Supplemental Guidelines for Sex Offender Registration and Notification, 27362-27366 [2010-11665]

Download as PDF 27362 Federal Register / Vol. 75, No. 93 / Friday, May 14, 2010 / Notices DEPARTMENT OF THE INTERIOR Bureau of Land Management [LLNMA01400.L17110000.PN0000] Notice of Temporary Order Restricting Dogs From Public Lands in the KashaKatuwe Tent Rocks National Monument in Sandoval County, NM AGENCY: Bureau of Land Management, Interior. ACTION: Notice of temporary restriction order. SUMMARY: Notice is hereby given that a Temporary Order is in effect authorizing the exclusion of dogs from public lands within the 5,610-acre Kasha-Katuwe Tent Rocks National Monument. This order will enhance the safety and quality of the visitor experience for 97 percent of the Monument’s visitors. DATES: This closure became effective on May 23, 2009, following completion of an Environmental Assessment for the Temporary Order and signing of the Record of Decision on May 22, 2009. The closure will remain in effect for 2 years, during which time the BLM will, through public involvement, develop a long-term management resolution of the safety issue in this area. FOR FURTHER INFORMATION CONTACT: Thomas E. Gow, Field Manager, Rio ˜ Puerco Field Office, 435 Montano NE., Albuquerque, New Mexico 87107–4935; or call (505) 761–8797; or e-mail Tom_Gow@blm.gov. Violations of these closures and restrictions are punishable by fines not to exceed $1,000 and/or imprisonment not to exceed 1 year. These actions are taken to protect public health and safety. 5. An Environmental Assessment for the Temporary Order, called Emergency Dog Closure, Kasha-Katuwe Tent Rocks National Monument, DOI–BLM–NM– A010–2009–22–EA, was completed with the signing of a Decision Record dated May 22, 2009. Copies of this closure order and maps showing the location of the routes are available from the Rio Puerco Field ˜ Office, 435 Montano N.E., Albuquerque, New Mexico 87107–4935. Authority: 43 CFR 8364.1, Closure and Restriction Orders. Edwin J. Singleton, District Manager, Albuquerque. [FR Doc. 2010–11615 Filed 5–13–10; 8:45 am] BILLING CODE 4310–FB–P DEPARTMENT OF JUSTICE Office of the Attorney General [Docket No. OAG 134; AG Order No. 3150– 2010] RIN 1105–AB36 Supplemental Guidelines for Sex Offender Registration and Notification ACTION: emcdonald on DSK2BSOYB1PROD with NOTICES SUPPLEMENTARY INFORMATION: 1. The entry of persons with dogs is prohibited on public land in New Mexico Prime Meridian, T. 16 N., R. 5 E., and T. 17 N., R 5 E., 2. This closure does not affect the ability of local, State, or Federal officials in the performance of their duties in the area, including the use of K–9 units in the performance of their official duties. 3. This notice was posted at the entrance booth to the National Monument and at the trailhead kiosk. The notice was also posted on the BLM– New Mexico Web site and on related New Mexico tourism/travel Web sites. 4. The following persons are exempt from this closure order: a. Federal, State, or local law enforcement officers, while acting within the scope of their official duties; b. Any person in the operation of a valid livestock grazing permit for the area in the conduct of activities addressed in the permit; and c. Any person using or training a service dog for the visually impaired or other assisted needs, law enforcement, and grazing related working dogs. VerDate Mar<15>2010 18:07 May 13, 2010 Jkt 220001 Department of Justice. Notice; Proposed guidelines. AGENCY: SUMMARY: The Sex Offender Registration and Notification Act (SORNA) establishes minimum national standards for sex offender registration and notification. The Attorney General issued the National Guidelines for Sex Offender Registration and Notification (‘‘SORNA Guidelines’’ or ‘‘Guidelines’’) on July 2, 2008, to provide guidance and assistance to jurisdictions in implementing the SORNA standards in their sex offender registration and notification programs. These supplemental guidelines augment or modify certain features of the SORNA Guidelines in order to make a change required by the KIDS Act and to address other issues arising in jurisdictions’ implementation of the SORNA requirements. The matters addressed include certain aspects of public Web site posting of sex offender information, interjurisdictional tracking and information sharing regarding sex offenders, the review process concerning jurisdictions’ SORNA implementation, the classes of sex offenders to be registered by PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 jurisdictions retroactively, and the treatment of Indian tribes newly recognized by the Federal Government subsequent to the enactment of SORNA. DATES: Written comments must be postmarked and electronic comments must be submitted on or before July 13, 2010. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after Midnight Eastern Time on the last day of the comment period. ADDRESSES: Comments may be mailed to Linda M. Baldwin, Director, SMART Office, Office of Justice Programs, United States Department of Justice, 810 7th Street, NW., Washington, DC 20531. To ensure proper handling, please reference OAG Docket No. 134 on your correspondence. You may submit comments electronically or view an electronic version of these proposed guidelines at http:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Linda M. Baldwin, Director, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking; Office of Justice Programs, United States Department of Justice, Washington, DC, 202–305–2463. SUPPLEMENTARY INFORMATION: Posting of Public Comments Please note that all comments received are considered part of the public record and made available for public inspection online at http:// www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase ‘‘PERSONAL IDENTIFYING INFORMATION’’ in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase ‘‘CONFIDENTIAL BUSINESS INFORMATION’’ in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively E:\FR\FM\14MYN1.SGM 14MYN1 Federal Register / Vol. 75, No. 93 / Friday, May 14, 2010 / Notices emcdonald on DSK2BSOYB1PROD with NOTICES redacted, all or part of that comment may not be posted on http:// www.regulations.gov. Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency’s public docket file, but not posted online. If you wish to inspect the agency’s public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph. The reason the Department is requesting electronic comments before Midnight Eastern Time on the day the comment period closes is that the interagency Regulations.gov/Federal Docket Management System (FDMS), which receives electronic comments, terminates the public’s ability to submit comments at Midnight on the day the comment period closes. Commenters in time zones other than Eastern may want to take this fact into account so that their electronic comments can be received. The constraints imposed by the Regulations.gov/FDMS system do not apply to U.S. postal comments, which will be considered as timely filed if they are postmarked before Midnight on the day the comment period closes. Overview The Sex Offender Registration and Notification Act, which is title I of the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109–248, was enacted on July 27, 2006. SORNA (46 U.S.C. 16901 et seq.) establishes minimum national standards for sex offender registration and notification in the jurisdictions to which it applies. ‘‘Jurisdictions’’ in the relevant sense are the 50 states, the District of Columbia, the five principal U.S. territories, and Indian tribes that satisfy certain criteria. 42 U.S.C. 16911(10). SORNA directs the Attorney General to issue guidelines and regulations to interpret and implement SORNA. See id. 16912(b). To this end, the Attorney General issued the National Guidelines for Sex Offender Registration and Notification, 73 FR 38030, on July 2, 2008. The SORNA standards are administered by the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (‘‘SMART Office’’), which assists all jurisdictions in their SORNA implementation efforts and determines whether jurisdictions have successfully completed these efforts. See 42 U.S.C. 16945; 73 FR at 38044, 38047–48. Since the publication of the SORNA Guidelines, issues have arisen in SORNA implementation that require that some aspects of the Guidelines be augmented or modified. Consequently, the Department of Justice is proposing VerDate Mar<15>2010 18:07 May 13, 2010 Jkt 220001 these supplemental guidelines, which do the following: (1) Allow jurisdictions, in their discretion, to exempt information concerning sex offenders required to register on the basis of juvenile delinquency adjudications from public Web site posting. (2) Require jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public Web site posting, pursuant to the KIDS Act, 42 U.S.C. 16915a. (3) Require jurisdictions to have sex offenders report international travel 21 days in advance of such travel and to submit information concerning such travel to the appropriate Federal agencies and databases. (4) Clarify the means to be utilized to ensure consistent interjurisdictional information sharing and tracking of sex offenders. (5) Expand required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations. (6) Provide additional information concerning the review process for determining that jurisdictions have substantially implemented the SORNA requirements in their programs and continue to comply with these requirements. (7) Afford jurisdictions greater latitude regarding the registration of sex offenders who have fully exited the justice system but later reenter through a new (non-sex-offense) criminal conviction by providing that jurisdictions may limit such registration to cases in which the new conviction is for a felony. (8) Provide, for Indian tribes that are newly recognized by the Federal government following the enactment of SORNA, authorization and time frames for such tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA. Proposed Supplemental Guidelines for Sex Offender Registration and Notification Contents I. Public Notification A. Juvenile Delinquents B. Internet Identifiers II. Interjurisdictional Tracking and Information Sharing A. International Travel B. Domestic Interjurisdictional Tracking C. Acknowledgment Forms III. Ongoing Implementation Assurance IV. Retroactive Classes V. Newly Recognized Tribes PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 27363 I. Public Notification A. Juvenile Delinquents SORNA includes as covered ‘‘sex offender[s]’’ juveniles at least 14 years old who are adjudicated delinquent for particularly serious sex offenses. See 42 U.S.C. 16911(1), (8). While the SORNA Guidelines endeavored to facilitate jurisdictions’ compliance with this aspect of SORNA, see 73 FR at 38030, 38040–41, 38050, resistance by some jurisdictions to public disclosure of information about sex offenders in this class has continued to be one of the largest impediments to SORNA implementation. Hence, the Attorney General is exercising his authority under 42 U.S.C. 16918(c)(4) to create additional discretionary exemptions from public Web site disclosure to allow jurisdictions to exempt from public Web site disclosure information concerning sex offenders required to register on the basis of juvenile delinquency adjudications. This change creates a new discretionary, not mandatory, exemption from public Web site disclosure. It does not limit the discretion of jurisdictions to include information concerning sex offenders required to register on the basis of juvenile delinquency adjudications on their public Web sites if they so wish. The change regarding public Web site disclosure does not authorize treating sex offenders required to register on the basis of juvenile delinquency adjudications differently from sex offenders with adult convictions in other respects. Whether a case involves a juvenile delinquency adjudication in the category covered by SORNA or an adult conviction, SORNA’s registration requirements remain applicable, see 42 U.S.C. 16913–16, as do the requirements to transmit or make available registration information to the national (non-public) databases of sex offender information, to law enforcement and supervision agencies, and to registration authorities in other jurisdictions, see 73 FR at 38060. Jurisdictions are not required to provide registration information concerning sex offenders required to register on the basis of juvenile delinquency adjudications to the entities described in the SORNA Guidelines at 73 FR 38061, i.e., certain school, public housing, social service, and volunteer entities, and other organizations, companies, or individuals who request notification. This reflects an exercise of the Attorney General’s authority to create exceptions to required information disclosure under 42 U.S.C. 16921(b). Accordingly, E:\FR\FM\14MYN1.SGM 14MYN1 27364 Federal Register / Vol. 75, No. 93 / Friday, May 14, 2010 / Notices emcdonald on DSK2BSOYB1PROD with NOTICES if a jurisdiction decides not to include information on a juvenile delinquent sex offender on its public Web site, as is allowed by these supplemental guidelines, information on the sex offender does not have to be disclosed to these entities. B. Internet Identifiers The KIDS Act, which was enacted in 2008, directed the Attorney General to utilize pre-existing legal authorities under SORNA to adopt certain measures relating to sex offenders’ ‘‘Internet identifiers,’’ defined to mean e-mail addresses and other designations used for self-identification or routing in Internet communication or posting. The KIDS Act requires the Attorney General to (i) include appropriate Internet identifier information in the registration information sex offenders are required to provide, (ii) specify the time and manner for keeping that information current, (iii) exempt such information from public Web site posting, and (iv) ensure that procedures are in place to notify sex offenders of resulting obligations. See 42 U.S.C. 16915a. The SORNA Guidelines incorporate requirements (i)–(ii) and (iv), as described above. See 73 FR at 38055 (Internet identifiers to be included in registration information), 38066 (reporting of changes in Internet identifiers), 38063–65 (notifying sex offenders of SORNA requirements). However, while the Guidelines discouraged the inclusion of sex offenders’ Internet identifiers on the public Web sites, they did not adopt a mandatory exclusion of this information from public Web site posting, which the KIDS Act now requires. See 42 U.S.C. 16915a(c); 73 FR at 38059–60. The authority under 42 U.S.C. 16918(b)(4) to create additional mandatory exemptions from public Web site disclosure is accordingly exercised to exempt sex offenders’ Internet identifiers from public Web site posting. This means that jurisdictions cannot, consistent with SORNA, include sex offenders’ Internet identifiers (such as email addresses) in the sex offenders’ public Web site postings or otherwise list or post sex offenders’ Internet identifiers on the public sex offender Web sites. This change does not limit jurisdictions’ retention and use of sex offenders’ Internet identifier information for purposes other than public disclosure, including submission of the information to the national (nonpublic) databases of sex offender information, sharing of the information with law enforcement and supervision agencies, and sharing of the information VerDate Mar<15>2010 18:07 May 13, 2010 Jkt 220001 with registration authorities in other jurisdictions. See 73 FR at 38060. The change also does not limit the discretion of jurisdictions to include on their public Web sites functions by which members of the public can ascertain whether a specified e-mail address or other Internet identifier is reported as that of a registered sex offender, see id. at 38059–60, or to disclose Internet identifier information to any one by means other than public Web site posting. The exemption of sex offenders’ Internet identifiers from public Web site disclosure does not override or limit the requirement that sex offenders’ names, including any aliases, be included in their public Web site postings. See 73 FR at 38059. A sex offender’s use of his name or an alias to identify himself or for other purposes in Internet communications or postings does not exempt the name or alias from public Web site disclosure. II. Interjurisdictional Tracking and Information Sharing A. International Travel Certain features of SORNA and the SORNA Guidelines require the Department of Justice, in conjunction with other Federal agencies, to develop reliable means for identifying and tracking sex offenders who enter or leave the United States. See 42 U.S.C. 16928; 73 FR at 38066–67. To that end, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions if they intend to commence residence, employment, or school attendance outside of the United States, and that jurisdictions that are so informed must notify the U.S. Marshals Service and update the sex offender’s registration information in the national databases. See 73 FR at 38067. (Regarding the general requirement to provide registration information for inclusion in the National Sex Offender Registry and other appropriate databases at the national level, see 42 U.S.C. 16921(b)(1); 73 FR at 38060.) In addition, the Guidelines provide that sex offenders must be required to inform their residence jurisdictions about lodging at places away from their residences for seven days or more, regardless of whether that results from domestic or international travel. See 73 FR at 38056, 38066. Since the issuance of the Guidelines, the SMART Office has continued to work with other agencies of the Department of Justice, the Department of Homeland Security, the Department of State, and the Department of Defense PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 on the development of a system for consistently identifying and tracking sex offenders who engage in international travel. Although, as noted, the current Guidelines require reporting of international travel information in certain circumstances, the existing requirements are not sufficient to provide the information needed for tracking such travel consistently. The authority under 42 U.S.C. 16914(a)(7) to expand the range of required registration information is accordingly exercised to provide that registrants must be required to inform their residence jurisdictions of intended travel outside of the United States at least 21 days in advance of such travel. Pursuant to 42 U.S.C. 16921(b), jurisdictions so informed must provide the international travel information to the U.S. Marshals Service, and must transmit or make available that information to national databases, law enforcement and supervision agencies, and other jurisdictions as provided in the Guidelines. See 73 FR at 38060. Jurisdictions need not disclose international travel information to the entities described in the SORNA Guidelines at 73 FR 38061ƒi.e., certain school, public housing, social service, and volunteer entities, and other organizations, companies, or individuals who request notification. See 42 U.S.C. 16921(b). As the international tracking system continues to develop, the SMART Office may issue additional directions to jurisdictions to provide notification concerning international travel by sex offenders, such as notice to Interpol, or notice to Department of Defense agencies concerning sex offenders who may live on U.S. military bases abroad. While notice of international travel will generally be required as described above, it is recognized that requiring 21 days advance notice may occasionally be unnecessary or inappropriate. For example, a sex offender may need to travel abroad unexpectedly because of a family or work emergency. Or separate advance notice of intended international trips may be unworkable and pointlessly burdensome for a sex offender who lives in a northern border state and commutes to Canada for work on a daily basis. Jurisdictions that wish to accommodate such situations should include information about their policies or practices in this area in their submissions to the SMART Office and the SMART Office will determine whether they adequately serve SORNA’s international tracking objectives. E:\FR\FM\14MYN1.SGM 14MYN1 Federal Register / Vol. 75, No. 93 / Friday, May 14, 2010 / Notices C. Acknowledgment Forms SORNA’s requirements, see 42 U.S.C. 16913(e), and Federal criminal liability is authorized for sex offenders who knowingly fail to register or update a registration as required by SORNA under circumstances supporting Federal jurisdiction, see 18 U.S.C. 2250. Successful prosecution of sex offenders for registration violations under these provisions may require proof that they were aware of a requirement to register. The acknowledgment forms signed by sex offenders regarding their registration obligations are likely to be the most consistently available and definitive proof of such knowledge. Including these forms in registration information will make them readily available in the jurisdictions in which sex offenders are initially registered, and will make them available to other jurisdictions pursuant to the provisions of SORNA and the Guidelines for transmission of registration information to other jurisdictions. See 42 U.S.C. 16921(b)(3); 73 FR at 38060. The authority under 42 U.S.C. 16914(b)(8) to expand the range of required registration information is accordingly exercised to require that sex offenders’ signed acknowledgment forms be included in their registration information. The existing Guidelines already provide that acknowledgment forms covering the SORNA requirements are to be obtained from registrants as part of the SORNA implementation process and thereafter. See 73 FR at 38063–65. As with other forms of documentary registration information, the inclusion of these forms in registration information can be effected by scanning the forms and including the resulting electronic documents in the registry databases or by including links or information that provides access to other databases in which the signed acknowledgments are available in electronic form. See 73 FR at 38055. SORNA provides that sex offenders are to be informed of their registration obligations and required to sign acknowledgments that this information has been provided upon their initial registration. See 42 U.S.C. 16917. Even before the enactment of SORNA, similar requirements were included in the predecessor national standards for sex offender registration and notification of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (42 U.S.C. 14071(b)(1)(A), prior to its repeal by SORNA). SORNA requires jurisdictions to provide criminal penalties for sex offenders who fail to comply with III. Ongoing Implementation Assurance The SORNA Guidelines explain that the SMART Office will determine whether jurisdictions have substantially implemented the SORNA requirements in their programs and that jurisdictions are to provide submissions to the SMART Office to facilitate this determination. See 42 U.S.C. 16924–25; 73 FR at 38047–48. SORNA itself and the Guidelines assume throughout that jurisdictions must implement SORNA in practice, not just on paper, and the Guidelines provide many directions and suggestions for putting the SORNA standards into effect. See, e.g., 42 U.S.C. 16911(9), 16912(a), 16913(c), 16914(b), B. Domestic Interjurisdictional Tracking emcdonald on DSK2BSOYB1PROD with NOTICES SORNA and the SORNA Guidelines require interjurisdictional sharing of registration information in various contexts and SORNA directs the Attorney General, in consultation with the jurisdictions, to develop and support software facilitating the immediate exchange of information among jurisdictions. See 42 U.S.C. 16913(c), 16919(b), 16921(b)(3), 16923; 73 FR at 38047, 38062–68. The SMART Office accordingly has created and maintains the SORNA Exchange Portal, which enables the immediate exchange of information about registered sex offenders among the jurisdictions. Regular use of this tool is essential to ensuring that information is reliably shared among jurisdictions and that interjurisdictional tracking of sex offenders occurs consistently and effectively as SORNA contemplates. For example, if a jurisdiction sends notice that a sex offender has reported an intention to change his residence to another jurisdiction, but the destination jurisdiction fails to access the notice promptly, the sex offender’s failure to appear or register in the destination jurisdiction may go unnoticed or detection of the violation may be delayed. Accordingly, to be approved as having substantially implemented SORNA, jurisdictions must, at a minimum, have a policy of regularly accessing the SORNA Exchange Portal to receive messages from other jurisdictions. Technological improvements may facilitate the creation of new tools that may eventually replace the existing SORNA Exchange Portal. If that occurs, the SMART Office may issue directions to jurisdictions concerning the use of these new tools that jurisdictions will need to follow to be approved as substantially implementing SORNA. VerDate Mar<15>2010 18:07 May 13, 2010 Jkt 220001 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 27365 16917, 16918, 16921(b), 16922; 73 FR at 38059–61, 38063–70. The Department of Justice and the SMART Office are making available to jurisdictions a wide range of practical aids to SORNA implementation, including software and communication systems to facilitate the exchange of sex offender information among jurisdictions and other technology and documentary tools. See 42 U.S.C. 16923; 73 FR at 38031–32, 38047. Hence, implementation of SORNA is not just a matter of adopting laws or rules that facially direct the performance of the measures required by SORNA. It entails actually carrying out those measures and, as noted, various forms of guidance and assistance have been provided to that end. Accordingly, in reviewing jurisdictions’ requests for approval as having substantially implemented SORNA, the SMART Office will not be limited to facial examination of registration laws and policies, but rather will undertake such inquiry as is needed to ensure that jurisdictions are substantially implementing SORNA’s requirements in practice. Jurisdictions can facilitate approval of their systems by including in their submissions to the SMART Office information concerning practical implementation measures and mechanisms, in addition to relevant laws and rules, such as policy and procedure manuals, description of infrastructure and technology resources, and information about personnel and budgetary measures relating to the operation of the jurisdiction’s registration and notification system. The SMART Office may require jurisdictions to provide additional information, beyond that proffered in their submissions, as needed for a determination. Jurisdictions that have substantially implemented SORNA have a continuing obligation to maintain their system’s consistency with current SORNA standards. Those that are grantees under the Byrne Justice Assistance Grant program will be required in connection with the annual grant application process to establish that their systems continue to meet SORNA standards. This will entail providing information as directed by the SMART Office, in addition to the information otherwise included in Byrne Grant applications, so that the SMART Office can verify continuing implementation. Jurisdictions that do not apply for Byrne Grants will also be required to demonstrate periodically that their systems continue to meet SORNA standards as directed by the SMART Office, and to provide such information E:\FR\FM\14MYN1.SGM 14MYN1 27366 Federal Register / Vol. 75, No. 93 / Friday, May 14, 2010 / Notices emcdonald on DSK2BSOYB1PROD with NOTICES as the SMART Office may require to make this determination. If a jurisdiction’s Byrne Justice Assistance Grant funding is reduced because of non-implementation of SORNA, it may regain eligibility for full funding in later program years by substantially implementing SORNA in such later years. The SMART Office will continue to work with all jurisdictions to ensure substantial implementation of SORNA and verify that they continue to meet the requirements of SORNA on an ongoing basis. IV. Retroactive Classes SORNA’s requirements apply to all sex offenders, regardless of when they were convicted. See 28 CFR 72.3. However, the SORNA Guidelines state that it will be deemed sufficient for substantial implementation if jurisdictions register sex offenders with pre-SORNA or pre-SORNAimplementation sex offense convictions who remain in the system as prisoners, supervisees, or registrants, or who reenter the system through a subsequent criminal conviction. See 73 FR at 38035–36, 38043, 38046–47, 38063–64. This feature of the Guidelines reflects an assumption that it may not be possible for jurisdictions to identify and register all sex offenders who fall within the SORNA registration categories, particularly where they have left the justice system and merged into the general population long ago, but that it will be feasible for jurisdictions to do so in relation to sex offenders who remain in the justice system or reenter it through a subsequent criminal conviction. See 73 FR at 38046. Experience supports a qualification of this assumption in relation to sex offenders who have fully exited the justice system but later reenter it through a subsequent criminal conviction for a non-sex offense that is relatively minor in character. (Where the subsequent conviction is for a sex offense it independently requires registration under SORNA.) In many jurisdictions the volume of misdemeanor prosecutions is large and most such cases may need to be disposed of in a manner that leaves little time or opportunity for examining the defendant’s criminal history and ascertaining whether it contains some past sex offense conviction that would entail a present registration requirement under SORNA. In contrast, where the subsequent offense is a serious crime, ordinary practice is likely to involve closer scrutiny of the defendant’s past criminal conduct, and ascertaining whether it includes a prior conviction requiring registration under SORNA VerDate Mar<15>2010 18:07 May 13, 2010 Jkt 220001 should not entail an onerous new burden on jurisdictions. These supplemental guidelines accordingly are modifying the requirements for substantial implementation of SORNA in relation to sex offenders who have fully exited the justice system, i.e., those who are no longer prisoners, supervisees, or registrants. It will be sufficient if a jurisdiction registers such offenders who reenter the system through a subsequent criminal conviction in cases in which the subsequent criminal conviction is for a felony, i.e., for an offense for which the statutory maximum penalty exceeds a year of imprisonment. This allowance is limited to cases in which the subsequent conviction is for a non-sex offense. As noted above, a later conviction for a sex offense independently requires registration under SORNA, regardless of whether it is a felony or a misdemeanor. This allowance only establishes the minimum required for substantial implementation of SORNA in this context. Jurisdictions remain free to look more broadly and to establish systems to identify and register sex offenders who reenter the justice system through misdemeanor convictions, or even those who do not reenter the system through later criminal convictions but fall within the registration categories of SORNA or the jurisdiction’s registration law. Alton R.R. Co. v. Tranbarger, 238 U.S. 67, 73–74 (1915); see also Taylor v. Horn, 504 F.3d 416, 426 (3d Cir. 2007) (running statutory time limit from later point where normal starting point was already past). This principle will be applied to 42 U.S.C. 16927 to allow Indian tribes that receive Federal recognition following the enactment of SORNA a reasonable amount of time to elect whether to become SORNA registration jurisdictions as provided in that section, and to allow such tribes a reasonable amount of time for substantial implementation of SORNA if they elect to be SORNA registration jurisdictions. In assessing what constitutes a reasonable amount of time for these purposes, the Department of Justice will look to the amount of time SORNA generally affords for tribal elections and for jurisdictions’ implementation of the SORNA requirements. Hence, a tribe receiving Federal recognition after SORNA’s enactment that otherwise qualifies to make the election under § 16927(a) will be afforded a period of one year to make the election, running from the date of the tribe’s recognition or the date of publication of these supplemental guidelines, whichever is later. Likewise, such a tribe will be afforded a period of three years for SORNA implementation, running from the same starting point, subject to up to two possible one-year extensions. See 42 U.S.C. 16924. V. Newly Recognized Tribes SORNA affords eligible federallyrecognized Indian tribes a one-year period, running from the date of SORNA’s enactment on July 27, 2006, to elect whether to become SORNA registration jurisdictions or to delegate their registration functions to the states within which they are located. See 42 U.S.C. 16927(a)(1), (2)(B); 73 FR at 38049–50. In principle there is no reason why an Indian tribe that initially receives recognition by the Federal government following the enactment of SORNA should be treated differently for SORNA purposes from other federally recognized tribes. But if such a tribe is initially recognized more than a year after the enactment of SORNA, then the limitation period of § 16927 will have passed before the tribe became the kind of entity (a federally recognized tribe) that may be eligible to become a SORNA registration jurisdiction. Where the normal starting point of a statutory time limit for taking an action cannot sensibly be applied to a certain entity, the statute may be construed to allow the entity a reasonable amount of time to take the action. See Chicago & Dated: May 11, 2010. Eric H. Holder, Jr., Attorney General. PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 [FR Doc. 2010–11665 Filed 5–12–10; 11:15 am] BILLING CODE 4410–18–P DEPARTMENT OF LABOR Office of Labor-Management Standards OLMS Listens: Office of LaborManagement Standards Stakeholder Meeting AGENCY: Office of Labor-Management Standards, Department of Labor. ACTION: Notice of Public Meeting. SUMMARY: The United States Department of Labor (DOL), Office of LaborManagement Standards (OLMS) hereby provides notice of a public meeting on a proposed change to OLMS’s regulations regarding reporting requirements for employers and consultants pursuant to section 203 of the Labor-Management Reporting and Disclosure Act (LMRDA), specifically with regard to the scope of the ‘‘advice E:\FR\FM\14MYN1.SGM 14MYN1

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[Federal Register Volume 75, Number 93 (Friday, May 14, 2010)]
[Notices]
[Pages 27362-27366]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11665]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

[Docket No. OAG 134; AG Order No. 3150-2010]
RIN 1105-AB36


Supplemental Guidelines for Sex Offender Registration and 
Notification

AGENCY: Department of Justice.

ACTION: Notice; Proposed guidelines.

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SUMMARY: The Sex Offender Registration and Notification Act (SORNA) 
establishes minimum national standards for sex offender registration 
and notification. The Attorney General issued the National Guidelines 
for Sex Offender Registration and Notification (``SORNA Guidelines'' or 
``Guidelines'') on July 2, 2008, to provide guidance and assistance to 
jurisdictions in implementing the SORNA standards in their sex offender 
registration and notification programs. These supplemental guidelines 
augment or modify certain features of the SORNA Guidelines in order to 
make a change required by the KIDS Act and to address other issues 
arising in jurisdictions' implementation of the SORNA requirements. The 
matters addressed include certain aspects of public Web site posting of 
sex offender information, interjurisdictional tracking and information 
sharing regarding sex offenders, the review process concerning 
jurisdictions' SORNA implementation, the classes of sex offenders to be 
registered by jurisdictions retroactively, and the treatment of Indian 
tribes newly recognized by the Federal Government subsequent to the 
enactment of SORNA.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before July 13, 2010. Commenters should be aware 
that the electronic Federal Docket Management System will not accept 
comments after Midnight Eastern Time on the last day of the comment 
period.

ADDRESSES: Comments may be mailed to Linda M. Baldwin, Director, SMART 
Office, Office of Justice Programs, United States Department of 
Justice, 810 7th Street, NW., Washington, DC 20531. To ensure proper 
handling, please reference OAG Docket No. 134 on your correspondence. 
You may submit comments electronically or view an electronic version of 
these proposed guidelines at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Linda M. Baldwin, Director, Office of 
Sex Offender Sentencing, Monitoring, Apprehending, Registering, and 
Tracking; Office of Justice Programs, United States Department of 
Justice, Washington, DC, 202-305-2463.

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You also must 
locate all the personal identifying information you do not want posted 
online in the first paragraph of your comment and identify what 
information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively

[[Page 27363]]

redacted, all or part of that comment may not be posted on http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT paragraph.
    The reason the Department is requesting electronic comments before 
Midnight Eastern Time on the day the comment period closes is that the 
inter-agency Regulations.gov/Federal Docket Management System (FDMS), 
which receives electronic comments, terminates the public's ability to 
submit comments at Midnight on the day the comment period closes. 
Commenters in time zones other than Eastern may want to take this fact 
into account so that their electronic comments can be received. The 
constraints imposed by the Regulations.gov/FDMS system do not apply to 
U.S. postal comments, which will be considered as timely filed if they 
are postmarked before Midnight on the day the comment period closes.

Overview

    The Sex Offender Registration and Notification Act, which is title 
I of the Adam Walsh Child Protection and Safety Act of 2006, Public Law 
109-248, was enacted on July 27, 2006. SORNA (46 U.S.C. 16901 et seq.) 
establishes minimum national standards for sex offender registration 
and notification in the jurisdictions to which it applies. 
``Jurisdictions'' in the relevant sense are the 50 states, the District 
of Columbia, the five principal U.S. territories, and Indian tribes 
that satisfy certain criteria. 42 U.S.C. 16911(10). SORNA directs the 
Attorney General to issue guidelines and regulations to interpret and 
implement SORNA. See id. 16912(b).
    To this end, the Attorney General issued the National Guidelines 
for Sex Offender Registration and Notification, 73 FR 38030, on July 2, 
2008. The SORNA standards are administered by the Office of Sex 
Offender Sentencing, Monitoring, Apprehending, Registering, and 
Tracking (``SMART Office''), which assists all jurisdictions in their 
SORNA implementation efforts and determines whether jurisdictions have 
successfully completed these efforts. See 42 U.S.C. 16945; 73 FR at 
38044, 38047-48.
    Since the publication of the SORNA Guidelines, issues have arisen 
in SORNA implementation that require that some aspects of the 
Guidelines be augmented or modified. Consequently, the Department of 
Justice is proposing these supplemental guidelines, which do the 
following:
    (1) Allow jurisdictions, in their discretion, to exempt information 
concerning sex offenders required to register on the basis of juvenile 
delinquency adjudications from public Web site posting.
    (2) Require jurisdictions to exempt sex offenders' e-mail addresses 
and other Internet identifiers from public Web site posting, pursuant 
to the KIDS Act, 42 U.S.C. 16915a.
    (3) Require jurisdictions to have sex offenders report 
international travel 21 days in advance of such travel and to submit 
information concerning such travel to the appropriate Federal agencies 
and databases.
    (4) Clarify the means to be utilized to ensure consistent 
interjurisdictional information sharing and tracking of sex offenders.
    (5) Expand required registration information to include the forms 
signed by sex offenders acknowledging that they were advised of their 
registration obligations.
    (6) Provide additional information concerning the review process 
for determining that jurisdictions have substantially implemented the 
SORNA requirements in their programs and continue to comply with these 
requirements.
    (7) Afford jurisdictions greater latitude regarding the 
registration of sex offenders who have fully exited the justice system 
but later reenter through a new (non-sex-offense) criminal conviction 
by providing that jurisdictions may limit such registration to cases in 
which the new conviction is for a felony.
    (8) Provide, for Indian tribes that are newly recognized by the 
Federal government following the enactment of SORNA, authorization and 
time frames for such tribes to elect whether to become SORNA 
registration jurisdictions and to implement SORNA.

Proposed Supplemental Guidelines for Sex Offender Registration and 
Notification

Contents

I. Public Notification
    A. Juvenile Delinquents
    B. Internet Identifiers
II. Interjurisdictional Tracking and Information Sharing
    A. International Travel
    B. Domestic Interjurisdictional Tracking
    C. Acknowledgment Forms
III. Ongoing Implementation Assurance
IV. Retroactive Classes
V. Newly Recognized Tribes

I. Public Notification

A. Juvenile Delinquents

    SORNA includes as covered ``sex offender[s]'' juveniles at least 14 
years old who are adjudicated delinquent for particularly serious sex 
offenses. See 42 U.S.C. 16911(1), (8). While the SORNA Guidelines 
endeavored to facilitate jurisdictions' compliance with this aspect of 
SORNA, see 73 FR at 38030, 38040-41, 38050, resistance by some 
jurisdictions to public disclosure of information about sex offenders 
in this class has continued to be one of the largest impediments to 
SORNA implementation.
    Hence, the Attorney General is exercising his authority under 42 
U.S.C. 16918(c)(4) to create additional discretionary exemptions from 
public Web site disclosure to allow jurisdictions to exempt from public 
Web site disclosure information concerning sex offenders required to 
register on the basis of juvenile delinquency adjudications. This 
change creates a new discretionary, not mandatory, exemption from 
public Web site disclosure. It does not limit the discretion of 
jurisdictions to include information concerning sex offenders required 
to register on the basis of juvenile delinquency adjudications on their 
public Web sites if they so wish.
    The change regarding public Web site disclosure does not authorize 
treating sex offenders required to register on the basis of juvenile 
delinquency adjudications differently from sex offenders with adult 
convictions in other respects. Whether a case involves a juvenile 
delinquency adjudication in the category covered by SORNA or an adult 
conviction, SORNA's registration requirements remain applicable, see 42 
U.S.C. 16913-16, as do the requirements to transmit or make available 
registration information to the national (non-public) databases of sex 
offender information, to law enforcement and supervision agencies, and 
to registration authorities in other jurisdictions, see 73 FR at 38060.
    Jurisdictions are not required to provide registration information 
concerning sex offenders required to register on the basis of juvenile 
delinquency adjudications to the entities described in the SORNA 
Guidelines at 73 FR 38061, i.e., certain school, public housing, social 
service, and volunteer entities, and other organizations, companies, or 
individuals who request notification. This reflects an exercise of the 
Attorney General's authority to create exceptions to required 
information disclosure under 42 U.S.C. 16921(b). Accordingly,

[[Page 27364]]

if a jurisdiction decides not to include information on a juvenile 
delinquent sex offender on its public Web site, as is allowed by these 
supplemental guidelines, information on the sex offender does not have 
to be disclosed to these entities.

B. Internet Identifiers

    The KIDS Act, which was enacted in 2008, directed the Attorney 
General to utilize pre-existing legal authorities under SORNA to adopt 
certain measures relating to sex offenders' ``Internet identifiers,'' 
defined to mean e-mail addresses and other designations used for self-
identification or routing in Internet communication or posting. The 
KIDS Act requires the Attorney General to (i) include appropriate 
Internet identifier information in the registration information sex 
offenders are required to provide, (ii) specify the time and manner for 
keeping that information current, (iii) exempt such information from 
public Web site posting, and (iv) ensure that procedures are in place 
to notify sex offenders of resulting obligations. See 42 U.S.C. 16915a.
    The SORNA Guidelines incorporate requirements (i)-(ii) and (iv), as 
described above. See 73 FR at 38055 (Internet identifiers to be 
included in registration information), 38066 (reporting of changes in 
Internet identifiers), 38063-65 (notifying sex offenders of SORNA 
requirements). However, while the Guidelines discouraged the inclusion 
of sex offenders' Internet identifiers on the public Web sites, they 
did not adopt a mandatory exclusion of this information from public Web 
site posting, which the KIDS Act now requires. See 42 U.S.C. 16915a(c); 
73 FR at 38059-60.
    The authority under 42 U.S.C. 16918(b)(4) to create additional 
mandatory exemptions from public Web site disclosure is accordingly 
exercised to exempt sex offenders' Internet identifiers from public Web 
site posting. This means that jurisdictions cannot, consistent with 
SORNA, include sex offenders' Internet identifiers (such as e-mail 
addresses) in the sex offenders' public Web site postings or otherwise 
list or post sex offenders' Internet identifiers on the public sex 
offender Web sites.
    This change does not limit jurisdictions' retention and use of sex 
offenders' Internet identifier information for purposes other than 
public disclosure, including submission of the information to the 
national (non-public) databases of sex offender information, sharing of 
the information with law enforcement and supervision agencies, and 
sharing of the information with registration authorities in other 
jurisdictions. See 73 FR at 38060. The change also does not limit the 
discretion of jurisdictions to include on their public Web sites 
functions by which members of the public can ascertain whether a 
specified e-mail address or other Internet identifier is reported as 
that of a registered sex offender, see id. at 38059-60, or to disclose 
Internet identifier information to any one by means other than public 
Web site posting.
    The exemption of sex offenders' Internet identifiers from public 
Web site disclosure does not override or limit the requirement that sex 
offenders' names, including any aliases, be included in their public 
Web site postings. See 73 FR at 38059. A sex offender's use of his name 
or an alias to identify himself or for other purposes in Internet 
communications or postings does not exempt the name or alias from 
public Web site disclosure.

II. Interjurisdictional Tracking and Information Sharing

A. International Travel

    Certain features of SORNA and the SORNA Guidelines require the 
Department of Justice, in conjunction with other Federal agencies, to 
develop reliable means for identifying and tracking sex offenders who 
enter or leave the United States. See 42 U.S.C. 16928; 73 FR at 38066-
67. To that end, the Guidelines provide that sex offenders must be 
required to inform their residence jurisdictions if they intend to 
commence residence, employment, or school attendance outside of the 
United States, and that jurisdictions that are so informed must notify 
the U.S. Marshals Service and update the sex offender's registration 
information in the national databases. See 73 FR at 38067. (Regarding 
the general requirement to provide registration information for 
inclusion in the National Sex Offender Registry and other appropriate 
databases at the national level, see 42 U.S.C. 16921(b)(1); 73 FR at 
38060.) In addition, the Guidelines provide that sex offenders must be 
required to inform their residence jurisdictions about lodging at 
places away from their residences for seven days or more, regardless of 
whether that results from domestic or international travel. See 73 FR 
at 38056, 38066.
    Since the issuance of the Guidelines, the SMART Office has 
continued to work with other agencies of the Department of Justice, the 
Department of Homeland Security, the Department of State, and the 
Department of Defense on the development of a system for consistently 
identifying and tracking sex offenders who engage in international 
travel. Although, as noted, the current Guidelines require reporting of 
international travel information in certain circumstances, the existing 
requirements are not sufficient to provide the information needed for 
tracking such travel consistently.
    The authority under 42 U.S.C. 16914(a)(7) to expand the range of 
required registration information is accordingly exercised to provide 
that registrants must be required to inform their residence 
jurisdictions of intended travel outside of the United States at least 
21 days in advance of such travel. Pursuant to 42 U.S.C. 16921(b), 
jurisdictions so informed must provide the international travel 
information to the U.S. Marshals Service, and must transmit or make 
available that information to national databases, law enforcement and 
supervision agencies, and other jurisdictions as provided in the 
Guidelines. See 73 FR at 38060. Jurisdictions need not disclose 
international travel information to the entities described in the SORNA 
Guidelines at 73 FR 38061[boxh]i.e., certain school, public housing, 
social service, and volunteer entities, and other organizations, 
companies, or individuals who request notification. See 42 U.S.C. 
16921(b). As the international tracking system continues to develop, 
the SMART Office may issue additional directions to jurisdictions to 
provide notification concerning international travel by sex offenders, 
such as notice to Interpol, or notice to Department of Defense agencies 
concerning sex offenders who may live on U.S. military bases abroad.
    While notice of international travel will generally be required as 
described above, it is recognized that requiring 21 days advance notice 
may occasionally be unnecessary or inappropriate. For example, a sex 
offender may need to travel abroad unexpectedly because of a family or 
work emergency. Or separate advance notice of intended international 
trips may be unworkable and pointlessly burdensome for a sex offender 
who lives in a northern border state and commutes to Canada for work on 
a daily basis. Jurisdictions that wish to accommodate such situations 
should include information about their policies or practices in this 
area in their submissions to the SMART Office and the SMART Office will 
determine whether they adequately serve SORNA's international tracking 
objectives.

[[Page 27365]]

B. Domestic Interjurisdictional Tracking

    SORNA and the SORNA Guidelines require interjurisdictional sharing 
of registration information in various contexts and SORNA directs the 
Attorney General, in consultation with the jurisdictions, to develop 
and support software facilitating the immediate exchange of information 
among jurisdictions. See 42 U.S.C. 16913(c), 16919(b), 16921(b)(3), 
16923; 73 FR at 38047, 38062-68. The SMART Office accordingly has 
created and maintains the SORNA Exchange Portal, which enables the 
immediate exchange of information about registered sex offenders among 
the jurisdictions.
    Regular use of this tool is essential to ensuring that information 
is reliably shared among jurisdictions and that interjurisdictional 
tracking of sex offenders occurs consistently and effectively as SORNA 
contemplates. For example, if a jurisdiction sends notice that a sex 
offender has reported an intention to change his residence to another 
jurisdiction, but the destination jurisdiction fails to access the 
notice promptly, the sex offender's failure to appear or register in 
the destination jurisdiction may go unnoticed or detection of the 
violation may be delayed. Accordingly, to be approved as having 
substantially implemented SORNA, jurisdictions must, at a minimum, have 
a policy of regularly accessing the SORNA Exchange Portal to receive 
messages from other jurisdictions.
    Technological improvements may facilitate the creation of new tools 
that may eventually replace the existing SORNA Exchange Portal. If that 
occurs, the SMART Office may issue directions to jurisdictions 
concerning the use of these new tools that jurisdictions will need to 
follow to be approved as substantially implementing SORNA.

C. Acknowledgment Forms

    SORNA provides that sex offenders are to be informed of their 
registration obligations and required to sign acknowledgments that this 
information has been provided upon their initial registration. See 42 
U.S.C. 16917. Even before the enactment of SORNA, similar requirements 
were included in the predecessor national standards for sex offender 
registration and notification of the Jacob Wetterling Crimes Against 
Children and Sexually Violent Offender Registration Act (42 U.S.C. 
14071(b)(1)(A), prior to its repeal by SORNA).
    SORNA requires jurisdictions to provide criminal penalties for sex 
offenders who fail to comply with SORNA's requirements, see 42 U.S.C. 
16913(e), and Federal criminal liability is authorized for sex 
offenders who knowingly fail to register or update a registration as 
required by SORNA under circumstances supporting Federal jurisdiction, 
see 18 U.S.C. 2250. Successful prosecution of sex offenders for 
registration violations under these provisions may require proof that 
they were aware of a requirement to register.
    The acknowledgment forms signed by sex offenders regarding their 
registration obligations are likely to be the most consistently 
available and definitive proof of such knowledge. Including these forms 
in registration information will make them readily available in the 
jurisdictions in which sex offenders are initially registered, and will 
make them available to other jurisdictions pursuant to the provisions 
of SORNA and the Guidelines for transmission of registration 
information to other jurisdictions. See 42 U.S.C. 16921(b)(3); 73 FR at 
38060.
    The authority under 42 U.S.C. 16914(b)(8) to expand the range of 
required registration information is accordingly exercised to require 
that sex offenders' signed acknowledgment forms be included in their 
registration information. The existing Guidelines already provide that 
acknowledgment forms covering the SORNA requirements are to be obtained 
from registrants as part of the SORNA implementation process and 
thereafter. See 73 FR at 38063-65. As with other forms of documentary 
registration information, the inclusion of these forms in registration 
information can be effected by scanning the forms and including the 
resulting electronic documents in the registry databases or by 
including links or information that provides access to other databases 
in which the signed acknowledgments are available in electronic form. 
See 73 FR at 38055.

III. Ongoing Implementation Assurance

    The SORNA Guidelines explain that the SMART Office will determine 
whether jurisdictions have substantially implemented the SORNA 
requirements in their programs and that jurisdictions are to provide 
submissions to the SMART Office to facilitate this determination. See 
42 U.S.C. 16924-25; 73 FR at 38047-48.
    SORNA itself and the Guidelines assume throughout that 
jurisdictions must implement SORNA in practice, not just on paper, and 
the Guidelines provide many directions and suggestions for putting the 
SORNA standards into effect. See, e.g., 42 U.S.C. 16911(9), 16912(a), 
16913(c), 16914(b), 16917, 16918, 16921(b), 16922; 73 FR at 38059-61, 
38063-70. The Department of Justice and the SMART Office are making 
available to jurisdictions a wide range of practical aids to SORNA 
implementation, including software and communication systems to 
facilitate the exchange of sex offender information among jurisdictions 
and other technology and documentary tools. See 42 U.S.C. 16923; 73 FR 
at 38031-32, 38047.
    Hence, implementation of SORNA is not just a matter of adopting 
laws or rules that facially direct the performance of the measures 
required by SORNA. It entails actually carrying out those measures and, 
as noted, various forms of guidance and assistance have been provided 
to that end. Accordingly, in reviewing jurisdictions' requests for 
approval as having substantially implemented SORNA, the SMART Office 
will not be limited to facial examination of registration laws and 
policies, but rather will undertake such inquiry as is needed to ensure 
that jurisdictions are substantially implementing SORNA's requirements 
in practice. Jurisdictions can facilitate approval of their systems by 
including in their submissions to the SMART Office information 
concerning practical implementation measures and mechanisms, in 
addition to relevant laws and rules, such as policy and procedure 
manuals, description of infrastructure and technology resources, and 
information about personnel and budgetary measures relating to the 
operation of the jurisdiction's registration and notification system. 
The SMART Office may require jurisdictions to provide additional 
information, beyond that proffered in their submissions, as needed for 
a determination.
    Jurisdictions that have substantially implemented SORNA have a 
continuing obligation to maintain their system's consistency with 
current SORNA standards. Those that are grantees under the Byrne 
Justice Assistance Grant program will be required in connection with 
the annual grant application process to establish that their systems 
continue to meet SORNA standards. This will entail providing 
information as directed by the SMART Office, in addition to the 
information otherwise included in Byrne Grant applications, so that the 
SMART Office can verify continuing implementation. Jurisdictions that 
do not apply for Byrne Grants will also be required to demonstrate 
periodically that their systems continue to meet SORNA standards as 
directed by the SMART Office, and to provide such information

[[Page 27366]]

as the SMART Office may require to make this determination.
    If a jurisdiction's Byrne Justice Assistance Grant funding is 
reduced because of non-implementation of SORNA, it may regain 
eligibility for full funding in later program years by substantially 
implementing SORNA in such later years. The SMART Office will continue 
to work with all jurisdictions to ensure substantial implementation of 
SORNA and verify that they continue to meet the requirements of SORNA 
on an ongoing basis.

IV. Retroactive Classes

    SORNA's requirements apply to all sex offenders, regardless of when 
they were convicted. See 28 CFR 72.3. However, the SORNA Guidelines 
state that it will be deemed sufficient for substantial implementation 
if jurisdictions register sex offenders with pre-SORNA or pre-SORNA-
implementation sex offense convictions who remain in the system as 
prisoners, supervisees, or registrants, or who reenter the system 
through a subsequent criminal conviction. See 73 FR at 38035-36, 38043, 
38046-47, 38063-64. This feature of the Guidelines reflects an 
assumption that it may not be possible for jurisdictions to identify 
and register all sex offenders who fall within the SORNA registration 
categories, particularly where they have left the justice system and 
merged into the general population long ago, but that it will be 
feasible for jurisdictions to do so in relation to sex offenders who 
remain in the justice system or reenter it through a subsequent 
criminal conviction. See 73 FR at 38046.
    Experience supports a qualification of this assumption in relation 
to sex offenders who have fully exited the justice system but later 
reenter it through a subsequent criminal conviction for a non-sex 
offense that is relatively minor in character. (Where the subsequent 
conviction is for a sex offense it independently requires registration 
under SORNA.) In many jurisdictions the volume of misdemeanor 
prosecutions is large and most such cases may need to be disposed of in 
a manner that leaves little time or opportunity for examining the 
defendant's criminal history and ascertaining whether it contains some 
past sex offense conviction that would entail a present registration 
requirement under SORNA. In contrast, where the subsequent offense is a 
serious crime, ordinary practice is likely to involve closer scrutiny 
of the defendant's past criminal conduct, and ascertaining whether it 
includes a prior conviction requiring registration under SORNA should 
not entail an onerous new burden on jurisdictions.
    These supplemental guidelines accordingly are modifying the 
requirements for substantial implementation of SORNA in relation to sex 
offenders who have fully exited the justice system, i.e., those who are 
no longer prisoners, supervisees, or registrants. It will be sufficient 
if a jurisdiction registers such offenders who reenter the system 
through a subsequent criminal conviction in cases in which the 
subsequent criminal conviction is for a felony, i.e., for an offense 
for which the statutory maximum penalty exceeds a year of imprisonment. 
This allowance is limited to cases in which the subsequent conviction 
is for a non-sex offense. As noted above, a later conviction for a sex 
offense independently requires registration under SORNA, regardless of 
whether it is a felony or a misdemeanor.
    This allowance only establishes the minimum required for 
substantial implementation of SORNA in this context. Jurisdictions 
remain free to look more broadly and to establish systems to identify 
and register sex offenders who reenter the justice system through 
misdemeanor convictions, or even those who do not reenter the system 
through later criminal convictions but fall within the registration 
categories of SORNA or the jurisdiction's registration law.

V. Newly Recognized Tribes

    SORNA affords eligible federally-recognized Indian tribes a one-
year period, running from the date of SORNA's enactment on July 27, 
2006, to elect whether to become SORNA registration jurisdictions or to 
delegate their registration functions to the states within which they 
are located. See 42 U.S.C. 16927(a)(1), (2)(B); 73 FR at 38049-50. In 
principle there is no reason why an Indian tribe that initially 
receives recognition by the Federal government following the enactment 
of SORNA should be treated differently for SORNA purposes from other 
federally recognized tribes. But if such a tribe is initially 
recognized more than a year after the enactment of SORNA, then the 
limitation period of Sec.  16927 will have passed before the tribe 
became the kind of entity (a federally recognized tribe) that may be 
eligible to become a SORNA registration jurisdiction.
    Where the normal starting point of a statutory time limit for 
taking an action cannot sensibly be applied to a certain entity, the 
statute may be construed to allow the entity a reasonable amount of 
time to take the action. See Chicago & Alton R.R. Co. v. Tranbarger, 
238 U.S. 67, 73-74 (1915); see also Taylor v. Horn, 504 F.3d 416, 426 
(3d Cir. 2007) (running statutory time limit from later point where 
normal starting point was already past).
    This principle will be applied to 42 U.S.C. 16927 to allow Indian 
tribes that receive Federal recognition following the enactment of 
SORNA a reasonable amount of time to elect whether to become SORNA 
registration jurisdictions as provided in that section, and to allow 
such tribes a reasonable amount of time for substantial implementation 
of SORNA if they elect to be SORNA registration jurisdictions. In 
assessing what constitutes a reasonable amount of time for these 
purposes, the Department of Justice will look to the amount of time 
SORNA generally affords for tribal elections and for jurisdictions' 
implementation of the SORNA requirements. Hence, a tribe receiving 
Federal recognition after SORNA's enactment that otherwise qualifies to 
make the election under Sec.  16927(a) will be afforded a period of one 
year to make the election, running from the date of the tribe's 
recognition or the date of publication of these supplemental 
guidelines, whichever is later. Likewise, such a tribe will be afforded 
a period of three years for SORNA implementation, running from the same 
starting point, subject to up to two possible one-year extensions. See 
42 U.S.C. 16924.

    Dated: May 11, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-11665 Filed 5-12-10; 11:15 am]
BILLING CODE 4410-18-P