Guidelines for the PROTECT Act Amendments to the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 12721-12725 [05-5021]
Download as PDF
<![CDATA[
12721
Federal Register / Vol. 70, No. 49 / Tuesday, March 15, 2005 / Notices
2004 CIVIL/CRIMINAL PENALTIES—SUMMARY ALL PENALTIES PAID IN CALENDAR 2004 (1/1/2004–12/31/2004)—
Continued
[The following acronyms are used in this table: SCSSV (surface controlled subsurface safety valve); SSV (surface safety valve); PSHL (pressure
safety high/low); LSH (level safety high); INC (incident of non-compliance); ESD (emergency shutdown device); H2S (Hydrogen Sulfide)]
Penalty paid
and date paid
Operator name and Case No.
Violation and date(s)
Murphy Exploration & Production
Company—USA, G–2004–010.
The required surface safety valve (SSV–2) for Well CA–7 was found
capped in the open position and inadvertently left bypassed for 8
days.
3/25/04–4/1/04 .......................................................................................
The main safety panel for the Water Bath Heater, the Fired Component, and the Water Bath Pump was found in the bypassed position and it was not flagged or being monitored by personnel.
6/21/04–6/21/04 .....................................................................................
Aera was issued INC G–110 on 7/12/02 after a pipeline riser leak
and oil spill. Aera appealed to IBLA. Through the DOI Solicitor,
Aera proposed to settle the appeal with a payment of $25,000.
MMS accepted Aera’s offer on 1/22/04. The INC was not withdrawn and Aera paid $25,000 as a civil penalty.
Apache Corporation (Island Operators Co. Inc.), G–2004–015.
Aera Energy LLC., P–2004–001 ....
Regulation(s) violated (30 CFR)
$40,000
10/21/04
........................
$5,000
12/22/04
250.803(c)
........................
$25,000
2/4/04
250.803(c)
250.107(a)
Total Penalties Paid: 1/1/04–12/31/04
21 Cases: $885,750
The purpose of publishing the penalties summary is to provide information to the public on violations of special concern in OCS operations and
to provide an additional incentive for safe and environmentally sound operations.
Dated: February 15, 2005.
Thomas A. Readinger,
Associate Director for Offshore Minerals
Management.
[FR Doc. 05–4994 Filed 3–14–05; 8:45 am]
BILLING CODE 4310–MR–P
DEPARTMENT OF JUSTICE
Office of the Attorney General
[Docket No. OAG 107; A.G. Order No. 2760–
2005]
RIN 1105–AB08
Guidelines for the PROTECT Act
Amendments to the Jacob Wetterling
Crimes Against Children and Sexually
Violent Offender Registration Act
Department of Justice.
Notice; Proposed guidelines.
AGENCY:
ACTION:
SUMMARY: The United States Department
of Justice is publishing Proposed
Guidelines to implement amendments
to the Jacob Wetterling Crimes Against
Children and Sexually Violent Offender
Registration Act enacted by the
PROTECT Act.
DATES: Comments must be received by
May 16, 2005.
ADDRESSES: Comments may be mailed to
David J. Karp, Senior Counsel, Office of
Legal Policy, Room 4509, Main Justice
Building, 950 Pennsylvania Avenue,
NW., Washington, DC 20530. Comments
may also be submitted by the Internet at
OLPREGS@USDOJ.GOV. Electronically
submitted comments must include
Docket No. OAG 107 in the subject box.
VerDate jul<14>2003
15:31 Mar 14, 2005
Jkt 205001
Section
170101 of the Violent Crime Control and
Law Enforcement Act of 1994, Pub. L.
103–322, 108 Stat. 1796, 2038 (codified
at 42 U.S.C. 14071) contains the Jacob
Wetterling Crimes Against Children and
Sexually Violent Offender Registration
Act (the ‘‘Wetterling Act’’). The
Wetterling Act provides standards for
state sex offender registration and
community notification programs, and
directs the Attorney General to issue
guidelines for such programs. The main
set of current Wetterling Act guidelines
was published on January 5, 1999, in
the Federal Register (64 FR 572, with
corrections at 64 FR 3590), and a
supplementary set of guidelines for the
Campus Sex Crimes Prevention Act
amendment to the Wetterling Act was
published on October 25, 2002, in the
Federal Register (67 FR 65598). States
that fail to comply with the Wetterling
Act’s standards (as implemented and
explained in the Attorney General’s
guidelines) are subject to a mandatory
10% reduction of the formula grant
funding available under the Edward
Byrne Memorial State and Local Law
Enforcement Assistance Program (42
U.S.C. 3756), which is administered by
the Bureau of Justice Assistance of the
Department of Justice.
Subsequent to the publication of the
current Wetterling Act guidelines, the
Wetterling Act was amended by sections
604 and 605 of the Prosecutorial
Remedies and Other Tools to end the
Exploitation of Children Today Act of
2003, or PROTECT Act, Pub. L. 108–21,
117 Stat. 650, 688 (2003). These
SUPPLEMENTARY INFORMATION:
PO 00000
Frm 00077
Fmt 4703
Sfmt 4703
amendments provide that the means by
which a State provides information to
the public concerning registered sex
offenders must include an Internet site,
and add child pornography production
and distribution offenses to the list of
crimes against children for which
registration is required under the
Wetterling Act’s standards.
Supplementary guidelines are necessary
to take account of the PROTECT Act
amendments to the Wetterling Act.
Section 604 of the PROTECT Act,
relating to Internet sites for sex offender
information, states that ‘‘[e]ach State
shall implement the amendment made
by this section within 3 years after the
date of enactment of this Act’’—i.e., by
April 29, 2006—‘‘except that the
Attorney General may grant an
additional 2 years to a State that is
making a good faith effort to implement
the amendment.’’ The amendment in
section 605 of the PROTECT Act,
relating to registration for child
pornography production and
distribution offenses, took effect at the
time of its enactment, i.e., on April 30,
2003.
Proposed Guidelines
I. Internet Sites for Sex Offender
Information
The community notification
provisions of the Wetterling Act that
predate the PROTECT Act—paragraph
(1) and the first sentence of paragraph
(2) of 42 U.S.C. 14071(e)—have both
permissive and mandatory aspects. The
permissive aspect appears in paragraph
(1), which makes it clear that the Act
E:\FR\FM\15MRN1.SGM
15MRN1
12722
Federal Register / Vol. 70, No. 49 / Tuesday, March 15, 2005 / Notices
does not place any ceiling on the states’
disclosure of registration information.
See 64 FR at 581 (‘‘there is no
requirement [] under the Act that
registration information be treated as
private or confidential to any greater
extent than the state may wish’’).
The mandatory aspect appears in the
first sentence of paragraph (2), which
generally requires States to release
relevant information that is necessary to
protect the public from registered
offenders: ‘‘The State * * * shall
release relevant information that is
necessary to protect the public
concerning a specific person required to
register under this section * * *.’’ 42
U.S.C. 14071(e)(2). This creates a floor
for the disclosure of registration
information—States that wish to comply
with the Wetterling Act’s standards
must release, by some means,
information concerning registered
offenders to the public as necessary for
public safety. Section 604 of the
PROTECT Act added a second sentence
to paragraph (2), which provides that
the means used to effectuate the
required public disclosure of
registration information must include an
Internet site: ‘‘The release of
information under this paragraph shall
include the maintenance of an Internet
site containing such information that is
available to the public and instructions
on the process for correcting
information that a person alleges to be
erroneous.’’
In greater detail, the pre-existing
community notification requirement of
section 14071(e)(2), and its
supplementation by the PROTECT Act
amendment, are as follows:
With respect to the first sentence of
section 14071(e)(2), the Attorney
General’s guidelines explain that the
principal objective is to ensure that
registration programs will include
means for members of the public to
obtain information concerning
registered offenders that is necessary for
the protection of themselves or their
families. Hence, it is not sufficient to
release registration information only to
law enforcement agencies, to other
(public or private) agencies or
organizations, to prospective employers,
or to the victims of registrants’ offenses.
Nor are purely permissive or
discretionary information release
programs sufficient. Rather, the release
of information concerning registrants to
members of the public is required as
necessary to protect the public, both
with respect to offenders required to
register because of conviction for ‘‘a
criminal offense against a victim who is
a minor’’ and those required to register
VerDate jul<14>2003
15:31 Mar 14, 2005
Jkt 205001
because of conviction for a ‘‘sexually
violent offense.’’ See 64 FR at 581–82.
Under the first sentence of section
14071(e)(2), however, ‘‘[s]tates do * * *
retain discretion to make judgments
concerning the circumstances in which,
and the extent to which, the disclosure
of registration information to the public
is necessary for public safety purposes
and to specify standards and procedures
for making these determinations.’’ 64 FR
at 582. The guidelines accordingly note
that, consistent with the Wetterling Act,
states may adopt different approaches
concerning the class or classes of
registrants on whom information will be
made available to the public, and the
particular means by which the
information will be made publicly
available. See 64 FR at 582.
The amendment enacted by section
604 of the PROTECT Act added a
second sentence to section 14071(e)(2),
which requires that the means by which
a State releases to the public ‘‘such
information’’—i.e., information
concerning ‘‘specific person[s] required
to register’’—must include the
maintenance of an Internet site that
contains this information. 42 U.S.C.
14072(e)(2) (as amended). In other
words, states must protect the public by
posting on-line information concerning
specific registrants that the public can
access. Prior to the enactment of the
PROTECT Act, most States had already
established publicly accessible Web
sites containing information on
registered sex offenders, and the
Supreme Court rejected challenges to
the constitutionality of State programs
including such sites in Connecticut
Department of Public Safety v. Doe, 538
U.S. 1 (2003), and Smith v. Doe, 538
U.S. 84 (2003).
While the new language added by
section 604 of the PROTECT Act states
that the means of disclosing to the
public information concerning
registered sex offenders ‘‘shall include
the maintenance of an Internet site,’’ 42
U.S.C. 14071(e)(2), it does not otherwise
alter the general principles of the
Wetterling Act’s community notification
provisions. Thus, States retain
discretion to make judgments
concerning the necessary extent of such
disclosure for public safety purposes, in
conformity with the understanding of
the pre-existing provision (first
sentence) in section 14071(e)(2). States
accordingly may make judgments
concerning which class or classes of
their registrants will be subject to
disclosure of information through the
Internet, what specific information will
be included on the site concerning these
registrants, and the means by which this
information can be searched.
PO 00000
Frm 00078
Fmt 4703
Sfmt 4703
Existing sex offender Web sites show
variations on these points, which do not
create any problem concerning
compliance with section 14071(e)(2) as
amended: Some States include
information on all (or nearly all) of their
registrants on the Internet, while others
limit the registrants subject to Internet
disclosure based on risk classifications
or other criteria. In addition to
registrants’ names, the information
included on sex offender Web sites
commonly includes photographs of
registrants, information about
registrants’ offenses, and information
about registrants’ locations, but states
differ on particulars. States commonly
set up their Web sites to allow searches
by name and by geographic area (such
as zip code), but State-to-State
variations occur in this area as well.
Links to existing state Web sites may be
found at: https://www.usdoj.gov/
criminal/ceos/statesexoffender.html and
https://www.fbi.gov/hq/cid/cac/
states.htm.
Beyond the general requirement—
appearing already in the first sentence
of section 14071(e)(2)—that the
information included on the Internet
site must include relevant information
necessary to protect the public, the new
language added by the PROTECT Act
requires that the site include
‘‘instructions on the process for
correcting information that a person
alleges to be erroneous.’’ A State could
comply with this requirement, for
example, by including on its Web site
information identifying the state agency
responsible for correcting erroneous
information, and advising persons that
they can contact this agency if they
believe that information on the site is
erroneous. The language added by the
PROTECT Act does not attempt to
prescribe in any greater detail the
specific standards or procedures that
States will use to determine whether
information on their sex offender Web
sites is accurate. These standards and
procedures accordingly remain a matter
of State discretion, subject to
compliance with other aspects of the
Wetterling Act, such as section
14071(b)(3)’s provision for periodic
verification of address information.
The first sentence of section
14071(e)(2) provides that the identity of
the victims of registration offenses is not
to be released, and this constraint
applies to Internet disclosure as well as
to disclosure through other forms of
community notification. The existing
guidelines explain the meaning and
application of this limitation. See 64 FR
at 582 (middle column). Otherwise, the
Wetterling Act does not impose any
ceiling on the release of registration
E:\FR\FM\15MRN1.SGM
15MRN1
Federal Register / Vol. 70, No. 49 / Tuesday, March 15, 2005 / Notices
information or other information
concerning registrants, and no
compliance problems arise from
including more (rather than less)
information on sex offender Web sites.
II. Registration for Child Pornography
Production and Distribution Offenses
Section 14071(a)(3)(A) sets out the list
of ‘‘criminal offense[s] against a victim
who is a minor’’ for which registration
is required under the Wetterling Act’s
standards. Section 605 of the PROTECT
Act added to this list a new clause (viii)
as follows: ‘‘production or distribution
of child pornography, as described in
section 2251, 2252, or 2252A of Title
18.’’ The cross-referenced provisions are
key statutes proscribing conduct related
to child pornography in the chapter of
the federal criminal code entitled
‘‘Sexual Exploitation and Other Abuse
of Children.’’
The Wetterling Act’s standards
already encompassed registration for
child pornography production offenses
in some measure prior to the PROTECT
Act amendment. Specifically, 42 U.S.C.
14071(a)(3)(A)(v) referred to ‘‘use of a
minor in a sexual performance,’’ and the
Attorney General’s guidelines explained
that this includes ‘‘both live
performances and using minors in the
production of pornography.’’ 64 FR at
577. However, there was nothing
comparable to the PROTECT Act
amendment’s coverage of child
pornography distribution (as opposed to
production) offenses in the previous
Wetterling Act provisions.
These guidelines interpret the new
language relating to child pornography
production and distribution offenses in
section 14071(a)(3)(viii) to mean that
registration is required for offenses
whose gravamen is: (i) Creating or
participating in the creation of sexually
explicit visual depictions of minors, or
(ii) making such depictions available to
others. In greater detail, the principles
governing state compliance with this
provision are as follows:
A. Coverage Based on Substance Rather
Than Terminology
Under section 14071(a)(3)(viii), States
must require registration for offenses
that substantively cover child
pornography production or distribution,
even if those offenses do not specifically
use the words ‘‘produce’’ or ‘‘distribute’’
in defining their elements. This
understanding is consistent with the
interpretation of all other Wetterling Act
offense coverage requirements as
relating to substance, not terminology.
For example, section 14071(a)(3)(A)(i)
and (ii) generally include in the offense
coverage list ‘‘kidnapping of a minor’’
VerDate jul<14>2003
15:31 Mar 14, 2005
Jkt 205001
and ‘‘false imprisonment of a minor.’’
This does not mean that registration is
required only when the statute defining
an offense explicitly uses the words
‘‘kidnapping’’ or ‘‘false imprisonment.’’
Rather, the Attorney General’s
guidelines explain: ‘‘All states have
statutes that define offenses—going by
such names as ‘kidnapping,’ ‘criminal
restraint,’ or ‘false imprisonment’—
whose gravamen is abduction or
unlawful restraint of a person. States
can comply with these clauses by
requiring registration for persons
convicted of these statutory offenses
whose victims were below the age of
18.’’ 64 FR at 577.
The same principle—offense coverage
based on substance rather than
terminology—applies to the PROTECT
Act provision for child pornography
offenses. For example, if a State has an
offense that prohibits ‘‘selling,
transferring, or disseminating’’ child
pornography, that is substantively a
distribution offense, and States must
require registration for persons
convicted of such offenses to comply
with the Wetterling Act’s standards.
B. Relationship to the Federal Child
Pornography Offenses
Section 14071(a)(3)(A)(viii) refers to
‘‘production or distribution of child
pornography, as described in section
2251, 2252, or 2252A of Title 18.’’ The
offense elements in the referenced
Federal statutes involve some
complexity, including complications
resulting from their intermixture with
the statutes’ specifications of the
grounds supporting Federal jurisdiction,
and from the related technical
definitions in 18 U.S.C. 2256. In
identifying State offenses for which
registration is required, it is not
sufficient for States to apply the exact
specifications of these Federal offenses
and definitions, and to require
registration only for State offenses that
are defined in the same way. Reading
section 14071(a)(3)(A)(viii) to require
registration only for State offenses that
are fully congruent with the referenced
Federal crimes would effectively nullify
it, because there are unlikely to be any
State offenses whose elements exactly
mirror all the definitional particulars
and elements (especially jurisdictional
elements) of these Federal crimes.
Section 14071(a)(3)(A)(viii) also
cannot properly be understood to mean
that States need to parse through the
underlying facts of particular
convictions, and to match them up to
the elements of the referenced Federal
crimes to determine whether
registration is required. The prefatory
language in section 14071(a)(3)(A) does
PO 00000
Frm 00079
Fmt 4703
Sfmt 4703
12723
not require coverage of offense conduct
that exactly matches the Federal law
categories listed in that provision.
Rather, it refers to coverage of a range
of offenses which is ‘‘comparable to’’
the listed categories. This statutory
standard was adopted in part to obviate
compliance problems resulting from
‘‘the degree of detail in the Act’s
definitions and * * * variations among
different jurisdictions in the
terminology and categorizations used in
defining sex offenses.’’ 64 FR at 578.
Hence, the interpretation and
application of section 14071(a)(3)(A)
must effectuate the legislative intent to
ensure registration for child
pornography production and
distribution offenses in a meaningful
way, while also respecting the
legislative policy to avoid unnecessary
impediments to State compliance that
would result from requiring the direct
application of detailed Federal law
definitions. These guidelines implement
these policies by providing that a State
covers a comparable range of offenses
with respect to the new clause (viii) if
it requires registration for the State
offenses that are directed against
substantially the types of production or
distribution activities addressed in 18
U.S.C. 2251, 2252, or 2252A, even
though the State’s definition of these
offenses will not be exactly congruent
with the corresponding Federal crimes.
Considering the nature of the conduct
proscribed by the referenced Federal
crimes, this means that a State achieves
compliance by requiring registration for
all State offenses whose gravamen is: (i)
Creating or participating in the creation
of sexually explicit visual depictions of
minors, or (ii) making such depictions
available to others.
As noted above, production offenses
of this type, which involve using minors
in making pornography, were at least
partially included in the Wetterling
Act’s offense coverage categories even
before the PROTECT Act, as one form of
‘‘use of a minor in a sexual
performance’’ under 42 U.S.C.
14071(a)(3)(A)(v). However, in light of
the PROTECT Act’s addition of an
express reference to child pornography
production offenses, States should
review their statutes to ensure that they
consistently require registration for
offenses whose gravamen is creating or
participating in the creation of sexually
explicit visual depictions of minors.
Federal offenses of this type appear in
18 U.S.C. 2251(a)–(c).
With respect to distribution offenses,
there are generally two sorts of offenses
that may satisfy the criterion for
coverage under the new clause (viii)—
i.e., offenses whose gravamen is making
E:\FR\FM\15MRN1.SGM
15MRN1
12724
Federal Register / Vol. 70, No. 49 / Tuesday, March 15, 2005 / Notices
sexually explicit visual depictions of
minors available to others.
First, the Supreme Court has held that
proscribing the distribution of sexually
explicit visual depictions of actual
minors does not violate the First
Amendment, even if the depictions do
not meet the general legal definition of
obscenity. See Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 249–50 (2002);
New York v. Ferber, 458 U.S. 747 (1982).
An example of a Federal offense of this
type appears in 18 U.S.C.
2252A(a)(3)(B)(ii), which generally
proscribes distribution of material
containing ‘‘a visual depiction of an
actual minor engaging in sexually
explicit conduct.’’ States whose laws
define comparable offenses must require
registration by persons convicted of
these offenses in order to comply with
the Wetterling Act’s standards following
the PROTECT Act amendment.
Second, States may define offenses
that specially proscribe or punish the
distribution of obscene material
depicting a minor. An example of a
Federal offense of this type appears in
18 U.S.C. 2252A(a)(3)(B)(i), which
generally proscribes distribution of
material containing ‘‘an obscene visual
depiction of a minor engaging in
sexually explicit conduct.’’ States whose
laws define comparable offenses must
likewise require registration by persons
convicted of these offenses in order to
comply with the Wetterling Act’s
standards following the PROTECT Act
amendment.
The distribution offenses for which
registration must be required include
offenses that are defined in terms of
advertising or otherwise offering to
provide to others sexually explicit
visual depictions of minors, as well as
offenses defined in terms of the actual
transfer of such depictions. See 18
U.S.C. 2251(d), 2252A(a)(3)(B)
(distribution offenses under the Federal
statutes defined to include
advertisements and offers).
The application of the foregoing
principles does not require States to
undertake further inquiry concerning
the underlying facts in cases involving
offenses whose statutory definitions are
not concerned with child pornography.
For example, if a person is convicted
under a statute that generally proscribes
the distribution of obscene material,
without distinctions based on the age of
the individual or individuals portrayed
in the material, registration for such a
conviction is not necessary to satisfy the
offense coverage specification of section
14071(a)(3)(A)(viii), though it may be
possible factually that an individual
portrayed in the material is a minor.
Rather, it is sufficient if a State requires
VerDate jul<14>2003
15:31 Mar 14, 2005
Jkt 205001
registration for its statutory offenses that
are defined in terms of the production
or distribution of child pornography, as
explained above.
C. Coverage of All Relevant Offenses
If a State has several offenses that
satisfy the criteria for coverage under 42
U.S.C. 14071(a)(3)(A)(viii), as explained
above, it must include all of them as
registration offenses to comply with the
Wetterling Act’s standards. For
example, if a State has a general child
pornography distribution offense, and a
separate offense of distributing child
pornography through the Internet, a
conforming State program must include
registration by persons convicted of
either offense.
This understanding is consistent with
the application of the Wetterling Act’s
offense coverage requirements in
relation to other categories. For
example, if a State has a number of
offenses of soliciting a minor to practice
prostitution (section
14071(a)(3)(A)(vi))—e.g., a general one,
and a more specific one concerned with
solicitation through the Internet—the
Wetterling Act’s standards would not be
satisfied unless both were included as
registration offenses. The same principle
applies to offenses that fall under
section 14071(a)(3)(A)(viii).
D. Production and Distribution Versus
Possession
The Federal child pornography
statutes that are cross-referenced in 42
U.S.C. 14071(a)(3)(A)(viii) include
possession offenses—see 18 U.S.C.
2252(a)(4), 2252A(a)(5)—but section
14071(a)(3)(A)(viii) only refers to child
pornography ‘‘production or
distribution’’ as described in those
statutes. Hence, States do not have to
require registration for offenses that
involve only possession, as opposed to
production or distribution, of child
pornography.
E. A Floor Rather Than a Ceiling for
Offense Coverage
Like the other features of the
Wetterling Act, 42 U.S.C.
14071(a)(3)(A)(viii) is part of a set of
minimum standards for State sex
offender registration programs, and does
not limit State discretion to prescribe
more stringent or extensive registration
requirements. Hence, for example,
though the Act does not require
registration for child pornography
possession offenses, a State may choose
to require registration for such offenses,
as well as for child pornography
production and distribution offenses.
Going beyond the Wetterling Act’s
minimum standards does not adversely
PO 00000
Frm 00080
Fmt 4703
Sfmt 4703
affect compliance with the Act’s
standards or eligibility for full Byrne
Formula Grant funding.
III. Application of the Requirements
As with other standards of the
Wetterling Act, a State must apply the
new standards under sections 604 and
605 of the PROTECT Act to offenders
who are convicted after the State
updates its registration program to
comply with these standards. States are
free to apply the new standards as well
to offenders who were convicted prior
to the establishment of a conforming
registration program, but a State’s
decision on this point does not affect
compliance with the Wetterling Act. See
the Attorney General’s guidelines, 64 FR
at 575 (middle column, third full
paragraph).
IV. Procedure for Compliance
Section 604 of the PROTECT Act,
relating to Internet sites for sex offender
information, provides that each State
‘‘shall implement the amendment made
by this section within 3 years after the
date of enactment of this Act, except
that the Attorney General may grant an
additional 2 years to a State that is
making a good faith effort to implement
the amendment made by this section.’’
42 U.S.C. 14071 note. Since the
PROTECT Act was enacted on April 30,
2003, the compliance deadline for States
in relation to the establishment of
Internet sites that comply with the
second sentence of section 14071(e)(2)
is April 29, 2006, subject to a possible
extension until April 29, 2008, based on
good faith efforts. Byrne Formula Grant
awards to States that are not in
compliance by the applicable deadline
are subject to a mandatory 10%
reduction in light of section 14071(f)(2).
States are encouraged to submit
information concerning existing or
contemplated Internet sites that comply
with section 14071(e)(2) with as much
lead-time as possible. This will enable
the reviewing authority to assess the
status of State compliance and to
suggest any necessary changes to
achieve compliance before the funding
reduction goes into effect. At the latest,
to maintain eligibility for full Byrne
Formula Grant funding following April
29, 2006, States must submit to the
Bureau of Justice Assistance by
February 29, 2006, information that
shows compliance, in the reviewing
authority’s judgment, with the Internet
site requirement of section 14071(e)(2),
or a written explanation of why
compliance cannot be achieved within
that period and a description of the
good faith efforts that justify an
E:\FR\FM\15MRN1.SGM
15MRN1
Federal Register / Vol. 70, No. 49 / Tuesday, March 15, 2005 / Notices
extension of time (but not more than
two years) for achieving compliance.
Section 605 of the PROTECT Act,
relating to the inclusion of child
pornography production and
distribution offenses as registration
offenses under section 14071(a)(3)(A),
went into effect at the time of its
enactment on April 30, 2003. Byrne
Formula Grant awards to States that are
not in compliance with this requirement
are subject to a mandatory 10%
reduction in light of section 14071(f)(2).
States are encouraged to submit
information concerning existing or
proposed provisions that comply with
this requirement as soon as possible, if
they have not already done so, in order
to enable the reviewing authority to
assess the status of State compliance
and to suggest any necessary changes to
achieve compliance.
In some instances, States have already
submitted information bearing on their
registration program’s compliance with
the offense coverage requirements of
section 605 of the PROTECT Act, and
the reviewing authority may already
have reviewed such submissions in
order to assist the States as promptly as
possible, even prior to the issuance of
formal guidelines. While these earlier
reviews must be understood as
provisional in character, and subject to
further review under these guidelines as
necessary or appropriate, no further
submission may be needed from States
which already provided information to
the reviewing authority for purposes of
review. However, in light of the
articulation of standards in these
guidelines, such States should review
offense coverage under their existing or
proposed registration provisions, and
should supplement their previous
submissions if necessary. As noted
above, States which have not yet
submitted information to the reviewing
authority bearing on compliance with
section 605 of the PROTECT Act should
do so as soon as possible.
If a State’s Byrne Formula Grant
funding is reduced because of a failure
to comply with the amendments
enacted by section 604 or 605 of the
PROTECT Act, the State may regain
eligibility for full funding in later
program years by establishing
compliance with all applicable
standards of the Wetterling Act in such
later years. As noted above, the general
guidelines for the Wetterling Act were
published on January 5, 1999, and
appear at 64 FR 572 (with corrections at
64 FR 3590, January 22, 1999), and
supplementary guidelines for the
Campus Sex Crimes Prevention Act
amendment to the Wetterling Act were
published on October 25, 2002, and
VerDate jul<14>2003
15:31 Mar 14, 2005
Jkt 205001
appear at 67 FR 65598. The PROTECT
Act amendments which these
supplementary guidelines address are
only parts of the Wetterling Act’s
standards. To maintain eligibility for
full Byrne Formula Grant funding,
States must comply with all of the
Wetterling Act’s standards.
After the reviewing authority has
determined that a State is in compliance
with the Wetterling Act, the State has a
continuing obligation to maintain its
system’s consistency with the
Wetterling Act’s standards, and will be
required as part of the Byrne Formula
Grant application process in subsequent
program years to certify that the State
remains in compliance with the
Wetterling Act.
Dated: March 7, 2005.
Alberto R. Gonzales,
Attorney General.
[FR Doc. 05–5021 Filed 3–14–05; 8:45 am]
BILLING CODE 4410–18–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 04–65]
Glenn Anthony Routhouska, D.O.;
Denial of Registration
On April 29, 2004, the Deputy
Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration (DEA), issued an Order
to Show Cause to Glenn Anthony
Routhouska, D.O. (Respondent),
proposing to deny his application for a
DEA Certificate of Registration as a
practitioner pursuant to 21 U.S.C. 823(f)
as being inconsistent with public
interest. The Order to Show Cause also
notified Respondent that should no
request for a hearing be filed within 30
days, his hearing right would be waived.
The Order to Show Cause was sent by
certified mail to Respondent at his
address of record at 106 North Keech,
Fairfield, Texas 75840. According to the
return receipt, it was received on
Respondent’s behalf on May 5, 2004.
After more than 30 days had passed
without a request for a hearing or other
response from Respondent or anyone
acting on his behalf, the investigative
file was forwarded to the DEA Deputy
Administrator for final agency action
pursuant to 21 CFR 1301.43(d) and (e).
Prior to final action being completed,
Respondent, unrepresented by counsel,
filed a belated request for a hearing in
a letter which was received by the DEA
Office of Administrative Law Judges on
August 20, 2004. In it he stated he was
on probation with the Texas State Board
PO 00000
Frm 00081
Fmt 4703
Sfmt 4703
12725
of Medical Examiners and that upon
initially reading the Order to Show
Cause, he thought ‘‘that a hearing was
useless until I was off probation.’’ On
September 8, 2004, at the Government’s
request, the investigative file was
returned to the Office of Chief Counsel
for further action.
On August 30, 2004, because
Respondent’s request for a hearing was
filed nearly four months after the Order
to Show Cause had been issued,
Administrative Law Judge Mary Ellen
Bittner issued a Memorandum to the
Parties affording the Government an
opportunity to object to Respondent’s
request for a hearing.
On September 9, 2004, the
Government filed a motion to deny
Respondent request for a hearing and on
September 24, 2004, Judge Bittner
issued her Memorandum to the Parties,
Ruling, and Order Terminating the
Proceedings. In that Order, she
concluded Respondent had failed to
show good cause for the belated filing
and granted the Government’s motion,
terminating proceedings before the
Administrative Law Judge and ordering
the matter transmitted to the Deputy
Administrator for issuance of a final
order pursuant to 21 CFR 1316.67. On
January 10, 2005, the investigative file
and related documents were returned by
the Chief Counsel to the Deputy
Administrator for final agency action.
The Deputy Administrator finds as
follows: (1) Respondent was properly
served with the Order to Show Cause
and notified that if no request for a
hearing was filed within 30 days of its
receipt, his hearing right would be
deemed waived and a final order
entered, without a hearing, based upon
the investigative file and record as it
then appeared; (2) respondent’s request
for a hearing was not filed until August
20, 2004, almost two and one-half
months after expiration of the 30 day
filing deadline; and (3) the
Administrative Law Judge granted the
Government’s motion to deny a hearing
and ordered the proceeding terminated.
The Deputy Administrator therefore
concludes Respondent is deemed to
have waived his hearing right and after
considering material from the
investigative file and record in this
matter, now enters her final order
without a hearing, pursuant to 21 CFR
1301.43(d) and (e) and 1316.67.
According to information in the
investigative file, Respondent, who
practiced family medicine out of his
office in Fairfield, Texas, was
previously registered with DEA as a
practitioner under Certificate of
Registration BR206348, authorized to
handle Schedule II through V controlled
E:\FR\FM\15MRN1.SGM
15MRN1
]]>Agencies
[Federal Register Volume 70, Number 49 (Tuesday, March 15, 2005)]
[Notices]
[Pages 12721-12725]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-5021]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Office of the Attorney General
[Docket No. OAG 107; A.G. Order No. 2760-2005]
RIN 1105-AB08
Guidelines for the PROTECT Act Amendments to the Jacob Wetterling
Crimes Against Children and Sexually Violent Offender Registration Act
AGENCY: Department of Justice.
ACTION: Notice; Proposed guidelines.
-----------------------------------------------------------------------
SUMMARY: The United States Department of Justice is publishing Proposed
Guidelines to implement amendments to the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act enacted
by the PROTECT Act.
DATES: Comments must be received by May 16, 2005.
ADDRESSES: Comments may be mailed to David J. Karp, Senior Counsel,
Office of Legal Policy, Room 4509, Main Justice Building, 950
Pennsylvania Avenue, NW., Washington, DC 20530. Comments may also be
submitted by the Internet at OLPREGS@USDOJ.GOV. Electronically
submitted comments must include Docket No. OAG 107 in the subject box.
SUPPLEMENTARY INFORMATION: Section 170101 of the Violent Crime Control
and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796, 2038
(codified at 42 U.S.C. 14071) contains the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act (the
``Wetterling Act''). The Wetterling Act provides standards for state
sex offender registration and community notification programs, and
directs the Attorney General to issue guidelines for such programs. The
main set of current Wetterling Act guidelines was published on January
5, 1999, in the Federal Register (64 FR 572, with corrections at 64 FR
3590), and a supplementary set of guidelines for the Campus Sex Crimes
Prevention Act amendment to the Wetterling Act was published on October
25, 2002, in the Federal Register (67 FR 65598). States that fail to
comply with the Wetterling Act's standards (as implemented and
explained in the Attorney General's guidelines) are subject to a
mandatory 10% reduction of the formula grant funding available under
the Edward Byrne Memorial State and Local Law Enforcement Assistance
Program (42 U.S.C. 3756), which is administered by the Bureau of
Justice Assistance of the Department of Justice.
Subsequent to the publication of the current Wetterling Act
guidelines, the Wetterling Act was amended by sections 604 and 605 of
the Prosecutorial Remedies and Other Tools to end the Exploitation of
Children Today Act of 2003, or PROTECT Act, Pub. L. 108-21, 117 Stat.
650, 688 (2003). These amendments provide that the means by which a
State provides information to the public concerning registered sex
offenders must include an Internet site, and add child pornography
production and distribution offenses to the list of crimes against
children for which registration is required under the Wetterling Act's
standards. Supplementary guidelines are necessary to take account of
the PROTECT Act amendments to the Wetterling Act.
Section 604 of the PROTECT Act, relating to Internet sites for sex
offender information, states that ``[e]ach State shall implement the
amendment made by this section within 3 years after the date of
enactment of this Act''--i.e., by April 29, 2006--``except that the
Attorney General may grant an additional 2 years to a State that is
making a good faith effort to implement the amendment.'' The amendment
in section 605 of the PROTECT Act, relating to registration for child
pornography production and distribution offenses, took effect at the
time of its enactment, i.e., on April 30, 2003.
Proposed Guidelines
I. Internet Sites for Sex Offender Information
The community notification provisions of the Wetterling Act that
predate the PROTECT Act--paragraph (1) and the first sentence of
paragraph (2) of 42 U.S.C. 14071(e)--have both permissive and mandatory
aspects. The permissive aspect appears in paragraph (1), which makes it
clear that the Act
[[Page 12722]]
does not place any ceiling on the states' disclosure of registration
information. See 64 FR at 581 (``there is no requirement [ ] under the
Act that registration information be treated as private or confidential
to any greater extent than the state may wish'').
The mandatory aspect appears in the first sentence of paragraph
(2), which generally requires States to release relevant information
that is necessary to protect the public from registered offenders:
``The State * * * shall release relevant information that is necessary
to protect the public concerning a specific person required to register
under this section * * *.'' 42 U.S.C. 14071(e)(2). This creates a floor
for the disclosure of registration information--States that wish to
comply with the Wetterling Act's standards must release, by some means,
information concerning registered offenders to the public as necessary
for public safety. Section 604 of the PROTECT Act added a second
sentence to paragraph (2), which provides that the means used to
effectuate the required public disclosure of registration information
must include an Internet site: ``The release of information under this
paragraph shall include the maintenance of an Internet site containing
such information that is available to the public and instructions on
the process for correcting information that a person alleges to be
erroneous.''
In greater detail, the pre-existing community notification
requirement of section 14071(e)(2), and its supplementation by the
PROTECT Act amendment, are as follows:
With respect to the first sentence of section 14071(e)(2), the
Attorney General's guidelines explain that the principal objective is
to ensure that registration programs will include means for members of
the public to obtain information concerning registered offenders that
is necessary for the protection of themselves or their families. Hence,
it is not sufficient to release registration information only to law
enforcement agencies, to other (public or private) agencies or
organizations, to prospective employers, or to the victims of
registrants' offenses. Nor are purely permissive or discretionary
information release programs sufficient. Rather, the release of
information concerning registrants to members of the public is required
as necessary to protect the public, both with respect to offenders
required to register because of conviction for ``a criminal offense
against a victim who is a minor'' and those required to register
because of conviction for a ``sexually violent offense.'' See 64 FR at
581-82.
Under the first sentence of section 14071(e)(2), however,
``[s]tates do * * * retain discretion to make judgments concerning the
circumstances in which, and the extent to which, the disclosure of
registration information to the public is necessary for public safety
purposes and to specify standards and procedures for making these
determinations.'' 64 FR at 582. The guidelines accordingly note that,
consistent with the Wetterling Act, states may adopt different
approaches concerning the class or classes of registrants on whom
information will be made available to the public, and the particular
means by which the information will be made publicly available. See 64
FR at 582.
The amendment enacted by section 604 of the PROTECT Act added a
second sentence to section 14071(e)(2), which requires that the means
by which a State releases to the public ``such information''--i.e.,
information concerning ``specific person[s] required to register''--
must include the maintenance of an Internet site that contains this
information. 42 U.S.C. 14072(e)(2) (as amended). In other words, states
must protect the public by posting on-line information concerning
specific registrants that the public can access. Prior to the enactment
of the PROTECT Act, most States had already established publicly
accessible Web sites containing information on registered sex
offenders, and the Supreme Court rejected challenges to the
constitutionality of State programs including such sites in Connecticut
Department of Public Safety v. Doe, 538 U.S. 1 (2003), and Smith v.
Doe, 538 U.S. 84 (2003).
While the new language added by section 604 of the PROTECT Act
states that the means of disclosing to the public information
concerning registered sex offenders ``shall include the maintenance of
an Internet site,'' 42 U.S.C. 14071(e)(2), it does not otherwise alter
the general principles of the Wetterling Act's community notification
provisions. Thus, States retain discretion to make judgments concerning
the necessary extent of such disclosure for public safety purposes, in
conformity with the understanding of the pre-existing provision (first
sentence) in section 14071(e)(2). States accordingly may make judgments
concerning which class or classes of their registrants will be subject
to disclosure of information through the Internet, what specific
information will be included on the site concerning these registrants,
and the means by which this information can be searched.
Existing sex offender Web sites show variations on these points,
which do not create any problem concerning compliance with section
14071(e)(2) as amended: Some States include information on all (or
nearly all) of their registrants on the Internet, while others limit
the registrants subject to Internet disclosure based on risk
classifications or other criteria. In addition to registrants' names,
the information included on sex offender Web sites commonly includes
photographs of registrants, information about registrants' offenses,
and information about registrants' locations, but states differ on
particulars. States commonly set up their Web sites to allow searches
by name and by geographic area (such as zip code), but State-to-State
variations occur in this area as well. Links to existing state Web
sites may be found at: https://www.usdoj.gov/criminal/ceos/
statesexoffender.html and https://www.fbi.gov/hq/cid/cac/states.htm.
Beyond the general requirement--appearing already in the first
sentence of section 14071(e)(2)--that the information included on the
Internet site must include relevant information necessary to protect
the public, the new language added by the PROTECT Act requires that the
site include ``instructions on the process for correcting information
that a person alleges to be erroneous.'' A State could comply with this
requirement, for example, by including on its Web site information
identifying the state agency responsible for correcting erroneous
information, and advising persons that they can contact this agency if
they believe that information on the site is erroneous. The language
added by the PROTECT Act does not attempt to prescribe in any greater
detail the specific standards or procedures that States will use to
determine whether information on their sex offender Web sites is
accurate. These standards and procedures accordingly remain a matter of
State discretion, subject to compliance with other aspects of the
Wetterling Act, such as section 14071(b)(3)'s provision for periodic
verification of address information.
The first sentence of section 14071(e)(2) provides that the
identity of the victims of registration offenses is not to be released,
and this constraint applies to Internet disclosure as well as to
disclosure through other forms of community notification. The existing
guidelines explain the meaning and application of this limitation. See
64 FR at 582 (middle column). Otherwise, the Wetterling Act does not
impose any ceiling on the release of registration
[[Page 12723]]
information or other information concerning registrants, and no
compliance problems arise from including more (rather than less)
information on sex offender Web sites.
II. Registration for Child Pornography Production and Distribution
Offenses
Section 14071(a)(3)(A) sets out the list of ``criminal offense[s]
against a victim who is a minor'' for which registration is required
under the Wetterling Act's standards. Section 605 of the PROTECT Act
added to this list a new clause (viii) as follows: ``production or
distribution of child pornography, as described in section 2251, 2252,
or 2252A of Title 18.'' The cross-referenced provisions are key
statutes proscribing conduct related to child pornography in the
chapter of the federal criminal code entitled ``Sexual Exploitation and
Other Abuse of Children.''
The Wetterling Act's standards already encompassed registration for
child pornography production offenses in some measure prior to the
PROTECT Act amendment. Specifically, 42 U.S.C. 14071(a)(3)(A)(v)
referred to ``use of a minor in a sexual performance,'' and the
Attorney General's guidelines explained that this includes ``both live
performances and using minors in the production of pornography.'' 64 FR
at 577. However, there was nothing comparable to the PROTECT Act
amendment's coverage of child pornography distribution (as opposed to
production) offenses in the previous Wetterling Act provisions.
These guidelines interpret the new language relating to child
pornography production and distribution offenses in section
14071(a)(3)(viii) to mean that registration is required for offenses
whose gravamen is: (i) Creating or participating in the creation of
sexually explicit visual depictions of minors, or (ii) making such
depictions available to others. In greater detail, the principles
governing state compliance with this provision are as follows:
A. Coverage Based on Substance Rather Than Terminology
Under section 14071(a)(3)(viii), States must require registration
for offenses that substantively cover child pornography production or
distribution, even if those offenses do not specifically use the words
``produce'' or ``distribute'' in defining their elements. This
understanding is consistent with the interpretation of all other
Wetterling Act offense coverage requirements as relating to substance,
not terminology. For example, section 14071(a)(3)(A)(i) and (ii)
generally include in the offense coverage list ``kidnapping of a
minor'' and ``false imprisonment of a minor.'' This does not mean that
registration is required only when the statute defining an offense
explicitly uses the words ``kidnapping'' or ``false imprisonment.''
Rather, the Attorney General's guidelines explain: ``All states have
statutes that define offenses--going by such names as `kidnapping,'
`criminal restraint,' or `false imprisonment'--whose gravamen is
abduction or unlawful restraint of a person. States can comply with
these clauses by requiring registration for persons convicted of these
statutory offenses whose victims were below the age of 18.'' 64 FR at
577.
The same principle--offense coverage based on substance rather than
terminology--applies to the PROTECT Act provision for child pornography
offenses. For example, if a State has an offense that prohibits
``selling, transferring, or disseminating'' child pornography, that is
substantively a distribution offense, and States must require
registration for persons convicted of such offenses to comply with the
Wetterling Act's standards.
B. Relationship to the Federal Child Pornography Offenses
Section 14071(a)(3)(A)(viii) refers to ``production or distribution
of child pornography, as described in section 2251, 2252, or 2252A of
Title 18.'' The offense elements in the referenced Federal statutes
involve some complexity, including complications resulting from their
intermixture with the statutes' specifications of the grounds
supporting Federal jurisdiction, and from the related technical
definitions in 18 U.S.C. 2256. In identifying State offenses for which
registration is required, it is not sufficient for States to apply the
exact specifications of these Federal offenses and definitions, and to
require registration only for State offenses that are defined in the
same way. Reading section 14071(a)(3)(A)(viii) to require registration
only for State offenses that are fully congruent with the referenced
Federal crimes would effectively nullify it, because there are unlikely
to be any State offenses whose elements exactly mirror all the
definitional particulars and elements (especially jurisdictional
elements) of these Federal crimes.
Section 14071(a)(3)(A)(viii) also cannot properly be understood to
mean that States need to parse through the underlying facts of
particular convictions, and to match them up to the elements of the
referenced Federal crimes to determine whether registration is
required. The prefatory language in section 14071(a)(3)(A) does not
require coverage of offense conduct that exactly matches the Federal
law categories listed in that provision. Rather, it refers to coverage
of a range of offenses which is ``comparable to'' the listed
categories. This statutory standard was adopted in part to obviate
compliance problems resulting from ``the degree of detail in the Act's
definitions and * * * variations among different jurisdictions in the
terminology and categorizations used in defining sex offenses.'' 64 FR
at 578.
Hence, the interpretation and application of section 14071(a)(3)(A)
must effectuate the legislative intent to ensure registration for child
pornography production and distribution offenses in a meaningful way,
while also respecting the legislative policy to avoid unnecessary
impediments to State compliance that would result from requiring the
direct application of detailed Federal law definitions. These
guidelines implement these policies by providing that a State covers a
comparable range of offenses with respect to the new clause (viii) if
it requires registration for the State offenses that are directed
against substantially the types of production or distribution
activities addressed in 18 U.S.C. 2251, 2252, or 2252A, even though the
State's definition of these offenses will not be exactly congruent with
the corresponding Federal crimes. Considering the nature of the conduct
proscribed by the referenced Federal crimes, this means that a State
achieves compliance by requiring registration for all State offenses
whose gravamen is: (i) Creating or participating in the creation of
sexually explicit visual depictions of minors, or (ii) making such
depictions available to others.
As noted above, production offenses of this type, which involve
using minors in making pornography, were at least partially included in
the Wetterling Act's offense coverage categories even before the
PROTECT Act, as one form of ``use of a minor in a sexual performance''
under 42 U.S.C. 14071(a)(3)(A)(v). However, in light of the PROTECT
Act's addition of an express reference to child pornography production
offenses, States should review their statutes to ensure that they
consistently require registration for offenses whose gravamen is
creating or participating in the creation of sexually explicit visual
depictions of minors. Federal offenses of this type appear in 18 U.S.C.
2251(a)-(c).
With respect to distribution offenses, there are generally two
sorts of offenses that may satisfy the criterion for coverage under the
new clause (viii)--i.e., offenses whose gravamen is making
[[Page 12724]]
sexually explicit visual depictions of minors available to others.
First, the Supreme Court has held that proscribing the distribution
of sexually explicit visual depictions of actual minors does not
violate the First Amendment, even if the depictions do not meet the
general legal definition of obscenity. See Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 249-50 (2002); New York v. Ferber, 458 U.S.
747 (1982). An example of a Federal offense of this type appears in 18
U.S.C. 2252A(a)(3)(B)(ii), which generally proscribes distribution of
material containing ``a visual depiction of an actual minor engaging in
sexually explicit conduct.'' States whose laws define comparable
offenses must require registration by persons convicted of these
offenses in order to comply with the Wetterling Act's standards
following the PROTECT Act amendment.
Second, States may define offenses that specially proscribe or
punish the distribution of obscene material depicting a minor. An
example of a Federal offense of this type appears in 18 U.S.C.
2252A(a)(3)(B)(i), which generally proscribes distribution of material
containing ``an obscene visual depiction of a minor engaging in
sexually explicit conduct.'' States whose laws define comparable
offenses must likewise require registration by persons convicted of
these offenses in order to comply with the Wetterling Act's standards
following the PROTECT Act amendment.
The distribution offenses for which registration must be required
include offenses that are defined in terms of advertising or otherwise
offering to provide to others sexually explicit visual depictions of
minors, as well as offenses defined in terms of the actual transfer of
such depictions. See 18 U.S.C. 2251(d), 2252A(a)(3)(B) (distribution
offenses under the Federal statutes defined to include advertisements
and offers).
The application of the foregoing principles does not require States
to undertake further inquiry concerning the underlying facts in cases
involving offenses whose statutory definitions are not concerned with
child pornography. For example, if a person is convicted under a
statute that generally proscribes the distribution of obscene material,
without distinctions based on the age of the individual or individuals
portrayed in the material, registration for such a conviction is not
necessary to satisfy the offense coverage specification of section
14071(a)(3)(A)(viii), though it may be possible factually that an
individual portrayed in the material is a minor. Rather, it is
sufficient if a State requires registration for its statutory offenses
that are defined in terms of the production or distribution of child
pornography, as explained above.
C. Coverage of All Relevant Offenses
If a State has several offenses that satisfy the criteria for
coverage under 42 U.S.C. 14071(a)(3)(A)(viii), as explained above, it
must include all of them as registration offenses to comply with the
Wetterling Act's standards. For example, if a State has a general child
pornography distribution offense, and a separate offense of
distributing child pornography through the Internet, a conforming State
program must include registration by persons convicted of either
offense.
This understanding is consistent with the application of the
Wetterling Act's offense coverage requirements in relation to other
categories. For example, if a State has a number of offenses of
soliciting a minor to practice prostitution (section
14071(a)(3)(A)(vi))--e.g., a general one, and a more specific one
concerned with solicitation through the Internet--the Wetterling Act's
standards would not be satisfied unless both were included as
registration offenses. The same principle applies to offenses that fall
under section 14071(a)(3)(A)(viii).
D. Production and Distribution Versus Possession
The Federal child pornography statutes that are cross-referenced in
42 U.S.C. 14071(a)(3)(A)(viii) include possession offenses--see 18
U.S.C. 2252(a)(4), 2252A(a)(5)--but section 14071(a)(3)(A)(viii) only
refers to child pornography ``production or distribution'' as described
in those statutes. Hence, States do not have to require registration
for offenses that involve only possession, as opposed to production or
distribution, of child pornography.
E. A Floor Rather Than a Ceiling for Offense Coverage
Like the other features of the Wetterling Act, 42 U.S.C.
14071(a)(3)(A)(viii) is part of a set of minimum standards for State
sex offender registration programs, and does not limit State discretion
to prescribe more stringent or extensive registration requirements.
Hence, for example, though the Act does not require registration for
child pornography possession offenses, a State may choose to require
registration for such offenses, as well as for child pornography
production and distribution offenses. Going beyond the Wetterling Act's
minimum standards does not adversely affect compliance with the Act's
standards or eligibility for full Byrne Formula Grant funding.
III. Application of the Requirements
As with other standards of the Wetterling Act, a State must apply
the new standards under sections 604 and 605 of the PROTECT Act to
offenders who are convicted after the State updates its registration
program to comply with these standards. States are free to apply the
new standards as well to offenders who were convicted prior to the
establishment of a conforming registration program, but a State's
decision on this point does not affect compliance with the Wetterling
Act. See the Attorney General's guidelines, 64 FR at 575 (middle
column, third full paragraph).
IV. Procedure for Compliance
Section 604 of the PROTECT Act, relating to Internet sites for sex
offender information, provides that each State ``shall implement the
amendment made by this section within 3 years after the date of
enactment of this Act, except that the Attorney General may grant an
additional 2 years to a State that is making a good faith effort to
implement the amendment made by this section.'' 42 U.S.C. 14071 note.
Since the PROTECT Act was enacted on April 30, 2003, the compliance
deadline for States in relation to the establishment of Internet sites
that comply with the second sentence of section 14071(e)(2) is April
29, 2006, subject to a possible extension until April 29, 2008, based
on good faith efforts. Byrne Formula Grant awards to States that are
not in compliance by the applicable deadline are subject to a mandatory
10% reduction in light of section 14071(f)(2).
States are encouraged to submit information concerning existing or
contemplated Internet sites that comply with section 14071(e)(2) with
as much lead-time as possible. This will enable the reviewing authority
to assess the status of State compliance and to suggest any necessary
changes to achieve compliance before the funding reduction goes into
effect. At the latest, to maintain eligibility for full Byrne Formula
Grant funding following April 29, 2006, States must submit to the
Bureau of Justice Assistance by February 29, 2006, information that
shows compliance, in the reviewing authority's judgment, with the
Internet site requirement of section 14071(e)(2), or a written
explanation of why compliance cannot be achieved within that period and
a description of the good faith efforts that justify an
[[Page 12725]]
extension of time (but not more than two years) for achieving
compliance.
Section 605 of the PROTECT Act, relating to the inclusion of child
pornography production and distribution offenses as registration
offenses under section 14071(a)(3)(A), went into effect at the time of
its enactment on April 30, 2003. Byrne Formula Grant awards to States
that are not in compliance with this requirement are subject to a
mandatory 10% reduction in light of section 14071(f)(2). States are
encouraged to submit information concerning existing or proposed
provisions that comply with this requirement as soon as possible, if
they have not already done so, in order to enable the reviewing
authority to assess the status of State compliance and to suggest any
necessary changes to achieve compliance.
In some instances, States have already submitted information
bearing on their registration program's compliance with the offense
coverage requirements of section 605 of the PROTECT Act, and the
reviewing authority may already have reviewed such submissions in order
to assist the States as promptly as possible, even prior to the
issuance of formal guidelines. While these earlier reviews must be
understood as provisional in character, and subject to further review
under these guidelines as necessary or appropriate, no further
submission may be needed from States which already provided information
to the reviewing authority for purposes of review. However, in light of
the articulation of standards in these guidelines, such States should
review offense coverage under their existing or proposed registration
provisions, and should supplement their previous submissions if
necessary. As noted above, States which have not yet submitted
information to the reviewing authority bearing on compliance with
section 605 of the PROTECT Act should do so as soon as possible.
If a State's Byrne Formula Grant funding is reduced because of a
failure to comply with the amendments enacted by section 604 or 605 of
the PROTECT Act, the State may regain eligibility for full funding in
later program years by establishing compliance with all applicable
standards of the Wetterling Act in such later years. As noted above,
the general guidelines for the Wetterling Act were published on January
5, 1999, and appear at 64 FR 572 (with corrections at 64 FR 3590,
January 22, 1999), and supplementary guidelines for the Campus Sex
Crimes Prevention Act amendment to the Wetterling Act were published on
October 25, 2002, and appear at 67 FR 65598. The PROTECT Act amendments
which these supplementary guidelines address are only parts of the
Wetterling Act's standards. To maintain eligibility for full Byrne
Formula Grant funding, States must comply with all of the Wetterling
Act's standards.
After the reviewing authority has determined that a State is in
compliance with the Wetterling Act, the State has a continuing
obligation to maintain its system's consistency with the Wetterling
Act's standards, and will be required as part of the Byrne Formula
Grant application process in subsequent program years to certify that
the State remains in compliance with the Wetterling Act.
Dated: March 7, 2005.
Alberto R. Gonzales,
Attorney General.
[FR Doc. 05-5021 Filed 3-14-05; 8:45 am]
BILLING CODE 4410-18-P
