The National Guidelines for Sex Offender Registration and Notification May by DOJ



                                                                                                                                May 30, 2007 

                                                                                                                                Part IV

                                                                                                                                Department of
                                                                                                                                The National Guidelines for Sex Offender
                                                                                                                                Registration and Notification; Notice
rwilkins on PROD1PC63 with NOTICES2

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00001   Fmt 4717   Sfmt 4717   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30210                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           DEPARTMENT OF JUSTICE                                   offender registration and notification for              C. International Travel
                                                                                                   the protection of the public, and to                  XI. Verification/Appearance Requirements
                                           [Docket No. OAG 121; A.G. Order No. 2880–               eliminate potential gaps and loopholes                XII. Duration of Registration
                                           2007].                                                                                                        XIII. Enforcement of Registration
                                                                                                   under the pre-existing standards by
                                           RIN 1105–AB28                                           means of which sex offenders could
                                                                                                   attempt to evade registration                         I. Introduction
                                           Office of the Attorney General; The                     requirements or the consequences of                      The Sex Offender Registration and
                                           National Guidelines for Sex Offender                    registration violations.                              Notification Act (‘‘SORNA’’ or ‘‘the
                                           Registration and Notification                              These proposed guidelines carry out a              Act’’), which is title I of the Adam
                                                                                                   statutory directive to the Attorney                   Walsh Child Protection and Safety Act
                                           AGENCY:   Department of Justice.                        General in section 112(b) of SORNA (42
                                           ACTION:   Notice; Proposed guidelines.                                                                        of 2006 (Pub. L. 109–248), provides a
                                                                                                   U.S.C. 16912(b)) to issue guidelines to               new comprehensive set of minimum
                                                                                                   interpret and implement SORNA. They                   standards for sex offender registration
                                           SUMMARY: The United States Department
                                                                                                   provide guidance and assistance to the                and notification in the United States.
                                           of Justice is publishing Proposed
                                                                                                   states and other jurisdictions in                     These guidelines are issued to provide
                                           Guidelines to interpret and implement
                                                                                                   incorporating the SORNA requirements                  guidance and assistance to covered
                                           the Sex Offender Registration and
                                                                                                   into their sex offender registration and              jurisdictions—the 50 States, the District
                                           Notification Act.
                                                                                                   notification programs. Matters                        of Columbia, the principal U.S.
                                           DATES: Comments must be received by                     addressed in the guidelines include
                                           August 1, 2007.                                                                                               territories, and Indian tribal
                                                                                                   general principles for SORNA                          governments—in implementing the
                                           ADDRESSES: Comments may be mailed to                    implementation; the jurisdictions                     SORNA standards in their registration
                                           Laura L. Rogers, Director, SMART                        responsible for implementing the                      and notification programs.
                                           Office, Office of Justice Programs,                     SORNA standards in their programs; the                   The adoption of these guidelines
                                           United States Department of Justice, 810                sex offenders required to register under              carries out a statutory directive to the
                                           7th Street NW., Washington, DC 20531.                   SORNA and the registration and                        Attorney General, appearing in SORNA
                                           To ensure proper handling, please                       notification requirements they are                    section 112(b), to issue guidelines to
                                           reference OAG Docket No. 121 on your                    subject to based on the nature of their               interpret and implement SORNA. Other
                                           correspondence. You may view an                         offenses and the extent of their                      provisions of SORNA establish the
                                           electronic version of these proposed                    recidivism; the information to be                     Office of Sex Offender Sentencing,
                                           guidelines at                  included in the sex offender registries               Monitoring, Apprehending, Registering,
                                           or You may                  and the disclosure and sharing of such                and Tracking (the ‘‘SMART Office’’), a
                                           also comment via the Internet to the                    information; the jurisdictions in which               component of the Office of Justice
                                           Office of Sex Offender Sentencing,                      sex offenders are required to register;               Programs of the U.S. Department of
                                           Monitoring, Apprehending, Registering,                  the procedures for initially registering              Justice. The SMART Office is authorized
                                           and Tracking (SMART Office) of the                      sex offenders and for keeping the                     by law to administer the standards for
                                           Justice Department’s Office of Justice                  registration current and the registration             sex offender registration and
                                           Programs at                         information up to date; the duration of               notification that are set forth in SORNA
                                           Electronically submitted comments                       registration; and the means of enforcing              and interpreted and implemented in
                                           must include Docket No. OAG 121 in                      registration requirements.                            these guidelines. It is further authorized
                                           the subject box.
                                                                                                   Proposed National Guidelines for Sex                  to cooperate with and provide
                                           FOR FURTHER INFORMATION CONTACT:                                                                              assistance to States, local governments,
                                                                                                   Offender Registration and Notification
                                           Laura L. Rogers, Director, SMART                                                                              tribal governments, and other public
                                           Office, Office of Justice Programs,                     Contents                                              and private entities in relation to sex
                                           United States Department of Justice,                    I. Introduction                                       offender registration and notification
                                           Washington, DC 202–514–4689.                            II. General Principles                                and other measures for the protection of
                                           SUPPLEMENTARY INFORMATION: Since the                       A. Terminology                                     the public from sexual abuse or
                                           enactment of the Jacob Wetterling                          B. Minimum National Standards                      exploitation. See SORNA section 146(c).
                                                                                                      C. Retroactivity
                                           Crimes Against Children and Sexually                                                                          Accordingly, the SMART Office should
                                                                                                      D. Automation—Electronic Databases and
                                           Violent Offender Registration Act (42                         Software                                        be regarded by jurisdictions discharging
                                           U.S.C. 14071) in 1994, there have been                     E. Implementation                                  registration and notification functions as
                                           national standards for sex offender                     III. Covered Jurisdictions                            their key partner and resource in the
                                           registration and notification in the                    IV. Covered Sex Offenses and Sex Offenders            federal government in further
                                           United States. All states currently have                   A. Convictions Generally                           developing and strengthening their sex
                                           sex offender registration and                              B. Foreign Convictions                             offender registration and notification
                                           notification programs and have                             C. Sex Offenses Generally
                                                                                                                                                         programs, and the SMART Office will
                                                                                                      D. Specified Offenses Against Minors
                                           endeavored to implement the Wetterling                     E. Protected Witnesses                             provide all possible assistance for this
                                           Act standards in their existing                         V. Classes of Sex Offenders                           purpose.
                                           programs.                                               VI. Required Registration Information                    The development of sex offender
                                             Title I of the Adam Walsh Child                       VII. Disclosure and Sharing of Information            registration and notification programs in
                                           Protection and Safety Act of 2006 (Pub.                    A. Sex Offender Web Sites                          the United States has proceeded rapidly
                                           L. 109–248), the Sex Offender                              B. Community Notification and Targeted             since the early 1990s, and at the present
                                           Registration and Notification Act                             Disclosures                                     time such programs exist in all of the
                                           (SORNA), contains a comprehensive                       VIII. Where Registration Is Required                  States, the District of Columbia, and
rwilkins on PROD1PC63 with NOTICES2

                                                                                                   IX. Initial Registration
                                           revision of the national standards for                  X. Keeping the Registration Current
                                                                                                                                                         some of the territories and tribes. These
                                           sex offender registration and                              A. Changes of Name, Residence, 
                   programs serve a number of important
                                           notification. The SORNA reforms are                           Employment, or School Attendance 
              public safety purposes. In their most
                                           generally designed to strengthen and                       B. Changes in Other Registration 
                 basic character, the registration aspects
                                           increase the effectiveness of sex                             Information 
                                   of these programs are systems for

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00002   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                              30211

                                           tracking sex offenders following their                  another, or if registration and                          In addition, SORNA strengthens the
                                           release into the community. If a sexually               notification requirements could be                    federal superstructure elements that
                                           violent crime occurs or a child is                      evaded by moving from a jurisdiction                  leverage and support the sex offender
                                           molested, information available to law                  with an effective program to a nearby                 registration and notification programs of
                                           enforcement through the registration                    jurisdiction that required little or                  the registration jurisdictions. These
                                           program about sex offenders who may                     nothing in terms of registration and                  strengthened elements are: (i) Stepped-
                                           have been present in the area may help                  notification.                                         up federal investigation and prosecution
                                           to identify the perpetrator and solve the                 Hence, there have been national                     efforts to assist jurisdictions in
                                           crime. If a particular released sex                     standards for sex offender registration in            enforcing sex offender registration
                                           offender is implicated in such a crime,                 the United States since the enactment of              requirements; (ii) new statutory
                                           knowledge of the sex offender’s                         the Jacob Wetterling Crimes Against                   provisions for the national database and
                                           whereabouts through the registration                    Children and Sexually Violent Offender                national Web site (i.e., the National Sex
                                           system may help law enforcement in                      Act (42 U.S.C. 14071) in 1994. The                    Offender Registry and the Dru Sjodin
                                           making a prompt apprehension. The                       national standards from their inception               National Sex Offender Public Web site)
                                           registration program may also have                      have addressed such matters as the                    that effectively compile information
                                           salutary effects in relation to the                     offenses for which registration should                obtained under the registration
                                           likelihood of registrants committing                    be required, updating and periodic                    programs of the States and other
                                           more sex offenses. Registered sex                       verification of registration information,             jurisdictions and make it readily
                                           offenders will perceive that the                        the duration of registration, public                  available to law enforcement or the
                                           authorities’ knowledge of their                         notification, and continued registration              public on a nationwide basis; (iii)
                                           identities, locations, and past offenses                and tracking of sex offenders when they               development by the federal government
                                           reduces the chances that they can avoid                 relocate from one jurisdiction to                     of software tools, which the States and
                                           detection and apprehension if they                      another.                                              other registration jurisdictions will be
                                           reoffend, and this perception may help                    Following the enactment of the                      able to use to facilitate the operation of
                                           to discourage them from doing so.                       Wetterling Act in 1994, that Act was                  their registration and notification
                                              Registration also provides the                       amended a number of times, in part                    programs in conformity with the
                                           informational base for the other key                    reflecting and in part promoting trends               SORNA standards; and (iv)
                                           aspect of the programs—notification—                    in the development of the State                       establishment of the SMART Office to
                                           which involves making information                       registration and notification programs.               administer the national standards for
                                           about released sex offenders more                       Ultimately, Congress concluded that the               sex offender registration and
                                           broadly available to the public. The                    patchwork of standards that had                       notification and to assist registration
                                           means of public notification currently                  resulted from piecemeal amendments                    jurisdictions in their implementation.
                                           include sex offender Web sites in all                   should be replaced with a                                Through the cooperative effort of the
                                           States, the District of Columbia, and                   comprehensive new set of standards—                   50 States, the District of Columbia, the
                                           some territories, and may involve other                 the SORNA reforms, whose                              U.S. territories, and Indian tribal
                                           forms of notice as well. The availability               implementation these Guidelines                       governments with the responsible
                                           of such information helps members of                    concern—that would close potential                    federal agencies, the SORNA goal of an
                                           the public to take common sense                         gaps and loopholes under the old law,                 effective and comprehensive national
                                           measures for the protection of                          and generally strengthen the nationwide               system of registration and notification
                                           themselves and their families, such as                  network of sex offender registration and              programs can be realized, with great
                                           declining the offer of a convicted child                notification programs. Important areas                benefit to the ultimate objective of
                                           molester to watch their children or head                of reform under the SORNA standards                   ‘‘protect[ing] the public from sex
                                           a youth group, or reporting to the                      include:                                              offenders and offenders against
                                           authorities approaches to children or                     • Extending the jurisdictions in                    children.’’ SORNA section102. These
                                           other suspicious activities by such a sex               which registration is required beyond                 Guidelines provide the blueprint for
                                           offender. Here as well, the effect is                   the 50 States, the District of Columbia,              that effort.
                                           salutary in relation to the sex offenders               and the principal U.S. territories, to
                                           themselves, since knowledge by those                    include Indian tribal jurisdictions.                  Alberto R. Gonzales, Attorney General
                                           around them of their sex offense                          • Extending the classes of sex                      II. General Principles
                                           histories reduces the likelihood that                   offenders and sex offenses for which
                                           they will be presented with                             registration is required.                               Before turning to the specific SORNA
                                           opportunities to reoffend.                                • Consistently requiring that sex                   standards and requirements discussed
                                              While sex offender registration and                  offenders in the covered classes register             in the remainder of these Guidelines,
                                           notification in the United States are                   and keep the registration current in the              certain general points should be noted
                                           generally carried out through programs                  jurisdictions in which they reside, work,             concerning the interpretation and
                                           operated by the individual States and                   or go to school.                                      application of the Act and these
                                           other non-federal jurisdictions, their                    • Requiring more extensive                          Guidelines:
                                           effectiveness depends on also having                    registration information.                             A. Terminology
                                           effective arrangements for tracking of                    • Adding to the national standards
                                           registrants as they move among                          periodic in-person appearances by                        These Guidelines use key terms with
                                           jurisdictions and some national baseline                registrants to verify and update the                  the meanings defined in SORNA. In
                                           of registration and notification                        registration information.                             particular, the term ‘‘jurisdiction’’ is
                                           standards. In a federal union like the                    • Broadening the availability of                    consistently used with the meaning set
                                           United States with a mobile population,                                                                       forth in SORNA section 111(10). As
rwilkins on PROD1PC63 with NOTICES2

                                                                                                   information concerning registered sex
                                           sex offender registration could not be                  offenders to the public, through posting              defined in that provision, it refers to the
                                           effective if registered sex offenders                   on sex offender Web sites and by other                50 States, the District of Columbia, the
                                           could simply disappear from the                         means.                                                five principal U.S. territories—i.e., the
                                           purview of the registration authorities                   • Adopting reforms affecting the                    Commonwealth of Puerto Rico, Guam,
                                           by moving from one jurisdiction to                      required duration of registration.                    American Samoa, the Northern Mariana

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00003   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30212                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           Islands, and the United States Virgin                   B. Minimum National Standards                         VII of these Guidelines. In most other
                                           Islands—and Indian tribes that elect to                    SORNA establishes a national                       respects, jurisdictions’ discretion to go
                                           function as registration jurisdictions                  baseline for sex offender registration                further than the SORNA minimum is
                                           under SORNA section 127. (For more                      and notification programs. In other                   not limited.
                                           concerning covered jurisdictions, see                   words, the Act generally constitutes a                C. Retroactivity
                                           Part III of these Guidelines.) Thus, when               set of minimum national standards and
                                           these Guidelines refer to ‘‘jurisdictions’’             sets a floor, not a ceiling, for                         The applicability of the SORNA
                                           implementing the SORNA registration                     jurisdictions’ programs. Hence, for                   requirements is not limited to sex
                                           and notification requirements, the                      example, a jurisdiction may have a                    offenders whose predicate sex offense
                                           reference is to implementation of these                 system that requires registration by                  convictions occur following a
                                           requirements by the jurisdictions                       broader classes of convicted sex                      jurisdiction’s implementation of a
                                           specified in SORNA section 111(10).                     offenders than those identified in                    conforming registration program.
                                           Likewise, the term ‘‘sex offense’’ is not               SORNA, or that requires, in addition,                 Rather, SORNA’s requirements apply to
                                           used to refer to any and all crimes of a                registration by certain classes of non-               all sex offenders, including those whose
                                           sexual nature, but rather to those                      convicts (such as persons acquitted on                convictions predate the enactment of
                                           covered by the definition of ‘‘sex                      the ground of insanity of sexually                    the Act. The Attorney General has so
                                           offense’’ appearing in SORNA section                    violent crimes or child molestation                   provided in 28 CFR part 72, pursuant to
                                           111(5), and the term ‘‘sex offender’’ has               offenses, or persons released following               the authority under SORNA section
                                           the meaning stated in SORNA section                     civil commitment as sexually dangerous                113(d) to ‘‘specify the applicability of
                                           111(1). (For more concerning covered                    persons). A jurisdiction may require                  the requirements of [SORNA] to sex
                                           sex offenses and offenders, see Part IV                 verification of the registered address or             offenders convicted before the
                                           of these Guidelines.)                                   other registration information by sex                 enactment of this Act or its
                                                                                                   offenders with greater frequency than                 implementation in a particular
                                              SORNA itself includes a number of                                                                          jurisdiction.’’ As noted in the
                                           references relating to implementation by                SORNA requires, or by other means in
                                                                                                   addition to those required by SORNA                   rulemaking document for the cited
                                           jurisdictions of the requirements of                                                                          regulations, the application of the
                                           ‘‘this title.’’ Section 125 provides a                  (e.g., through the use of mailed address
                                                                                                   verification forms, in addition to in-                SORNA standards to sex offenders
                                           mandatory 10% reduction in certain                                                                            whose convictions predate SORNA
                                           federal justice assistance funding for                  person appearances). A jurisdiction may
                                                                                                   require sex offenders to register for                 creates no ex post facto problem
                                           jurisdictions that fail, as determined by                                                                     ‘‘because the SORNA sex offender
                                           the Attorney General, to substantially                  longer periods than those required by
                                                                                                   the SORNA standards. A jurisdiction                   registration and notification
                                           implement ‘‘this title’’ within the time                                                                      requirements are intended to be non-
                                           frame specified in section 124, and                     may require that changes in registration
                                                                                                   information be reported by registrants                punitive, regulatory measures adopted
                                           section 126 authorizes a Sex Offender                                                                         for public safety purposes, and hence
                                           Management Assistance grant program                     on a more stringent basis than the
                                                                                                   SORNA minimum standards—e.g.,                         may validly be applied (and enforced by
                                           to help offset the costs of implementing                                                                      criminal sanctions) against sex offenders
                                           ‘‘this title.’’ In the context of these                 requiring that changes of residence be
                                                                                                   reported before the sex offender moves,               whose predicate convictions occurred
                                           provisions, the references to ‘‘this title’’                                                                  prior to the creation of these
                                           function as a shorthand for the SORNA                   rather than within three business days
                                                                                                   following the move. A jurisdiction may                requirements. See Smith v. Doe, 538
                                           sex offender registration and                                                                                 U.S. 84 (2003).’’ 72 FR 8894, 8896 (Feb.
                                           notification standards. They do not                     extend Web site posting to broader
                                                                                                   classes of registrants than SORNA                     28, 2007).
                                           mean that funding under these                                                                                    As a practical matter, jurisdictions
                                           provisions is affected by a jurisdiction’s              requires and may post more information
                                                                                                   concerning registrants than SORNA and                 may not be able to identify all sex
                                           implementation or non-implementation                                                                          offenders who fall within the SORNA
                                                                                                   these Guidelines require.
                                           of reforms unrelated to sex offender                                                                          registration categories, where the
                                                                                                      Such measures, which encompass the
                                           registration and notification that appear               SORNA baseline of sex offender                        predicate convictions predate the
                                           in later portions of title I of the Adam                registration and notification                         enactment of SORNA or the
                                           Walsh Act Child Protection and Safety                   requirements but go beyond them,                      jurisdiction’s implementation of the
                                           Act of 2006 (particularly, subtitle C of                generally have no negative implication                SORNA standards in its registration
                                           that title).                                            concerning jurisdictions’                             program, particularly where such sex
                                              Section 125(d) of SORNA states that                  implementation of or compliance with                  offenders have left the justice system
                                           the provisions of SORNA ‘‘that are cast                 SORNA. This is so because the general                 and merged into the general population
                                           as directions to jurisdictions or their                 purpose of SORNA is to protect the                    long ago. But many sex offenders with
                                           officials constitute, in relation to States,            public from sex offenders and offenders               such convictions will remain in (or
                                           only conditions required to avoid the                   against children through effective sex                reenter) the system because:
                                           reduction of Federal funding under this                 offender registration and notification,                  • They are incarcerated or under
                                           section.’’ Statements in these Guidelines               and it is not intended to preclude or                 supervision, either for the predicate sex
                                           that SORNA requires jurisdictions to                    limit jurisdictions’ discretion to adopt              offense or for some other crime;
                                           adopt certain measures should be                        more extensive or additional registration                • They are already registered or
                                           understood accordingly in their                         and notification requirements to that                 subject to a pre-existing sex offender
                                           application to the States. Since the                    end. There are exceptions to this general             registration requirement under the
                                           SORNA requirements relating to sex                      rule, however. For example, SORNA                     jurisdiction’s law; or
                                           offender registration and notification                  section 118(b) requires that certain                     • They hereafter reenter the
rwilkins on PROD1PC63 with NOTICES2

                                           are, in relation to the States, only partial            limited types of information, such as                 jurisdiction’s justice system because of
                                           funding eligibility conditions, creation                victim identity and registrants’ Social               conviction for some other crime
                                           of these requirements is within the                     Security numbers, be excluded from                    (whether or not a sex offense).
                                           constitutional authority of the federal                 jurisdictions’ publicly accessible sex                Sex offenders in these three classes are
                                           government.                                             offender Web sites, as discussed in Part              within the cognizance of the

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00004   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                             30213

                                           jurisdiction, and the jurisdiction will                 electronic and cyber technology to track              frame would result in a 10% reduction
                                           often have independent reasons to                       seamlessly sex offenders who move                     of Federal justice assistance funding
                                           review their criminal histories for penal,              from one jurisdiction to another, ensure              under 42 U.S.C. 3750 et seq. (‘‘Byrne
                                           correctional, or registration/notification              that information concerning registrants               Justice Assistance Grant’’ funding). See
                                           purposes. Accordingly, a jurisdiction                   is immediately made available to all                  SORNA section 125(a). Funding
                                           will be deemed to have substantially                    interested jurisdictions, and make                    withheld from jurisdictions because of
                                           implemented the SORNA standards                         information concerning sex offenders                  noncompliance would be reallocated to
                                           with respect to sex offenders whose                     immediately available to the public as                other jurisdictions that are in
                                           predicate convictions predate the                       appropriate. These include provisions                 compliance, or could be reallocated to
                                           enactment of SORNA or the                               for immediate information sharing                     the noncompliant jurisdiction to be
                                           implementation of SORNA in the                          among jurisdictions under SORNA                       used solely for the purpose of SORNA
                                           jurisdiction’s program if it registers                  section 113(c); a requirement in section              implementation.
                                           these sex offenders, when they fall                     119(b) that the Attorney General ensure                  While SORNA sets minimum
                                           within any of the three classes described               ‘‘that updated information about a sex                standards for jurisdictions’ registration
                                           above, in conformity with the SORNA                     offender is immediately transmitted by                and notification programs, it does not
                                           standards. (For more about the                          electronic forwarding to all relevant                 require that its standards be
                                           registration of sex offenders in these                  jurisdictions’’; and requirements in                  implemented by statute. Hence, in
                                           classes, see the discussion under                       section 121(b) that sex offender                      assessing compliance with SORNA, the
                                           ‘‘retroactive classes’’ in Part IX of these             registration information and updates                  totality of a jurisdiction’s rules
                                           Guidelines.)                                            thereto be provided immediately to                    governing the operation of its
                                              The required retroactive application                 various public and private entities and               registration and notification program
                                           of the SORNA requirements will also be                  individuals. (For more about these                    will be considered, including
                                           limited in some cases by the limits on                  information sharing requirements and                  administrative policies and procedures
                                           the required duration of registration. As               associated time frames, see Parts VII.B               as well as statutes.
                                           discussed in Part XII of these                          and X of these Guidelines.)                              The SMART Office will be
                                           Guidelines, SORNA requires minimum                         Carrying out the SORNA information                 responsible for determining whether a
                                           registration periods of varying length for              sharing requirements accordingly will                 jurisdiction has substantially
                                           sex offenders in different categories,                  entail maintenance by jurisdictions of                implemented the SORNA requirements.
                                           defined by criteria relating to the nature              their registries in the form of electronic            The affected jurisdictions are
                                           of their sex offenses and their history of              databases, whose included information                 encouraged to submit information to the
                                           recidivism. This means that a sex                       can be electronically transmitted to                  SMART Office concerning existing and
                                           offender with a pre-SORNA conviction                    other jurisdictions and entities. This                proposed sex offender registration and
                                           may have been in the community for a                    point is further discussed in connection              notification provisions with as much
                                           greater amount of time than the                         with the specific SORNA standards,                    lead time as possible, so the SMART
                                           registration period required by SORNA.                  particularly in Parts VI, VII, and X of               Office can assess the adequacy of
                                           For example, SORNA section 115                          these Guidelines.                                     existing or proposed measures to
                                           requires registration for 25 years for a                   Section 123 of SORNA directs the                   implement the SORNA requirements
                                           sex offender whose offense satisfies the                Attorney General, in consultation with                and work with the submitting
                                           ‘‘tier II’’ criteria of section 111(3). A sex           the jurisdictions, to develop and                     jurisdictions to overcome any shortfalls
                                           offender who was released from                          support registry management and Web                   or problems. At the latest, submissions
                                           imprisonment for such an offense in                     site software. The purposes of the                    establishing compliance with the
                                           1980 is already more than 25 years out                  software include facilitating the                     SORNA requirements should be made to
                                           from the time of release. In such cases,                immediate exchange of sex offender                    the SMART Office at least three months
                                           a jurisdiction may credit the sex                       information among jurisdictions, public               before the deadline date of July 27,
                                           offender with the time elapsed from his                 access through the Internet to sex                    2009—i.e., by April 27, 2009—so that
                                           or her release (or the time elapsed from                offender information and other forms of               the matter can be determined before the
                                           sentencing, in case of a non-                           community notification, and                           Byrne Grant funding reduction required
                                           incarcerative sentence), and does not                   compliance in other respects with the                 by SORNA section 125 for
                                           have to require the sex offender to                     SORNA requirements. As required by                    noncompliant jurisdictions takes effect.
                                           register on the basis of the conviction,                section 123, the Department of Justice                If it is anticipated that a submitting
                                           even if the criteria for retroactive                    will develop and make available to the                jurisdiction may need an extension of
                                           application of the SORNA standards                      jurisdictions software tools for the                  time as described in SORNA section
                                           under this Part are otherwise satisfied.                operation of their sex offender                       124(b), the submission to the SMART
                                              As with other requirements under                     registration and notification programs,               Office—which should be made by April
                                           SORNA and these Guidelines, the                         which will, as far as possible, be                    27, 2009, as noted—should include a
                                           foregoing discussion identifies only the                designed to automate these processes                  description of the jurisdiction’s
                                           minimum required for SORNA                              and enable the jurisdictions to                       implementation efforts and an
                                           compliance. Jurisdictions are free to                   implement SORNA’s requirements by                     explanation why an extension is
                                           require registration for broader classes                utilizing the software.                               needed.
                                           of sex offenders with convictions that                                                                           SORNA section 125 refers to
                                                                                                   E. Implementation                                     ‘‘substantial’’ implementation of
                                           predate SORNA or the jurisdiction’s
                                           implementation of the SORNA                               Section 124 of SORNA sets a general                 SORNA. The standard of ‘‘substantial
                                           standards in its program.                               time frame of three years for                         implementation’’ is satisfied with
                                                                                                   implementation, running from the date                 respect to an element of the SORNA
rwilkins on PROD1PC63 with NOTICES2

                                           D. Automation—Electronic Databases                      of enactment of SORNA, i.e., from July                requirements if a jurisdiction carries out
                                           and Software                                            27, 2006. The Attorney General is                     the requirements of SORNA as
                                             Several features of SORNA                             authorized to provide up to two one-                  interpreted and explained in these
                                           contemplate, or will require as a                       year extensions of this deadline. Failure             Guidelines. Hence, the standard is
                                           practical matter, the use of current                    to comply within the applicable time                  satisfied if a jurisdiction implements

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00005   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30214                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           measures that these Guidelines identify                 highest court of a jurisdiction has held              those appearing in sections 113(c)
                                           as sufficient to implement (or                          that the jurisdiction’s constitution is in            (second sentence), 113(e), 114(b), 117(a),
                                           ‘‘substantially’’ implement) the SORNA                  some respect in conflict with the                     118, 121(b), and 122. To meet the
                                           requirements.                                           SORNA requirements. If a jurisdiction                 requirement under sections 112 and 124
                                              The ‘‘substantial’’ compliance                       believes that it faces such a situation, it           that covered jurisdictions must
                                           standard also contemplates that there is                should inform the SMART Office. The                   implement SORNA in their registration
                                           some latitude to approve a jurisdiction’s               SMART Office will then work with the                  and notification programs, each
                                           implementation efforts, even if they do                 jurisdiction to see whether the problem               jurisdiction must incorporate in the
                                           not exactly follow in all respects the                  can be overcome, as the statute                       laws and rules governing its registration
                                           specifications of SORNA or these                        provides. If it is not possible to                    and notification program the
                                           Guidelines. For example, section 116 of                 overcome the problem, then the SMART                  requirements that SORNA imposes on
                                           SORNA requires periodic in-person                       Office may approve the jurisdiction’s                 sex offenders, as well as those that are
                                           appearances by sex offenders to verify                  adoption of reasonable alternative                    addressed directly to jurisdictions and
                                           their registration information. In some                 measures that are consistent with the                 their officials.
                                           cases this will be impossible, such as                  purposes of SORNA.                                       While the ‘‘jurisdictions’’ assigned sex
                                           the case of a sex offender who is                          Section 125 of SORNA, as discussed                 offender registration and notification
                                           hospitalized and unconscious as a result                above, provides for a funding reduction               responsibilities by SORNA are the 50
                                           of an injury at the time of a scheduled                 for jurisdictions that do not                         States, the District of Columbia, the
                                           appearance. In other cases, the                         substantially implement SORNA within                  principal territories, and Indian tribes
                                           appearance may not be literally                         the applicable time frame. Section 126                (to the extent provided in section 127),
                                           impossible, but there may be reasons to                 of SORNA authorizes positive funding                  as described above, this does not limit
                                           allow some relaxation of the                            assistance—the Sex Offender                           the ability of these jurisdictions to carry
                                           requirement. For example, a sex                         Management Assistance (‘‘SOMA’’)                      out these functions through their
                                           offender may unexpectedly need to deal                  grant program—to all registration                     political subdivisions. For example, a
                                           with a family emergency at the time of                  jurisdictions to help offset the costs of             jurisdiction may assign responsibility
                                           a scheduled appearance, where failure                   SORNA implementation, with enhanced                   for initially registering sex offenders
                                           to make the appearance will mean not                    payments authorized for jurisdictions                 upon their release from imprisonment to
                                           verifying the registration information                  that effect such implementation within                correctional personnel who are
                                           within the exact time frame specified by                one or two years of SORNA’s enactment.                employees of the jurisdiction’s
                                           SORNA section 116. A jurisdiction may                   Congress has not appropriated funding                 government, but the responsibility for
                                           wish to authorize rescheduling of the                   for the SOMA program at the time of the               continued tracking and registration of
                                           appearance in such cases. Doing so                      issuance of these Guidelines. If funding              sex offenders thereafter may be assigned
                                           would not necessarily undermine                         for this program is forthcoming in the                to personnel of local police
                                           substantially the objectives of the                     future, additional guidance will be                   departments, sheriffs’ offices, or
                                           SORNA verification requirements, so                     provided concerning application for                   supervision agencies who are municipal
                                           long as the jurisdiction’s rules or                     grants under the program.                             employees. Moreover, in carrying out
                                           procedures require that the sex offender                                                                      their registration and notification
                                           notify the official responsible for                     III. Covered Jurisdictions                            functions, jurisdictions are free to
                                           monitoring the sex offender of the                         Section 112(a) of SORNA states that                utilize (and to allow their agencies and
                                           difficulty, and that the appearance                     ‘‘[e]ach jurisdiction shall maintain a                political subdivisions to utilize) entities
                                           promptly be carried out once the                        jurisdiction-wide sex offender registry               and individuals who may not be
                                           interfering circumstance is resolved.                   conforming to the requirements of this                governmental agencies or employees in
                                              In general, the SMART Office will                    title,’’ and section 124 provides specific            a narrow sense, such as contractors,
                                           consider on a case-by-case basis                        deadlines for ‘‘jurisdictions’’ to carry              volunteers, and community-based
                                           whether jurisdictions’ rules or                         out the SORNA implementation.                         organizations that are capable of
                                           procedures that do not exactly follow                   Related definitions appear in section                 discharging these functions. SORNA
                                           the provisions of SORNA or these                                                                              does not limit jurisdictions’ discretion
                                                                                                   111(9) and (10). Section 111(9) provides
                                           Guidelines ‘‘substantially’’ implement                                                                        concerning such matters. Rather, so long
                                                                                                   that ‘‘sex offender registry’’ means a
                                           SORNA, assessing whether the                                                                                  as a jurisdiction’s laws and rules
                                                                                                   registry of sex offenders and a
                                           departure from a SORNA requirement                                                                            provide consistently for the discharge of
                                                                                                   notification program.
                                           will or will not substantially disserve                                                                       the required registration and
                                                                                                      Section 111(10) provides that
                                           the objectives of the requirement. If a                                                                       notification functions by some
                                                                                                   ‘‘jurisdiction’’ refers to:
                                           jurisdiction is relying on the                                                                                responsible individuals or entities, the
                                           authorization to approve measures that                     • The 50 States;                                   specifics concerning such assignments
                                           ‘‘substantially’’ implement SORNA as                       • The District of Columbia;                        of responsibility are matters within the
                                           the basis for an element or elements in                    • The five principal U.S. territories—             jurisdiction’s discretion. References in
                                           its system that depart in some respect                  the Commonwealth of Puerto Rico,                      these Guidelines should be understood
                                           from the exact requirements of SORNA                    Guam, American Samoa, the Northern                    accordingly, so that (for example) a
                                           or these Guidelines, the jurisdiction’s                 Mariana Islands, and the United States                reference to an ‘‘official’’ carrying out a
                                           submission to the SMART Office should                   Virgin Islands; and                                   registration function does not mean that
                                           identify these elements and explain why                    • Indian tribes to the extent provided             the function must be carried out by a
                                           the departure from the SORNA                            in section 127.                                       government employee, but rather is
                                           requirements should not be considered                      Some of the provisions in SORNA are                simply a way of referring to whatever
                                                                                                   formulated as directions to sex
rwilkins on PROD1PC63 with NOTICES2

                                           a failure to substantially implement                                                                          individual is assigned responsibility for
                                           SORNA.                                                  offenders, including those appearing in               the function.
                                              Beyond the general standard of                       sections 113(a)–(b), 113(c) (first                       With respect to Indian tribes, SORNA
                                           substantial implementation, SORNA                       sentence), 114(a), 115(a), and 116. Other             recognizes that tribes may vary in their
                                           section 125(b) includes special                         SORNA provisions are cast as directions               capacities and preferences regarding the
                                           provisions for cases in which the                       to jurisdictions or their officials, such as          discharge of sex offender registration

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00006   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                              30215

                                           and notification functions, and                         enactment must be adopted on or prior                 as a registration jurisdiction or
                                           accordingly section 127 of SORNA has                    to July 27, 2007, and must state a                    delegating registration and notification
                                           special provisions governing the                        decision by the tribal council (or                    functions to the State in the portion of
                                           treatment of Indian tribes as registration              comparable governmental body) to do                   its land that is not subject to 18 U.S.C.
                                           jurisdictions or the delegation of                      one of the following:                                 1162.)
                                           registration and notification functions to                 • Carry out the SORNA requirements                    • Under subparagraph (B) of
                                           the States. Specifically, section 127(a)(1)             relating to sex offender registration and             subsection (a)(2), these functions are
                                           generally affords federally recognized                  notification as a jurisdiction subject to             delegated to the State or States if the
                                           Indian tribes a choice between electing                 those requirements; or                                tribe does not make an affirmative
                                           to carry out the sex offender registration                 • Delegate the tribe’s functions                   election to function as a registration
                                           and notification functions specified in                 relating to sex offender registration and             jurisdiction within one year of the
                                           SORNA in relation to sex offenders                      notification under SORNA to the State                 enactment of SORNA—i.e., within one
                                           subject to its jurisdiction, or delegating              or States within which the territory of               year of July 27, 2006—or rescinds a
                                           those functions to a State or States                    the tribe is located and provide access               previous election to function as a
                                           within which the tribe is located.                      to its territory and such other                       registration jurisdiction.
                                           (Delegation to the State or States is                   cooperation and assistance as may be                     • Under subparagraph (C) of
                                           automatic for a tribe subject to state law              needed to enable the State or States to               subsection (a)(2), these functions are
                                           enforcement jurisdiction under 18                       carry out and enforce the SORNA                       delegated to the State or States if the
                                           U.S.C. 1162, however—see the                            requirements.                                         Attorney General determines that the
                                           discussion of section 127(a)(2) below.)                 Additional suggested elements for                     tribe has not substantially implemented
                                           The choice by a tribe whether to become                 inclusion in the tribal resolution (or                the requirements of SORNA and is not
                                           a SORNA registration jurisdiction or to                 other enactment) include the following:               likely to become capable of doing so
                                           delegate registration and notification                                                                        within a reasonable amount of time.
                                                                                                      • Authorization of an appropriate                     If a tribe does elect under section 127
                                           functions to a State or States must be                  tribal official or officials to negotiate or
                                           made within one year of SORNA’s                                                                               to become a SORNA registration
                                                                                                   enter into cooperative agreements with                jurisdiction, section 127(b) specifies that
                                           enactment on July 27, 2006.                             state or local governments, if the tribe
                                              If a tribe elects to become a SORNA                                                                        this does not mean that the tribe must
                                                                                                   elects to become a SORNA registration                 duplicate registration and notification
                                           registration jurisdiction, its functions
                                                                                                   jurisdiction, and if it is expected that              functions that are fully carried out by
                                           and responsibilities regarding sex
                                           offender registration and notification are              the SORNA requirements will be carried                the State or States within which the
                                           the same as those of a State. Duplication               out wholly or in part through such                    tribe is located, and subsection (b)
                                           of registration and notification functions              agreements.                                           further authorizes the tribes and the
                                                                                                      • A direction to tribal officials and              States to make cooperative arrangements
                                           by tribes and States is not required,
                                           however, and such tribes may enter into                 agencies to provide such cooperation                  for the discharge of some or all of these
                                           cooperative agreements with the States                  and assistance as the State or States may             functions. For example, SORNA section
                                           for the discharge of these functions, as                need to carry out and enforce the                     118 requires jurisdictions to make
                                           discussed below in connection with                      SORNA requirements, if the tribe elects               information concerning their sex
                                           section 127(b). If a tribe elects to                    to delegate the SORNA functions to a                  offenders available to the public through
                                           delegate to a State, then the State is fully            State or States.                                      the Internet. If a tribe did not want to
                                           responsible for carrying out the SORNA                     • A date or timing notation that                   maintain a separate sex offender Web
                                           registration and notification functions,                shows the resolution was adopted on or                site for this purpose, it would not need
                                           and the delegation includes an                          prior to July 27, 2007.                               to do so, as long as a cooperative
                                           undertaking by the tribe to ‘‘provide                      • A direction that the SMART Office                agreement was made with the State to
                                           access to its territory and such other                  of the U.S. Department of Justice be                  have information concerning the tribe’s
                                           cooperation and assistance as may be                    notified of the tribe’s election and that             registrants posted on the State’s sex
                                           needed to enable [the State] to carry out               the resolution or enactment be                        offender Web site. Likewise, a tribe that
                                           and enforce the requirements of                         transmitted to the SMART Office.                      elects to be a SORNA registration
                                           [SORNA].’’ SORNA section 127(a)(1)(B).                     Subsection (a)(2) of SORNA section                 jurisdiction remains free to make
                                              The election to become a SORNA                       127 specifies three circumstances in                  cooperative agreements under which the
                                           registration jurisdiction, or to delegate               which registration and notification                   State (or a political subdivision thereof)
                                           to a State or States, must be made by                   functions are deemed to be delegated to               will handle registration of the tribe’s sex
                                           resolution or other enactment of the                    the State or States in which a tribe is               offenders—such as initially registering
                                           tribal council or comparable                            located, even if the tribe does not make              these sex offenders, conducting periodic
                                           governmental body. Hence, the decision                  an affirmative decision to delegate:                  appearances of the sex offenders to
                                           must be made by a tribal governmental                      • Under subparagraph (A) of                        verify the registration information, and
                                           entity—’’the tribal council or                          subsection (a)(2), these functions are                receiving reports by the sex offenders
                                           comparable governmental body’’—that                     always delegated to the State if the tribe            concerning changes in the registration
                                           has the legal authority to make binding                 is subject to the law enforcement                     information—to the extent and in a
                                           legislative decisions for the tribe. The                jurisdiction of the State under 18 U.S.C.             manner mutually agreeable to the tribe
                                           tribal government should promptly                       1162. (If a tribe’s land is in part subject           and the State. In general, the use of
                                           notify the SMART Office of its decision                 to state law enforcement jurisdiction                 cooperative agreements affords tribes
                                           and forward the text of the resolution or               under 18 U.S.C. 1162 and in part                      flexibility in deciding which functions
                                           other enactment to the SMART Office                     outside of the areas subject to 18 U.S.C.             under SORNA they would seek to have
                                                                                                   1162, then: (i) Sex offender registration             state authorities perform, and which
rwilkins on PROD1PC63 with NOTICES2

                                           by a reliable means of transmission—
                                           preferably by the decision deadline of                  and notification functions are                        they wish to control or discharge
                                           July 27, 2007, or if that is not feasible,              automatically delegated to the relevant               directly. For example, the State could
                                           as soon thereafter as possible.                         State in the portion of the tribal land               carry out certain registration functions,
                                              To satisfy the requirements of SORNA                 subject to 18 U.S.C. 1162, and (ii) the               but the tribe could retain jurisdiction
                                           section 127(a)(1), the resolution or                    tribe has a choice between functioning                over the arrest within its territory of sex

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00007   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30216                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           offenders who fail to register, update                  of innocence. This does not mean,                     2241(c)). ‘‘Sexual act’’ for this purpose
                                           registrations, or make required                         however, that nominal changes or                      should be understood to include any of
                                           verification appearances, if a                          terminological variations that do not                 the following: (i) Oral-genital or oral-
                                           cooperative agreement between the tribe                 relieve a conviction of substantive effect            anal contact, (ii) any degree of genital or
                                           and the State so provided.                              negate the SORNA requirements. For                    anal penetration, and (iii) direct genital
                                                                                                   example, the need to require registration             touching of a child under the age of 16.
                                           IV. Covered Sex Offenses and Sex
                                                                                                   would not be avoided by a jurisdiction’s              This follows from the definition of
                                                                                                   having a procedure under which the                    sexual act in 18 U.S.C. 2246(2), which
                                              SORNA refers to the persons required                 convictions of sex offenders in certain               applies to the 18 U.S.C. 2241
                                           to register under its standards as ‘‘sex                categories (e.g., young adult sex                     ‘‘aggravated sexual abuse’’ offense.
                                           offenders,’’ and section 111(1) of                      offenders who satisfy certain criteria)                  As with other aspects of SORNA, the
                                           SORNA defines ‘‘sex offender’’ in the                   are referred to as something other than               foregoing defines minimum standards.
                                           relevant sense to mean ‘‘an individual                  ‘‘convictions,’’ or under which the                   Hence, the inclusions and exclusions in
                                           who was convicted of a sex offense.’’                   convictions of such sex offenders may                 the definition of ‘‘conviction’’ for
                                           ‘‘Sex offense’’ is in turn defined in                   nominally be ‘‘vacated’’ or ‘‘set aside,’’            purposes of SORNA do not constrain
                                           section 111(5) and related provisions.                  but the sex offender is nevertheless                  jurisdictions from requiring registration
                                           The term encompasses a broad range of                   required to serve what amounts to a                   by additional individuals—e.g., more
                                           offenses of a sexual nature under the                   criminal sentence for the offense.                    broadly defined categories of juveniles
                                           law of any jurisdiction—including                       Rather, an adult sex offender is                      adjudicated delinquent for sex
                                           offenses under federal, military, state,                ‘‘convicted’’ for SORNA purposes if the               offenses—if they are so inclined.
                                           territorial, local, tribal, and foreign law,            sex offender remains subject to penal
                                           but with some qualification regarding                   consequences based on the conviction,                 B. Foreign Convictions
                                           foreign convictions as discussed below.                 however it may be styled. Likewise, the                  Section 111(5)(B) of SORNA instructs
                                           A. Convictions Generally                                sealing of a criminal record or other                 that registration need not be required on
                                                                                                   action that limits the publicity or                   the basis of a foreign conviction if the
                                              A ‘‘sex offender’’ defined in SORNA                  availability of a conviction, but does not            conviction ‘‘was not obtained with
                                           section 111(1) is a person who was                      deprive it of continuing legal validity,              sufficient safeguards for fundamental
                                           ‘‘convicted’’ of a sex offense. Hence,                  does not change its status as a                       fairness and due process for the accused
                                           whether an individual has a sex offense                 ‘‘conviction’’ for purposes of SORNA.                 under guidelines or regulations
                                           ‘‘conviction’’ determines whether he or                    ‘‘Convictions’’ for SORNA purposes                 established [by the Attorney General].’’
                                           she is within the minimum categories                    include convictions of juveniles who are              The following standards are adopted
                                           for which the SORNA standards require                   prosecuted as adults. It does not include             pursuant to section 111(5)(B):
                                           registration.                                           juvenile delinquency adjudications,                      • Sex offense convictions under the
                                              The convictions for which SORNA                      except under the circumstances                        laws of Canada, Great Britain, Australia,
                                           requires registration include convictions               specified in SORNA section 111(8).                    and New Zealand are deemed to have
                                           for sex offenses by any United States                   Section 111(8) provides that                          been obtained with sufficient safeguards
                                           jurisdiction, including convictions for                 delinquency adjudications count as                    for fundamental fairness and due
                                           sex offenses under federal, military,                   convictions ‘‘only if the offender is 14              process, and registration must be
                                           state, territorial, or local law. Indian                years of age or older at the time of the              required for such convictions on the
                                           tribal court convictions for sex offenses               offense and the offense adjudicated was               same footing as domestic convictions.
                                           are generally to be given the same effect               comparable to or more severe than                        • Sex offense convictions under the
                                           as convictions by other United States                   aggravated sexual abuse (as described in              laws of any foreign country are deemed
                                           jurisdictions. It is recognized, however,               section 2241 of title 18, United States               to have been obtained with sufficient
                                           that Indian tribal court proceedings may                Code), or was an attempt or conspiracy                safeguards for fundamental fairness and
                                           differ from those in other United States                to commit such an offense.’’                          due process if the U.S. State
                                           jurisdictions in that the former do not                    Hence, SORNA does not require                      Department, in its Country Reports on
                                           uniformly guarantee the same rights to                  registration for juveniles adjudicated                Human Rights Practices, has concluded
                                           counsel that are guaranteed in the latter.              delinquent for all sex offenses for which             that an independent judiciary generally
                                           Accordingly, a jurisdiction may choose                  an adult sex offender would be required               (or vigorously) enforced the right to a
                                           not to require registration based on a                  to register, but rather requires                      fair trial in that country during the year
                                           tribal court conviction resulting from                  registration only for a defined class of              in which the conviction occurred.
                                           proceedings in which: (i) The defendant                 older juveniles who are adjudicated                   Registration must be required on the
                                           was denied the right to the assistance of               delinquent for committing particularly                basis of such convictions on the same
                                           counsel, and (ii) the defendant would                   serious sexually assaultive crimes or                 footing as domestic convictions.
                                           have had a right to the assistance of                   child molestation offenses. Considering                  • With respect to sex offense
                                           counsel under the United States                         the definition of the federal ‘‘aggravated            convictions in foreign countries that do
                                           Constitution in comparable state                        sexual abuse’’ offense referenced in                  not satisfy the criteria stated above, a
                                           proceedings. A jurisdiction will not be                 section 111(8), offenses under a                      jurisdiction is not required to register
                                           deemed to have failed to substantially                  jurisdiction’s laws ‘‘comparable to’’ that            the convicted person if the jurisdiction
                                           implement SORNA based on its                            offense are those that cover:                         determines—through whatever process
                                           adoption of such an exception.                             • Engaging in a sexual act with                    or procedure it may choose to adopt—
                                              Since the SORNA registration                         another by force or the threat of serious             that the conviction does not constitute
                                           requirements are predicated on                          violence (see 18 U.S.C. 2241(a));                     a reliable indication of factual guilt
                                           convictions, registration (or continued                    • Engaging in a sexual act with                    because of the lack of an impartial
rwilkins on PROD1PC63 with NOTICES2

                                           registration) is normally not required                  another by rendering unconscious or                   tribunal, because of denial of the right
                                           under the SORNA standards if the                        involuntarily drugging the victim (see                to respond to the evidence against the
                                           predicate conviction is reversed,                       18 U.S.C. 2241(b)); or                                person or to present exculpatory
                                           vacated, or set aside, or if the person is                 • Engaging in a sexual act with a                  evidence, or because of denial of the
                                           pardoned for the offense on the ground                  child under the age of 12 (see 18 U.S.C.              right to the assistance of counsel.

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00008   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                              30217

                                             The foregoing standards do not mean                   offenses prosecuted under general                     (unless committed by a parent or
                                           that jurisdictions must incorporate these               attempt or conspiracy provisions, where               guardian) involving kidnapping [of a
                                           particular criteria or procedures into                  the object offense falls under the                    minor]’’ and ‘‘[a]n offense (unless
                                           their registration systems, if they wish                SORNA ‘‘sex offense’’ definition, and                 committed by a parent or guardian)
                                           to register foreign sex offense convicts                particular offenses that are defined as,              involving false imprisonment [of a
                                           with fewer qualifications or no                         or in substance amount to, attempts or                minor].’’ The relevant offenses are those
                                           qualifications. Rather, the stated criteria             conspiracies to commit offenses that are              whose gravamen is abduction or
                                           define the minimum categories of                        otherwise covered. For example, in the                unlawful restraint of a person, which go
                                           foreign convicts for whom registration is               latter category, a jurisdiction may define            by different names in different
                                           required for compliance with SORNA,                     an offense of ‘‘assault with intent to                jurisdictions, such as ‘‘kidnapping,’’
                                           and as is generally the case under                      commit rape.’’ Whether or not the word                ‘‘criminal restraint,’’ or ‘‘false
                                           SORNA, jurisdictions are free to require                ‘‘attempt’’ is used in the definition of              imprisonment.’’ Jurisdictions can
                                           registration more broadly than the                      the offense, this is in substance an                  implement the offense coverage
                                           SORNA minimum.                                          offense that covers certain attempts to               requirement of these clauses by
                                                                                                   commit rapes and hence is covered                     requiring registration for persons
                                           C. Sex Offenses Generally
                                                                                                   under the final clause of the SORNA                   convicted of offenses of this type
                                             The general definition of sex offenses                definition.                                           (however designated) whose victims
                                           for which registration is required under                                                                      were below the age of 18. It is left to
                                                                                                      SORNA section 111(5)(C) qualifies the
                                           the SORNA standards appears in section                                                                        jurisdictions’ discretion under these
                                                                                                   foregoing definition of ‘‘sex offense’’ to
                                           111(5)(A). The clauses in the definition                                                                      clauses whether registration should be
                                                                                                   exclude ‘‘[a]n offense involving
                                           cover the following categories of                                                                             required for such offenses in cases
                                                                                                   consensual sexual conduct * * * if the
                                           offenses:                                                                                                     where the offender is a parent or
                                                                                                   victim was an adult, unless the adult
                                              • Sexual Act And Sexual Contact                      was under the custodial authority of the              guardian of the victim.
                                           Offenses (section 111(5)(A)(i)): The first              offender at the time of the offense, or if               • Solicitation of a Minor to Engage in
                                           clause in the definition covers ‘‘a                     the victim was at least 13 years old and              Sexual Conduct (section 111(7)(C)): This
                                           criminal offense that has an element                    the offender was not more than four                   clause covers ‘‘[s]olicitation [of a minor]
                                           involving a sexual act or sexual contact                years older than the victim.’’ The                    to engage in sexual conduct.’’
                                           with another.’’ (‘‘Criminal offense’’ in                general exclusion with respect to                     ‘‘Solicitation’’ under this clause and
                                           the relevant sense refers to offenses                   consensual sexual offenses involving                  other SORNA provisions that use the
                                           under any body of criminal law,                         adult victims means, for example, that                term should be understood broadly to
                                           including state, local, tribal, foreign,                a jurisdiction does not have to require               include any direction, request,
                                           military, and other offenses, as provided               registration based on prostitution                    enticement, persuasion, or
                                           in section 111(6).) The offenses covered                offenses that consist of the offender                 encouragement of a minor to engage in
                                           by this clause should be understood to                  paying or receiving payment from an                   sexual conduct. ‘‘Sexual conduct’’
                                           include all sexual offenses whose                       adult for a sexual act between them                   should be understood to refer to any
                                           elements involve: (i) Any type or degree                (unless the victim is under the custodial             sexual activity involving physical
                                           of genital, oral, or anal penetration, or               authority of the offender). The exclusion             contact. (See the discussion later in this
                                           (ii) any sexual touching of or contact                  for certain cases involving child victims             list of ‘‘criminal sexual conduct’’ under
                                           with a person’s body, either directly or                based on victim age and age difference                section 111(7)(H).) Hence, jurisdictions
                                           through the clothing. Cf. 18 U.S.C.                     means that a jurisdiction may not have                can implement the offense coverage
                                           2246(2)–(3) (federal law definitions of                 to require registration in some cases                 requirement under this clause by
                                           sexual act and sexual contact).                         based on convictions under provisions                 requiring registration, in cases where
                                              • Specified Offenses Against Minors                  that prohibit sexual acts or contact (even            the victim was below the age of 18,
                                           (section 111(5)(A)(ii)): The second                     if consensual) with underage persons.                 based on:
                                           clause in the definition covers ‘‘a                     For example, under the laws of some                      Æ Any conviction for an offense
                                           criminal offense that is a specified                    jurisdictions, an 18-year-old may be                  involving solicitation of the victim
                                           offense against a minor.’’ The statute                  criminally liable for engaging in                     under a general attempt or solicitation
                                           provides a detailed definition of                       consensual sex with a 15-year-old. The                provision, where the elements of the
                                           ‘‘specified offense against a minor’’ in                jurisdiction would not have to require                object offense include sexual activity
                                           section 111(7), which is discussed                      registration in such a case to comply                 involving physical contact, and
                                           separately below.                                       with the SORNA standards, since the                      Æ Any conviction for an offense
                                              • Specified Federal Offenses (section                victim was at least 13 and the offender               involving solicitation of the victim
                                           111(5)(A)(iii)): The third clause covers                was not more than four years older.                   under any provision defining a
                                           most sexual offenses under federal law.                                                                       particular crime whose elements
                                           The covered chapters and offense                        D. Specified Offenses Against Minors                  include soliciting or attempting to
                                           provisions in the federal criminal code                   The offenses for which registration is              engage in sexual activity involving
                                           are explicitly identified by citation.                  required under the SORNA standards                    physical contact.
                                              • Specified Military Offenses (section               include any ‘‘specified offense against a                • Use of a Minor in a Sexual
                                           111(5)(A)(iv)): The fourth clause covers                minor’’ as defined in section 111(7). The             Performance (section 111(7)(D)): This
                                           sex offenses under the Uniform Code of                  SORNA section 111(7) definition of                    clause covers offenses involving ‘‘[u]se
                                           Military Justice, as specified by the                   specified offense against a minor covers              [of a minor] in a sexual performance.’’
                                           Secretary of Defense.                                   any offense against a minor—i.e., a                   That includes both live performances
                                              • Attempts And Conspiracies (section                 person under the age of 18, as provided               and using minors in the production of
rwilkins on PROD1PC63 with NOTICES2

                                           111(5)(A)(v)): The final clause in the                  in section 111(14)—that involves any of               pornography, and has some overlap
                                           definition covers attempts and                          the following:                                        with section 111(7)(G), which expressly
                                           conspiracies to commit offenses that are                  • Kidnapping or False Imprisonment                  covers child pornography offenses.
                                           otherwise covered by the definition of                  of a Minor (section 111(7)(A)–(B)):                      • Solicitation of a Minor to Practice
                                           ‘‘sex offenses.’’ This includes both                    These clauses cover ‘‘[a]n offense                    Prostitution (section 111(7)(E)): This

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00009   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30218                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           clause covers offenses involving                        was below 18 at the time of the offense.              satisfies the criteria for registration and
                                           ‘‘[s]olicitation [of a minor] to practice               Coverage is not limited to cases where                notification under SORNA.
                                           prostitution.’’ Jurisdictions can                       the victim’s age is an element of the                 Alternatively, the jurisdiction may
                                           implement the offense coverage                          offense, such as prosecution for                      choose not to waive registration but may
                                           requirement under this clause by                        specially defined child molestation or                identify the registrant in the registration
                                           requiring registration, in cases where                  child prostitution offenses. Jurisdictions            system records only by his or her new
                                           the victim was below the age of 18,                     can implement the offense coverage                    identity or data, if such modifications
                                           based on:                                               requirement under the ‘‘criminal sexual               can be so devised that they are not
                                              Æ Any conviction for an offense                      conduct involving a minor’’ language of               transparent and do not permit the
                                           involving solicitation of the victim                    this clause by requiring registration for             registrant’s original identity or
                                           under a general attempt or solicitation                 ‘‘criminal sexual conduct’’ offenses as               participation in a witness security
                                           provision, where the object offense is a                described above whenever the victim                   program to be inferred. Jurisdictions are
                                           prostitution offense, and                               was in fact below the age of 18 at the                permitted and encouraged to make
                                              Æ Any conviction for an offense                      time of the offense. (Section 111(7)(C)               provision in their laws and procedures
                                           involving solicitation of the victim                    and (E) separately require coverage of                to accommodate consideration of the
                                           under any provision defining a                          offenses involving solicitation of a                  security of such individuals and to
                                           particular crime whose elements                         minor to engage in sexual conduct or to               honor requests from the United States
                                           include soliciting or attempting to get a               practice prostitution, but registration               Marshals Service and other agencies
                                           person to engage in prostitution.                       must be required for offenses involving               responsible for witness protection in
                                              • Video Voyeurism Involving a Minor                  sexual conduct with a minor or the use                order to ensure that their original
                                           (section 111(7)(F)): This clause covers                 of a minor in prostitution in light of                identities are not compromised.
                                           ‘‘[v]ideo voyeurism as described in                     section 111(7)(H), whether or not the                    With respect to witnesses afforded
                                           section 1801 of title 18, United States                 offense involves ‘‘solicitation’’ of the              federal protection, 18 U.S.C.
                                           Code [against a minor].’’ The cited                     victim.)                                              3521(b)(1)(H) specifically authorizes the
                                           federal offense in essence covers                          Æ Jurisdictions can implement the                  Attorney General to ‘‘protect the
                                           capturing the image of a private area of                ‘‘use of the Internet to facilitate or                confidentiality of the identity and
                                           another person’s body, where the victim                 attempt such conduct’’ part of this                   location of persons subject to
                                           has a reasonable expectation of privacy                 definition by requiring registration for              registration requirements as convicted
                                           against such conduct. Jurisdictions can                 offenses that involve use of the Internet             offenders under Federal or State law,
                                           implement the offense coverage                          in furtherance of criminal sexual                     including prescribing alternative
                                           requirement under this clause by                        conduct involving a minor as defined                  procedures to those otherwise provided
                                           requiring registration for offenses of this             above, such as attempting to lure minors              by Federal or State law for registration
                                           type, in cases where the victim was                     through Internet communications for                   and tracking of such persons.’’ U.S.
                                           below the age of 18.                                    the purpose of sexual activity.                       Department of Justice Witness Security
                                              • Possession, Production, or                            • Conduct By Its Nature A Sex                      Program officials accordingly determine
                                           Distribution of Child Pornography                       Offense Against a Minor (section                      on a case-by-case basis whether such
                                           (section 111(7)(G)): This clause covers                 111(7)(I)): The final clause covers ‘‘[a]ny           witnesses will be required to register,
                                           ‘‘possession, production, or distribution               conduct that by its nature is a sex                   and if registration occurs, whether it
                                           of child pornography.’’ Jurisdictions can               offense against a minor.’’ It is intended             will utilize new identities, modified
                                           implement the offense coverage                          to ensure coverage of convictions under               data, or other special conditions or
                                           requirement under this clause by                        statutes defining sexual offenses in                  procedures that are warranted to avoid
                                           requiring registration for offenses whose               which the status of the victim as a                   jeopardizing the safety of the protected
                                           gravamen is creating or participating in                minor is an element of an offense, such               witnesses.
                                           the creation of sexually explicit visual                as specially defined child molestation or
                                           depictions of persons below the age of                  child prostitution offenses, and other                V. Classes of Sex Offenders
                                           18, making such depictions available to                 offenses prohibiting sexual activity with                Section 111(2)–(4) of SORNA defines
                                           others, or having or receiving such                     underage persons. Jurisdictions can                   three ‘‘tiers’’ of sex offenders. The tier
                                           depictions.                                             comply with the offense coverage                      classifications have implications in
                                              • Criminal Sexual Conduct Involving                  requirement under this clause by                      three areas: (i) Under section 115, the
                                           a Minor and Related Internet Activities                 including convictions for such offenses               required duration of registration
                                           (section 111(7)(H)): This clause covers                 in their registration requirements.                   depends primarily on the tier; (ii) under
                                           ‘‘[c]riminal sexual conduct involving a                                                                       section 116, the required frequency of
                                           minor, or the use of the Internet to                    E. Protected Witnesses                                in-person appearances by sex offenders
                                           facilitate or attempt such conduct.’’ The                  The requirement that jurisdictions                 to verify registration information
                                           definition has two parts:                               substantially implement SORNA does                    depends on the tier; (iii) under section
                                              Æ The ‘‘criminal sexual conduct                      not preclude their taking measures                    118(c)(1), information about tier I sex
                                           involving a minor’’ language in this                    needed to protect the security of                     offenders convicted of offenses other
                                           definition covers sexual offenses whose                 individuals who have been provided                    than specified offenses against a minor
                                           elements involve physical contact with                  new identities and relocated under the                may be exempted from Web site
                                           the victim—such as provisions defining                  federal witness security program (see 18              disclosure.
                                           crimes of ‘‘rape,’’ ‘‘sexual assault,’’                 U.S.C. 3521 et seq.) or under other                      The use of the ‘‘tier’’ classifications in
                                           ‘‘sexual abuse,’’ or ‘‘incest’’—in cases                comparable witness security programs                  SORNA relates to substance, not form or
                                           where the victim was below 18 at the                    operated by non-federal jurisdictions. A              terminology. Thus, to implement the
                                           time of the offense. In addition, it covers             jurisdiction may conclude that it is                  SORNA requirements, jurisdictions do
rwilkins on PROD1PC63 with NOTICES2

                                           offenses whose elements involve using                   necessary to exclude an individual                    not have to label their sex offenders as
                                           other persons in prostitution—such as                   afforded protection in such a program                 ‘‘tier I,’’ ‘‘tier II,’’ and ‘‘tier III,’’ and do
                                           provisions defining crimes of                           from its sex offender registry or from                not have to adopt any other particular
                                           ‘‘pandering,’’ ‘‘procuring,’’ or                        public notification for security reasons,             approach to labeling or categorization of
                                           ‘‘pimping’’—in cases where the victim                   though the individual otherwise                       sex offenders. Rather, the SORNA

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00010   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                              30219

                                           requirements are met so long as sex                     permit imprisonment for more than one                 i.e., offenses whose gravamen is creating
                                           offenders who satisfy the SORNA                         year based on Indian tribal court                     or participating in the creation of
                                           criteria for placement in a particular tier             convictions, all tribal court convictions             sexually explicit visual depictions of
                                           are consistently subject to at least the                are tier I offenses. Moreover, regardless             minors or making such depictions
                                           duration of registration, frequency of in-              of which jurisdiction convicts the sex                available to others.
                                           person appearances for verification, and                offender, the requirements with respect                  Hence, jurisdictions can implement
                                           extent of Web site disclosure that                      to the potential length of imprisonment               the relevant SORNA requirements by
                                           SORNA requires for that tier.                           under the statute relate to individual                according ‘‘tier II’’ treatment to sex
                                              For example, suppose that a                          offenses rather than to aggregate                     offenders convicted of offenses of these
                                           jurisdiction decides to subject all sex                 penalties. For example, suppose that a                four types. The sex offenders who must
                                           offenders to lifetime registration,                     sex offender is charged in three counts               be so treated are not limited to those
                                           quarterly verification appearances, and                 with the commission of sex offenses                   convicted of offenses of these types
                                           full Web site posting as described in                   each of which is punishable by at most                whose elements require that the victim
                                           Part VII of these Guidelines. That would                one year of imprisonment, and upon                    be below a certain age, but rather
                                           meet the SORNA requirements with                        conviction is sentenced to three                      include as well those convicted of more
                                           respect to sex offenders satisfying the                 consecutive terms of six months of                    generally defined offenses that may be
                                           ‘‘tier III’’ criteria, and exceed the                   incarceration. Though the aggregate                   committed against either adult or child
                                           minimum required by SORNA with                          penalty is 18 months, these convictions               victims, in cases in which the victim
                                           respect to sex offenders satisfying the                 do not place the sex offender above tier              was in fact below the age of 18. For
                                           ‘‘tier II’’ or ‘‘tier I’’ criteria. Hence, such         I, because each offense was not                       example, in a case in which the sex
                                           a jurisdiction would be able to                         punishable by more than one year of                   offender was convicted of a generally
                                           implement the SORNA requirements                        imprisonment.                                         defined ‘‘sexual contact’’ offense, whose
                                           with respect to all sex offenders without                  If the requirement of an offense                   elements include no specification as to
                                           any labeling or categorization, and                     punishable by imprisonment for more                   victim age, tier II treatment is required
                                           without having to assess individual                     than one year is satisfied, the remaining             if the victim was in fact below 18.
                                           registrants against the tier criteria in the            offense-related criteria for tier II are that            The corresponding offense coverage
                                           SORNA definitions. Likewise, any other                  the registration offense falls within one             specifications for ‘‘tier III’’ in section
                                           approach a jurisdiction may devise is                   of two lists. In general terms, these lists           111(4)(A)–(B) cover offenses punishable
                                           acceptable if it ensures that sex                       cover most sexual abuse or exploitation               by more than one year of imprisonment
                                           offenders satisfying the criteria for each              offenses against minors. (Here as                     in the following categories:
                                           SORNA tier are subject to duration of                   elsewhere in SORNA, ‘‘minor’’ means a                    • Offenses comparable to or more
                                           registration, appearance frequency, and                 person under the age of 18—see SORNA                  severe than aggravated sexual abuse or
                                           Web site disclosure requirements that                   section 111(14).) The first list, appearing           sexual abuse as described in 18 U.S.C.
                                           meet those SORNA requires for the tier.                 in section 111(3)(A), covers offenses                 2241 and 2242, or an attempt or
                                              Turning to the specific tier                         committed against minors that are                     conspiracy to commit such an offense.
                                           definitions, SORNA section 111(2)                       comparable to or more severe than a                   Considering the definitions of the cited
                                           defines ‘‘tier I sex offender’’ to mean ‘‘a             number of cited federal offenses—those                federal offenses, comparable offenses
                                           sex offender other than a tier II or tier               under 18 U.S.C. 1591, 2422(b), 2423(a),               under the laws of other jurisdictions
                                           III sex offender.’’ Thus, tier I is a                   and 2244—and attempts and                             would be those that cover:
                                           residual class that includes all sex                    conspiracies to commit such offenses.                    Æ Engaging in a sexual act with
                                           offenders who do not satisfy the criteria               The second list, appearing in section                 another by force or threat (see 18 U.S.C.
                                           for tier II or tier III. For example, tier I            111(a)(3)(B), covers use of a minor in a              2241(a), 2242(1));
                                           includes a sex offender whose                           sexual performance, solicitation of a                    Æ Engaging in a sexual act with
                                           registration offense is not punishable by               minor to practice prostitution, and                   another who has been rendered
                                           imprisonment for more than one year, a                  production or distribution of child                   unconscious or involuntarily drugged,
                                           sex offender whose registration offense                 pornography. Determining whether a                    or who is otherwise incapable of
                                           is the receipt or possession of child                   jurisdiction’s offenses satisfy the criteria          appraising the nature of the conduct or
                                           pornography, and a sex offender whose                   for this tier is simplified by recognizing            declining to participate (see 18 U.S.C.
                                           registration offense is a sexual assault                that the various cited and described                  2241(b), 2242(2)), or
                                           against an adult that involves sexual                   offenses essentially cover:                              Æ Engaging in a sexual act with a
                                           contact but not a completed or                             • Offenses involving the use of                    child under the age of 12 (see 18 U.S.C.
                                           attempted sexual act.                                   minors in prostitution, and inchoate or               2241(c)).
                                              The definitions of tier II and tier III—             preparatory offenses (including                          Considering the related definition in
                                           in section 111(3) and 111(4)                            attempts, conspiracies, and                           18 U.S.C. 2246(2), ‘‘sexual act’’ for this
                                           respectively—are both limited to cases                  solicitations) that are directed to the               purpose would include: (i) Oral-genital
                                           in which the offense for which the sex                  commission of such offenses;                          or oral-anal contact, (ii) any degree of
                                           offender is required to register ‘‘is                      • Offenses against minors involving                genital or anal penetration, and (iii)
                                           punishable by imprisonment for more                     sexual contact—i.e., any sexual                       direct genital touching of a child under
                                           than 1 year.’’ This means that the                      touching of or contact with the intimate              the age of 16. (This definition of ‘‘sexual
                                           statutory maximum penalty possible for                  parts of the body, either directly or                 act’’ is the same as that applicable in the
                                           the offense exceeds one year. It does not               through the clothing—and inchoate or                  SORNA requirement of registration
                                           mean that inclusion in these tiers is                   preparatory offenses (including                       based on certain juvenile delinquency
                                           limited to cases in which the sex                       attempts, conspiracies, and                           adjudications—see Part IV.A of these
                                                                                                                                                         Guidelines—but the range of covered
rwilkins on PROD1PC63 with NOTICES2

                                           offender is actually sentenced to more                  solicitations) that are directed to the
                                           than a year of imprisonment.                            commission of such offenses;                          offenses is in some respects broader
                                              Because the definitions of tier II and                  • Offenses involving use of a minor in             here, as indicated; compare SORNA
                                           tier III are limited to certain offenses                a sexual performance; and                             section 111(4)(A)(i), which references
                                           punishable by imprisonment for more                        • Offenses involving the production                both aggravated sexual abuse and sexual
                                           than one year, and federal law does not                 or distribution of child pornography,                 abuse, with SORNA section 111(8), the

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00011   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30220                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           juvenile coverage provision, which                      be obtained and included in the registry.             identification in Internet
                                           references only aggravated sexual                       This expansion authority is utilized to               communications or postings, and
                                           abuse.)                                                 require including in the registries a                 traditional names given by family or
                                              • Offenses against a child below the                 number of additional types of                         clan pursuant to ethnic or tribal
                                           age of 13 that are comparable to or more                information, such as information about                tradition.
                                           severe than abusive sexual contact as                   registrants’ e-mail addresses, telephone                 Æ Internet Identifiers and Addresses
                                           defined in 18 U.S.C. 2244, or an attempt                numbers, and the like, information                    (section 114(a)(7)): In the context of
                                           or conspiracy to commit such an                         concerning the whereabouts of                         Internet communications there may be
                                           offense. Considering the definitions of                 registrants who lack fixed abodes or                  no clear line between names or aliases
                                           the federal offenses in 18 U.S.C. 2244                  definite places of employment, and                    that are required to be registered under
                                           and the related definition in 18 U.S.C.                 information about temporary lodging, as               SORNA section 114(a)(1) and addresses
                                           2246(3), comparable offenses under the                  discussed below.                                      that are used for routing purposes.
                                           laws of other jurisdictions would be                       In order to implement requirements                 Moreover, regardless of the label,
                                           those that cover sexual touching of or                  for the sharing or disclosure of                      including in registries information on
                                           contact with the intimate parts of the                  registration information appearing in                 designations used by sex offenders for
                                           body, either directly or through the                    other sections of SORNA (sections                     purposes of routing or self-identification
                                           clothing, where the victim is under 13.                 113(c), 119(b), 121(b)—see Parts VII and              in Internet communications—e.g., e-
                                              • Kidnapping of a minor (unless                      X of these Guidelines for discussion),                mail and instant messaging addresses—
                                           committed by a parent or guardian).                     jurisdictions will need to maintain all               serves the underlying purposes of sex
                                              Hence, jurisdictions can implement                   required registration information in                  offender registration and notification.
                                           the relevant SORNA requirements by                      digitized form that will enable it to be              Among other potential uses, having this
                                           according ‘‘tier III’’ treatment to sex                 immediately accessed by or transmitted                information may help in investigating
                                           offenders convicted of offenses of these                to various entities. Hence, the                       crimes committed online by registered
                                           three types.                                            jurisdiction’s registry must be an                    sex offenders—such as attempting to
                                              In addition to including criteria                    electronic database, and descriptions of              lure children or trafficking in child
                                           relating to the nature of the registration              required types of information in section              pornography through the Internet—and
                                           offense, the definitions of tier II and tier            114 should consistently be understood                 knowledge by sex offenders that their
                                           III accord significance to a registrant’s               as referring to digitizable information               Internet identifiers are known to the
                                           history of recidivism. Specifically,                    rather than hard copies or physical                   authorities may help to discourage them
                                           section 111(3)(C) places in tier II any sex             objects. This does not mean, however,                 from engaging in such criminal
                                           offender whose registration offense is                  that all required registration information            activities. The authority under section
                                           punishable by imprisonment for more                     must be reproduced in a single                        114(a)(7) is accordingly exercised to
                                           than one year, where that offense                       segregated database, since the same                   require that the information included in
                                           ‘‘occurs after the offender becomes a tier              effect may be achieved by including in                the registries must include all
                                           I sex offender.’’ Thus, any sex offender                the central registry database links or                designations used by sex offenders for
                                           whose registration offense is punishable                identification numbers that provide                   purposes of routing or self-identification
                                           by more than one year of imprisonment                   access to the information in other                    in Internet communications or postings.
                                           who has a prior sex offense conviction                  databases in which it is included (e.g.,                 Æ Telephone Numbers (section
                                           is at least in tier II. Likewise, section               with respect to criminal history,                     114(a)(7)): Requiring sex offenders to
                                           111(4)(C) places in tier III any sex                    fingerprint, and DNA information).                    provide their telephone numbers (both
                                           offender whose registration offense is                  These points are further discussed in                 for fixed location phones and cell
                                           punishable by imprisonment for more                     connection with the relevant                          phones) furthers the objectives of sex
                                           than one year, where that offense                       informational items.                                  offender registration. One obvious
                                           ‘‘occurs after the offender becomes a tier                 As with SORNA’s requirements                       purpose in having such information is
                                           II sex offender.’’ Thus, any sex offender               generally, the informational                          to facilitate communication between
                                           whose registration offense is punishable                requirements of section 114 and these                 registration personnel and a sex
                                           by more than one year of imprisonment,                  Guidelines define a floor, not a ceiling,             offender in case issues arise relating to
                                           and who at the time of that offense                     for jurisdictions’ registries. Hence,                 the sex offender’s registration.
                                           already satisfied the criteria for                      jurisdictions are free to obtain and                  Moreover, as communications
                                           inclusion in tier II, is in tier III.                   include in their registries a broader                 technology advances, the boundaries
                                                                                                   range of information than the minimum                 blur between text-based and voice-based
                                           VI. Required Registration Information
                                                                                                   requirements described in this Part.                  communications media. Telephone calls
                                             Section 114 of SORNA defines the                         The required minimum informational                 may be transmitted through the Internet.
                                           required minimum informational                          content for sex offender registries is as             Text messages may be sent between cell
                                           content of sex offender registries. It is               follows:                                              phones. Regardless of the particular
                                           divided into two lists. The first list, set                • Name, Aliases, and Remote                        communication medium, and regardless
                                           forth in subsection (a) of section 114,                 Communication Identifiers and                         of whether the communication involves
                                           describes information that the registrant               Addresses (section 114(a)(1), (a)(7)):                text or voice, sex offenders may
                                           will normally be in a position to                          Æ Names and Aliases (section                       potentially utilize remote
                                           provide. The second list, set forth in                  114(a)(1)): The registry must include                 communications in efforts to contact or
                                           subsection (b), describes information                   ‘‘[t]he name of the sex offender                      lure potential victims. Hence, including
                                           that is likely to require some affirmative              (including any alias used by the                      phone numbers in the registration
                                           action by the jurisdiction to obtain,                   individual).’’ The names and aliases                  information may help in investigating
                                           beyond asking the sex offender for the                  required by this provision include, in                crimes committed by registrants that
rwilkins on PROD1PC63 with NOTICES2

                                           information. Supplementary to the                       addition to the registrant’s primary or               involved telephonic communication
                                           information that the statute explicitly                 given name, nicknames and                             with the victim, and knowledge that
                                           describes, section 114(a)(7) and (b)(8)                 pseudonyms generally, regardless of the               their phone numbers are known to the
                                           authorize the Attorney General to                       context in which they are used, any                   authorities may help sex offenders to
                                           specify additional information that must                designations or monikers used for self-               resist the temptation to commit crimes

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00012   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                            30221

                                           by this means. The authority under                      a park or spot on the street (or a number             they have passports, and that registrants
                                           section 114(a)(7) is accordingly                        of such places) where the sex offender                who are aliens must be required to
                                           exercised to require that the information               stations himself during the day or sleeps             produce or provide information about
                                           included in the registries must include                 at night, shelters among which the sex                documents establishing their
                                           sex offenders’ telephone numbers and                    offender circulates, or places in public              immigration status. The registry must
                                           any other designations used by sex                      buildings, restaurants, libraries, or other           include digitized copies of these
                                           offenders for purposes of routing or self-              establishments that the sex offender                  documents, the critical information
                                           identification in telephonic                            frequents. Having this type of location               from these documents, or links to
                                           communications.                                         information serves the same public                    another database or databases that
                                              • Social Security Number (section                    safety purposes as knowing the                        contain such information. Having this
                                           114(a)(2), (a)(7)): The registry must                   whereabouts of sex offenders with                     type of information in the registries
                                           include ‘‘[t]he Social Security number of               definite residence addresses. Hence, the              serves various purposes, including
                                           the sex offender.’’ In addition to any                  authority under SORNA section                         helping to locate and apprehend
                                           valid Social Security number issued to                  114(a)(7) is exercised to require that                registrants who may attempt to leave the
                                           the registrant by the government, the                   information be obtained about where                   United States after committing new sex
                                           information the jurisdiction requires                   sex offenders who lack fixed abodes                   offenses or registration violations;
                                           registrants to provide under this                       habitually live with whatever                         facilitating the tracking and
                                           heading must include any number that                    definiteness is possible under the                    identification of registrants who leave
                                           the registrant uses as his or her                       circumstances. Likewise, in relation to               the United States but later reenter while
                                           purported Social Security number since                  sex offenders who lack a residence                    still required to register (see SORNA
                                           registrants may, for example, attempt to                address for any other reason—e.g., a sex              section 128); and crosschecking the
                                           use false Social Security numbers in                    offender who lives in a house in a rural              accuracy and completeness of other
                                           seeking employment that would provide                   or tribal area that has no street                     types of information that registrants are
                                           access to children. To the extent that                  address—the registry must include                     required to provide—e.g., if immigration
                                           purported (as opposed to actual) Social                 information that identifies where the                 documents show that an alien registrant
                                           Security numbers may be beyond the                      individual has his or her home or                     is in the United States on a student visa
                                           scope of the information required by                    habitually lives.                                     but the registrant fails to provide
                                           section 114(a)(2), the authority under                     Æ Temporary Lodging Information                    information concerning the school
                                           section 114(a)(7) is exercised to require               (section 114(a)(7)): Sex offenders who                attended as required by SORNA section
                                           that information on such purported                      reoffend may commit new offenses at                   114(a)(5).
                                           numbers be obtained and included in                     locations away from the places in which                  • Employment Information (section
                                           the registry as well.                                   they have a permanent or long-term                    114(a)(4), (a)(7)):
                                              • Residence, Lodging, and Travel                     presence. Indeed, to the extent that                     Æ Employer Name and Address
                                           Information (section 114(a)(3), (a)(7)):                information about sex offenders’ places               (section 114(a)(4)): The registry must
                                              Æ Residence Address (section                         of residence is available to the                      include ‘‘[t]he name and address of any
                                           114(a)(3)): The registry must include                   authorities, but information is lacking               place where the sex offender is an
                                           ‘‘the address of each residence at which                concerning their temporary lodging                    employee or will be an employee.’’
                                           the sex offender resides or will reside.’’              elsewhere, the relative attractiveness to             SORNA section 111(12) explains that
                                           As provided in SORNA section 111(13),                   sex offenders of molesting children or                ‘‘employee’’ includes ‘‘an individual
                                           residence refers to ‘‘the location of the               committing other sexual crimes while                  who is self-employed or works for any
                                           individual’s home or other place where                  traveling or visiting away from home                  other entity, whether compensated or
                                           the individual habitually lives.’’ (For                 increases. Hence, to achieve the                      not.’’ As the definitional provisions
                                           more as to the meaning of ‘‘resides’’                   objectives of sex offender registration, it           indicate, the information required under
                                           under SORNA, see Part VIII of these                     is valuable to have information about                 this heading is not limited to
                                           Guidelines.) The statute refers to places               other places in which sex offenders are               information relating to compensated
                                           in which the sex offender ‘‘will reside’’               staying, even if only temporarily. The                work or a regular occupation, but
                                           so as to cover situations in which, for                 authority under SORNA section                         includes as well name and address
                                           example, a sex offender is initially being              114(a)(7) is accordingly exercised to                 information for any place where the
                                           registered prior to release from                        provide that jurisdictions must require               registrant works as a volunteer or
                                           imprisonment, and hence is not yet                      sex offenders to provide information                  otherwise works without remuneration.
                                           residing in the place or location to                    about any place in which the sex                         Æ Other Employment Information
                                           which he or she expects to go following                 offender is staying for seven or more                 (section 114(a)(7)): A sex offender who
                                           release.                                                days, including identifying the place                 is employed may not have a fixed place
                                              Æ Other Residence Information                        and the period of time the sex offender               of employment—e.g., a long-haul
                                           (section 114(a)(7)): Sex offenders who                  is staying there. The benefits of having              trucker whose ‘‘workplace’’ is roads and
                                           lack fixed abodes are nevertheless                      this information include facilitating the             highways throughout the country, or a
                                           required to register in the jurisdictions               successful investigation of crimes                    self-employed handyman who works
                                           in which they reside, as discussed in                   committed by sex offenders while away                 out of his home and does repair or
                                           Part VIII of these Guidelines. Such sex                 from their normal places of residence,                home-improvement work at other
                                           offenders cannot provide the residence                  employment, or school attendance, and                 people’s homes. Knowing as far as
                                           address required by section 114(a)(3)                   decreasing the attractiveness to sex                  possible where such a sex offender is in
                                           because they have no definite ‘‘address’’               offenders of committing crimes in such                the course of employment serves the
                                           at which they live. Nevertheless, some                  circumstances.                                        same public safety purposes as the
                                           more or less specific description should                   Æ Travel and Immigration Documents                 corresponding information regarding a
rwilkins on PROD1PC63 with NOTICES2

                                           normally be obtainable concerning the                   (section 114(a)(7)): The authority under              sex offender who is employed at a fixed
                                           place or places where such a sex                        SORNA section 114(a)(7) is exercised to               location. The authority under section
                                           offender habitually lives—e.g.,                         provide that registrants must be                      114(a)(7) is accordingly exercised to
                                           information about a certain part of a city              required to produce or provide                        require that information be obtained and
                                           that is the sex offender’s habitual locale,             information about their passports, if                 included in the registry concerning the

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00013   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30222                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           places where such a sex offender works                  operated by the sex offender.’’ This                  as his or her purported date of birth—
                                           with whatever definiteness is possible                  includes, in addition to vehicles                     not just his or her actual date of birth—
                                           under the circumstances, such as                        registered to the sex offender, any                   since registrants may, for example,
                                           information about normal travel routes                  vehicle that the sex offender regularly               provide false date of birth information
                                           or the general area(s) in which the sex                 drives, either for personal use or in the             in seeking employment that would
                                           offender works.                                         course of employment. A sex offender                  provide access to children.
                                              Æ Professional Licenses (section                     may not regularly use a particular                       • Physical Description (section
                                           114(a)(7)): The authority under section                 vehicle or vehicles in the course of                  114(b)(1)): The registry must include
                                           114(a)(7) is exercised to require that                  employment, but may have access to a                  ‘‘[a] physical description of the sex
                                           information be obtained and included in                 large number of vehicles for                          offender.’’ This must include a
                                           the registry concerning all licensing of                employment purposes, such as using                    description of the general physical
                                           the registrant that authorizes the                      many vehicles from an employer’s fleet                appearance or characteristics of the sex
                                           registrant to engage in an occupation or                in a delivery job. In a case of this type,            offender, and any identifying marks,
                                           carry out a trade or business.                          jurisdictions are not required to obtain              such as scars or tattoos.
                                           Information of this type may be helpful                 information concerning all such                          • Text of Registration Offense (section
                                           in locating the registrant if he or she                 vehicles to satisfy SORNA’s minimum                   114(b)(2)): The registry must include
                                           absconds, may provide a basis for                       informational requirements, but                       ‘‘[t]he text of the provision of law
                                           notifying the responsible licensing                     jurisdictions are free to require such                defining a criminal offense for which
                                           authority if the registrant’s conviction of             information if they are so inclined. The              the sex offender is registered.’’ As with
                                           a sex offense may affect his or her                     authority under section 114(a)(7) is                  other information in the registries, this
                                           eligibility for the license, and may be                 exercised to define and expand the                    does not mean that the registry must be
                                           useful in crosschecking the accuracy                    required information concerning                       a paper records system that includes a
                                           and completeness of other information                   vehicles in two additional respects.                  hard copy of the statute defining the
                                           the registrant is required to provide—                  First, the term ‘‘vehicle’’ should be                 registration offense. Rather, the registry
                                           e.g., if the registrant is licensed to                  understood to include watercraft and                  must be an electronic database, and the
                                           engage in a certain occupation but does                 aircraft, in addition to land vehicles, so            relevant statutory provision must be
                                           not provide name or place of                            descriptive information must be                       included as electronic text.
                                           employment information as required by                   required for all such vehicles owned or               Alternatively, this requirement can be
                                           section 114(a)(4) for such an occupation.               operated by the sex offender. The                     satisfied by including in the central
                                              • School Information (section                        information must include the license                  registry database a link or citation to the
                                           114(a)(5)): The registry must include                   plate number if it is a type of vehicle for           statute defining the registration offense
                                           ‘‘[t]he name and address of any place                   which license plates are issued, or if it
                                                                                                                                                         if: (i) Doing so provides online access to
                                           where the sex offender is a student or                                                                        the linked or cited provision, and (ii)
                                                                                                   has no license plate but does have some
                                           will be a student.’’ Section 111(11)                                                                          the link or citation will continue to
                                                                                                   other type of registration number or
                                           defines ‘‘student’’ to mean ‘‘an                                                                              provide access to the offense as
                                                                                                   identifier, then information concerning
                                           individual who enrolls in or attends an                                                                       formulated at the time the registrant was
                                                                                                   such a registration number or identifier
                                           educational institution, including                                                                            convicted of it, even if the defining
                                                                                                   must be included. To the extent that any
                                           (whether public or private) a secondary                                                                       statute is subsequently amended.
                                                                                                   of the information described above may                   • Criminal History and Other
                                           school, trade or professional school, and
                                                                                                   be beyond the scope of section 114(a)(6),             Criminal Justice Information (section
                                           institution of higher education.’’ As the
                                                                                                   the authority under section 114(a)(7) is              114(b)(3)): The registry must include
                                           statutory definition indicates, the
                                                                                                   exercised to provide that it must be                  ‘‘[t]he criminal history of the sex
                                           requirement extends to all types of
                                           educational institutions. Hence, this                   obtained and included in the registry.                offender, including the date of all arrests
                                           information must be provided for                        Second, the sex offender must be                      and convictions; status of parole,
                                           private schools as well as public                       required to provide and the registry                  probation, or supervised release;
                                           schools, including both parochial and                   must include information concerning                   registration status [i.e., whether the sex
                                           non-parochial private schools, and                      the place or places where the                         offender is in violation of the
                                           regardless of whether the educational                   registrant’s vehicle or vehicles are                  registration requirement and
                                           institution is attended for purposes of                 habitually parked, docked, or otherwise               unlocatable]; and the existence of any
                                           secular, religious, or cultural studies.                kept. Having information of this type                 outstanding arrest warrants for the sex
                                           The registration information                            may help to prevent flight, facilitate                offender.’’ This requirement can be
                                           requirement of section 114(a)(5) refers to              investigation, or effect an apprehension              satisfied by including the specified
                                           the names and addresses of educational                  if the registrant is implicated in the                types of information in the central
                                           institutions where a sex offender has or                commission of new offenses or violates                registry database, or by including in that
                                           will have a physical presence as a                      registration requirements.                            database links or identifying numbers
                                           student. It does not require information                   • Date of Birth (section 114(a)(7)).               that provide access to these types of
                                           about a sex offender’s participating in                 The authority under section 114(a)(7) is              information in criminal justice
                                           courses only remotely through the mail                  exercised to require date of birth                    databases that contain them.
                                           or the Internet. (Internet identifiers and              information for registrants, which must                  • Current Photograph (section
                                           addresses used by a sex offender in such                be included in the registry. Since date               114(b)(4)): The registry information
                                           remote communications, however, must                    of birth is regularly utilized as part of an          must include ‘‘[a] current photograph of
                                           be included in the registration                         individual’s basic identification                     the sex offender.’’ As with other
                                           information as provided in the                          information, having this information in               information in the registries, this does
                                                                                                   the registry is of obvious value in                   not mean that the registry must be a
rwilkins on PROD1PC63 with NOTICES2

                                           discussion of ‘‘Internet Identifiers and
                                           Addresses’’ earlier in this list.)                      helping to identify, track, and locate                paper records system that includes
                                              • Vehicle Information (section                       registrants. The information the                      physical photographs. Rather, the
                                           114(a)(6), (a)(7)): The registry must                   jurisdiction requires registrants to                  photographs of sex offenders must be
                                           include ‘‘[t]he license plate number and                provide under this heading must                       included in digitized form in an
                                           a description of any vehicle owned or                   include any date that the registrant uses             electronic registry, so as to permit the

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00014   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                              30223

                                           electronic transmission of registration                 notification in a broader sense and with              needed for full participation in [the
                                           information that is necessary to                        some more targeted types of disclosures.              NSOPW],’’ jurisdictions’ sex offender
                                           implement other SORNA requirements.                     The two sections will be discussed                    Web sites must allow searches by name,
                                           (For more about the taking of                           separately.                                           county, and city/town, as well as having
                                           photographs and keeping them current,                                                                         the zip code and geographic radius
                                                                                                   A. Sex Offender Web Sites
                                           see the discussion of periodic in-person                                                                      search capacities mentioned specifically
                                           appearances in Part XI of these                            Section 118(a) of SORNA states a                   in the statute.
                                           Guidelines.)                                            general rule that jurisdictions are to                  Other SORNA requirements relating
                                              • Fingerprints and Palm Prints                       ‘‘make available on the Internet, in a                to sex offender Web sites are discussed
                                           (section 114(b)(5)): The registry                       manner that is readily accessible to all              in the remainder of this subpart under
                                           information must include ‘‘[a] set of                   jurisdictions and to the public, all                  the following headings: mandatory
                                           fingerprints and palm prints of the sex                 information about each sex offender in                exemptions, discretionary exemptions
                                           offender.’’ As with other registration                  the registry.’’ This general requirement              and required inclusions, remote
                                           information, this should be understood                  is subject to certain mandatory and                   communication addresses, and other
                                           to refer to digitized fingerprint and palm              discretionary exemptions, appearing in                provisions.
                                           print information rather than physical                  subsections (b) and (c) of section 118,
                                                                                                   which are discussed below. Currently,                 Mandatory Exemptions
                                           fingerprint cards and palm prints. The
                                           requirement can be satisfied by                         all 50 States, the District of Columbia,                 Section 118(b)(1)–(3) identifies three
                                           including such digitized fingerprint and                Puerto Rico, and Guam have sex                        types of information that are
                                           palm print information in the central                   offender Web sites that make                          mandatorily exempt from disclosure,
                                           registry database, or by providing links                information about registered sex                      and section 118(b)(4) gives the Attorney
                                           or identifying numbers in the central                   offenders available to the public. The                General the authority to create
                                           registry database that provide access to                listed jurisdictions may need to modify               additional mandatory exemptions. The
                                           fingerprint and palm print information                  their existing Web sites to varying                   limitations of subsection (b) only
                                           in other databases for each registered                  degrees to implement the requirements                 constrain jurisdictions in relation to the
                                           sex offender.                                           of section 118.                                       information made available on their
                                              • DNA (section 114(b)(6)): The                          Beyond stating a general rule of Web               publicly accessible sex offender Web
                                           registry information must include ‘‘[a]                 site posting for sex offender                         sites. They do not limit the discretion of
                                           DNA sample of the sex offender.’’ This                  information, subsection (a) of section                jurisdictions to disclose these types of
                                           means that a DNA sample must be                         118 includes requirements about the                   information in other contexts. The types
                                           taken, or must have been taken, from the                field-search capabilities of the                      of information that are within the
                                           sex offender, for purposes of analysis                  jurisdictions’ Web sites. In part, it states          mandatory exemptions from public sex
                                           and entry of the resulting DNA profile                  that these field search capabilities must             offender Web site disclosure are as
                                           into the Combined DNA Index System                      include searches by ‘‘zip code or                     follows:
                                           (CODIS). The requirement is satisfied by                geographic radius set by the user.’’ In                  • Victim Identity: Section 118(b)(1)
                                           including information in the central                    other words, the Web sites must be so                 exempts ‘‘the identity of any victim of
                                           registry database that confirms                         designed that members of the public                   a sex offense.’’ The purpose of this
                                           collection of such a sample from the sex                who access a Web site are able to                     exemption is to protect victim privacy.
                                           offender for purposes of analysis and                   specify particular zip code areas, and                So long as the victim is not identified,
                                           entry of the DNA profile into CODIS or                  are able to specify geographic radii—                 this does not limit jurisdictions’
                                           inclusion of the sex offender’s DNA                     e.g., within one mile of a specified                  discretion to include on the Web site
                                           profile in CODIS.                                       address—and thereby bring up on the                   information about the nature and
                                           Driver’s License or Identification Card                 Web site the information about all of the             circumstances of the offense, which may
                                           (section 114(b)(7)): The registry                       posted sex offenders in the specified zip             include information relating to the
                                           information must include ‘‘[a]                          code or geographic area.                              victim, such as the age and gender of the
                                           photocopy of a valid driver’s license or                   Subsection (a) of section 118 further              victim, and the conduct engaged in by
                                           identification card issued to the sex                   states that each Web site ‘‘shall also                the sex offender against the victim.
                                           offender by a jurisdiction.’’ The                       include * * * all field search                           • Social Security Number: Section
                                           requirement can be satisfied by                         capabilities needed for full participation            118(b)(2) exempts ‘‘the Social Security
                                           including a digitized photocopy of the                  in the Dru Sjodin National Sex Offender               number of the sex offender.’’
                                           specified documents in the central                      Public Web site and shall participate in                 • Arrests Not Resulting in Conviction:
                                           registry database for each sex offender to              that Web site as provided by the                      Section 118(b)(3) exempts ‘‘any
                                           whom such a document has been                           Attorney General.’’ The statutory basis               reference to arrests of the sex offender
                                           issued. Alternatively, it can be satisfied              for the referenced National Sex Offender              that did not result in conviction.’’ As
                                           by including in the central registry                    Public Web site (NSOPW) appears in                    noted, this mandatory exemption, like
                                           database links or identifying numbers                   SORNA section 120. It is operated by                  the others, only affects the information
                                           that provide access in other databases                  the Department of Justice at the address              that may be posted on a jurisdiction’s
                                           (such as a Department of Motor Vehicles        All 50 States, the              public sex offender Web site. It does not
                                           database) to the information that would                 District of Columbia, Puerto Rico, and                limit a jurisdiction’s use or disclosure of
                                           be shown by such a photocopy.                           Guam currently participate in the                     arrest information in any other context,
                                                                                                   NSOPW, which provides public access                   such as disclosure to law enforcement
                                           VII. Disclosure and Sharing of                          to the information in their respective                agencies for law enforcement purposes,
                                           Information                                             sex offender Web sites through single-                or disclosure to the public (by means
                                             The SORNA requirements for                            query searches on a national site. As
rwilkins on PROD1PC63 with NOTICES2

                                                                                                                                                         other than posting on the sex offender
                                           disclosure and sharing of information                   noted, participation in the NSOPW is a                Web site) under ‘‘open records’’ laws.
                                           about registrants appear primarily in                   required element of SORNA                                • Travel and Immigration Document
                                           section 118, which is concerned with                    implementation. To satisfy the                        Numbers: The authority under section
                                           sex offender Web sites, and section 121,                requirement under section 118(a) of                   118(b)(4) is exercised to exempt the
                                           which is concerned with community                       having ‘‘all field search capabilities                numbers assigned to registrants’

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00015   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30224                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           passports and immigration documents.                    registration information, such as                     tier I sex offender convicted of an
                                           This exemption reflects concerns that                   fingerprints, palm prints, and DNA                    offense other than a specified offense
                                           public posting of such information                      information, are primarily or                         against a minor.
                                           could facilitate identity theft and could               exclusively of interest to law
                                                                                                                                                         Remote Communication Addresses
                                           provide a source of passport and                        enforcement.
                                           immigration document numbers to                            Following the exclusion of types of                  Public access to or disclosure of sex
                                           individuals seeking to enter, remain in,                information that are exempt from public               offenders’ remote communication
                                           or travel from the United States using                  Web site disclosure on a mandatory                    routing addresses and their equivalent—
                                           forged documents or false identities.                   basis under section 118(b), that are                  such as e-mail addresses and telephone
                                           Like the other mandatory exemptions,                    expressly identified as subject to                    numbers—is discussed separately
                                           this exemption only affects the                         discretionary exemptions under section                because the issue presents both risks
                                           information that may be posted on a                     118(c)(1)–(3), or that will be allowed as             and benefits and merits careful handling
                                           jurisdiction’s public sex offender Web                  additional discretionary exemptions on                by jurisdictions.
                                           site. It does not limit a jurisdiction’s use            the basis of section 118(c)(4), several                 On the one hand, appropriately
                                           or disclosure of registrants’ travel or                 core types of information remain whose                designed forms of access to such
                                           immigration document information in                     public disclosure through the sex                     information may further the public
                                           any other context, such as disclosure to                offender Web sites has the greatest value             safety objectives of sex offender
                                           agencies with law enforcement,                          in promoting public safety by enabling                registration and notification. For
                                           immigration, or national security                       members of the public to identify sex                 example, the operators of Internet social
                                           functions.                                              offenders, to know where they are, and                networking services that serve children
                                                                                                   to know what crimes they have                         may validly wish to check whether the
                                           Discretionary Exemptions and Required                                                                         e-mail addresses of individuals on their
                                           Inclusions                                              committed. These core informational
                                                                                                                                                         user lists are those of registered sex
                                                                                                   items, which are not within a
                                              Section 118(c)(1)–(3) provides three                                                                       offenders, so that they can prevent sex
                                                                                                   mandatory or discretionary exemption,
                                           optional exemptions, which describe                                                                           offenders from using their services as
                                                                                                   and do have to be included by
                                           information that jurisdictions may                                                                            avenues for Internet luring of children
                                                                                                   jurisdictions on their public sex
                                           exempt from their Web sites in their                                                                          for purposes of sexual abuse. Likewise,
                                                                                                   offender Web sites, are as follows:
                                           discretion. The first of these is ‘‘any                                                                       a parent may legitimately wish to check
                                           information about a tier I sex offender                    • The name of the sex offender,                    whether the e-mail address of an
                                           convicted of an offense other than a                    including any aliases.                                unknown individual who is
                                           specified offense against a minor.’’ The                   • The address of each residence at                 communicating with his or her child
                                           meaning of ‘‘tier I sex offender’’ is                   which the sex offender resides or will                over the Internet is that of a registered
                                           explained in Part V of these Guidelines,                reside and, if the sex offender does not              sex offender, for the same protective
                                           and the meaning of ‘‘specified offense                  have any (present or expected)                        purpose.
                                           against a minor’’ is explained in Part                  residence address, other information                    On the other hand, some forms of
                                           IV.D of these Guidelines. The second                    about where the sex offender has his or               public disclosure of this type of
                                           and third optional exemptions are,                      her home or habitually lives. If current              information—such as including sex
                                           respectively, ‘‘the name of an employer                 information of this type is not available             offenders’ e-mail addresses as part of the
                                           of the sex offender’’ and ‘‘the name of                 because the sex offender is in violation              information in their individual listings
                                           an educational institution where the sex                of the requirement to register or                     on the sex offender Web sites, which
                                           offender is a student.’’ As noted, these                unlocatable, the Web site must so note.               also include their names, locations,
                                           exclusions are discretionary.                              • The address of any place where the               etc.—could raise serious concerns about
                                           Jurisdictions are free to include these                 sex offender is an employee or will be                unintended consequences and misuse.
                                           types of information on their sex                       an employee and, if the sex offender is               Posting of the information in this form
                                           offender Web sites if they are so                       employed but does not have a definite                 could provide ready access by sex
                                           inclined.                                               employment address, other information                 offenders to the e-mail addresses of
                                              Section 118(c)(4) provides a further                 about where the sex offender works.                   other sex offenders, thereby facilitating
                                           optional exemption of ‘‘any other                          • The address of any place where the               networking among such offenders
                                           information exempted from disclosure                    sex offender is a student or will be a                through the Internet for such purposes
                                           by the Attorney General.’’ This                         student.                                              as: Exchanging information about or
                                           authorization recognizes that there are                    • The license plate number and a                   providing access to child victims for
                                           some additional types of information                    description of any vehicle owned or                   purposes of sexual abuse; recruiting
                                           that are required to be included in sex                 operated by the sex offender.                         confederates and accomplices for the
                                           offender registries by section 114, but                    • A physical description of the sex                purpose of committing child sexual
                                           whose required disclosure through                       offender.                                             abuse or exploitation offenses or other
                                           public sex offender Web sites may                          • The sex offense for which the sex                sexually violent crimes; trafficking in
                                           reasonably be regarded by particular                    offender is registered and any other sex              child pornography; and sharing ideas
                                           jurisdictions as inappropriate or                       offense for which the sex offender has                and information about how to commit
                                           unnecessary. For example, public access                 been convicted.                                       sexual crimes, avoid detection and
                                           to registrants’ remote communication                       • A current photograph of the sex                  apprehension for committing such
                                           routing addresses (such as e-mail                       offender.                                             crimes, or evade registration
                                           addresses) presents both risks and                         Part VI of these Guidelines includes               requirements.
                                           benefits. Minimizing the risks and                      more detailed explanation concerning                    The public safety benefits of public
                                           maximizing the benefits depends on the                  the informational items that the list                 access in this context may be realized,
rwilkins on PROD1PC63 with NOTICES2

                                           appropriate design of the means and                     above requires to be included on the                  and the risks and concerns addressed,
                                           form of access. The recommended                         public sex offender Web sites. This list              by not including remote communication
                                           treatment of such information is                        remains subject to the discretionary                  routing addresses or information that
                                           discussed later in this subpart. A                      authority of jurisdictions under section              would enable sex offenders to contact
                                           number of other types of required                       118(c)(1) to exempt information about a               each other on the individual public Web

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00016   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                             30225

                                           site postings of registrants, but                       the information in the registry (other                requirements. Jurisdictions accordingly
                                           including on the Web sites a function by                than information exempted from                        can implement the requirement of
                                           which members of the public may enter,                  disclosure by the Attorney General)                   section 121(b)(1) by submitting to the
                                           e.g., an e-mail address or phone number                 about that offender’’ must be provided                FBI within three business days the types
                                           and receive an answer whether the                       to various specified entities and                     of registry information that the FBI
                                           specified address or number has been                    individuals. The requirement that the                 includes in NSOR or other national
                                           registered as that of a sex offender. In                information must be provided to the                   databases, and by submitting
                                           the case of a concerned parent as                       specified recipients ‘‘immediately’’                  information within the same time frame
                                           described above, for example, this could                should be understood to mean that it                  to other federal agencies (such as the
                                           enable the parent to ascertain that the e-              must be provided within three business                United States Marshals Service) in
                                           mail address of an individual                           days. Cf. SORNA sections 113(b)(2),                   conformity with any requirements the
                                           attempting to communicate through the                   117(a) (equating within three business                Department of Justice or the Marshals
                                           Internet with his or her child is the                   days and ‘‘immediately’’ in relation to               Service may adopt for this purpose.
                                           address of a sex offender, but without                  initial registration). The requirement                   • Law Enforcement and Supervision
                                           providing sex offenders access to                       that the information be provided                      Agencies: Section 121(b)(2), in part,
                                           listings showing the e-mail addresses of                immediately is qualified by section                   identifies as further required recipients
                                           other persons who may share their                       121(c), which provides that recipients                ‘‘appropriate law enforcement agencies
                                           dispositions to commit sexual crimes.                   described in section 121(b)(6)–(7)—i.e.,              (including probation agencies, if
                                              Jurisdictions are accordingly                        volunteer organizations in which                      appropriate) * * * in each area in
                                           permitted and encouraged to provide                     contacts with minors or other                         which the individual resides, is an
                                           public access to remote communication                   vulnerable individuals might occur, and               employee or is a student.’’ ‘‘Law
                                           address information included in the sex                 any organization, company, or                         enforcement agencies’’ should be
                                           offender registries, in the form described              individual who requests notification—                 understood to refer to agencies with
                                           above, i.e., a function that allows                     ‘‘may opt to receive the notification                 criminal investigation or prosecution
                                           checking whether specified addresses                    * * * no less frequently than once                    functions, such as police departments,
                                           are included in the registries as the                   every five business days.’’                           sheriffs’ offices, and district attorneys’
                                           addresses of sex offenders. The registry                   These requirements will be discussed               offices. ‘‘Probation agencies, if
                                           management and Web site software that                   in turn in relation to two groups of                  appropriate’’ should be understood to
                                           the Justice Department is developing                    recipients—a group of four types of                   refer to all offender supervision agencies
                                           pursuant to SORNA section 123 will                      recipients that require special treatment,            that are responsible for a sex offender’s
                                           include software for such a Web site                    followed by suggestions for a uniform                 supervision. Jurisdictions can
                                           function.                                               approach in relation to the remaining                 implement the requirement of section
                                                                                                   types of recipients. The four types that              121(b)(2) by making registration
                                           Other Provisions                                        require special treatment are as follows:             information available to these agencies
                                              The final three subsections in section                  • National Databases: Section                      within three business days, by any
                                           118 contain additional Web site                         121(b)(1) states that the information is to           effective means—permissible options
                                           specifications as follows:                              be provided to ‘‘[t]he Attorney General,              include electronic transmission of
                                              Subsection (d) requires that sites                   who shall include that information in                 registration information and provision
                                           ‘‘include, to the extent practicable, links             the National Sex Offender Registry or                 of online access to registration
                                           to sex offender safety and education                    other appropriate databases.’’ The                    information. Jurisdictions may define
                                           resources.’’                                            National Sex Offender Registry (NSOR)                 the relevant ‘‘area[s]’’ in which a
                                              Subsection (e) requires that sites                   is a national database maintained by the              registrant resides, is an employee, or is
                                           ‘‘include instructions on how to seek                   Federal Bureau of Investigation (FBI),                a student for purposes of section
                                           correction of information that an                       which compiles information from the                   121(b)(2) in accordance with their own
                                           individual contends is erroneous.’’ A                   registration jurisdictions’ sex offender              policies, or may avoid the need to have
                                           jurisdiction could comply with this                     registries and makes it available to                  to specify such areas by providing
                                           requirement, for example, by including                  criminal justice agencies on a                        access to sex offender registry
                                           on its Web site information identifying                 nationwide basis. The current statutory               information to law enforcement and
                                           the jurisdiction’s agency responsible for               basis for NSOR appears in SORNA                       supervision agencies generally, since
                                           correcting erroneous information, and                   section 119(a). The statute refers to the             doing so makes the information
                                           advising persons that they can contact                  Attorney General including the                        available to recipients in all areas
                                           this agency if they believe that                        information submitted by jurisdictions                (however defined). The authority under
                                           information on the site is erroneous.                   in NSOR ‘‘or other appropriate                        the introductory language in section
                                              Subsection (f) requires that sites                   databases’’ because some types of                     121(b) to exempt information from
                                           include ‘‘a warning that information on                 registry information described in                     disclosure is not exercised in relation to
                                           the site should not be used to                          SORNA section 114, such as criminal                   these recipients with respect to any of
                                           unlawfully injure, harass, or commit a                  history information, may be maintained                the information required to be included
                                           crime against any individual named in                   by the FBI in other databases rather than             in registries under section 114 because
                                           the registry or residing or working at                  directly in the NSOR database. In                     law enforcement and supervision
                                           any reported address,’’ and further                     addition, the United States Marshals                  agencies need access to complete
                                           provides that the warning ‘‘shall note                  Service, which is the lead federal                    information about sex offenders to carry
                                           that any such action could result in civil              agency in investigating registration                  out their protective, investigative,
                                           or criminal penalties.’’                                violations by sex offenders and assisting             prosecutorial, and supervisory
                                                                                                   jurisdictions in enforcing their
rwilkins on PROD1PC63 with NOTICES2

                                           B. Community Notification and                           registration requirements, may establish                 • Jurisdictions: Section 121(b)(3)
                                           Targeted Disclosures                                    an additional national database or                    identifies as required recipients ‘‘[e]ach
                                              Section 121(b) of SORNA states that                  databases to help in detecting,                       jurisdiction where the sex offender
                                           ‘‘immediately after a sex offender                      investigating, and apprehending sex                   resides, is an employee, or is a student,
                                           registers or updates a registration * * *               offenders who violate registration                    and each jurisdiction from or to which

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00017   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30226                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           a change of residence, employment, or                   established by the jurisdiction (section              the jurisdiction in which a sex offender
                                           student status occurs.’’ This is part of a              121(b)(7)).                                           is convicted is not the same as the
                                           broader group of SORNA provisions                          Implementing the required provision                jurisdiction to which the sex offender
                                           concerning the exchange of registration                 of information about registrants to these             goes to live immediately following
                                           information among jurisdictions and                     entities potentially presents a number of             release. For example, a resident of
                                           ensuring that all relevant jurisdictions                difficulties for jurisdictions, such as               jurisdiction A is convicted for a sex
                                           have such information in an up-to-date                  problems in identifying and maintaining               offense in jurisdiction B. After being
                                           form. The implementation of section                     comprehensive lists of recipients in                  released following imprisonment or
                                           121(b)(3) and other provisions relating                 these categories, keeping those lists up              sentenced to probation in jurisdiction B,
                                           to these matters is discussed in Parts IX               to date, subdividing recipients by ‘‘area’’           the sex offender returns immediately to
                                           and X of these Guidelines.                              with respect to the notification under                jurisdiction A. Although jurisdiction B
                                              • National Child Protection Act                      section 121(b)(2), and developing means               is not the sex offender’s jurisdiction of
                                           Agencies: Section 121(b)(4) identifies as               of transmitting or providing access to                residence following his release or
                                           required recipients ‘‘[a]ny agency                      the information for the various types of              sentencing, jurisdiction B as the
                                           responsible for conducting employment-                  recipients. The objectives of these                   convicting jurisdiction is in the best
                                           related background checks under                         provisions, however, can be achieved by               position initially to take registration
                                           section 3 of the National Child                         augmenting public sex offender Web                    information from the sex offender and to
                                           Protection Act of 1993 (42 U.S.C.                       sites to include appropriate notification             inform him of his registration
                                           5119a).’’ The National Child Protection                 functions. Specifically, a jurisdiction               obligations, as required by SORNA
                                           Act (NCPA) provides procedures under                    will be deemed to have satisfied the                  section 117(a), and is likely to be the
                                           which qualified entities (e.g.,                         requirements of these provisions of                   only jurisdiction in a position to do so
                                           prospective employers of child care                     section 121(b) if it adopts an automated              within the time frames specified in
                                           providers) may request an authorized                    notification system that incorporates                 SORNA sections 113(b) and 117(a)—i.e.,
                                           state agency to conduct a criminal                      substantially the following features:                 before release from imprisonment, or
                                           history background check to obtain                         • The information required to be                   within 3 business days of sentencing for
                                           information bearing on an individual’s                  included on sex offender Web sites, as                a sex offender with a non-incarcerative
                                           fitness to have responsibility for the                  described in Part VII.A of these                      sentence. Hence, SORNA section 113(a)
                                           safety and well-being of children, the                  Guidelines, is posted on the                          provides for initial registration in the
                                           elderly, or individuals with disabilities.              jurisdiction’s sex offender Web site                  jurisdiction of conviction in such cases.
                                           The authorized agency makes a                           within three business days.                              Beyond the special case of initial
                                                                                                      • The jurisdiction’s sex offender Web              registration in the conviction
                                           determination whether the individual
                                                                                                   site includes a function under which                  jurisdiction where it differs from the
                                           who is the subject of the background
                                                                                                   members of the public and                             residence jurisdiction, section 113(a)
                                           check has been convicted of, or is under
                                                                                                   organizations can request notification                requires both registration and keeping
                                           indictment for, a crime bearing on the
                                                                                                   when sex offenders commence                           the registration current in each
                                           individual’s fitness for such
                                                                                                   residence, employment, or school                      jurisdiction where a sex offender
                                           responsibilities, and conveys that
                                                                                                   attendance within zip code or                         resides, is an employee, or is a student.
                                           determination to the qualified entity.
                                                                                                   geographic radius areas specified by the              Starting with jurisdictions of residence,
                                           Considering the nature of the recipients
                                                                                                   requester, where the requester provides               this means that a sex offender must
                                           under section 121(b)(4) and the
                                                                                                   an e-mail address to which the notice is              initially register in the jurisdiction of
                                           functions for which they need
                                                                                                   to be sent.                                           residence if it is the jurisdiction of
                                           information about sex offenders,                           • Upon posting on the jurisdiction’s               conviction, and must thereafter register
                                           jurisdictions can implement section                     sex offender Web site of new residence,               in any other jurisdiction in which the
                                           121(b)(4) by making available to such                   employment, or school attendance                      sex offender subsequently resides.
                                           agencies—i.e., those authorized to                      information for a sex offender within an                 The notion of ‘‘residence’’ requires
                                           conduct NCPA background checks—                         area specified by the requester, the                  definition for this purpose. Requiring
                                           within three business days all criminal                 system automatically sends an e-mail                  registration only where a sex offender
                                           history information in the registry                     notice to the requester that identifies the           has a residence or home in the sense of
                                           relevant to the conduct of such                         sex offender, thus enabling the requester             a fixed abode would be too narrow to
                                           background checks.                                      to access the jurisdiction’s Web site and             achieve SORNA’s objective of
                                              Beyond the four categories specified                 view the new information about the sex                ‘‘comprehensive’’ registration of sex
                                           above, section 121(b) requires that sex                 offender.                                             offenders (see section 102), because
                                           offender registration information be                                                                          some sex offenders have no fixed
                                           provided to several other types of                      VIII. Where Registration Is Required                  abodes. For example, a sex offender may
                                           recipients, as follows:                                    Section 113(a) of SORNA provides                   be homeless, living on the street or
                                              • Each school and public housing                     that a sex offender shall register and                moving from shelter to shelter, or a sex
                                           agency in each area in which the sex                    keep the registration current in each                 offender may live in something that
                                           offender resides, is an employee, or is a               jurisdiction in which the sex offender                itself moves from place to place, such as
                                           student (section 121(b)(2)).                            resides, is an employee, or is a student.             a mobile home, trailer, or houseboat.
                                              • Social service entities responsible                It further provides that, for initial                 SORNA section 111(13) accordingly
                                           for protecting minors in the child                      registration purposes only, a sex                     defines ‘‘resides’’ to mean ‘‘the location
                                           welfare system (section 121(b)(5)).                     offender must also register in the                    of the individual’s home or other place
                                              • Volunteer organizations in which                   jurisdiction in which convicted if it is              where the individual habitually lives.’’
                                           contact with minors or other vulnerable
rwilkins on PROD1PC63 with NOTICES2

                                                                                                   different from the jurisdiction of                    This entails that a sex offender must
                                           individuals might occur (section                        residence.                                            register:
                                           121(b)(6)).                                                Starting with the last-mentioned                      • In any jurisdiction in which he has
                                              • Any organization, company, or                      requirement—registration in jurisdiction              his home; and
                                           individual who requests such                            of conviction if different from                          • In any jurisdiction in which he
                                           notification pursuant to procedures                     jurisdiction of residence—in some cases               habitually lives (even if he has no home

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00018   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                              30227

                                           or fixed address in the jurisdiction, or                fixed places of employment or definite                IX. Initial Registration
                                           no home anywhere).                                      employment addresses. For example,
                                              The scope of ‘‘habitually lives’’ in this            consider a person residing in                            Under sections 113(b) and 117(a) of
                                           context is not self-explanatory and                     jurisdiction A who works out of his                   SORNA, jurisdictions must normally
                                           requires further definition. An overly                  home as a handyman, regularly doing                   require that sex offenders be initially
                                           narrow definition would undermine the                   repair or home-improvement work at                    registered before release from
                                           objectives of sex offender registration                 other people’s houses both in                         imprisonment for the registration
                                           and notification under SORNA. For                       jurisdiction A and in an adjacent                     offense or, in case of a non-
                                           example, consider the case of a sex                     jurisdiction B. Since the sex offender                imprisonment sentence, within three
                                           offender who nominally has his home in                  works in both jurisdictions, he must                  business days of sentencing for the
                                           one jurisdiction—e.g., he maintains a                   register in jurisdiction B as well as                 registration offense. Upon entry of the
                                           mail drop there, or identifies his place                jurisdiction A.                                       registration information into the
                                           of residence for legal purposes as his                                                                        registry, the initial registration
                                           parents’ home, where he visits                             The implementation measure for                     jurisdiction must immediately forward
                                           occasionally—but he lives most of the                   these SORNA requirements is for                       the registration information to all other
                                           time with his girlfriend in an adjacent                 jurisdictions to require sex offenders                jurisdictions in which the sex offender
                                           jurisdiction. Registration in the nominal               who are employed in the jurisdiction, as              is required to register. This is required
                                           home jurisdiction alone in such a case                  described above, to register in the                   by SORNA section 121(b)(3)
                                           would mean that the registration                        jurisdiction. To the extent that a sex                (registration information is to be
                                           information is not informative as to                    offender has some employment-related                  provided immediately to ‘‘[e]ach
                                           where the sex offender is actually                      presence in a jurisdiction, but does not              jurisdiction where the sex offender
                                           residing, and hence would not fulfill the               have a fixed place of employment or                   resides, is an employee, or is a
                                           public safety objectives of tracking sex                regularly work within the jurisdiction,               student.’’). Hence, for example, if an
                                           offenders’ whereabouts following their                  line drawing questions will arise, and                imprisoned sex offender advises the
                                           release into the community.                             jurisdictions may resolve these                       conviction jurisdiction on initial
                                              ‘‘Habitually lives’’ accordingly should              questions based on their own                          registration that he will be residing in
                                           be understood to include places in                      judgments. For example, if a sex                      another jurisdiction following release,
                                           which the sex offender lives with some                  offender who is a long haul trucker                   or that he will stay in the conviction
                                           regularity, and with reference to where                 regularly drives through dozens of                    jurisdiction but will be commuting to
                                           the sex offender actually lives, not just               jurisdictions in the course of his                    work in another jurisdiction, the
                                           in terms of what he would choose to                     employment, it is not required that all               conviction jurisdiction must notify the
                                           characterize as his home address or                     such jurisdictions must make the sex                  expected residence or employment
                                           place of residence for self-interested                  offender register based on his transient              jurisdiction by forwarding to that
                                           reasons. The specific interpretation of                 employment-related presence, but rather               jurisdiction the sex offender’s
                                           this element of ‘‘residence’’ these                     they may treat such cases in accordance               registration information (including the
                                           Guidelines adopt is that a sex offender                 with their own policies. (For more about              information about the expected
                                           habitually lives in the relevant sense in               required employment information, see                  residence or employment in that
                                           any place in which the sex offender                     the discussion in Part VI of these                    jurisdiction). The sex offender will then
                                           lives for at least 30 days. Hence, a                    Guidelines.)                                          be required to make an in-person
                                           jurisdiction must require a sex offender                                                                      registration appearance within three
                                                                                                      The final SORNA basis of registration
                                           to register in the jurisdiction as a                                                                          business days of commencing residence
                                           resident under SORNA if the sex                         is being a student, which SORNA
                                                                                                   section 111(11) defines to mean ‘‘an                  or employment in that jurisdiction, as
                                           offender has a home in the jurisdiction,                                                                      discussed in Part X of these Guidelines.
                                           or if the sex offender lives in the                     individual who enrolls in or attends an
                                           jurisdiction for at least 30 days.                      educational institution, including                       With respect to sex offenders released
                                           Jurisdictions may choose how the 30-                    (whether public or private) a secondary               from imprisonment, the initial
                                           day requirement is satisfied (e.g., 30                  school, trade or professional school, and             registration procedures must be carried
                                           consecutive days, 30 nonconsecutive                     institution of higher education.’’ Hence,             out prior to release from imprisonment.
                                           days over a 45-day period, or 30                        for example, a sex offender who resides               SORNA does not include a specific
                                           nonconsecutive days within a calendar                   in jurisdiction A, and is enrolled in a               requirement as to how long before
                                           year).                                                  college in an adjacent jurisdiction B to              release from imprisonment the initial
                                              SORNA also requires sex offenders to                 which he commutes for classes, must be                registration process must be conducted.
                                           register and keep the registration current              required to register in jurisdiction B as             But jurisdictions are encouraged, as a
                                           in any jurisdiction in which the sex                    well as jurisdiction A. School                        matter of sound policy, to effect initial
                                           offender is an employee. Hence, a sex                   enrollment or attendance in this context              registration with ample time in advance
                                           offender who resides in jurisdiction A                  should be understood as referring to                  whenever possible so that the following
                                           and commutes to work in an adjacent                     attendance at a school in a physical                  can be done before the sex offender is
                                           jurisdiction B must register and keep the               sense. It does not mean that a                        released into the community: (i)
                                           registration current in both                            jurisdiction has to require a sex offender            Subjecting the registration information
                                           jurisdictions—in jurisdiction A as a                    in some distant jurisdiction to register              provided by the sex offender to any
                                           resident, and in jurisdiction B as an                   in the jurisdiction based on his taking               verification the jurisdiction carries out
                                           employee. SORNA section 111(12)                         a correspondence course through the                   to ensure accuracy (e.g., cross checking
                                           defines ‘‘employee’’ for this purpose to                mail with a school in the jurisdiction, or            with other records), (ii) obtaining any
                                           include ‘‘an individual who is self-                    based on his taking courses at the school             information needed for the registry that
rwilkins on PROD1PC63 with NOTICES2

                                           employed or works for any other entity,                 remotely through the Internet, unless                 must be secured from sources other than
                                           whether compensated or not.’’ As with                   the participation in the educational                  the sex offender, (iii) posting of the sex
                                           residence, the SORNA requirement to                     program also involves some physical                   offender’s information on the
                                           register in jurisdictions of employment                 attendance at the school in the                       jurisdiction’s sex offender Web site, and
                                           is not limited to sex offenders who have                jurisdiction.                                         (iv) effecting other required notifications

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00019   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30228                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           and disclosures of information relating                 the sex offender is released on                       for which he was convicted in 1980—because
                                           to the sex offender.                                    completion of imprisonment in 2010.                   that time is past.
                                             The specific initial registration                     Such a sex offender can be registered                    With respect to sex offenders with
                                           procedures required by section 117(a)                   prior to release from imprisonment in                 pre-SORNA or pre-SORNA-
                                           are as follows:                                         the same manner as sex offenders                      implementation convictions who
                                             • Informing the sex offender of his or                convicted following the enactment of                  remain in the prisoner, supervision, or
                                           her duties under SORNA and explaining                   SORNA and its implementation by the                   registered sex offender populations at
                                           those duties. (Of course if the                         jurisdiction.                                         the time of implementation—illustrated
                                           jurisdiction adopts registration                          But in other cases this will not be                 by the examples in the first and second
                                           requirements that encompass but go                      possible, as illustrated by the following             bullets above—jurisdictions should
                                           beyond the SORNA minimum, the sex                       examples:                                             endeavor to register them in conformity
                                           offender should be informed of the full
                                                                                                      • Example 1: A sex offender convicted by           with SORNA as quickly as possible,
                                           range of duties, not only those required                a State for an offense in the SORNA                   including fully instructing them about
                                           by SORNA.)                                              registration categories is sentenced to               the SORNA requirements, obtaining
                                             • Requiring the sex offender to read                  probation, or released on post-imprisonment
                                           and sign a form stating that the duty to                                                                      signed acknowledgments of such
                                                                                                   supervision, in 2005. The sex offender is not
                                           register has been explained and that the                registered near the time of sentencing or
                                                                                                                                                         instructions, and obtaining and entering
                                           sex offender understands the                            before release from imprisonment, because             into the registry all information about
                                           registration requirement.                               the State did not require registration for the        them required under SORNA. But it is
                                             • Ensuring that the sex offender is                   offense in question at that time. The State           recognized that this may entail newly
                                           registered—i.e., obtaining the required                 subsequently implements SORNA in 2008,                registering or re-registering a large
                                                                                                   which will include registering such a sex             number of sex offenders in the existing
                                           registration information for the sex                    offender. But it is impossible to do so near
                                           offender and submitting that                                                                                  sex offender population, and that it may
                                                                                                   the time of his sentencing or before his              not be feasible for a jurisdiction to do
                                           information for inclusion in the registry.              release from imprisonment, because that time
                                             SORNA sections 113(d) and 117(b)                      is past. Likewise, a person convicted of a sex        so immediately. Jurisdictions are
                                           recognize that the normal initial                       offense by an Indian tribal court in, e.g., 2005      accordingly authorized to phase in
                                           registration procedure described above                  may have not been registered near the time            SORNA registration for such sex
                                           will not be feasible in relation to certain             of sentencing or release because the tribe had        offenders in conformity with the
                                           special classes of sex offenders, and                   not yet established any sex offender                  appearance schedule of SORNA section
                                                                                                   registration program at the time. If the person       116. In other words, sex offenders in
                                           provides that the Attorney General may
                                                                                                   remains under supervision when the tribe              these existing sex offender populations
                                           prescribe alternative rules for the                     implements SORNA, registration will be
                                           registration of such sex offenders. The                                                                       who cannot be registered within the
                                                                                                   required by the SORNA standards, but the
                                           specific problem is one of timing; it is                normal time frame for initial registration
                                                                                                                                                         normal SORNA time frame (i.e., before
                                           not always possible to carry out the                    under SORNA will have passed some years               release from imprisonment or within
                                           initial registration procedures for sex                 ago, so registration within that time frame is        three business days of sentencing for the
                                           offenders who are required to register                  impossible.                                           registration offense) must be registered
                                           under SORNA prior to release from                          • Example 2: A sex offender is required to         by the jurisdiction when it implements
                                                                                                   register for life by a jurisdiction based on a        the SORNA requirements in its system
                                           imprisonment (or within three days of
                                                                                                   rape conviction in 1995 for which he was              within a year for sex offenders who
                                           sentencing) for the registration offense.               released from imprisonment in 2005. The sex
                                           The situations in which there may be                                                                          satisfy the tier I criteria, within six
                                                                                                   offender was initially registered prior to his
                                           problems of this type, and the rules                    release from imprisonment on the basis of the
                                                                                                                                                         months for sex offenders who satisfy the
                                           adopted for those situations, are as                    jurisdiction’s existing law, but the                  tier II criteria, and within three months
                                           follows:                                                information concerning registration duties he         for sex offenders who satisfy the tier III
                                                                                                   was given at the time of release did not              criteria. If a jurisdiction believes that it
                                           Retroactive Classes                                     include telling him that he would have to             is not feasible for the jurisdiction to
                                              As discussed in Part II.C of these                   appear periodically in person to verify and           fully register the existing sex offender
                                           Guidelines, SORNA applies to all sex                    update the registration information (as               population in conformity with SORNA
                                                                                                   required by SORNA § 116), because the                 within these time frames, the
                                           offenders, including those convicted of
                                                                                                   jurisdiction did not have such a requirement
                                           their registration offenses prior to the                at the time. So the sex offender will have to
                                                                                                                                                         jurisdiction should inform the SMART
                                           enactment of SORNA or prior to                          be required to appear periodically for                Office of the difficulty, and the SMART
                                           particular jurisdictions’ incorporation of              verification and will have to be given new            Office will consider whether an
                                           the SORNA requirements into their                       instructions about that as part of the                extension of time for implementation of
                                           programs. Jurisdictions are specifically                jurisdiction’s implementation of SORNA.               SORNA under section 124(b) is
                                           required to register such sex offenders if                 • Example 3: A sex offender convicted in           warranted on that basis.
                                           they remain in the system as prisoners,                 1980 for an offense subject to lifetime                  In cases in which a sex offender
                                                                                                   registration under SORNA is released from             reenters the system based on conviction
                                           supervisees, or registrants, or if they
                                                                                                   imprisonment in 1990 but is not required to
                                           later reenter the system because of                     register at the time because the jurisdiction
                                                                                                                                                         of some other offense—illustrated by the
                                           conviction for some other crime                         had not yet established a sex offender                third example above—and is sentenced
                                           (whether or not the new crime is a sex                  registration program. In 2010, following the          or released from imprisonment
                                           offense).                                               jurisdiction’s implementation of SORNA, the           following the jurisdiction’s
                                              In some cases this will create no                    sex offender reenters the system because of           implementation of SORNA, the normal
                                           difficulty for registering these sex                    conviction for a robbery. The jurisdiction            SORNA initial registration procedures
                                           offenders in conformity with the normal                 will need to require the sex offender to              and timing requirements will apply, but
                                           SORNA registration procedures. For                      register based on his 1980 conviction for a           with the new offense substituting for the
rwilkins on PROD1PC63 with NOTICES2

                                                                                                   sex offense when he is released from
                                           example, suppose that a sex offender is                 imprisonment for the robbery offense. But it
                                                                                                                                                         predicate registration offense as the
                                           convicted of an offense in the SORNA                    is not possible to carry out the initial              basis for the time frame. In other words,
                                           registration categories in 2005, that the               registration procedure for the sex offender           such a sex offender must be initially
                                           jurisdiction implements SORNA in its                    prior to his release from imprisonment for            registered in the manner specified in
                                           registration program in 2008, and that                  the registration offense—i.e., the sex offense        SORNA section 117(a) prior to release

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00020   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                             30229

                                           from imprisonment for the new offense                   the sex offender to any other                         Persons with foreign sex offense
                                           that brought him back into the system,                  jurisdiction in which the sex offender is             convictions provide an additional class
                                           or within three business days of                        required to register under SORNA (e.g.,               who cannot be initially registered
                                           sentencing for the new offense in case                  on the basis of employment), as required              within the normal SORNA time frame.
                                           of a non-incarcerative sentence.                        by SORNA section 121(b)(3). If federal                Since they are convicted and
                                                                                                   authorities notify the jurisdiction                   imprisoned in a foreign country, no
                                           Federal and Military Sex Offenders
                                                                                                   concerning the release of a sex offender              domestic jurisdiction would normally
                                              There is no separate federal                         to the jurisdiction, but the sex offender             be in a position to register them prior to
                                           registration program for sex offenders                  fails to appear and register as required,             their release from imprisonment (or near
                                           required to register under SORNA who                    the jurisdiction must proceed as                      the time of sentencing in case of a non-
                                           are released from federal or military                   discussed in Part XIII of these                       incarcerative sentence).
                                           custody. Rather, such sex offenders are                 Guidelines for cases involving possible                  The procedure for initial registration
                                           integrated into the sex offender                        violations of registration requirements.              of such persons is logically the same as
                                           registration programs of the States and                                                                       that for other analogous classes
                                           other (non-federal) jurisdictions                       Sex Offenders Incarcerated in Non-                    discussed above: A jurisdiction must
                                           following their release. Provisions of                  Conviction Jurisdictions                              require a person with a foreign
                                           federal law, appearing in 18 U.S.C.                        A sex offender sentenced to                        conviction for which registration is
                                           4042(c) and section 115(a)(8)(C) of                     imprisonment may serve his or her                     required under SORNA to appear in
                                           Public Law 105–119, require federal and                 prison term in a facility outside of the              person to register within three business
                                           military correctional and supervision                   convicting jurisdiction. For example, an              days of entering the jurisdiction to
                                           personnel to notify the receiving                       Indian tribe may not have its own                     reside or commencing employment or
                                           jurisdiction’s authorities concerning the               correctional facility and may                         school attendance in the jurisdiction. If
                                           release to their areas of such sex                      accordingly lease bed space from a                    the sex offender has not previously been
                                           offenders so that this integration can be               county jail. Or a State may lease prison              registered by another jurisdiction, the
                                           effected. Moreover, these sex offenders                 space in a facility in an adjacent State,             jurisdiction must carry out the initial
                                           are required to comply with the SORNA                   so that some of its offenders serve their             registration procedure as provided in
                                           registration requirements in the                        prison terms in the other State’s                     SORNA section 117(a) when the sex
                                           jurisdictions in which they reside, are                 facilities. In such a case, the jurisdiction          offender appears. The jurisdiction must
                                           employed, or attend school as                           incarcerating the sex offender may be                 immediately forward the registration
                                           mandatory conditions of their federal                   neither the jurisdiction of conviction                information to any other jurisdiction in
                                           supervision, as provided in 18 U.S.C.                   nor the jurisdiction of expected                      which the sex offender is required to
                                           3563(a)(8), 3583(d), 4209(a), and may be                residence following release. But it is                register under SORNA. If a jurisdiction
                                           prosecuted under 18 U.S.C. 2250 if they                 likely to be in the best position to                  is notified, by federal authorities
                                           fail to do so.                                          initially take the required registration              pursuant to SORNA section 128 or
                                              For example, consider a person                       information from the sex offender and to              otherwise, that a sex offender is entering
                                           convicted of aggravated sexual abuse                    instruct the sex offender concerning                  the United States and is expected to be
                                           under 18 U.S.C. 2241, who is released                   registration obligations, while the                   locating in the jurisdiction, but the sex
                                           following his completion of the prison                  jurisdiction that convicted the sex                   offender fails to appear and register as
                                           term for this offense. As provided in 18                offender may be in no position to do so               required, the jurisdiction must follow
                                           U.S.C. 4042(c), the Federal Bureau of                   prior to the sex offender’s release,                  the procedures discussed in Part XIII of
                                           Prisons is required to inform the sex                   because the facility in which the sex                 these guidelines for cases involving
                                           offender prior to his release that he must              offender is incarcerated is in another                possible violations of registration
                                           register as required by SORNA, and                      jurisdiction.                                         requirements.
                                           must notify law enforcement and                            In such cases, the jurisdiction
                                           registration authorities in the                         incarcerating the sex offender must                   X. Keeping the Registration Current
                                           jurisdiction in which the sex offender                  carry out the initial registration                       There are a number of provisions in
                                           will reside following release.                          procedure described in SORNA section                  SORNA that are designed to ensure that
                                              Situations of this type are in principle             117(a) prior to releasing the sex offender            changes in registration information are
                                           the same as those in which a sex                        and must immediately forward the                      promptly reported, and that the
                                           offender enters a jurisdiction to reside                registration information for the sex                  registration information is kept fully up
                                           following conviction in another (non-                   offender to any other jurisdiction in                 to date in all jurisdictions in which the
                                           federal) jurisdiction—see Part X of these               which the sex offender is required to                 sex offender is required to register:
                                           Guidelines for discussion—except that                   register under SORNA (e.g., on the basis                 • Section 113(a) provides that a sex
                                           the federal authorities will not have                   of expected residence), as required by                offender must keep the registration
                                           registered the sex offender in the same                 SORNA section 121(b)(3).                              current in each jurisdiction in which the
                                           manner that a non-federal jurisdiction                                                                        sex offender resides, is an employee, or
                                           would. The jurisdiction to which such                   Registrants Based on Foreign                          is a student.
                                           a sex offender goes to reside following                 Convictions                                              • Section 113(c) provides that a sex
                                           release from federal custody (or after                    Persons with foreign sex offense                    offender must, not later than three
                                           sentencing for a federal offense, in case               convictions are often required to register            business days after each change of
                                           of a non-incarcerative sentence)                        under SORNA, as discussed in Part IV.B                name, residence, employment, or
                                           accordingly must require the sex                        of these Guidelines. Section 128 of                   student status, appear in person in at
                                           offender to appear in person to register                SORNA directs the Attorney General, in                least one jurisdiction in which the sex
                                           within three business days, and must                    consultation with the Secretary of State              offender is required to register and
rwilkins on PROD1PC63 with NOTICES2

                                           carry out the procedure described in                    and the Secretary of Homeland Security,               inform that jurisdiction of all changes in
                                           SORNA section 117(a) when the sex                       to establish a system for informing the               the information required for that sex
                                           offender appears for that purpose. The                  relevant jurisdictions about persons                  offender in the sex offender registry. It
                                           jurisdiction must also immediately                      entering the United States who are                    further provides that that information
                                           forward the registration information for                required to register under SORNA.                     must immediately be provided to all

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00021   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30230                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           other jurisdictions in which the sex                    who is registered in the jurisdiction as              required, the jurisdiction must inform
                                           offender is required to register.                       a resident and changes his or her name                the jurisdiction that provided the
                                              • Section 119(b) provides that                       or place of residence within the                      notification that the sex offender failed
                                           updated information about a sex                         jurisdiction, to appear in person to                  to appear, and must follow the
                                           offender must be immediately                            register or update the registration within            procedures for cases involving possible
                                           transmitted by electronic forwarding to                 three business days. Also, each                       violations of registration requirements,
                                           all relevant jurisdictions.                             jurisdiction in which a sex offender is               as discussed in Part XIII of these
                                              • Section 121(b)(3) provides that                    registered as a resident must:                        guidelines.
                                           immediately after a sex offender                           Æ Require the sex offender to inform
                                           registers or updates a registration, the                the jurisdiction if the sex offender                  B. Changes in Other Registration
                                           information in the registry (other than                 intends to commence residence,                        Information
                                           any exempted from disclosure by the                     employment, or school attendance in                      By incorporating the foregoing
                                           Attorney General) must be provided to                   another jurisdiction; and                             procedures into their registration
                                           each jurisdiction where the sex offender                   Æ If so informed by the sex offender,              programs, jurisdictions can implement
                                           resides, is an employee, or is a student,               notify that other jurisdiction by                     the SORNA requirements for keeping
                                           and each jurisdiction from or to which                  transmitting the sex offender’s                       the registration current in relation to
                                           a change of residence, employment, or                   registration information (including the               name, residence, employment, and
                                           student status occurs.                                  information concerning the sex                        school attendance information through
                                              • Section 128 directs the Attorney                   offender’s expected residence,                        in-person appearances. The registration
                                           General, in consultation with the                       employment, or school attendance in                   information that sex offenders are
                                           Secretary of State and the Secretary of                 that jurisdiction) immediately by                     required to provide under SORNA
                                           Homeland Security, to establish a                       electronic forwarding to that                         section 114, however, as discussed in
                                           system for informing relevant                           jurisdiction.                                         Part VI of these Guidelines, includes as
                                           jurisdictions about persons entering the                   • Employment Jurisdictions: Each                   well information about vehicles owned
                                           United States who are required to                       jurisdiction must require a sex offender              or operated by sex offenders, temporary
                                           register under SORNA.                                   who commences employment in the                       lodging information, and information
                                              Implementation of these provisions                   jurisdiction, or changes employer or                  about designations that sex offenders
                                           requires the definition of                              place of employment in the jurisdiction,              use for self-identification or routing
                                           implementation measures that can be                     to appear in person to register or update             purposes in Internet communications or
                                           carried out by the individual                           the registration within three business                postings or telephonic communications.
                                           jurisdictions, whose collective effect                  days.                                                 If changes occur in these types of
                                           will be to realize these provisions’                       • School Jurisdictions: Each                       information, the changes may
                                           objectives. The remainder of this Part of               jurisdiction must require a sex offender              eventually be reported as part of the
                                           these Guidelines details the required                   who commences school attendance in                    periodic verification appearances
                                           implementation measures.                                the jurisdiction, or changes the school               required by section 116 of SORNA, as
                                                                                                   attended or place of school attendance                discussed in Part XI of these Guidelines.
                                           A. Changes of Name, Residence,                                                                                But the registration information may
                                                                                                   in the jurisdiction, to appear in person
                                           Employment, or School Attendance                                                                              become in some respects seriously out
                                                                                                   to register or update the registration
                                              The in-person appearance                             within three business days.                           of date if the verification appearances
                                           requirements of section 113(c) described                   • Information Sharing: In all cases in             are relied on exclusively for this
                                           above serve to ensure—in connection                     which a sex offender makes an in-                     purpose.
                                           with the most substantial types of                      person appearance in a jurisdiction and                  For example, if a sex offender is on a
                                           changes bearing on the identification or                registers or updates a registration as                yearly appearance schedule, the sex
                                           location of sex offenders (name,                        described above, the jurisdiction must                offender’s motor vehicle information
                                           residence, employment, school                           immediately transmit by electronic                    may be a year out of date by the time
                                           attendance)—that there will be an                       forwarding the registration information               the sex offender reports at the next
                                           opportunity to obtain all required                      for the sex offender (including any                   appearance that he has acquired a new
                                           registration information from sex                       updated information concerning name,                  vehicle. Temporary lodging at places
                                           offenders in an up to date form,                        residence, employment, or school                      away from a sex offender’s residence
                                           including direct meetings for this                      attendance provided in the appearance)                might not be reported until long after
                                           purpose between the sex offenders and                   to all other jurisdictions in which:                  the time when the sex offender was at
                                           the personnel or agencies who will be                      Æ The sex offender is or will be                   the temporary location. Likewise, given
                                           responsible for their registration. The                 required to register as a resident,                   the ease with which Internet addresses
                                           purposes served by in-person                            employee, or student; or                              and identifiers and telephone numbers
                                           appearances under the SORNA                                Æ The sex offender was required to                 are added, dropped, or changed, the
                                           standards are further explained in Part                 register as a resident, employee, or                  value of requiring information about
                                           XI of these Guidelines, in relation to the              student until the time of a change of                 them from registrants could be seriously
                                           periodic in-person appearance                           residence, employment, or student                     undermined if they were only required
                                           requirements of section 116.                            status reported in the appearance, even               to report changes periodically in the
                                              The required implementation                          if the sex offender may no longer be                  context of general verification meetings.
                                           measures for the appearances required                   required to register in that jurisdiction                Hence, an additional implementation
                                           by section 113(c)—and other                             in light of the change of residence,                  measure is necessary to keep
                                           information updating/sharing and                        employment, or student status.                        registrations current with respect to
                                                                                                      • Failure to Appear: If a jurisdiction
rwilkins on PROD1PC63 with NOTICES2

                                           enforcement provisions under SORNA                                                                            these informational items:
                                           as they bear on such appearances—are                    is notified that a sex offender is                       • Each jurisdiction in which a sex
                                           as follows:                                             expected to commence residence,                       offender is registered as a resident must
                                              • Residence Jurisdictions: Each                      employment, or school attendance in                   require the sex offender to report
                                           jurisdiction must require a sex offender                the jurisdiction, but the sex offender                immediately changes in vehicle
                                           who enters the jurisdiction to reside, or               fails to appear for registration as                   information, lodging of seven days or

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00022   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                              30231

                                           more duration, and changes in                           return for their advising the United                  registration information in the national
                                           designations used for self-identification               States about sex offenders coming to the              databases pursuant to the procedures
                                           or routing in Internet communications                   United States from their jurisdictions.               under SORNA section 121(b)(1).
                                           or postings or telephonic                               For this reason as well, federal
                                                                                                                                                         XI. Verification/Appearance
                                           communications, and must immediately                    authorities in the United States will
                                           transmit such changes in the registration               need information about sex offenders
                                           information by electronic forwarding to                 leaving domestic jurisdictions to go                     Section 116 of SORNA States that ‘‘a
                                           all other jurisdictions in which the sex                abroad in order to effectively carry out              sex offender shall appear in person,
                                           offender is required to register.                       the requirements of SORNA section 128                 allow the jurisdiction to take a current
                                              • In addition, with respect to lodging               and enforce 18 U.S.C. 2250(a)(2)(B).                  photograph, and verify the information
                                           of seven days or more duration, the                        International travel also implicates               in each registry in which that offender
                                           residence jurisdiction must immediately                 the requirement of SORNA section                      is required to be registered not less
                                           transmit the information by electronic                  113(a) that sex offenders keep the                    frequently than’’: (i) Each year for a tier
                                           forwarding to the jurisdiction in which                 registration current in all jurisdictions             I sex offender, (ii) every six months for
                                           the temporary lodging by the sex                        in which they reside, work, or attend                 a tier II sex offender, and (iii) every
                                           offender takes place (if different from                 school. If a sex offender simply leaves               three months for a tier III sex offender.
                                           the residence jurisdiction), even if that               the country and does not inform the                   Jurisdictions accordingly must require
                                           is not a jurisdiction in which the sex                  jurisdiction or jurisdictions in which he             such periodic appearances by sex
                                           offender is required to register.                       has been registered, then the                         offenders who reside or are employees
                                                                                                   requirement to keep the registration                  or students in the jurisdiction, since sex
                                           C. International Travel                                                                                       offenders must register in the
                                                                                                   current will not have been fulfilled.
                                              A sex offender who moves to a foreign                Rather, the registry information in the               jurisdictions of their residence,
                                           country may pass beyond the reach of                    domestic jurisdictions will show that                 employment, and school attendance, as
                                           U.S. jurisdictions and hence may not be                 the sex offender is residing in the                   explained in Part VIII of these
                                           subject to any enforceable registration                 jurisdiction (or present as an employee               Guidelines. As with other SORNA
                                           requirement under U.S. law unless and                   or student) when that is no longer the                requirements, jurisdictions may require
                                           until he or she returns to the United                   case.                                                 in-person appearances by sex offenders
                                           States. But effective tracking of such sex                 In addition, a sex offender who goes               with greater frequency than the
                                           offenders remains a matter of concern to                abroad may remain subject in some                     minimum required by section 116.
                                           the United States and its domestic                      respects to U.S. jurisdiction. For                       The in-person appearance
                                           jurisdictions, and some measures                        example, a sex offender may be leaving                requirements of section 116 further the
                                           relating to them are necessary for                      to live on an overseas U.S. military base,            purposes of sex offender registration
                                           implementation of SORNA.                                as a servicemember, dependent, or                     and notification in a number of ways. A
                                              Relevant provisions include SORNA                    employee, or to work as or for a U.S.                 sex offender’s physical appearance, like
                                           section 128, which directs the Attorney                 military contractor in another country.               that of any other person, will change in
                                           General to establish a system for                       In such cases, notification about the                 the course of time. The in-person
                                           informing domestic jurisdictions about                  individual’s status as a sex offender and             appearance requirements provide
                                           persons entering the United States who                  intended activities abroad is of interest             reasonably frequent opportunities to
                                           are required to register under SORNA,                   to federal authorities, because the                   obtain a photograph of the sex offender
                                           and 18 U.S.C. 2250(a)(2)(B), which                      presence of sex offenders implicates the              and a physical description that reflects
                                           makes it a federal crime for a sex                      same public safety concerns in relation               his or her current appearance, types of
                                           offender to travel in foreign commerce                  to communities abroad for which the                   registration information that are
                                           and knowingly fail to register or update                United States has responsibility (such as             required by section 114(b)(1), (4). The
                                           a registration as required by SORNA. To                 U.S. military base communities in                     in-person appearances further provide
                                           carry out its responsibilities under these              foreign countries) as it does in relation             an opportunity to review with the sex
                                           provisions, the Department of Justice                   to communities within the United                      offender the full range of information in
                                           needs to know if sex offenders                          States.                                               the registry, and to obtain from the sex
                                           registered in U.S. jurisdictions are                       The following requirements                         offender information about any changes
                                           leaving the country, since such                         accordingly apply in relation to sex                  in the registration information or new
                                           offenders will be required to resume                    offenders who leave the United States:                information that has not been reported
                                           registration if they later return to the                   • Each jurisdiction in which a sex                 since the initial registration or the last
                                           United States to live, work, or attend                  offender is registered as a resident must             appearance.
                                           school while still within their                         require the sex offender to inform the                   Beyond these functions of directly
                                           registration periods. Also, both for sex                jurisdiction if the sex offender intends              helping to ensure the accuracy and
                                           offenders who are convicted in the                      to commence residence, employment, or                 currency of the registration information,
                                           United States and then go abroad, and                   school attendance outside of the United               the appearance requirement ensures
                                           for sex offenders who are initially                     States.                                               periodic face-to-face encounters
                                           convicted in other countries, identifying                  If so informed by the sex offender, the            between the sex offender and persons
                                           such sex offenders when they enter or                   jurisdiction must: (i) Notify all other               responsible for his or her registration.
                                           reenter the United States will require                  jurisdictions in which the sex offender               For example, if the appearance
                                           cooperative efforts between the                         is required to register through                       requirement is implemented by a
                                           Department of Justice (including the                    immediate electronic forwarding of the                jurisdiction to require that registrants
                                           United States Marshals Service) and                     sex offender’s registration information               report to local police departments or
                                           agencies of foreign countries. As a                     (including the information concerning                 sheriffs’ offices, these meetings help to
rwilkins on PROD1PC63 with NOTICES2

                                           necessary part of such cooperative                      the sex offender’s expected residence,                familiarize law enforcement personnel
                                           activities, foreign authorities may expect              employment, or school attendance                      with the sex offenders in their areas.
                                           U.S. authorities to inform them about                   outside of the United States), and (ii)               This may contribute to the effective
                                           sex offenders coming to their                           notify the United States Marshals                     discharge of the local law enforcement
                                           jurisdictions from the United States, in                Service and update the sex offender’s                 agency’s protective and investigative

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00023   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30232                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           functions in relation to these sex                      may be in the required registration          nonincarcerative sentence for the
                                           offenders, and help to ensure that the                  information categories.                      offense.
                                           agency’s responsibility to track these sex                 • Upon entry of the updated                  The proviso relating to custody or
                                           offenders is taken seriously and                        information into the registry, it must be    civil commitment reflects the fact that
                                           consistently enforced. Likewise, from                   immediately transmitted by electronic        the SORNA procedures for keeping up
                                           the perspective of the sex offender,                    forwarding to all other jurisdictions: (i)   the registration—including appearances
                                           periodic in-person encounters with                      In which the sex offender is or will be      to report changes of residence or other
                                           officials responsible for their monitoring              required to register as a resident,          key information under section 113(c),
                                           may help to impress on them with                        employee, or student, or (ii) in which       and periodic appearances for
                                           greater vividness than remote                           the sex offender was required to register    verification under section 116—
                                           communications that their identities,                   as a resident, employee, or student until    generally presuppose the case of a sex
                                           locations, and past criminal conduct are                the time of a change of residence,           offender who is free in the community.
                                           known to the authorities. Hence, there                  employment, or student status reported       Where a sex offender is confined, the
                                           is a reduced likelihood of their avoiding               in the appearance, even if the sex           public is protected against the risk of his
                                           detection and apprehension if they                      offender may no longer be required to        reoffending in a more direct way, and
                                           reoffend, and this may help them to                     register in that jurisdiction in light of    more certain means are available for
                                           resist the temptation to reoffend.                      the updated information. (This is            tracking his whereabouts. Hence,
                                              As long as the appearances involve                   necessary to carry out information           SORNA does not require that
                                           meetings between the sex offenders and                  sharing requirements appearing in            jurisdictions apply the registration
                                           officials who can carry out the required                SORNA sections 119(b) and 121(b)(3).)        procedures applicable to sex offenders
                                           functions of the meetings, the specific                    Like other SORNA registration             in the community during periods in
                                           arrangements for such appearances and                   requirements, the in-person appearance       which a sex offender is in custody or
                                           the officials who will conduct them are                 requirements of section 116 are only         civilly committed.
                                           matters that jurisdictions may determine                minimum standards. They do not limit,           Subsection (b) of section 115 provides
                                           in their discretion. For example,                       and are not meant to discourage,             that the registration period shall be
                                           jurisdictions may require sex offenders                 adoption by jurisdictions of more            reduced by 5 years for a tier I sex
                                           to report to local law enforcement                      extensive or additional measures for         offender who has maintained a ‘‘clean
                                           offices for this purpose, or may combine                verifying registration information. Thus,    record’’ for 10 years, and provides that
                                           the appearances with meetings between                   jurisdictions may require verification of    registration be terminated for a tier III
                                           sex offenders and their supervision                     registration information with greater        sex offender required to register on the
                                           officers if they are under supervision, or              frequency than that required by section      basis of a juvenile delinquency
                                           may have law enforcement, supervision,                  116, and may wish to include in their        adjudication if the sex offender has
                                           or registration personnel visit with sex                systems additional means of verification     maintained a ‘‘clean record’’ for 25
                                           offenders at their homes or meet with                   for registration information, such as        years. (The circumstances in which
                                           them at other arranged locations.                       mailing address verification forms to the    registration is required on the basis of
                                              The specific requirements for the                    registered residence address that the sex    juvenile delinquency adjudications are
                                           conduct of such appearances are as                      offender is required to sign and return,     explained in Part IV.A of these
                                           follows:                                                and cross-checking information               Guidelines.) Subsection (b) does not
                                              • Appearances must be conducted at                   provided by the sex offender for             provide for the reduction of the required
                                           least annually for sex offenders                        inclusion in the registry against other      25-year duration of registration for tier
                                           satisfying the ‘‘tier I’’ criteria, at least            records systems. Section 631 of the          II sex offenders, or for the reduction of
                                           semiannually for sex offenders                          Adam Walsh Act (Pub. L. 109–248)             the required lifetime registration for tier
                                           satisfying the ‘‘tier II’’ criteria, and at             authorizes a separate grant program to       III sex offenders required to register on
                                           least quarterly for sex offenders                       assist in residence address verification     the basis of adult convictions.
                                           satisfying the ‘‘tier III’’ criteria. (The              for sex offenders. Additional guidance          The specific requirements under
                                           ‘‘tier’’ classifications and what they                  will be provided concerning application      section 115(b) to satisfy the ‘‘clean
                                           entail are explained in Part V of these                 for grants under that program if funding     record’’ precondition for reduction of
                                           Guidelines.)                                            for the program becomes available.           the registration period are as follows:
                                              • The sex offender must allow a                                                                      • The sex offender must not be
                                           current photograph to be taken. This                    XII. Duration of Registration
                                                                                                                                                convicted of any sex offense for which
                                           does not mean that jurisdictions must                     Section 115(a) of SORNA specifies the imprisonment for more than one year
                                           require officials conducting these                      minimum required duration of sex             may be imposed (section 115(b)(1)(A)).
                                           meetings to take a new photograph at                    offender registration. It generally             • The sex offender must not be
                                           every appearance and enter the new                      requires that sex offenders keep the         convicted of any sex offense (section
                                           photograph into the registry. Where the                 registration current for 15 years in the     115(b)(1)(B)). In contrast to section
                                           official sees that the sex offender’s                   case of a tier I sex offender, for 25 years  115(b)(1)(A), section 115(b)(1)(B) is not
                                           appearance has not changed                              in the case of a tier II sex offender, and   limited to cases in which the offense is
                                           significantly from a photograph in the                  for the life of the sex offender in the case one potentially punishable by
                                           registry, it may be concluded that the                  of a tier III sex offender, ‘‘excluding any imprisonment for more than a year.
                                           existing photograph remains sufficiently                time the sex offender is in custody or       Hence, conviction for a sex offense
                                           current and the taking of a new                         civilly committed.’’ (The tier               prevents satisfaction of the ‘‘clean
                                           photograph does not have to be required                 classifications and their import are         record’’ requirement, even if the
                                           in such circumstances.                                  explained in Part V of these Guidelines.) maximum penalty for the offense is less
                                              • The sex offender must be required                  The required registration period begins
rwilkins on PROD1PC63 with NOTICES2

                                                                                                                                                than a year.
                                           to review the existing information in the               to run upon release from custody for a          • The sex offender must successfully
                                           registry that is within his or her                      sex offender sentenced to incarceration      complete any periods of supervised
                                           knowledge, to correct any item that has                 for the registration offense, and begins     release, probation, and parole (section
                                           changed or is otherwise inaccurate, and                 to run at the time of sentencing for a sex 115(b)(1)(C)). The requirement of
                                           to provide any new information there                    offender who receives a                      ‘‘successfully’’ completing periods of

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00024   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                                                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices                                             30233

                                           supervision means completing these                      Attorney General and appropriate law                  informs the original registration
                                           periods without revocation.                             enforcement agencies of failures by sex               jurisdiction that the sex offender has
                                              • The sex offender must successfully                 offenders to comply with registration                 failed to appear and register.
                                           complete an appropriate sex offender                    requirements, and that such registration                 • When such information is received
                                           treatment program certified by a                        violations must be reflected in the                   by a jurisdiction indicating that a sex
                                           jurisdiction or by the Attorney General                 registries. The section further provides              offender may have absconded, whether
                                           (section 115(b)(1)(D)). Jurisdictions may               that the official, the Attorney General,              one registered in the jurisdiction or
                                           make their own decisions concerning                     and each such law enforcement agency                  expected to arrive from another
                                           the design of such treatment programs,                  are to take any appropriate action to                 jurisdiction, an effort must be made to
                                           and jurisdictions may choose the                        ensure compliance. Complementary                      determine whether the sex offender has
                                           criteria to be applied in determining                   measures for federal enforcement appear               actually absconded. If non-law-
                                           whether a sex offender has                              in section 142, which directs the                     enforcement registration personnel
                                           ‘‘successfully’’ completed a treatment                  Attorney General to use the resources of              cannot determine this, then a law
                                           program, which may involve relying on                   federal law enforcement, including the                enforcement agency with jurisdiction to
                                           the professional judgment of the persons                United States Marshals Service, to assist             investigate the matter must be notified.
                                           who conduct or oversee the treatment                    jurisdictions in locating and                         Also, if the information indicating the
                                           program.                                                apprehending sex offenders who violate                possible absconding came through
                                                                                                   registration requirements. (Also,                     notice from another jurisdiction or
                                           XIII. Enforcement of Registration
                                                                                                   SORNA section 623 authorizes grants by                federal authorities, the authorities that
                                                                                                   the Attorney General to States, local                 provided the notification must be
                                              This final part of the Guidelines                    governments, tribal governments, and                  informed that the sex offender has failed
                                           discusses enforcement of registration                   other public and private entities to                  to appear and register.
                                           requirements under the SORNA                            assist in enforcing sex offender                         • If a jurisdiction receives
                                           provisions. It initially discusses the                  registration requirements—additional                  information indicating that a sex
                                           penalties for registration violations                   guidance will be provided concerning                  offender may have absconded, as
                                           under SORNA, and then the practical                     application for grants under this                     described in the preceding bullets, and
                                           procedures for investigating and dealing                provision if funding is made available                takes the measures described therein but
                                           with such violations.                                   for this program.)                                    cannot locate the sex offender, then the
                                              SORNA contemplates that substantial                    Translating the requirements of                     jurisdiction must take the following
                                           criminal penalties will be available for                section 122 into practical procedures                 steps:
                                           registration violations at the state, local,            that will ensure effective enforcement of                Æ The information in the registry
                                           and federal levels. Section 113(e) of                   sex offender registration requires further            must be revised to reflect that the sex
                                           SORNA requires jurisdictions (other                     definition. Jurisdictions can implement               offender is an absconder or unlocatable.
                                           than Indian tribes) to provide a criminal               the requirements of section 122 by                       Æ A warrant must be sought for the
                                           penalty that includes a maximum term                    adopting the following procedures:                    sex offender’s arrest, if the legal
                                           of imprisonment greater than one year                     • Information may be received by a                  requirements for doing so are satisfied.
                                           for the failure of a sex offender to                    jurisdiction indicating that a sex                       Æ The United States Marshals
                                           comply with the SORNA requirements.                     offender has absconded—i.e., has not                  Service, which is the lead federal
                                           Hence, a jurisdiction’s implementation                  registered at all, or has moved to some               agency for investigating sex offender
                                           of SORNA includes having a failure-to-                  unknown place other than the registered               registration violations, must be notified.
                                           register offense for which the maximum                  place of residence. For example, a sex                Also, the jurisdiction must update the
                                           authorized term of imprisonment                         offender may fail to make a scheduled                 National Sex Offender Registry to reflect
                                           exceeds a year. (Indian tribes are not                  appearance for periodic verification of               the sex offender’s status as an absconder
                                           included in this requirement because                    registration information in his                       or unlocatable and enter the sex
                                           tribal court jurisdiction does not extend               jurisdiction of residence as required by              offender into the National Crime
                                           to imposing terms of imprisonment                       SORNA section 115, or may fail to                     Information Center Wanted Person File
                                           exceeding a year.) Section 141(a) of                    return an address verification form                   (assuming issuance of a warrant meeting
                                           SORNA enacted 18 U.S.C. 2250, a new                     mailed to the registered address in a                 the requirement for entry into that file).
                                           federal failure-to-register offense, which              jurisdiction that uses that verification                 The foregoing procedures must be
                                           provides federal criminal penalties of                  procedure. Or a jurisdiction may receive              adopted for possible absconder cases to
                                           up to 10 years of imprisonment for sex                  notice from some other jurisdiction                   implement SORNA section 122. In
                                           offenders required to register under                    providing grounds to expect that a sex                addition, a jurisdiction’s policies must
                                           SORNA who knowingly fail to register                    offender will be coming to live in the                require appropriate follow-up measures
                                           or update a registration as required                    jurisdiction—such as notice that a sex                when information is received indicating
                                           where circumstances supporting federal                  offender will be moving to the                        violation of the requirement to register
                                           jurisdiction exist, such as interstate or               jurisdiction from a jurisdiction in which             in jurisdictions of employment or
                                           international travel by a sex offender, or              he was previously registered, or notice               school attendance, whether or not a
                                           conviction of a federal sex offense for                 from federal authorities about the                    violation of the requirement to register
                                           which registration is required. Federal                 expected arrival in the jurisdiction of a             in jurisdictions of residence is
                                           sex offenders are also required to                      released federal sex offender or sex                  implicated. Specifically, a jurisdiction
                                           comply with the SORNA registration                      offender entering the United States from              may receive information indicating that
                                           requirements as mandatory conditions                    abroad—but the sex offender then fails                a sex offender may be employed or
                                           of their federal probation, supervised                  to appear and register as required. Or a              attending school in the jurisdiction but
                                                                                                   jurisdiction may notify another                       has not registered as required—for
rwilkins on PROD1PC63 with NOTICES2

                                           release, or parole, as provided pursuant
                                           to amendments adopted by section                        jurisdiction, based on information                    example, failure by the sex offender to
                                           141(d)–(e), (j) of SORNA.                               provided by a sex offender, that the sex              appear for a required periodic in-person
                                              In terms of practical enforcement                    offender will be relocating to the other              appearance in the employment or
                                           measures, SORNA section 122 requires                    jurisdiction, but the supposed                        school jurisdiction, as required by
                                           that an appropriate official notify the                 destination jurisdiction thereafter                   SORNA section 116, or failure by a sex

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00025   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2
                                           30234                       Federal Register / Vol. 72, No. 103 / Wednesday, May 30, 2007 / Notices

                                           offender to appear and register in the                  sex offender is actually employed or                    Dated: May 17, 2007.
                                           jurisdiction following receipt of notice                attending school in the jurisdiction but              Alberto R. Gonzalez,
                                           from another jurisdiction that the sex                  has failed to register. If (non-law                   Attorney General.
                                           offender is expected to be commencing                   enforcement) registration personnel                   [FR Doc. E7–10210 Filed 5–29–07; 8:45 am]
                                           employment or school attendance in the                  cannot determine this, then a law                     BILLING CODE 4410–18–P
                                           jurisdiction. In such cases, an effort                  enforcement agency with jurisdiction to
                                           must be made to determine whether the                   investigate the matter must be notified.
rwilkins on PROD1PC63 with NOTICES2

                                      VerDate Aug<31>2005   19:25 May 29, 2007   Jkt 211001   PO 00000   Frm 00026   Fmt 4701   Sfmt 4703   E:\FR\FM\30MYN2.SGM   30MYN2

To top