders 

with pre-SORNA convictions who are 

required to register under the SORNA 

standards. The Guidelines accordingly 

provide that jurisdictions will be 

considered to have substantially 

implemented the SORNA requirements 

if they register such offenders who 

remain in the justice system as 

prisoners, supervisees, or registrants, 

and such offenders who have passed out 

of the system but later re-enter it 

because of a subsequent criminal 

conviction. See 73 FR at 38046, 38063– 

64. 

As the Guidelines note, sex offenders 

in these classes are within the 

cognizance of the jurisdiction in any 

event 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. In 

addition, the Guidelines provide that, in 

attempting to identify individuals who 

may be required to register under 

SORNA, jurisdictions may rely on their 

normal methods and standards in 

searching criminal histories, and need 

not undertake extraordinary efforts to 

identify individuals with old sex offense 

convictions that may be difficult to find. 

The Guidelines also provide guidance to 

jurisdictions about notifying such sex 

offenders concerning their registration 

obligations under SORNA and 

incorporating such offenders into their 

registration systems. See 73 FR at 38043, 

38063–64. 

In sum, the comments received 

provide no persuasive reason to change 

the rule. 

However, this final rule makes one 

clarifying change in the interim rule in 

light of the Supreme Court’s decision in 

Carr v. United States, 560 U.S. ___, 2010 

WL 2160783 (2010). Carr held that sex 

offenders cannot be criminally liable 

under 18 U.S.C. 2250 for failing to 

register as required by SORNA where 

federal jurisdiction is premised on 

interstate travel by the offender 

occurring before the enactment of 

SORNA. Example 2 in 28 CFR 72.3, 

which is part of the regulations added 

by the interim rule, describes a situation 

involving potential liability under 18 

U.S.C. 2250 for a sex offender with a 

pre-SORNA sex offense conviction 

based on interstate travel. While the 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81853 

example is not specific about the timing 

of the interstate travel in relation to the 

enactment of SORNA, it could be 

understood as referring to a situation in 

which the travel occurred before the 

enactment of SORNA. Accordingly, this 

final rule makes minor changes in the 

language of Example 2 so as to avoid 

any arguable inconsistency with the 

Supreme Court’s holding in Carr 

regarding the scope of criminal liability 

under 18 U.S.C. 2250. 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act (5 

U.S.C. 605(b)), has reviewed this 

regulation and by approving it certifies 

that this regulation will not have a 

significant economic impact on a 

substantial number of small entities for 

the purposes of that Act because the 

regulation concerns the application of 

the requirements of the Sex Offender 

Registration and Notification Act to 

certain offenders. 

Executive Order 12866 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ section 1(b), Principles of 

Regulation. The Department of Justice 

has determined that this rule is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), and 

accordingly this rule has been reviewed 

by the Office of Management and 

Budget. 

Executive Order 13132 

This regulation will not have 

substantial direct effects on the States, 

on the relationship between the national 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. There has been 

substantial consultation with State 

officials regarding the interpretation and 

implementation of the Sex Offender 

Registration and Notification Act. 

Therefore, in accordance with Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism assessment. 

Executive Order 12988—Civil Justice 

Reform 

This regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. By way of explanation, this rule 

finalizes an interim rule concerning the 

applicability of SORNA’s registration 

requirements to sex offenders, including 

those whose sex offense convictions 

occurred before SORNA’s enactment. 

The rule facilitates federal prosecution 

of sex offenders in the affected classes 

who fail to register as required, see 18 

U.S.C. 2250, but it does not directly 

require expenditures by state, local, or 

tribal governments. The interim rule 

was issued prior to the publication by 

the Attorney General of the SORNA 

Guidelines, appearing at 73 FR 38029 et 

seq., which determine what state, local, 

and tribal jurisdictions must do to 

achieve substantial implementation of 

the SORNA standards in their 

registration programs. The SORNA 

Guidelines include instructions to 

jurisdictions concerning the classes of 

sex offenders with pre-existing 

convictions whom the jurisdictions 

must register, and the costs of doing so 

will not be affected or increased by the 

finalization of the interim rule. Based on 

the known costs in jurisdictions that 

have implemented SORNA to date, it is 

not anticipated that the cost of 

implementing this aspect of the SORNA 

standards will exceed $100 million 

annually. 

Executive Order 13175—Consultation 

and Coordination with Indian Tribal 

Governments 

This rule comports with Executive 

Order 13175. The Department of Justice 

has carried out previous tribal 

consultations regarding actions under 

SORNA affecting Indian tribes. The 

Department engaged in a voluntary 

consultation on this rule with tribal 

officials in Spokane, Washington, on 

October 4, 2010. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100 million or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, or innovation, or on the 

ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

List of Subjects in 28 CFR Part 72 

Crime, Information, Law enforcement, 

Prisons, Prisoners, Records, Probation 

and Parole. 

■ Accordingly, for the reasons stated in 

the interim rule adding 28 CFR part 72, 

which was published at 72 FR 8894 on 

February 28, 2007, and for the reasons 

stated in the supplementary information 

to this rule, the interim rule is adopted 

as a final rule with one change as 

follows: 

PART 72—SEX OFFENDER 

REGISTRATION AND NOTIFICATION 

■ 1. The authority citation continues to 

read as follows: 

Authority: Pub. L. 109–248, 120 Stat. 587. 

■ 2. In § 72.3, Example 2 is revised to 

read as follows: 

§ 72.3 Applicability of the Sex Offender 

Registration and Notification Act. 

* * * * * 

Example 2. A sex offender is 

convicted by a state jurisdiction in 1997 

for molesting a child and is released 

following imprisonment in 2000. The 

sex offender initially registers as 

required but relocates to another state in 

2009 and fails to register in the new 

state of residence. The sex offender has 

violated the requirement under the Sex 

Offender Registration and Notification 

Act to register in any jurisdiction in 

which he resides, and could be held 

criminally liable under 18 U.S.C. 2250 

for the violation because he traveled in 

interstate commerce. 

Dated: December 21, 2010. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2010–32719 Filed 12–28–10; 8:45 am] 

BILLING CODE 4410–18–P 

DEPARTMENT OF JUSTICE 

Bureau of Prisons 

28 CFR Part 541 

[Docket No. BOP–1118–F] 

RIN 1120–AB18 

Inmate Discipline Program/Special 

Housing Units: Subpart Revision and 

Clarification 

AGENCY: Bureau of Prisons, Justice. 

ACTION: Final rule; correction. 

SUMMARY: The Bureau of Prisons 

(Bureau) is correcting a final rule that 

appeared in the Federal Register of 

December 8, 2010 (75 FR 76263). The 

document issued a final rule amending 


srobinson on DSKHWCL6B1PROD with RULES