Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification, 38030-38070 [E8-14656]

Agencies

• Department of Justice

[Federal Register Volume 73, Number 128 (Wednesday, July 2, 2008)]
[Notices]
[Pages 38030-38070]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-14656]



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Part II





Department of Justice





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Office of the Attorney General; The National Guidelines for Sex 
Offender Registration and Notification; Notice

Federal Register / Vol. 73, No. 128 / Wednesday, July 2, 2008 / 
Notices

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DEPARTMENT OF JUSTICE

[Docket No. OAG 121; AG Order No. 2978-2008]
 RIN 1105-AB28


Office of the Attorney General; The National Guidelines for Sex 
Offender Registration and Notification

AGENCY: Department of Justice.

ACTION: Final guidelines.

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SUMMARY: The United States Department of Justice is publishing Final 
Guidelines to interpret and implement the Sex Offender Registration and 
Notification Act.

DATES: Effective Date: July 2, 2008.

FOR FURTHER INFORMATION CONTACT: Laura L. Rogers, Director, SMART 
Office, Office of Justice Programs, United States Department of 
Justice, Washington, DC, phone: 202-514-4689, e-mail: 
Getsmart@usdoj.gov.

SUPPLEMENTARY INFORMATION: Since the enactment of the Jacob Wetterling 
Crimes Against Children and Sexually Violent Offender Registration Act 
(42 U.S.C. 14071) in 1994, there have been national standards for sex 
offender registration and notification in the United States. All states 
currently have sex offender registration and notification programs and 
have endeavored to implement the Wetterling Act standards in their 
existing programs.
    Title I of the Adam Walsh Child Protection and Safety Act of 2006 
(Pub. L. 109-248), the Sex Offender Registration and Notification Act 
(SORNA), contains a comprehensive revision of the national standards 
for sex offender registration and notification. The SORNA reforms are 
generally designed to strengthen and increase the effectiveness of sex 
offender registration and notification for the protection of the 
public, and to eliminate potential gaps and loopholes under the pre-
existing standards by means of which sex offenders could attempt to 
evade registration requirements or the consequences of registration 
violations.
    Section 112(b) of SORNA (42 U.S.C. 16912(b)) directs the Attorney 
General to issue guidelines to interpret and implement SORNA. The 
Department of Justice published proposed guidelines in the Federal 
Register on May 30, 2007, for this purpose. See 72 FR 30209 (May 30, 
2007). The comment period ended on August 1, 2007.
    These final guidelines provide guidance and assistance to the 
states and other jurisdictions in incorporating the SORNA requirements 
into their sex offender registration and notification programs. Matters 
addressed in the guidelines include general principles for SORNA 
implementation; the jurisdictions responsible for implementing the 
SORNA standards in their programs; the sex offenders required to 
register under SORNA and the registration and notification requirements 
they are subject to based on the nature of their offenses and the 
extent of their recidivism; the information to be included in the sex 
offender registries and the disclosure and sharing of such information; 
the jurisdictions in which sex offenders are required to register; the 
procedures for initially registering sex offenders and for keeping the 
registration current and the registration information up to date; the 
duration of registration; and the means of enforcing registration 
requirements.
    A summary of the comments received on the proposed guidelines 
follows, including discussion of changes in the final guidelines based 
on the comments received, followed by the text of the final guidelines.

Summary of Comments on the Proposed Guidelines

    Approximately 275 comments were received on the proposed 
guidelines. The Department of Justice appreciates the interest and 
insight reflected in the many submissions and communications, and has 
considered them carefully. In general, the comments did not show a need 
to change the overall character of the guidelines, but in some areas 
the commenters provided persuasive reasons to change the proposed 
guidelines' treatment of significant issues, or pointed to a need to 
provide further clarification about them.
    The initial portion of this summary reviews the most significant 
and most common issues raised in the comments, and identifies changes 
made in the final guidelines relating to these issues. The remainder of 
the summary thereafter runs through the provisions of the guidelines in 
the order in which they appear, and discusses in greater detail the 
comments on each topical area in the guidelines and changes made (or 
not made) on the basis of public comments.
    Tribal issues: Comments were received from a number of Indian 
tribal organizations and individual tribes that expressed their strong 
commitment to the protection of their communities from sex offenders 
through effective registration and notification. These comments, 
however, emphasized the importance of consulting and involving tribal 
representatives in all aspects of SORNA implementation affecting tribal 
interests, and presented well-founded proposals for changing a number 
of provisions in the guidelines. Specific changes in the final 
guidelines based on these comments include: (i) Clarifying that groups 
of tribes may enter into cooperative arrangements among themselves to 
effect the substantial implementation of the SORNA requirements, (ii) 
striking a provision of the proposed guidelines that was seen as 
according less respect to tribal sex offense convictions than to sex 
offense convictions in other jurisdictions, and (iii) modifying a 
requirement for sex offenders to register ethnic or tribal names whose 
formulation was overly broad in the proposed guidelines. The comments 
received on tribal issues and resulting changes in the final guidelines 
are further discussed below in connection with Sec.  127 of SORNA, the 
meaning of ``conviction'' for purposes of SORNA, and required 
registration information under SORNA.
    Treatment of juveniles: Comments were received from various groups 
and individuals objecting to SORNA's treatment of juvenile delinquents. 
The relevant SORNA provisions require registration for juveniles at 
least 14 years old who are adjudicated delinquent for committing 
particularly serious sexually assaultive crimes (offenses ``comparable 
to aggravated sexual abuse''). These comments could not be accommodated 
in the guidelines to the extent that they simply express disagreement 
with the legislative decision in SORNA Sec.  111(8) that a narrowly 
defined class of juvenile delinquents should be subject to SORNA's 
requirements, or propose that jurisdictions be deemed to have 
substantially implemented SORNA even if they globally dispense with 
SORNA's registration and notification requirements in relation to 
juveniles. However, the comments have provided grounds for further 
thought about the implementation of Sec.  111(8)'s requirement that 
juveniles at least age 14 adjudicated delinquent for offenses 
comparable to aggravated sexual abuse be registered, resulting in a 
substantial change in the final guidelines' treatment of this issue. As 
revised, the guidelines explain that it is sufficient for substantial 
implementation of this aspect of SORNA to require registration for 
(roughly speaking) juveniles at least age 14 who are adjudicated 
delinquent for offenses equivalent to rape or attempted rape, but not 
for those adjudicated delinquent for lesser sexual assaults or non-
violent sexual conduct. The comments received on this issue

[[Page 38031]]

and the changes made on the basis of the comments are further discussed 
below in connection with the ``substantial implementation'' standard 
under SORNA and in connection with SORNA's concept of ``conviction'' 
(parts II.E and IV.A of the guidelines).
    Retroactivity: Some commenters objected to, or expressed concerns 
about, provisions of the guidelines that require that jurisdictions 
apply the SORNA requirements ``retroactively'' to certain categories of 
offenders whose sex offense convictions predate the enactment of SORNA 
or its implementation in a particular jurisdiction. The guidelines 
specifically require registering in conformity with SORNA sex offenders 
who remain in the system as prisoners, supervisees, or registrants, or 
who reenter the system through a subsequent criminal conviction. Some 
comments of this type opined that Congress was simply wrong in enacting 
SORNA's requirements for sex offender registration and notification, 
and that the Attorney General should mitigate the resulting harm by 
defining their scope of application as narrowly as possible. This 
premise cannot be accepted or acted on in issuing guidelines to 
``interpret and implement'' SORNA, as SORNA Sec.  112(b) requires the 
Attorney General to do. Other commenters, however, expressed concerns 
of a more practical nature, based on potential difficulties in finding 
older convictions and determining whether registration is required for 
them under SORNA's standards. The final guidelines address this concern 
by clarifying that jurisdictions may rely on their normal methods and 
standards in searching criminal records for this purpose, and that 
information about underlying offense conduct or circumstances does not 
have to be sought beyond that appearing in available criminal history 
information. Parallel explanation has also been provided in relation to 
pre-SORNA (or pre-SORNA-implementation) convictions that raise a sex 
offender's tier classification under SORNA on grounds of recidivism.
    Information subject to Web site posting: Some state officials who 
submitted comments expressed concern that their jurisdictions would be 
required to post various types of registration information on their 
public sex offender Web sites--e.g., fingerprints, palm prints, and DNA 
information--that would be of no real interest to the public or 
inappropriate for public disclosure. However, the guidelines identify a 
limited number of informational items concerning a sex offender that 
must be included on the Web sites--in essence, name information, 
address information, vehicle information, physical description, sex 
offenses for which convicted, and a current photograph--and do not 
require Web site posting of registration information outside of these 
categories. The guidelines in their final formulation have been revised 
for greater clarity concerning the information that must be included on 
jurisdictions' sex offender Web sites and the information that need not 
be included.
    Registration jurisdictions: Some commenters raised questions about 
in-state registration requirements, such as whether a sex offender who 
resides in one county and is employed in another would have to register 
in both counties. The answer is that this is a matter of state 
discretion. The ``jurisdictions'' in which SORNA requires registration 
are the 50 States, the five principal territories, the District of 
Columbia, and Indian tribes that have elected to be registration 
jurisdictions in conformity with Sec.  127--the definition does not 
cover counties, cities, towns, or other political subdivisions of 
states or other covered jurisdictions. SORNA Sec.  113(a) provides that 
sex offenders must register in the jurisdictions (as so defined) in 
which they live, work, or attend school, but SORNA does not prescribe 
finer requirements as to the particular area(s) or location(s) within 
individual states, territories, or tribes where sex offenders must 
register or make in-person appearances. Questions were also raised 
whether there is a continuing registration requirement under SORNA--
beyond initial registration--in relation to the jurisdiction in which a 
sex offender was originally convicted for the registration offense, if 
the sex offender does not reside, work, or attend school in that 
jurisdiction. The answer is no. While SORNA itself (Sec. Sec.  111(10), 
113(a)) and the proposed guidelines reflect these points, some 
additional explicit language has been added about them in the final 
guidelines to foreclose future misunderstandings of this type.
    Offense of conviction versus underlying conduct: Some commenters 
raised questions or provided recommendations as to whether the 
application of SORNA's requirements depends on the elements of the 
offense for which the sex offender is convicted or the underlying 
offense conduct. The answer to this question may affect whether 
registration is required by SORNA at all, and may affect the ``tier'' 
classification of offenders under the SORNA standards. The general 
answer is that jurisdictions are not required by SORNA to look beyond 
the elements of the offense of conviction in determining registration 
requirements, except with respect to victim age. The discussion of the 
tier classifications has been edited in the final guidelines to make 
this point more clearly.
    Duration of registration: Some commenters expressed uncertainties 
or criticisms relating to provisions in the guidelines affecting the 
duration of registration. The matters raised included (i) whether the 
running of the registration period is suspended by the subsequent 
incarceration of the sex offender or other subsequent events (tolling), 
and (ii) the conditions for reducing registration periods. The 
discussion of these issues has been revised in some respects in the 
final guidelines for greater clarity.
    Risk assessments: Some commenters asked whether a jurisdiction 
could be considered to have substantially implemented the SORNA 
requirements if the jurisdiction globally dispensed with those 
requirements and instead based sex offender registration or 
notification on individualized risk assessments of sex offenders. The 
answer is no, for reasons that are further discussed in connection with 
``substantial implementation'' later in this summary. This does not 
mean, however, that SORNA bars jurisdictions from utilizing risk 
assessments in their systems if they so wish. Jurisdictions may have 
reasons for carrying out such assessments independent of registration/
notification issues, such as to inform decisions concerning the 
conditions or duration of supervision, and they remain free to utilize 
such assessments as a basis for prescribing registration or 
notification requirements that exceed the minimum required by SORNA. 
For example, there is no inconsistency with SORNA if a jurisdiction 
prescribes a longer registration period or more frequent verification 
appearances than the minimum required under SORNA Sec. Sec.  111(2)-
(4), 115-16, based on a risk assessment indicating that a sex offender 
is at ``high risk'' of reoffending, or if a jurisdiction includes on 
its public sex offender Web site information showing the results of 
risk assessments of individual offenders.
    Aids to implementation: Some of the commenters recommended the 
development of practical information technology and documentary tools 
to facilitate SORNA implementation. Various measures of this sort will 
be pursued. The final guidelines themselves will be available in a more 
user-friendly form on the SMART Office Web site, which will include a 
table of contents with page number references

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and an index. Per the directive in SORNA Sec.  123, software is being 
developed and communications systems arrangements are being made that 
will facilitate the interjurisdictional exchange of registration 
information, automate the posting of information to sex offender Web 
sites and the operation of such Web sites in conformity with the SORNA 
requirements, and otherwise enable jurisdictions to implement the SORNA 
requirements in their programs as far as possible by using these 
technological tools. Additional implementation tools the SMART Office 
is developing include: A database of statutes ranging back to 
approximately 1960 for all SORNA jurisdictions, which jurisdictions 
will be able to link to from their registries to provide the text of 
the conviction offense for each registered sex offender; a statutory 
matrix of sex offense provisions from all SORNA jurisdictions, which 
will assist jurisdictions in ascertaining the SORNA registration and 
notification requirements applicable to offenders convicted of these 
offenses; checklists that jurisdictions will be able to use to evaluate 
whether the SORNA requirements are met in their programs and to 
structure their submissions to the SMART Office establishing SORNA 
implementation; model forms that jurisdictions will be able to use to 
inform sex offenders about their obligations under SORNA; and model 
templates for jurisdictions to use to create cooperative agreements.
    Jurisdiction-specific questions: Some commenters--particularly 
state officials with responsibilities relating to sex offender 
registration or notification--submitted extensive questions, comments, 
and observations relating to the implementation of SORNA in their 
jurisdictions. This summary does not attempt to provide an exhaustive 
account of such submissions, or to respond to them point by point. The 
number of specific questions or comments of this type is very large and 
many of them relate to matters that may not arise in, and may not be of 
interest to, jurisdictions other than the particular jurisdiction that 
submitted the questions. Also, these comments largely did not propose 
changes in the guidelines, but perhaps sought confirmation of the 
guidelines' meaning in relation to certain matters, or practical advice 
or suggestions for implementing the SORNA requirements in particular 
state systems. The SMART Office's cooperative work with all 
jurisdictions in their SORNA implementation efforts will provide a more 
satisfactory means of answering questions and addressing matters of 
this type than this summary of comments on the proposed SORNA 
implementation guidelines.
    Residency restrictions and other misunderstandings: A number of 
commenters submitted critical comments concerning supposed requirements 
that do not appear in SORNA or the guidelines. For example, some 
commenters complained that SORNA or the guidelines would prevent sex 
offenders from living in many areas. But SORNA's requirements are 
informational in nature and do not restrict where sex offenders can 
live. To the extent that states, other SORNA jurisdictions, or 
municipalities prescribe restrictions on areas that sex offenders may 
enter or reside in, it is a matter in their discretion, and any 
objections to such restrictions would need to be addressed to the 
governmental entities that adopt them. As a second example, some 
commenters assumed that there is little or no difference between the 
treatment of adult sex offenders and juveniles under SORNA and the 
guidelines, and that SORNA would require registration by teenagers 
based on consensual sexual conduct with other teenagers of similar age. 
No changes have been made in the guidelines on the basis of such 
comments because they involve incorrect assumptions concerning matters 
that SORNA and the guidelines do not require.
    Objections to SORNA: Some of the comments stated objections to 
SORNA generally, to specific sex offender registration or notification 
requirements prescribed by SORNA, or to features of the guidelines that 
straightforwardly reflect SORNA's requirements. Changes have not been 
made in the guidelines based on such comments because the Attorney 
General has no authority to repeal or overrule the national standards 
for sex offender registration and notification that are embodied in 
SORNA. Rather, the Attorney General's responsibility is to interpret 
and implement those standards in the guidelines, as required by SORNA 
Sec.  112(b).
    The remainder of this summary discusses comments received on the 
guidelines' provisions in the order in which those provisions appear in 
the guidelines.

I. Introduction

    No comments were received that provided any persuasive reason to 
change the Introduction, and it remains the same in the final 
guidelines.

II. General Principles

A. Terminology

    The proposed guidelines, following the express definition in SORNA 
Sec.  111(10), used the term ``jurisdictions'' to refer to the 50 
States, the District of Columbia, the five principal U.S. territories, 
and Indian tribes so qualifying under Sec.  127. Some comments received 
nevertheless reflected a misunderstanding of ``jurisdictions'' in some 
contexts in the guidelines as including political subdivisions of 
states (e.g., counties). Additional explanation about the meaning of 
``jurisdiction'' has been added in the ``terminology'' section in the 
final guidelines to foreclose misunderstandings of this type. A 
paragraph has also been added explaining the use of the term 
``imprisonment'' in SORNA and the guidelines.

B. Minimum National Standards

    The proposed guidelines stated that SORNA generally establishes 
minimum national standards, setting a floor, not a ceiling, for 
jurisdictions' sex offender registration and notification programs. 
Hence, jurisdictions may adopt requirements that encompass the SORNA 
baseline of sex offender registration and notification requirements but 
exceed them in relation to such matters as: The classes of persons who 
will be required to register; the means by, and frequency with which, 
registration information will be verified; the duration of 
registration; the time for reporting of changes in registration 
information; and the classes of registrants and the information about 
them that will be included on public sex offender Web sites.
    Some commenters took issue with this basic premise of the 
guidelines, asserting that SORNA was meant to prescribe the most as 
well as the least that jurisdictions may do, hence precluding 
jurisdictions from adopting sex offender registration and notification 
measures that go beyond those required by SORNA. This view is mistaken, 
as may be seen from the provisions of SORNA and the Adam Walsh Act, the 
history of the national standards for sex offender registration and 
notification, and the general principles regarding preemption of state 
regulation by federal law.
    Considering first the provisions of SORNA, Sec.  119(a) provides 
the current statutory basis for the National Sex Offender Registry 
(NSOR), a central database maintained by the FBI that compiles 
information from the state sex offender registries and makes it

[[Page 38033]]

available to law enforcement agencies on a nationwide basis. Section 
119(a) states specifically that ``[t]he Attorney General shall maintain 
a national database at the Federal Bureau of Investigation for each sex 
offender and any other person required to register in a jurisdiction's 
sex offender registry.'' (Emphasis added.) Hence, the authorizing 
provision for NSOR contemplates expressly that NSOR's contents will not 
be limited to persons satisfying the SORNA Sec.  111(1), (5)-(8) 
definition of ``sex offender''--which defines the universe of 
individuals required to register under SORNA's standards--but rather 
also will include information concerning ``other person[s]'' whom 
jurisdictions require to register. For example, as the guidelines note, 
jurisdictions may choose to require registration by certain classes of 
persons who are non-convicts and hence outside the SORNA definition of 
``sex offender''--such as persons acquitted of sexually violent crimes 
or child molestation offenses on the ground of insanity, or persons 
released following civil commitment as sexually dangerous persons. 
SORNA Sec.  119(a) explicitly confirms the propriety of including 
information on such registrants in NSOR. If, however, there had been a 
legislative objective to exclude all such persons from any requirement 
to register, as these commenters suppose, it would have been perverse 
for SORNA to provide that these persons are to be included in the 
National Sex Offender Registry.
    SORNA Sec.  120, which provides the statutory basis for the Dru 
Sjodin National Sex Offender Public Web site, similarly shows that 
SORNA was not intended to prescribe the maximum that jurisdictions may 
do. The Web site in question, maintained by the Department of Justice 
at https://www.nsopr.gov, is a search mechanism that provides convenient 
access through a single national site to the information available on 
the individual jurisdictions' public sex offender Web sites. Section 
120(b) states that ``[t]he Website shall include relevant information 
for each sex offender and other person listed on a jurisdiction's 
Internet site.'' (Emphasis added.) Hence, the provision for the 
national public Web site expressly contemplates, and allows for the 
inclusion of, registrants in addition to those satisfying the SORNA 
definition of ``sex offender,'' and assumes that there will be public 
notification concerning such registrants through Web site posting. On 
the view of the commenters who assert that the SORNA standards define a 
ceiling for jurisdictions' programs, SORNA establishes a federal policy 
against registration and notification for persons who do not satisfy 
the SORNA definition of ``sex offender.'' However, if a jurisdiction 
violates this alleged federal policy by requiring such persons to 
register and posting them on its sex offender Web site, then the 
violation is to be compounded by posting them on the national sex 
offender Web site as well, as SORNA Sec.  120 requires. There is no 
merit to an understanding that would impute to SORNA such contradictory 
objectives.
    A third provision of similar import is 18 U.S.C. 4042(c) (entitled 
``notice of sex offender release''), which requires notice to state and 
local law enforcement and to state or local sex offender registration 
agencies concerning the release to their areas of certain federal 
prisoners and probationers. The persons for whom such release notice is 
required are those ``required to register under the Sex Offender 
Registration and Notification Act'' and in addition ``any other person 
in a category specified by the Attorney General.'' 18 U.S.C. 
4042(c)(1), (3), as amended by SORNA Sec.  141(f)-(g). The ``any other 
person'' language provides the Attorney General the authority to 
facilitate jurisdictions' registration requirements that go beyond the 
SORNA minimum by affording release notice to the jurisdictions' 
registration authorities concerning persons who may be subject to such 
broader requirements, even if they are not required to register by the 
SORNA standards. This would make no sense if there were a federal 
policy against jurisdictions' registering individuals who are not 
required to register by SORNA.
    A fourth provision of this type, appearing later in the Adam Walsh 
Act, is Sec.  631, which authorizes funding to assist jurisdictions in 
periodic verification of the registered addresses of sex offenders. The 
history of this provision indicates that its purpose is to support 
special measures jurisdictions may adopt to ensure that sex offenders 
remain at their registered addresses, such as mailing to the registered 
address verification forms that the sex offender is required to sign 
and return--measures that are supplementary to in-person appearances by 
sex offenders, which are the only means of periodic verification of 
registration information that SORNA requires in its enacted form. 
Compare SORNA Sec. Sec.  116, 631, with H.R. 3132, Sec. Sec.  116, 118, 
109th Cong., 1st Sess. (2005) (as passed by the House of 
Representatives). However, under the commenters' theory that SORNA 
defines the maximum sex offender registration measures jurisdictions 
may adopt, there would be no room for a program like that authorized in 
Sec.  631 of the Adam Walsh Act to encourage additional measures 
promoting effective sex offender tracking and location.
    The general history and formulation of SORNA also imply that 
jurisdictions have discretion to go beyond the minimum registration and 
notification measures required by SORNA. SORNA was preceded by the 
national standards for sex offender registration under the Jacob 
Wetterling Crimes Against Children and Sexually Violent Offender 
Registration Act (42 U.S.C. 14071), which was initially enacted in 
1994.
    The general approach of SORNA parallels that of the Wetterling Act. 
Both enactments set forth standards that address the various aspects of 
sex offender tracking and public notification, but they do not purport 
to exhaust the measures that jurisdictions may wish to adopt for these 
purposes, or to preempt additional regulation by jurisdictions of 
persons who have committed sexual offenses. The Attorney General's 
guidelines under the Wetterling Act consistently interpreted that Act's 
requirements as minimum standards that states are free to exceed. See 
64 FR 572, 575 (1999) (``[T]he Act's standards constitute a floor for 
state programs, not a ceiling * * * . For example, a state may have a 
registration system that covers broader classes of offenders than those 
identified in the Act, requires address verification for registered 
offenders at more frequent intervals than the Act prescribes, or 
requires offenders to register for a longer period of time than the 
period specified in the Act. Exercising these options creates no 
problem of compliance because the Act's provisions concerning duration 
of registration, covered offenders, and other matters do not limit 
state discretion to impose more extensive or stringent requirements 
that encompass the Act's baseline requirements.''); 62 FR 39009, 39013 
(1997) (same); 61 FR 15110, 15112 (1996) (same); see also 70 FR 12721, 
12724 (2005) (same understanding in proposed guidelines for final 
amendments to the Wetterling Act preceding enactment of SORNA).
    Given that this understanding of the national standards under the 
Wetterling Act was set forth in public guidelines for over a decade 
prior to the enactment of the successor national standards of SORNA, 
the reasonable expectation at the time of SORNA's enactment was that 
the SORNA standards would be understood in the same way, absent a new 
legislative direction to the contrary. Hence, continuing the approach 
of the

[[Page 38034]]

Wetterling Act, SORNA does not bar jurisdictions from adopting 
additional regulation of sex offenders for the protection of the 
public, beyond the specific measures that SORNA requires.
    Under both the Wetterling Act and SORNA, the ``floor, not ceiling'' 
principle is qualified in one area. Specifically, in relation to public 
disclosure of information on registrants, the Wetterling Act standards 
required release of relevant information necessary to protect the 
public, but with the proviso that ``the identity of a victim of an 
offense that requires registration under this section shall not be 
released.'' 42 U.S.C. 14071(e)(2). The exclusion of victim identity 
from public disclosure is carried forward in SORNA Sec.  118(b), which 
specifies ``mandatory exemptions'' from the posting of registration 
information on jurisdictions' sex offender websites. Specifically, 
Sec.  118(b)(1) states that a jurisdiction shall exempt from disclosure 
``the identity of any victim of a sex offense.'' In addition, 
reflecting that SORNA Sec.  114 requires a broader range of 
registration information than had been required under the Wetterling 
Act standards, some of which may be inappropriate for public disclosure 
through website posting, SORNA Sec.  118(b) states additional mandatory 
exemptions for Social Security numbers, arrests not resulting in 
conviction, and any other information exempted from disclosure by the 
Attorney General.
    The statement of these limited exceptions provides further 
confirmation for the general principle that SORNA's aim is to define a 
floor, not a ceiling, for jurisdictions' sex offender registration and 
notification programs. Under both the Wetterling Act and SORNA, there 
is one area--public disclosure of registration information--in which 
there is an overt legislative decision that the federal law standards 
should impose some affirmative limitation on how far jurisdictions may 
go. In both the Wetterling Act and SORNA this judgment is reflected in 
explicit statutory provisions stating that certain information shall 
not be disclosed. So a model for instructing jurisdictions about what 
they should not do exists, and one would expect similar express 
statements of limitation had SORNA been meant to prescribe upper bounds 
on jurisdictions' registration measures in other areas. In SORNA, 
however, as in the Wetterling Act, such statements of limitation do not 
appear in other contexts.
    The practical consequences of reinterpreting the national standards 
to establish a ceiling for jurisdictions' registration and notification 
programs must also be considered. During the period in which the 
Wetterling Act defined the national baseline for sex offender 
registration and notification, states were free to go beyond the 
specified minimum, as discussed above, and commonly did so. For 
example, the Wetterling Act standards required 10 years of registration 
for sex offenders generally, and lifetime registration for aggravated 
offenders and recidivists. See 42 U.S.C. 14071(b)(6). But many 
jurisdictions have adopted durational requirements for registration 
that exceed the Wetterling Act's minimum, and may also exceed the 
current SORNA minimum in relation to many sex offenders--such as making 
lifetime registration the norm in relation to registrants generally, as 
may be provided in some existing registration programs. Hence, taking 
the SORNA standards as a ceiling for such programs would require many 
jurisdictions to reduce or eliminate sex offender registration and 
notification requirements that they were free to adopt under the 
Wetterling Act standards and currently apply in their programs. That is 
not plausibly the objective of a law (SORNA) enacted with the general 
purpose of strengthening sex offender registration and notification in 
the United States.
    The general principles governing federal preemption of state 
regulation lead to the same conclusion. SORNA's regulatory system for 
sex offenders involves a combination of federal and non-federal 
elements. In part, SORNA directly prescribes registration requirements 
that sex offenders must comply with, and authorizes the Attorney 
General to augment or further specify those requirements in certain 
areas. See Sec. Sec.  113(a)-(d), 114(a), 115(a), 116. These 
requirements are subject to direct federal enforcement, including 
prosecution under 18 U.S.C. 2250 where violations occur under 
circumstances supporting federal jurisdiction, and prescription of 
compliance with the SORNA requirements as mandatory conditions of 
supervision for federal sex offenders under 18 U.S.C. 3563(a)(8), 
3583(d). SORNA provides incentives for states and other covered 
jurisdictions to incorporate its registration requirements for sex 
offenders, and other registration and notification-related measures set 
out in other provisions of SORNA, into their own sex offender 
registration and notification programs. See Sec. Sec.  112(a), 113(c) 
(second sentence), 113(e), 114(b), 117, 118, 121, 122, 124-27. The 
overall SORNA scheme also incorporates federal superstructure and 
assistance measures that support and leverage the jurisdictions' 
individual registration and notification programs. See Sec. Sec.  119, 
120, 122, 123, 128, 142, 144, 146. The Attorney General is authorized 
to issue guidelines and regulations to interpret and implement SORNA. 
See Sec.  112(b).
    The commenters who took issue with the ``floor, not ceiling'' 
principle in the proposed guidelines asserted that the registration and 
notification requirements set out in SORNA are meant to be exhaustive 
and preemptive, precluding any additional regulation of released sex 
offenders by (non-federal) jurisdictions for the protection of the 
public. But ``[w]hen considering pre-emption, we start with the 
assumption that the historic police powers of the States were not to be 
superseded by the Federal Act unless that was the clear and manifest 
purpose of Congress.'' Wisconsin Public Intervenor v. Mortier, 501 U.S. 
597, 605 (1991) (internal quotation marks omitted).
    One way a ``clear and manifest'' preemptive purpose may be shown is 
through ``explicit pre-emptive language.'' 501 U.S. at 605. But SORNA 
contains no explicit preemption provision, which says that states or 
other jurisdictions cannot adopt regulatory measures beyond those that 
SORNA requires. The various provisions in SORNA regarding 
jurisdictions' implementation of SORNA are best understood as being 
satisfied if a jurisdiction incorporates the SORNA requirements in its 
program, with no negative implication concerning the jurisdiction's 
discretion to adopt additional requirements. See SORNA Sec. Sec.  
112(a) (each jurisdiction to maintain a sex offender registry 
conforming to the requirements of SORNA), 124 (each jurisdiction to 
implement SORNA within specified time frames), 125 (funding reduction 
for jurisdictions that fail to substantially implement SORNA), 126 
(authorizing funding assistance for implementation of SORNA).
    Absent explicit preemption, ``Congress' intent to supersede state 
law in a given area may nonetheless be implicit if a scheme of federal 
regulation is so pervasive as to make reasonable the inference that 
Congress left no room for the States to supplement it.'' 501 U.S. at 
605 (internal quotation marks omitted). SORNA, however, obviously 
leaves room for states (and other jurisdictions) to supplement its 
requirements. As discussed above, this point is recognized in 
provisions of SORNA relating to its federal superstructure elements, 
such as the National Sex Offender Registry and the Dru Sjodin National 
Sex Offender Website, which expressly presuppose

[[Page 38035]]

that the jurisdictions' programs may go beyond the SORNA-required 
minimum.
    Preemption may also be inferred if ``the Act of Congress * * * 
touch[es] a field in which the federal interest is so dominant that the 
federal system will be assumed to preclude enforcement of state laws on 
the same subject.'' 501 U.S. at 605 (internal quotation marks omitted). 
There is, however, no such predominant federal interest with respect to 
sex offender registration and notification. The interest of the 
individual states (and other covered jurisdictions) in the protection 
of their people from sex offenders through appropriate regulatory 
measures and public disclosure of relevant information is at least 
equal to that of the federal government, and falls within an area of 
traditional state power and responsibility.
    Another ground for inferring preemption is ``if the goals sought to 
be obtained and the obligations imposed reveal a purpose to preclude 
state authority.'' 501 U.S. at 605 (internal quotation marks omitted). 
Here as well, SORNA does not support such an inference. The general 
purpose of SORNA is ``to protect the public from sex offenders and 
offenders against children,'' and to that end Congress in SORNA 
``establish[ed] a comprehensive national system for the registration of 
those offenders.'' SORNA Sec.  102. The SORNA requirements are 
``comprehensive'' in the sense that SORNA provides a full set of 
national baseline requirements and procedures for sex offender 
registration and notification, replacing the previous national 
standards under the Wetterling Act. See SORNA Sec.  129 (repeal of 
Wetterling Act upon completion of implementation period for SORNA). 
Moreover, SORNA is more comprehensive and contemplates greater 
uniformity among jurisdictions than the previous Wetterling Act 
standards in that it generally establishes a higher national baseline. 
But the ``comprehensive[ness]'' of the SORNA requirements cannot be 
understood to reflect an intent to preclude any and all differences 
among jurisdictions. Some provisions in SORNA expressly authorize 
variations among jurisdictions. See Sec. Sec.  118(c) (discretionary 
exemption of certain information from website posting by 
jurisdictions), 125(b) (authorizing accommodation of state 
constitutional restrictions). Various other SORNA provisions, as 
discussed above, recognize that jurisdictions may go beyond the SORNA 
minimum and they provide for the accommodation of such differences in 
SORNA's federal superstructure elements, including the National Sex 
Offender Registry and the Dru Sjodin National Sex Offender Website. 
These express provisions are at odds with any understanding of the 
``comprehensive[ness]'' of the SORNA standards in a preemptive sense, 
so as to preclude the adoption by states or other covered jurisdictions 
of measures that seek to go further in order to advance SORNA's basic 
purpose, i.e., ``[i]n order to protect the public from sex offenders 
and offenders against children.'' SORNA Sec.  102.
    Finally, ``[e]ven when Congress has not chosen to occupy a 
particular field, pre-emption may occur to the extent that state and 
federal law actually conflict.'' 501 U.S. at 605. The comments received 
on the proposed guidelines included one argument along these lines, 
relating specifically to the provisions in SORNA Sec.  115 concerning 
the duration of registration.
    By way of background, subsection (a) of Sec.  115 requires a sex 
offender to register ``for the full registration period * * * unless 
the offender is allowed a reduction under subsection (b).'' The ``full 
registration period[s]'' specified in subsection (a) of Sec.  115 are 
15 years for tier I sex offenders, 25 years for tier II sex offenders, 
and life for tier III sex offenders. Subsection (b) of Sec.  115 in 
turn provides that the full registration period required by federal law 
shall be reduced for certain sex offenders who maintain a ``clean 
record'' as defined in the statute. Specifically, the ``full 
registration period'' specified for tier I sex offenders in subsection 
(a)(1) is 15 years, but if the sex offender maintains a clean record 
for 10 years, subsection (b) reduces by five years the period for which 
subsection (a) would otherwise require such a sex offender to register. 
The other ``clean record'' reduction of the registration period 
required by federal law under Sec.  115(b) is for tier III sex 
offenders registered on the basis of juvenile delinquency adjudications 
who maintain a clean record for 25 years; no reduction is authorized 
for tier II sex offenders or for tier III sex offenders registered on 
the basis of adult convictions.
    One of the commenters argued that these provisions presuppose that 
the ``full registration period[s]'' specified in Sec.  115(a) are the 
longest registration periods SORNA allows jurisdictions to impose on 
sex offenders. For if a jurisdiction required lifetime registration for 
a tier I sex offender, the five-year reduction of the full registration 
period Sec.  115(b) requires in case the sex offender maintains a 
``clean record'' for 10 years could not meaningfully be applied.
    However, in the context of Sec.  115, the federal registration 
periods described in subsection (a) are referred to as the ``full'' 
registration periods to distinguish such periods from the reduced 
federal registration periods required under subsection (b) if certain 
``clean record'' conditions are satisfied. There is no basis for taking 
subsection (a)'s requirement that sex offenders register for the 
periods specified in that subsection as implying that jurisdictions 
cannot prescribe longer or additional registration requirements for sex 
offenders. Subsection (b) of Sec.  115 provides that the period for 
which SORNA requires a sex offender to register shall be reduced upon 
satisfaction of the ``clean record'' conditions specified in that 
subsection, but no inference follows that states (or other 
jurisdictions) lack the discretion to require on their own authority 
that sex offenders continue to register beyond the periods that SORNA 
requires them to register.
    Hence, a jurisdiction has not failed to implement the SORNA 
requirements if it terminates registration for tier I sex offenders 
after they have maintained ``clean records'' for 10 years, as Sec.  
115(b) allows. But if a jurisdiction chooses instead to require longer 
periods of registration for such offenders, including lifetime 
registration, it has done nothing that SORNA prohibits. As with SORNA's 
requirements generally, Sec.  115's durational requirements for 
registration define the minimum, and not the maximum, requirements for 
the jurisdictions' registration programs.
    Accordingly, no change has been made in the final guidelines as to 
the general principle that SORNA defines a floor, not a ceiling, for 
jurisdictions' sex offender registration and notification programs. 
Changes in the final guidelines relating to this issue are limited to 
edits in Parts II.B and XII for greater clarity on the points reflected 
in the foregoing discussion.

C. Retroactivity

    The proposed guidelines require the application by a jurisdiction 
of SORNA's requirements to sex offenders convicted prior to the 
enactment of SORNA or its implementation in the jurisdiction, if they 
remain in the system as prisoners, supervisees, or registrants, or if 
they reenter the system because of subsequent criminal convictions. 
Some commenters objected to this feature of the proposed guidelines as 
adversely affecting sex offenders in these classes. However, the 
effects of SORNA's registration and notification requirements on sex 
offenders are much the same regardless

[[Page 38036]]

of whether their sex offense convictions occurred before or after 
SORNA's enactment or its implementation in a particular jurisdiction. 
Likewise, the public safety concerns presented by sex offenders are 
much the same, regardless of when they were convicted. The SORNA 
standards reflect a legislative judgment that SORNA's registration and 
notification requirements, even if disagreeable from the standpoint of 
sex offenders who are subject to them, are justified by the resulting 
benefits in promoting public safety. The comments received do not 
establish that this legislative judgment is wrong, and in any event 
such a premise could not be accepted in the formulation of guidelines 
whose objective is to ``interpret and implement'' SORNA's standards, 
see SORNA Sec.  112(b), not to second-guess the legislative policies 
they embody.
    Moreover, the specific provisions of the guidelines relating to 
``retroactivity'' incorporate some features that may limit their effect 
on sex offenders with older convictions. While SORNA's requirements 
apply to all sex offenders, regardless of when they were convicted, see 
28 CFR 72.3, the guidelines do not require jurisdictions to identify 
and register every such sex offender. Rather, as stated in the 
guidelines, a jurisdiction will be considered to have substantially 
implemented SORNA if it applies SORNA's requirements to sex offenders 
who remain in the system as prisoners, supervisees, or registrants, or 
reenter the system through subsequent convictions. So the guidelines do 
not require a jurisdiction to register in conformity with SORNA sex 
offenders who have fully left the system and merged into the general 
population at the time the jurisdiction implements SORNA, if they do 
not reoffend. A further limitation permitted by the guidelines is that 
a jurisdiction may credit a sex offender with a pre-SORNA conviction 
with the time elapsed from his release (or the time elapsed from 
sentencing, in case of a nonincarcerative sentence) in determining 
what, if any, remaining registration time is required. To the extent 
that a jurisdiction exercises this option, the effect of retroactive 
application on sex offenders with pre-SORNA convictions may be further 
reduced.
    Where the critical comments about the guidelines' treatment of 
retroactivity went beyond considerations that fail to distinguish sex 
offenders with pre-SORNA (or pre-SORNA-implementation) convictions from 
those with more recent convictions, they tended to argue that 
retroactive application of SORNA's requirements would be 
unconstitutional, or would be unfair to sex offenders who could not 
have anticipated the resulting applicability of SORNA's requirements at 
the time of their entry of a guilty plea to the predicate sex offense. 
However, as non-punitive regulatory measures, the SORNA requirements do 
not implicate the Constitution's prohibition of ex post facto laws. 
Moreover, fairness does not require that an offender, at the time he 
acknowledges his commission of the crime and pleads guilty, be able to 
anticipate all future regulatory measures that may be adopted in 
relation to persons like him for public safety purposes. The comments 
received provided no persuasive distinction on these points between the 
SORNA requirements and the sex offender registration and notification 
measures upheld by the Supreme Court against an ex post facto challenge 
in Smith v. Doe, 538 U.S. 84 (2003).
    For the foregoing reasons, no changes have been made in the final 
guidelines relating to retroactivity based on the comments alleging an 
adverse effect on sex offenders. Some critical comments were also 
received relating to the guidelines' treatment of retroactivity based 
on potential practical difficulties for jurisdictions in identifying 
offenders in the relevant classes and determining what SORNA requires 
in relation to them. These comments are discussed below in connection 
with Part IX of the guidelines.

D. Automation--Electronic Databases and Software

    Some commenters asked for a more extensive set of technological or 
documentary tools to facilitate the implementation of SORNA in their 
jurisdictions. The SMART Office is developing, and will make available 
to jurisdictions, a wide range of tools of this type. Descriptions of 
many of them appear in the initial portion of this summary, under the 
caption ``aids to implementation.''

E. Implementation

    The final guidelines, like the proposed guidelines, explain the 
``substantial implementation'' standard for jurisdictions' 
implementation of the SORNA requirements as affording a limited 
latitude to approve measures that do not exactly follow the provisions 
of SORNA or the guidelines, where the departure from a SORNA 
requirement does not substantially disserve the requirement's 
objective. Some commenters urged that a much broader understanding of 
the ``substantial implementation'' standard should be adopted, under 
which a jurisdiction's registration and notification system could be 
approved even if the jurisdiction made no effort to do (either exactly 
or approximately) what SORNA requires according to its terms, but 
rather adopted a fundamentally different approach to sex offender 
registration and notification generally or to particular registration 
or notification requirements.
    In practical terms, this understanding of ``substantial 
implementation'' would potentially negate all of the particular 
legislative judgments in SORNA concerning sex offender registration and 
notification requirements. It would effectively treat them as a set of 
suggestions for furthering public safety in relation to released sex 
offenders, which could be dispensed with based on arguments that other 
approaches would further that general objective, though not 
encompassing the specific minimum measures that SORNA prescribes or 
anything close to those measures.
    This reinterpretation of the substantial implementation standard 
has not been adopted in the final guidelines because it would defeat 
SORNA's objective of establishing a national baseline for sex offender 
registration and notification. Section 125 of SORNA illuminates this 
point. Subsection (a) of that section requires a reduction of Byrne 
Grant funding to jurisdictions that fail to ``substantially implement 
this title [i.e., SORNA]'' within the applicable time frame. Subsection 
(b) of the section recognizes, however, that there may be some 
instances in which a jurisdiction cannot substantially implement SORNA 
``because of a demonstrated inability to implement certain provisions 
that would place a jurisdiction in violation of its constitution, as 
determined by a ruling of the jurisdiction's highest court.'' In such 
circumstances, the section provides that the Attorney General and the 
jurisdiction are to consult to verify that there is an actual conflict 
between the state constitution and SORNA's requirements and to 
determine whether any such conflict can be reconciled. If there proves 
to be an irreconcilable conflict, then special provision is made for 
such situations, as provided in Sec.  125(b)(3): ``If the jurisdiction 
is unable to substantially implement this title because of a limitation 
imposed by the jurisdiction's constitution, the Attorney General may 
determine that the jurisdiction is in compliance with this Act if the 
jurisdiction has made, or is in the process of implementing reasonable 
alternative procedures or

[[Page 38037]]

accommodations, which are consistent with the purposes of this Act.''
    Hence, Sec.  125 distinguishes between two standards for approval 
of a jurisdiction's SORNA implementation efforts: (i) The generally 
applicable standard of ``substantial implementation,'' and (ii) a more 
permissive standard allowing reasonable alternative procedures or 
accommodations that are consistent with SORNA's purposes. The latter 
(more permissive) standard is applicable only to the extent that there 
is an irreconcilable conflict between substantial implementation of 
SORNA's requirements and what the jurisdiction's constitution allows.
    The commenters who have urged an open-ended understanding of the 
``substantial implementation'' standard would collapse the distinction 
drawn by Sec.  125 between substantial implementation on the one hand 
and, on the other, alternative measures that do not substantially 
implement SORNA's requirements but aim to further its purposes in some 
more general way. Under Sec.  125, the latter are allowed only if state 
constitutional restrictions preclude doing substantially what SORNA 
requires according to its terms. But under these commenters' view, 
alternative measures could be allowed without any particular 
limitation, even where a jurisdiction's constitution creates no 
impediment to doing what SORNA's provisions prescribe. Given the clear 
distinction that Sec.  125 draws between substantial implementation of 
SORNA and adoption of alternative measures that are consistent with 
SORNA's purposes (but do not substantially implement SORNA), the 
commenters' view on this point cannot be reconciled with SORNA.
    This point can be illustrated concretely by considering specific 
alternatives that some commenters have proposed. For example, some 
commenters have urged that ``risk-based'' approaches to sex offender 
registration and notification--i.e., systems in which registration or 
notification requirements are premised on individualized risk 
assessments of offenders--should be approved as substantially 
implementing SORNA.
    The terminology utilized by the commenters on this point--
distinguishing systems that incorporate SORNA's requirements from 
``risk-based'' systems--is misleading, in that SORNA gives weight to 
various factors that are reasonably related to the risk that sex 
offenders may pose to others and the need for protective measures. Not 
all persons who have committed offenses of a sexual nature are required 
to register under SORNA's standards, but only those convicted for ``sex 
offenses'' as defined in SORNA Sec.  111(5). The definition 
incorporates a number of limitations, including general exclusions of 
offenses involving consensual sexual conduct between adults, and of 
offenses involving consensual sexual conduct with minors at least 13 
years old where the offender is not more than four years older. Within 
the universe of sex offenders who are required to register under the 
SORNA standards, SORNA does not prescribe registration and notification 
requirements indiscriminately. Rather, SORNA varies the required 
duration of registration, the frequency of required in-person 
appearances for verification, and required public notification through 
Web site posting, based on ``tier'' criteria that take account of such 
factors as the nature and seriousness of the offense, the age of the 
victim, and the extent of the offender's recidivism. See SORNA Sec.  
111(2)-(4), 115-16, 118(c)(1). SORNA also reduces the periods for which 
it requires sex offenders to register in certain circumstances based on 
criteria relating to the offender's subsequent conduct, including 
avoidance of further offending, successful completion of supervision, 
and successful completion of treatment. See SORNA Sec.  115(b)(1). 
Moreover, given that SORNA generally defines a floor rather than a 
ceiling for jurisdictions' registration and notification programs, 
there is no inconsistency with SORNA if a jurisdiction carries out risk 
assessments of offenders that take into account a broader range of 
factors, and prescribes registration or notification requirements 
beyond the SORNA minimum requirements based on the results of such 
assessments.
    These commenters' recommendation, however, is that systems should 
be approved as substantially implementing SORNA that do not incorporate 
the SORNA minimum requirements, but rather prescribe lesser 
registration or notification requirements (or no requirements) for sex 
offenders, unless they are deemed to meet some threshold or level of 
risk based on risk assessments that take account of factors beyond 
those allowed under SORNA's provisions. The grounds offered in support 
of this recommendation are that such systems arguably offer various 
benefits in comparison with SORNA's standards, such as focusing 
registration and notification more effectively on the offenders who are 
likely to pose the greatest risk to the public, and providing 
registrants with an incentive to follow the rules and improve their 
behavior, where doing so may reduce their risk scores and hence result 
in a reduction or termination of registration or notification.
    This recommendation cannot be accepted because the systems 
described by such commenters do not substantially implement the SORNA 
requirements, and do not attempt to do so. Rather, they propose to 
forego implementation of what SORNA does require in favor of pursuing 
different approaches that the commenters view as preferable means of 
promoting public safety from sex offenders.
    There is one circumstance in which SORNA allows the approval of 
such alternative measures to be considered. Suppose that the highest 
court of a jurisdiction rules that the jurisdiction's constitution does 
not permit certain registration or notification measures required by 
SORNA to be taken in relation to a sex offender, unless the offender is 
found to satisfy some threshold or level of risk based on a risk 
assessment that gives weight to factors that SORNA's specific 
provisions do not allow as grounds for waiving or reducing registration 
or notification requirements. In the presence of such an irreconcilable 
conflict with the jurisdiction's constitution, the Attorney General 
would be permitted under SORNA Sec.  125(b)(3) to approve the 
jurisdiction's adoption of reasonable alternative procedures that are 
consistent with SORNA's purposes, but that incorporate reliance on risk 
assessments and depart from compliance with SORNA's specific 
requirements to the extent necessitated by the conflict. However, the 
commenters' recommendation is that systems going below the SORNA-
required minima based on risk assessments should be allowed as 
``substantial implementation'' of SORNA even where implementing SORNA 
according to its terms would not conflict with the jurisdiction's 
constitution. This recommendation cannot be accepted because it is 
inconsistent with the distinction that Sec.  125 draws between 
substantial implementation of SORNA and reasonable alternative measures 
that do not substantially implement SORNA but are consistent with 
SORNA's purposes. Understanding ``substantial implementation'' so 
broadly would potentially reduce SORNA's specific standards to mere 
advice, and would conflict with the provisions in Sec.  125 that 
specially authorize a more permissive standard only under narrowly 
defined circumstances involving constitutional conflicts.

[[Page 38038]]

    The response is essentially the same to other specific alternatives 
that some commenters have urged as ``substantially implementing'' 
SORNA, such as not requiring registration by juveniles adjudicated 
delinquent for sex offenses under any circumstances, or making 
registration or notification for such delinquents a matter of judicial 
discretion. SORNA Sec.  111(8) incorporates considered legislative 
judgments concerning the class of juvenile delinquency adjudications 
that are to be treated as ``convictions'' for purposes of SORNA's 
registration and notification requirements, a point that is discussed 
in greater detail below in connection with Part IV.A of the guidelines. 
The effect of the Sec.  111(8) definition is that the application of 
SORNA's registration and notification requirements to juvenile 
delinquents is generally limited to those who are at least 14 years old 
and who are adjudicated delinquent for the most serious sexually 
assaultive crimes. In addition, SORNA Sec.  115(b)(3)(B) allows the 
registration periods for persons required to register based on juvenile 
delinquency adjudications to be reduced in certain circumstances, based 
on their subsequent good behavior, where no corresponding reduction is 
allowed for offenders required to register based on adult convictions.
    These commenters' proposal is in effect that a jurisdiction should 
be deemed to have substantially implemented SORNA with respect to the 
treatment of juveniles adjudicated delinquent for sex offenses if it 
ignores what SORNA provides on this issue, and instead does something 
different that the commenters believe to be better policy. As with the 
earlier example of ``risk assessment'' systems, there are circumstances 
under which SORNA would allow alternative approaches with respect to 
juvenile delinquents to be considered. Suppose, for example, that the 
highest court of a jurisdiction holds that the jurisdiction's 
constitution does not permit categorical registration or notification 
requirements for juvenile delinquents--even for the narrowly defined 
class of juveniles adjudicated delinquent for the most serious sexually 
assaultive crimes, as described in SORNA Sec.  111(8). Rather, the 
court holds that the jurisdiction's constitution requires that such 
measures be contingent on judicial determinations that registration or 
notification is appropriate for particular juveniles. In the presence 
of such an irreconcilable conflict with the jurisdiction's 
constitution, the Attorney General would be permitted under SORNA Sec.  
125(b)(3) to approve the jurisdiction's adoption of reasonable 
alternative procedures that are consistent with SORNA's purposes, but 
that depart from compliance with SORNA's requirements regarding 
juveniles to the extent necessitated by the conflict. However, the 
commenters' proposal is that the same latitude should be afforded as 
``substantial implementation'' of SORNA even where there is no conflict 
with the jurisdiction's constitution in implementing SORNA's provisions 
regarding juveniles according to their terms. This is not consistent 
with SORNA for the reasons discussed above.
    For the foregoing reasons, no change has been made in the final 
guidelines as to the basic understanding of the substantial 
implementation standard. There is some limited modification in the 
final guidelines' explanation of this standard for greater clarity 
concerning the points noted in the discussion above.

III. Covered Jurisdictions

    The comments received did not show a need to change the guidelines' 
explanation concerning the ``jurisdictions'' that are subject to 
SORNA's requirements, except with respect to the treatment of Indian 
tribes.
    Section 127 of SORNA provides the standards that determine w