[Federal Register Volume 72, Number 39 (Wednesday, February 28, 2007)]
[Rules and Regulations]
[Pages 8894-8897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3063]


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DEPARTMENT OF JUSTICE

28 CFR Part 72

[Docket No. OAG 117; A.G. Order No. 2868-2007]
RIN 1105-AB22


Office of the Attorney General; Applicability of the Sex Offender 
Registration and Notification Act

AGENCY: Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The Department of Justice is publishing this interim rule to 
specify that the requirements of the Sex Offender Registration and 
Notification Act, title I of Public Law 109-248, apply to sex offenders 
convicted of the offense for which registration is required before the 
enactment of that Act. These

[[Page 8895]]

requirements include registration by a sex offender in each 
jurisdiction in which the sex offender resides, is an employee, or is a 
student. The Attorney General has the authority to make this 
specification pursuant to sections 112(b) and 113(d) of the Sex 
Offender Registration and Notification Act.

DATES: Effective Date: This interim rule is effective February 28, 
2007.
    Comment Date: Comments must be received by April 30, 2007.

ADDRESSES: Comments may be mailed to David J. Karp, Senior Counsel, 
Office of Legal Policy, Room 4509, Main Justice Building, 950 
Pennsylvania Avenue, NW., Washington, DC 20530. To ensure proper 
handling, please reference OAG Docket No. 117 on your correspondence. 
You may view an electronic version of this interim rule at http://www.regulations.gov. You may also comment via the Internet to the 
Justice Department's Office of Legal Policy (OLP) at <a href="/cdn-cgi/l/email-protection#ed82819d9f888a9ead989e898287c38a829b"><span class="__cf_email__" data-cfemail="99f6f5e9ebfcfeead9eceafdf6f3b7fef6ef">[email protected]</span></a> 
or by using the www.regulations.gov comment form for this regulation. 
When submitting comments electronically you must include OAG Docket No. 
117 in the subject box.

FOR FURTHER INFORMATION CONTACT: Laura L. Rogers, Director, Office of 
Sex Offender Sentencing, Monitoring, Apprehending, Registering, and 
Tracking; Office of Justice Programs, United States Department of 
Justice, Washington, DC, 202 514-4689.

SUPPLEMENTARY INFORMATION: Since the enactment of the Jacob Wetterling 
Crimes Against Children and Sexually Violent Offender Registration Act 
(42 U.S.C. 14071) in 1994, there have been national standards for sex 
offender registration and notification in the United States. All states 
currently have sex offender registration and notification programs and 
have endeavored to implement the Wetterling Act standards in their 
existing programs.
    Title I of the Adam Walsh Child Protection and Safety Act of 2006 
(Pub. L. 109-248), the Sex Offender Registration and Notification Act 
(SORNA), contains a comprehensive revision of the national standards 
for sex offender registration and notification. The SORNA reforms are 
generally designed to strengthen and increase the effectiveness of sex 
offender registration and notification for the protection of the 
public, and to eliminate potential gaps and loopholes under the pre-
existing standards by means of which sex offenders could attempt to 
evade registration requirements or the consequences of registration 
violations. Broadly speaking, the SORNA 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 obligations include registration, and keeping the 
registration current, in each jurisdiction in which a sex offender 
resides, is an employee, or is a student, with related provisions 
concerning such matters as the time for registration, the information 
to be provided by the registrant, and keeping the information up to 
date. See 42 U.S.C. 16913-16917, enacted by SORNA Sec. Sec.  113-17.
    The enforcement mechanisms for these registration obligations 
include requirements that the Federal Bureau of Prisons and federal 
probation offices inform offenders released from federal custody or 
sentenced to probation who are required to register under SORNA that 
they must comply with SORNA's requirements, as well as requirements 
that these federal agencies notify state and local authorities 
concerning the release of such offenders to their areas. See 18 U.S.C. 
4042(c), as amended by SORNA Sec.  141(f)-(h). Federal offenders 
subject to SORNA are also obligated to comply with its requirements as 
mandatory conditions of their supervision. See 18 U.S.C. 3563(a)(8), 
3583(d), 4209(a), as amended by SORNA Sec.  141(d)-(e), (j). More 
broadly, 18 U.S.C. 2250, enacted by section 141(a) of SORNA, creates 
federal criminal liability for any person required to register under 
SORNA if: (i) the registration requirement is based on a conviction 
under federal, District of Columbia, Indian tribal, or U.S. territorial 
law, or the person travels in interstate or foreign commerce or enters 
or leaves or resides in Indian country, and (ii) the person knowingly 
fails to register or update a registration as required under SORNA. 
Because circumstances supporting federal jurisdiction--such as 
conviction for a federal sex offense as the basis for registration, or 
interstate travel by a state sex offender who then fails to register in 
the destination state--are required predicates for federal enforcement 
of the SORNA registration requirements, creation of these requirements 
for sex offenders is within the constitutional authority of the Federal 
Government.
    The second broad aspect of SORNA is incorporation by non-federal 
jurisdictions of the SORNA standards in their own sex offender 
registration and notification programs. The affected jurisdictions are 
the states, the District of Columbia, the principal territories, and 
Indian tribes to the extent provided in SORNA Sec.  127. See 42 U.S.C. 
16911(10), enacted by SORNA Sec.  111(10). Section 124 of SORNA 
generally provides a three-year period for jurisdictions to implement 
SORNA, subject to possible extension by the Attorney General. See 42 
U.S.C. 16924. Jurisdictions that fail to substantially implement SORNA 
within the applicable period are subject to a 10% reduction of federal 
justice assistance (Byrne Grant) funding. The SORNA provisions cast as 
directions to jurisdictions and their officials are, in relation to the 
states, only conditions required to avoid this funding reduction. See 
42 U.S.C. 16925(d), enacted by SORNA Sec.  125(d). Since the SORNA 
requirements are only partial funding eligibility conditions in 
relation to the states, and beyond that apply only to jurisdictions 
that are generally subject to federal legislative authority under the 
Constitution (D.C., Indian tribal, and U.S. territorial jurisdictions), 
creation of these requirements is also within the constitutional 
authority of the Federal Government.
    In contrast to SORNA's provision of a three-year grace period for 
jurisdictions to implement its requirements, SORNA's direct federal law 
registration requirements for sex offenders are not subject to any 
deferral of effectiveness. They took effect when SORNA was enacted on 
July 27, 2006, and currently apply to all offenders in the categories 
for which SORNA requires registration.
    As in the Wetterling Act provisions (42 U.S.C. 14071) that preceded 
SORNA, Congress recognized in SORNA that supplementation of the 
statutory text by administrative guidance and rules would be helpful, 
and in some contexts necessary, to fully realize the legislation's 
objectives. Section 112(b) of SORNA accordingly directs the Attorney 
General to issue guidelines and regulations to interpret and implement 
SORNA. In addition, there are provisions in SORNA that identify 
specific contexts in which clarification or supplementation of the 
statutory provisions by the Attorney General is contemplated.
    One of these specific contexts appears in section 113(d) of SORNA, 
which states that ``[t]he Attorney General shall have the authority to 
specify the applicability of the requirements of this title to sex 
offenders convicted before the enactment of this Act or its 
implementation in a particular jurisdiction, and to prescribe rules for 
the registration of any such sex offenders and for other categories of 
sex offenders who are unable to comply

[[Page 8896]]

with subsection (b).'' 42 U.S.C. 16913(d). (The cross-referenced 
``subsection (b)'' states the normal timing rules for initial 
registration by sex offenders--before release for imprisoned offenders, 
and within three business days of sentencing for offenders not 
sentenced to imprisonment.) Section 113(d) ensures that there will be a 
means to resolve issues about the scope of SORNA's applicability, 
including any questions that may arise concerning the retroactive 
applicability of its requirements to sex offenders convicted prior to 
its enactment, and a means to fill any gaps there may be concerning 
registration procedures or requirements for sex offenders to whom the 
Act's normal procedures cannot be applied.
    For example, consider the case of an offender who was convicted of, 
and sentenced to probation for, a sex offense within the categories for 
which SORNA requires registration prior to the enactment of SORNA, but 
who did not register near the time of his sentencing because the 
offense in question was not subject to a registration requirement under 
federal law or applicable state law at the time. Following the 
enactment of SORNA, registration by the sex offender within the normal 
time period specified in SORNA Sec.  113(b)(2)--not later than three 
business days after sentencing--is not possible, because that time is 
past. Under section 113(d), the Attorney General has the authority to 
specify alternative timing rules for registration of offenders of this 
type.
    The purpose of this interim rule is not to address the full range 
of matters that are within the Attorney General's authority under 
section 113(d), much less to carry out the direction to the Attorney 
General in section 112(b) to issue guidelines and regulations to 
interpret and implement SORNA as a whole. The Attorney General will 
hereafter issue general guidelines to provide guidance and assistance 
to the states and other covered jurisdictions in implementing SORNA, as 
was done under the Wetterling Act, see 64 FR 572 (Jan. 5, 1999), and 
may also issue additional regulations as warranted.
    The current rulemaking serves the narrower, immediately necessary 
purpose of foreclosing any dispute as to whether SORNA is applicable 
where the conviction for the predicate sex offense occurred prior to 
the enactment of SORNA. This issue is 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.
    Considered facially, SORNA requires all sex offenders who were 
convicted of sex offenses in its registration categories to register in 
relevant jurisdictions, with no exception for sex offenders whose 
convictions predate the enactment of SORNA. See SORNA Sec. Sec.  
111(1), (5)-(8), 113(a). Nor is there any ex post facto problem in 
applying the SORNA requirements to such offenders because the SORNA sex 
offender registration and notification requirements are intended to be 
non-punitive, regulatory measures adopted for public safety purposes, 
and hence may validly be applied (and enforced by criminal sanctions) 
against sex offenders whose predicate convictions occurred prior to the 
creation of these requirements. See Smith v. Doe, 538 U.S. 84 (2003). 
Likewise, in terms of underlying policy, the general purpose of SORNA 
is to ``protect the public from sex offenders and offenders against 
children'' by establishing ``a comprehensive national system for the 
registration of those offenders.'' 42 U.S.C. 16901, enacted by SORNA 
Sec.  102. If SORNA were deemed inapplicable to sex offenders convicted 
prior to its enactment, then the resulting system for registration of 
sex offenders would be far from ``comprehensive,'' and would not be 
effective in protecting the public from sex offenders because most sex 
offenders who are being released into the community or are now at large 
would be outside of its scope for years to come. For example, it would 
not apply to a sex offender convicted of a rape or child molestation 
offense in 2005, who is sentenced to imprisonment and released in 2020.
    Nevertheless, sex offenders with predicate convictions predating 
SORNA who do not wish to be subject to the SORNA registration 
requirements, or who wish to avoid being held to account for having 
violated those requirements, have not been barred from attempting to 
devise arguments that SORNA is inapplicable to them, e.g., because a 
rule confirming SORNA's applicability has not been issued. This rule 
forecloses such claims by making it indisputably clear that SORNA 
applies to all sex offenders (as the Act defines that term) regardless 
of when they were convicted. The Attorney General exercises his 
authority under section 113(d) of SORNA to specify this scope of 
application for SORNA, regardless of whether SORNA would apply with 
such scope absent this rule, in order to ensure the effective 
protection of the public from sex offenders through a comprehensive 
national system for the registration of such offenders.
    The rule adds a new Part 72 to 28 CFR with three sections. Section 
72.1 explains that the purpose of this rule is to specify the 
applicability of the SORNA requirements to sex offenders convicted 
prior to the Act's enactment. Section 72.2 states that terms used in 
the regulations have the same meaning as in SORNA Sec.  111. Thus, the 
statutory definitions may be consulted as to the meaning of such terms 
as ``sex offender,'' ``convicted,'' and ``jurisdiction.'' Section 72.3 
states that the SORNA requirements apply to all sex offenders, 
including sex offenders convicted of their registration offenses before 
the enactment of SORNA, and provides illustrations.

Administrative Procedure Act

    The implementation of this rule as an interim rule, with provisions 
for post-promulgation public comments, is based on the ``good cause'' 
exceptions found at 5 U.S.C. 553(b)(3)(B) and (d)(3), for circumstances 
in which ``notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' 5 U.S.C. 
553(b)(3)(B).
    The rule specifies that the requirements of the Sex Offender 
Registration and Notification Act apply to all sex offenders (as 
defined in that Act), including those convicted of the offense for 
which registration is required prior to the enactment of the Act. The 
applicability of the Act's requirements promotes the effective tracking 
of sex offenders following their release, by means described in 
sections 112-17 and 119 of the Act, and the availability of information 
concerning their identities and locations to law enforcement and 
members of the public, by means described in sections 118 and 121 of 
the Act.
    The immediate effectiveness of this rule is necessary to eliminate 
any possible uncertainty about the applicability of the Act's 
requirements--and related means of enforcement, including criminal 
liability under 18 U.S.C. 2250 for sex offenders who knowingly fail to 
register as required--to sex offenders whose predicate convictions 
predate the enactment of SORNA. Delay in the implementation of this 
rule would impede the effective registration of such sex offenders and 
would impair immediate efforts to protect the public from sex offenders 
who fail to register through prosecution and the imposition of criminal 
sanctions. The resulting practical dangers include the commission of 
additional sexual assaults and child sexual abuse or exploitation 
offenses by sex offenders that could have been prevented had local 
authorities and the community been aware of their

[[Page 8897]]

presence, in addition to greater difficulty in apprehending 
perpetrators who have not been registered and tracked as provided by 
SORNA. This would thwart the legislative objective of ``protect[ing] 
the public from sex offenders and offenders against children'' by 
establishing ``a comprehensive national system for the registration of 
those offenders,'' SORNA Sec.  102, because a substantial class of sex 
offenders could evade the Act's registration requirements and 
enforcement mechanisms during the pendency of a proposed rule and delay 
in the effectiveness of a final rule.
    It would accordingly be contrary to the public interest to adopt 
this rule with the prior notice and comment period normally required 
under 5 U.S.C. 553(b) or with the delayed effective date normally 
required under 5 U.S.C. 553(d).

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.

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 foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 72

    Crime, Information, Law enforcement, Prisons, Prisoners, Records, 
Probation and parole.

0
For the reasons stated in the preamble, part 72 of chapter I of Title 
28 of the Code of Federal Regulations is added to read as follows:

PART 72--SEX OFFENDER REGISTRATION AND NOTIFICATION

Sec.
72.1 Purpose.
72.2 Definitions.
72.3 Applicability of the Sex Offender Registration and Notification 
Act.

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


Sec.  72.1  Purpose.

    This part specifies the applicability of the requirements of the 
Sex Offender Registration and Notification Act to sex offenders 
convicted prior to the enactment of that Act. These requirements 
include registering and keeping the registration current in each 
jurisdiction in which a sex offender resides, is an employee, or is a 
student. The Attorney General has the authority to specify the 
applicability of the Act's requirements to sex offenders convicted 
prior to its enactment under sections 112(b) and 113(d) of the Act.


Sec.  72.2  Definitions.

    All terms used in this part that are defined in section 111 of the 
Sex Offender Registration and Notification Act (title 1 of Pub. L. 109-
248) shall have the same definitions in this part.


Sec.  72.3  Applicability of the Sex Offender Registration and 
Notification Act.

    The 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.

    Example 1. A sex offender is federally convicted of aggravated 
sexual abuse under 18 U.S.C. 2241 in 1990 and is released following 
imprisonment in 2007. The sex offender is subject to the 
requirements of the Sex Offender Registration and Notification Act 
and could be held criminally liable under 18 U.S.C. 2250 for failing 
to register or keep the registration current in any jurisdiction in 
which the sex offender resides, is an employee, or is a student.
    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 
disappears after a couple of years and does not register in any 
other jurisdiction. Following the enactment of the Sex Offender 
Registration and Notification Act, the sex offender is found to be 
living in another state and is arrested there. The sex offender has 
violated the requirement under the Sex Offender Registration and 
Notification Act to register in each state 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: February 16, 2007.
Alberto R. Gonzales,
Attorney General.
 [FR Doc. E7-3063 Filed 2-27-07; 8:45 am]
BILLING CODE 4410-18-P


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