[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Rules and Regulations]
[Pages 81849-81853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32719]
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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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[[Page 81850]]
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 well-founded. 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 pre-SORNA 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
[[Page 81851]]
sound legal basis, regardless of whether (i) SORNA's requirements apply
of their own force to sex offenders with pre-SORNA convictions, and the
interim rule merely confirmed that fact, or (ii) the applicability of
SORNA's requirements to sex offenders with pre-SORNA 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 one-size-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 pre-SORNA
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
[[Page 81852]]
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
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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 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
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
0
1. The authority citation continues to read as follows:
Authority: Pub. L. 109-248, 120 Stat. 587.
0
2. In Sec. 72.3, Example 2 is revised to read as follows:
Sec. 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]
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