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2 July 2008


[Federal Register: July 2, 2008 (Volume 73, Number 128)]
[Notices]               
[Page 38029-38070]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jy08-142]                         


[[Page 38029]]

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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

[[Page 38030]]

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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.

-----------------------------------------------------------------------

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

[[Page 38032]]

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 http://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 whether 
an Indian tribe is a registration jurisdiction for purposes of SORNA. 
Section 127 generally afforded tribes an election between carrying out 
the SORNA requirements as jurisdictions subject to its provisions, or 
electing to delegate the SORNA registration and notification functions 
to the states within which the tribes are located. The period for such 
elections by tribes under Sec.  127 ended on July 27, 2007. Within that 
period, close to 200 tribes--the vast majority of those eligible to 
make an election under Sec.  127--elected to be SORNA registration 
jurisdictions. Tribes that have made this election are not required to 
duplicate sex offender registration and notification functions that are 
carried out by the states in which they are located, and are free to 
enter into agreements with such states for the shared or cooperative 
discharge of these functions, as provided in Sec.  127(b). The 
discussion of Sec.  127 in the guidelines has been updated to reflect 
the expiration of the period for tribal elections under that provision.
    As noted at the start of this summary, there are also substantive 
changes in the final guidelines that have been adopted on the basis of 
comments received from groups or associations of tribes, individual 
tribes, or their representatives, relating to the status or treatment 
of Indian tribes as SORNA jurisdictions or associated consequences. 
These include some changes of broad effect.
    The final guidelines provide that tribes may enter into cooperative 
arrangements among themselves to effect the substantial implementation 
of the SORNA requirements. For example, a group of tribes with adjacent 
territories may find it helpful to enter into an agreement under which 
the participating tribes contribute resources and information to the 
extent of their capacities, but the tribal police department (or some 
other agency) of one of the tribes in the group has primary 
responsibility for the direct discharge of the various functions 
required for registration of sex offenders subject to the jurisdiction 
of any of the tribes in the group. Under such an arrangement, the 
responsible agency in the selected tribe might generally handle 
initially registering sex offenders who enter the jurisdiction of any 
of the tribes in the group, receiving information from those sex 
offenders concerning subsequent changes in residence or other 
registration information, and conducting periodic in-person appearances 
by the registrants to verify and update the registration information, 
as SORNA requires. Likewise, with respect to maintenance of websites 
providing public access to sex offender information, as required by 
SORNA Sec.  118, one option for a tribe--explicitly authorized by SORNA 
Sec.  127(b)(2)--would be to adopt a cooperative agreement with a state 
in which it is located to include information concerning the sex 
offenders subject to the tribe's jurisdiction on the state's sex 
offender website. But an additional option afforded under the final 
guidelines is for tribes to enter into agreements or arrangements among 
themselves for the shared administration or operation of websites 
covering the sex offenders of the participating tribes.
    Although SORNA does not explicitly authorize intertribal agreements 
or arrangements for the cooperative discharge of registration and 
notification functions, there is no inconsistency between appropriately 
designed arrangements of this type and realization of SORNA's 
substantive objectives for sex offender registration and notification. 
Moreover, such arrangements may facilitate tribal implementation of 
SORNA by allowing the pooling of resources and expertise and avoiding 
the need for duplication of effort among tribes with similar 
registration and notification responsibilities. The implementation of

[[Page 38039]]

the SORNA requirements by tribes through such cooperative arrangements 
with other tribes will accordingly be considered as satisfying the 
SORNA substantial implementation standard.
    Beyond concerns about facilitating cooperative intertribal efforts, 
which are addressed in the final guidelines as discussed above, a 
common theme in the comments received from tribes or tribal 
organizations was concern about the treatment of tribes that are not 
registration jurisdictions for SORNA purposes. Some commenters urged 
that tribes subject to state law enforcement jurisdiction under 18 
U.S.C. 1162 be treated more like tribes that are allowed to be SORNA 
registration jurisdictions under SORNA Sec.  127 and have made 
elections to that effect. SORNA Sec.  127(a)(2)(A) provides that the 
SORNA registration and notification functions for tribes within the 
scope of 18 U.S.C. 1162 are automatically delegated to the state. As 
this is a statutory matter, the guidelines cannot change it.
    However, the final guidelines have been modified to make it clear 
that Sec.  1162 tribes are not excluded from carrying out sex offender 
registration and notification functions, either as an exercise of their 
sovereign powers to the extent that there is no conflict with the 
state's discharge of its responsibilities under SORNA, or pursuant to a 
decision by the state that sex offender registration functions can be 
most effectively carried out by tribal authorities with respect to sex 
offenders subject to the tribe's jurisdiction. Moreover, states have 
the same responsibility to carry out the SORNA registration and 
notification functions in relation to sex offenders in Sec.  1162 
tribal areas as they do in relation to sex offenders in other areas in 
the state. The SMART Office will take seriously the need to ensure that 
all states within the scope of Sec.  1162 discharge these 
responsibilities. The same points apply in relation to the relatively 
small number of tribes that were eligible to make an election to be a 
SORNA registration jurisdiction under the terms of SORNA Sec.  
127(a)(1)(A) but have not made such an election.
    Some commenters expressed more specific concerns about ensuring 
that tribes that are not SORNA registration jurisdictions receive 
notice concerning the entry or presence of sex offenders in their 
territories. In this connection, the notification requirements of SORNA 
Sec.  121 apply in relation to all entities within a state as described 
in that section. This will serve to make information concerning the 
location and relocation of sex offenders available to agencies, 
organizations, and individuals in tribes that are not SORNA 
registration jurisdictions, as with others agencies and organizations 
within the state. Specific requirements and means of access to such 
information under Sec.  121(b) are discussed in Part VII.B of the 
guidelines.
    A number of tribal commenters expressed concerns about SORNA Sec.  
127(a)(2)(C), which provides for delegation of the SORNA registration 
and notification functions to the state or states within which a tribe 
is located if ``the Attorney General determines that the tribe has not 
substantially implemented the requirements of this subtitle and is not 
likely to become capable of doing so within a reasonable amount of 
time.'' This provision for involuntary delegation to a state or states 
in the specified circumstances was included in SORNA to foreclose any 
possibility of uncloseable gaps in the nationwide network of sex 
offender registration and notification programs. The Department of 
Justice hopes and expects, however, that the occurrence of such an 
involuntary delegation will never be necessary, given the strong 
interest of the tribes in effective registration and notification for 
sex offenders subject to their jurisdictions, and the priority that the 
SMART Office gives to working with all tribes and other jurisdictions 
to facilitate the implementation of SORNA's requirements in relation to 
tribal areas. Moreover, substantial time remains for tribal 
implementation efforts. Tribal jurisdictions, like other jurisdictions, 
enjoy the three-year grace period provided by SORNA Sec.  124 for SORNA 
implementation (commencing on July 27, 2006), and the possibility of an 
extension of time for up to an additional two years under that 
provision. In addition, Sec.  127(a)(2)(C) does not require an 
involuntary delegation if a tribe fails to implement SORNA within the 
normally allowed time under Sec.  124, unless the Attorney General 
makes a further determination that the tribe is not likely to become 
capable of substantially implementing SORNA within a reasonable amount 
of time.

IV. Covered Sex Offenses and Sex Offenders

A. Convictions Generally

Tribal Convictions
    The proposed guidelines stated that jurisdictions could choose not 
to require registration based on Indian tribal sex offense convictions, 
where the defendant had not been afforded a right to counsel to which 
he would have been entitled in comparable state proceedings. Many 
comments received from tribal organizations and individual tribes 
objected to this provision. They argued that tribal convictions should 
be respected, and noted that many procedural protections for defendants 
are provided in tribal proceedings as a matter of federal law and in 
practice, including the right to counsel (though defined differently 
from the corresponding right in state proceedings). See 25 U.S.C. 1302.
    These comments are persuasive. SORNA's registration and 
notification requirements are premised on a person's conviction for a 
sex offense. See, e.g., SORNA Sec. Sec.  111(1), 113(a). With respect 
to covered ``sex offense[s],'' SORNA provides no basis for 
differentiating between tribal offenses and offenses under the laws of 
other domestic jurisdictions. Rather, it states expressly that ``sex 
offense'' includes ``criminal offense[s]'' of specified types, and that 
``criminal offense'' in the relevant sense means ``a State, local, 
tribal, foreign, or military offense * * * or other criminal offense.'' 
SORNA Sec.  111(5)(A)(i)-(ii), 111(6) (emphasis added).
    Likewise, with respect to ``conviction[s],'' SORNA does not 
differentiate between tribal convictions and convictions by other U.S. 
jurisdictions. SORNA does incorporate a special proviso with respect to 
foreign convictions, stating in Sec.  111(5)(B) that ``[a] foreign 
conviction is not a sex offense for the purposes of this title if it 
was not obtained with sufficient safeguards for fundamental fairness 
and due process for the accused under guidelines or regulations 
established under section 112.'' If it had similarly been contemplated 
that the Attorney General's guidelines would adopt further conditions 
for the effectiveness of Indian tribal convictions under SORNA, one 
would have expected SORNA to include some proviso comparable to Sec.  
111(5)(B) for tribal convictions. But SORNA contains no such proviso.
    The final guidelines accordingly do not differentiate between 
tribal convictions and convictions by other United States jurisdictions 
as predicates for sex offender registration and notification.
Nominal Variations on ``Conviction''
    The proposed guidelines stated that SORNA's requirements are not 
waived by nominal or terminological variations in the designations that 
jurisdictions use in referring to the dispositions of criminal cases. 
For example, SORNA's requirements remain applicable if a jurisdiction 
has a procedure under which certain sex offense convictions (e.g., 
those of young adult sex offenders who satisfy certain criteria) are 
referred

[[Page 38040]]

to as something other than ``convictions,'' or are nominally 
``vacated'' or ``set aside,'' but the sex offender remains subject to 
penal consequences based on the conviction. Some commenters objected to 
this aspect of the proposed guidelines, arguing that jurisdictions 
should be free to make SORNA's requirements inapplicable by such means.
    The issue raised by these comments is whether individual 
jurisdictions have a free hand to stipulate that the dispositions of 
criminal cases do not constitute ``convictions'' for purposes of SORNA. 
If that were the case, a jurisdiction could make the SORNA registration 
and notification requirements inapplicable to its sex offenders merely 
by varying its terminology--referring to certain classes of criminal 
convictions for sex offenses by some term other than ``conviction''--
and there would then be no national baseline of covered sex offenders 
and registration/notification requirements applicable thereto.
    Such an approach would be inconsistent with SORNA's purpose to 
establish ``a comprehensive national system for the registration of 
[sex] offenders.'' SORNA Sec.  102. SORNA's requirements apply to 
anyone who ``was convicted of a sex offense.'' See SORNA Sec. Sec.  
111(1) (defining ``sex offender''), 113 (applying SORNA's registration 
requirements to ``sex offender[s]''). While the statutory definitions 
of sex offenses falling within SORNA's registration categories, see 
SORNA Sec.  111(5)-(8), will vary from jurisdiction to jurisdiction, 
the meaning of ``convicted'' for purposes of SORNA is a matter of 
federal law, and its applicability is not determined by the terminology 
a jurisdiction uses in referring to the disposition of a criminal case. 
Notably, in light of SORNA Sec.  111(8), even certain juvenile 
delinquents are deemed to be ``convicted'' and hence required to 
register under SORNA's standards, if the juvenile is at least 14 years 
old and the offense for which the juvenile was adjudicated delinquent 
is sufficiently serious. But under these commenters' proposal, 
jurisdictions could avoid requiring registration for an adult offender 
convicted of such a crime merely by using some other term in referring 
to the conviction (e.g., ``youthful offender disposition'').
    SORNA does not afford such latitude to waive its requirements in 
this manner and no change has been made in the final guidelines on this 
point.
Juvenile Adjudications
    A number of commenters criticized the proposed guidelines' 
explanation of SORNA Sec.  111(8), which provides that certain juvenile 
delinquency adjudications are to be treated as convictions for 
registration purposes under SORNA. Many of these commenters argued that 
registration or public notification concerning juveniles adjudicated 
delinquent for sex offenses would be inappropriate or 
counterproductive, on such grounds as the following: that juveniles are 
less likely to reoffend, less culpable, and more amenable to treatment 
than adult offenders; that registration of juveniles will deter 
reporting of their crimes by their families and will promote avoidance 
of adjudicatory dispositions of their cases that reflect the actual 
offense conduct; that juveniles subject to registration or notification 
will be adversely affected with respect to education, employment, 
treatment, socialization, and personal security; and that premising 
registration or notification on juvenile delinquency adjudications is 
at odds with the characteristics and objectives of juvenile justice 
systems, including their requirements of confidentiality and 
orientation towards treatment and rehabilitation. The commenters 
advanced various recommendations for addressing these concerns, 
including not registering juveniles at all, making registration or 
notification for juveniles a matter of judicial discretion, or limiting 
registration or notification for juveniles to cases involving 
particularly violent or serious sex offenses.
    The more far reaching proposals for changes concerning the 
treatment of juveniles cannot be accepted because they would require a 
nullification of the judgment in SORNA that a narrowly defined class of 
juvenile delinquency adjudications are to be treated on a par with 
adult convictions for registration and notification purposes. 
Predecessor bills to SORNA took divergent approaches to this issue. 
Some excluded juvenile delinquents entirely from their registration and 
notification requirements, while others provided that juvenile 
delinquency adjudications would be treated the same as adult 
convictions across the board. Compare S. 1086, Sec. Sec.  102(1), 110, 
109th Cong., 2d Sess. (2006) (exclusion of juvenile delinquency 
adjudications in Senate-passed bill), with H.R. 3132, Sec.  111(3), 
109th Cong., 1st Sess. (2005) (juvenile delinquency adjudications 
treated the same as adult convictions in House-passed bill).
    The resolution of this issue in SORNA as enacted is an intermediate 
approach that does not generally require that juveniles be treated the 
same as adults, but does affirmatively treat certain juvenile 
delinquency adjudications as ``convictions,'' and the juveniles subject 
to such adjudications as ``sex offenders'' subject to the SORNA 
registration and notification requirements, under the following 
criteria: (i) The juvenile must have been at least 14 years old at the 
time of the offense, (ii) the offense adjudicated was comparable to or 
more severe than aggravated sexual abuse (as described in 18 U.S.C. 
2241) or an attempt or conspiracy to commit such an offense, and (iii) 
the registration period to which the juvenile is subject may be reduced 
from life to 25 years if certain ``clean record'' conditions are 
satisfied. See SORNA Sec. Sec.  111(1), (8), 115(b)(3)(B). This is the 
legislative decision that the guidelines must ``interpret and 
implement.'' SORNA Sec.  112(b). There is no authority to abrogate it 
or to approve some basically different system for registering (or not 
registering) juveniles adjudicated delinquent for sex offenses.
    As noted above, a more moderate recommendation advanced by some of 
the commenters was that registration or notification for juveniles be 
limited to cases involving particularly violent or serious sex 
offenses. This is more in line with what SORNA actually does provide, 
limiting the predicate offenses for registration based on juvenile 
delinquency adjudications to those ``comparable to'' aggravated sexual 
abuse as described in 18 U.S.C. 2241 (or an attempt or conspiracy to 
commit such an offense).
    It was noted in the comments, however, that under the 
interpretation of this standard in the proposed guidelines, it could 
potentially reach some cases not involving sex offenses of the most 
serious nature, such as a case involving a juvenile delinquency 
adjudication of a 14-year-old for engaging in consensual sexual play 
with an 11-year-old. A number of commenters questioned the suitability 
of such juvenile adjudications as the basis for lengthy or lifetime 
registration and public notification, and indicated that an inflexible 
application of the SORNA juvenile coverage requirement to reach such 
cases could constitute a substantial impediment to jurisdictions' 
implementation of SORNA.
    These comments have provided grounds for further thought concerning 
the measures that will be considered substantial implementation of 
SORNA in relation to juveniles adjudicated delinquent for sex offenses. 
The federal

[[Page 38041]]

offense of aggravated sexual abuse, 18 U.S.C. 2241, which provides the 
touchstone for juvenile coverage under SORNA Sec.  111(8), encompasses 
a range of serious sexually assaultive conduct that would correspond 
roughly to the common understanding of the notion of ``rape.'' 
Specifically, it proscribes engaging in a sexual act with another by 
means of force or the threat of serious violence, or by rendering 
unconscious or involuntarily drugging the victim. These aspects of the 
offense apply regardless of the age of the perpetrator or victim.
    However, there are certain features of 18 U.S.C. 2241 that provide 
a broader compass in cases involving victims who fall below specified 
age thresholds. Specifically, sexual acts with victims below the age of 
12 are covered, even in cases involving no overt violence or coercion. 
See 18 U.S.C. 2241(c). In addition, under the associated definition of 
covered ``sexual act[s],'' the relevant acts are for the most part 
those involving penetration, but direct genital touching--which would 
otherwise support only liability for lesser ``sexual contact'' 
offenses--is treated as a covered ``sexual act'' if the victim is below 
the age of 16. See 18 U.S.C. 2246(2)(D).
    In relation to the aspects of 18 U.S.C. 2241 that depend specially 
on the age of the victim, there is no difficulty in applying them 
without qualification as a basis for sex offender registration and 
notification in cases involving adult offenders. For example, a 30-
year-old who engages in sexual activity with an 11-year-old plausibly 
falls within a class of persons who may constitute a danger to 
children, and the protective functions served by SORNA's registration 
and notification requirements are implicated, regardless of finer 
issues concerning the victim's acquiescence or resistance or the exact 
nature of the sexual activity.
    In comparison, SORNA's public safety objectives may not be 
similarly implicated by juvenile cases like those pointed to by the 
commenters, such as a case involving a 14-year-old adjudicated 
delinquent based on consensual sexual play with an 11-year-old. Cases 
of this type fall within the definitional scope of 18 U.S.C. 2241 only 
because of special features of that provision that create liability for 
nonviolent or lesser sexual offenses based on the victim's age. But in 
such a case, the delinquent may himself be a child who is not far 
removed in age from the victim, and the offense may be one that would 
not entail comparable registration and notification requirements for an 
adult offender, if committed by the adult offender against a victim who 
was near in age to himself.
    Based on this reconsideration of the juvenile coverage issue, the 
final guidelines reflect a judgment that the objectives of SORNA Sec.  
111(8) will not be substantially undermined if jurisdictions are 
afforded discretion concerning registration and notification for 
juveniles adjudicated delinquent on the basis of offenses that are 
within the definitional scope of 18 U.S.C. 2241 only because of the age 
of the victim. In positive terms, jurisdictions will be considered to 
have substantially implemented SORNA in this context if they apply 
SORNA's registration and notification requirements to juveniles at 
least 14 years old who are adjudicated delinquent for committing 
offenses amounting to rape or its equivalent (or an attempt or 
conspiracy to commit such an offense), as specified in the final 
guidelines.

B. Foreign Convictions

    Some commenters expressed the concern that the requirement under 
SORNA to register sex offenders based on foreign convictions would 
create unmanageable burdens on jurisdictions to assess the fairness of 
foreign judicial proceedings. However, the guidelines have been 
formulated so as to minimize any such burden. In part, they require 
registration categorically based on sex offense convictions under the 
laws of four specified foreign countries--Canada, United Kingdom, 
Australia, and New Zealand--and based on convictions in countries whose 
judicial systems have been favorably assessed in the Country Reports on 
Human Rights Practices that are prepared by the U.S. Department of 
State. Jurisdictions are not required to exempt any sex offense 
convictions in other foreign countries from registration requirements, 
but if they wish to do so, they may exempt convictions that they 
consider unreliable indicia of factual guilt, utilizing whatever 
process or procedure they choose to adopt in making such 
determinations. The treatment of foreign convictions has accordingly 
not been changed in the final guidelines, except for limited editing to 
emphasize the extent of jurisdictions' discretion in approaching this 
issue, and correcting a reference to ``Great Britain'' in the proposed 
guidelines to refer instead to ``United Kingdom.''

C.-E. Sex Offenses Generally; Specified Offenses Against Minors; 
Protected Witnesses

    The proposed guidelines' general explanation of SORNA's offense 
coverage requirements and exceptions or qualifications relating to 
protected witnesses have not been substantially changed in the final 
guidelines. Critical comments relating to this aspect of the guidelines 
largely reflected misapprehensions that SORNA requires registration 
based on offenses that are not in the SORNA registration categories--
e.g., consensual sexual offenses involving minors or youth of like 
age--or proposed changes that SORNA does not allow, such as waiving 
registration based on offenses in the covered categories unless the 
offender is found to meet some threshold of likely dangerousness under 
a ``risk assessment'' system.

V. Classes of Sex Offenders

    The proposed guidelines' general explanation of SORNA's ``tiers,'' 
and their implications for registration and notification requirements, 
have not been substantially changed in the final guidelines. The 
critical comments received on this aspect of the guidelines largely 
amounted to arguments that other means of classifying sex offenders 
would be better policy, such as reliance on risk assessments that take 
account of a broader range of factors than those authorized in the 
SORNA tier definitions. As described and advocated in these comments, 
such alternative systems would involve less consistency and 
predictability in sex offender registration and notification 
requirements, and would make available less information (or no 
information) concerning many sex offenders to the authorities or the 
public. The comments do not establish that these systems represent a 
sounder balancing of interests than the standards enacted in SORNA. In 
any event, the adoption of such alternative classification systems 
cannot be regarded as substantial implementation of SORNA insofar as 
they entail registration and notification requirements that fall below 
the SORNA minimum requirements--see the discussion above in connection 
with Part II.E of the guidelines--and hence cannot be authorized by the 
guidelines.
    Some comments received from Indian tribes or tribal organizations 
objected to the uniform treatment of tribal sex offense convictions as 
supporting only ``tier I'' classification for SORNA purposes. They 
noted that this results from the federal law limitation of tribal court 
jurisdiction to misdemeanor penalties, though the underlying sex 
offense may be serious and would result in felony penalties if 
prosecuted in a state jurisdiction or the federal jurisdiction. This 
feature of the guidelines cannot be changed because it is statutory. 
SORNA Sec.  111(2)-(4)

[[Page 38042]]

classifies sex offenders as tier II or tier III only on the basis of 
offenses punishable by imprisonment for more than one year. However, as 
with other features of SORNA, the requirements associated with the tier 
I classification constitute only minimum standards. Tribal 
jurisdictions and other jurisdictions are free to prescribe more 
extensive registration and notification requirements for sex offenders 
convicted of tribal offenses, taking into account the substantive 
nature of the offenses or other factors, notwithstanding the 
misdemeanor status of the offenses in terms of the maximum permitted 
penalty. The final guidelines make this point more explicitly.
    Responding to other comments received, changes have also been made 
in Part V to: (i) Clarify further that the elements of the offense of 
conviction may be relied on in making tier classifications, except with 
respect to victim age; (ii) clarify the operation of tier enhancements 
based on recidivism, where the earlier conviction supporting a higher 
tier classification occurred prior to the enactment of SORNA or its 
implementation in a particular jurisdiction; and (iii) emphasize that 
the tier classification criteria do not constitute independent 
requirements to register offenders for whom SORNA does not otherwise 
require registration.

VI. Required Registration Information

Registration Information Requirements Added by the Guidelines

    Some commenters objected globally to the guidelines' requirement 
that the sex offender registries obtain certain types of information 
that are not expressly required by SORNA Sec.  114, such as e-mail 
addresses and comparable Internet identifiers, telephone numbers, 
temporary lodging information, travel document information, 
professional license information, and date of birth information. The 
guidelines have not been changed on this point. Many of these comments 
projected that sex offenders would be exposed to harassment or other 
adverse consequences because of the public disclosure of such 
information, reflecting an incorrect assumption that SORNA or the 
guidelines would require that all such information be posted on the 
public sex offender websites. The actual website posting requirements 
under the guidelines are more limited, and the final guidelines have 
been revised to make this point with greater clarity, as discussed in 
connection with Part VII of the guidelines below. All of the additional 
items are within the scope of the Attorney General's express statutory 
authority to require additional registration information. See SORNA 
Sec.  114(a)(7), (b)(8). All are justified as means of furthering 
SORNA's public safety objectives, as the guidelines explain in their 
discussion of the additional required information.

Tribal Concerns

    Many of the comments received from Indian tribes or tribal 
organizations objected to a specification in the proposed guidelines 
that the names and aliases that sex offenders are required to register 
include ``traditional names given by family or clan pursuant to ethnic 
or tribal tradition.'' The purpose of this provision was to ensure that 
the registration information would include the names by which sex 
offenders are commonly known in their communities. It was not intended 
to require registration or disclosure of secret names of religious or 
ceremonial significance, and such names are not needed to further the 
purposes of sex offender registration and notification. The final 
guidelines have accordingly modified the description of this 
requirement so as to limit it to ethnic or tribal names by which the 
sex offender is commonly known.
    Some of the tribal commenters also expressed concern about the 
requirements relating to DNA information from sex offenders, describing 
situations in which tribal communities had been misled about the uses 
that would be made of DNA samples they provided. However, SORNA's 
requirement on this point, as the guidelines explain, is only that 
jurisdictions ensure that DNA samples are collected from sex offenders 
for purposes of analysis and inclusion in the Combined DNA Index System 
(CODIS). The normal rules and procedures for DNA information in CODIS 
are tailored to its use for law enforcement identification purposes, 
such as matching a perpetrator's DNA collected from crime scene 
evidence to DNA taken from an offender. These rules and procedures are 
adequately designed to ensure that the analysis of collected DNA 
samples and entry of the resulting DNA profiles into CODIS cannot be 
used for the improper purposes that concern the commenters, such as 
ascertaining the incidence of genetic traits or disorders in 
communities or population groups from which the DNA samples are 
derived.

Requests for Clarification

    Some commenters requested additional guidance or clarification 
regarding particular types of required registration information, such 
as the information concerning travel and immigration documents, and the 
statutory requirement to include information concerning addresses at 
which the sex offender ``will'' be an employee. The final guidelines 
provide further explanation or clarification on these points.

VII. Disclosure and Sharing of Information

    Some of the comments reflected misapprehensions that the guidelines 
would require public disclosure of a broader range of sex offender 
information than is actually the case. The guidelines identify a 
limited number of informational items concerning sex offenders that 
must be included on the public sex offender Web sites, essentially 
covering name information, address or location information, vehicle 
information, physical description, sex offenses for which convicted, 
and a current photograph. Other types of registration information are 
within the scope of either mandatory or discretionary exemptions from 
required public disclosure. The relevant discussion in the final 
guidelines has been revised for greater clarity on this point.
    Some commenters objected specifically to the required public 
disclosure of the addresses of employers of registered sex offenders, 
arguing that this information should be exempted from Web site posting, 
either on a discretionary or mandatory basis. SORNA itself requires 
that the registration information for sex offenders include employer 
name and address, but provides a discretionary exemption from public 
Web site posting for employer name only (not employer address). Compare 
SORNA Sec.  114(a)(4), with SORNA Sec.  118(c)(2). The SORNA provisions 
on this point reflect an accommodation of competing interests. On the 
one hand, requiring Web site posting of employer name could tar an 
employer based on the association with the sex offender and deter 
employers from hiring sex offenders. On the other hand, disclosing no 
employment-related information or only limited employment-related 
information could leave the public unaware concerning sex offenders' 
presence in places where they actually spend much of their time (e.g., 
40 hours a week for a sex offender with a full-time job). SORNA 
accommodates these interests by requiring that the public Web sites 
include employer address information, but leaving it in the discretion 
of jurisdictions whether they will include employer name information as 
well. The

[[Page 38043]]

comments received provide no adequate basis for the guidelines to 
second-guess this legislative judgment concerning the proper 
accommodation of these interests, even assuming that there would be 
legal authority to do so.

VIII. Where Registration Is Required

    The portion of the guidelines relating to the jurisdictions in 
which registration is required has been edited to a limited extent for 
clarity on some points but has not been substantially changed. Some 
commenters misunderstood SORNA and the guidelines as requiring 
continued registration with the original jurisdiction of conviction 
even if the sex offender has no present residence, employment, or 
school attendance relationship with that jurisdiction. Some took 
``jurisdiction'' as including political subdivisions of states, and 
consequently believed that SORNA prescribes requirements as to the 
particular locations within states in which sex offenders must be 
required to register--e.g., in which particular county or counties. 
SORNA itself and the proposed guidelines do not provide any support for 
these misconceptions, and additional language has been included in the 
final guidelines to guard against continued misunderstandings of this 
type.

IX. Initial Registration

    The discussion in this Part has been expanded in the final 
guidelines to explain the statutory requirement in section 117(a) of 
SORNA that initial registration of incarcerated sex offenders is to be 
carried out ``shortly before release.''
    Some commenters expressed concern about initial registration in 
relation to sex offenders whose predicate sex offense convictions 
predate the enactment of SORNA or its implementation in a particular 
jurisdiction. The guidelines require registration of such sex offenders 
in conformity with SORNA if they remain in the system as prisoners, 
supervisees, or registrants, or if they later reenter the system 
because of a subsequent criminal conviction. The commenters' concerns 
focused heavily on the fourth category--sex offenders who were fully 
out of the system at the time of SORNA implementation, but later 
reenter it based on conviction for some other crime. Concerns were 
expressed that registration of offenders in this category would require 
jurisdictions to examine the criminal histories of all new criminal 
convicts indefinitely to ascertain whether they have a sex offense 
conviction somewhere in the past that would require registration under 
the SORNA standards. A particular concern was that in cases in which 
the sex offense conviction occurred long ago, information about it 
might not be disclosed through an ordinary criminal history check, 
potentially necessitating extraordinary records search efforts to 
determine whether the offender must register. Concerns also were 
expressed about the adequacy of ordinary criminal history information 
to determine the extent of registration requirements under SORNA, 
including whether the sex offender's registration period has expired or 
still has time left to run. For example, whether the victim of a sexual 
contact offense was an adult or a minor may make the difference between 
the offender's classification as tier I or tier II under the SORNA 
standards, with consequent differences in the required registration 
period (15 years for tier I versus 25 years for tier II). But the 
criminal history information available in a case in which the sex 
offense conviction predated a jurisdiction's implementation of SORNA 
might show simply conviction of a sexual contact offense with no 
indication as to victim age.
    The final guidelines address the foregoing concerns by clarifying 
that jurisdictions may rely on their normal methods and standards for 
obtaining and reviewing criminal history information, and on the 
information available in the records obtained by such means, in 
ascertaining SORNA registration requirements for sex offenders in the 
``retroactive'' classes.
    Some of the comments received from Indian tribes or tribal 
organizations proposed that the Federal Bureau of Prisons should be 
responsible for initial registration of federal sex offenders who will 
be released to tribal areas. However, there is a more limited statutory 
release procedure for federal sex offenders under 18 U.S.C. 4042(c), 
which requires the Federal Bureau of Prisons or federal probation 
offices to notify sex offenders of their registration requirements 
under SORNA around the time of their release or sentencing. That 
provision further requires the Bureau of Prisons and the federal 
probation offices to notify state and local law enforcement and 
registration agencies in the destination jurisdictions, which include 
tribal jurisdictions for sex offenders released to tribal areas. The 
failure of such a sex offender to appear in the destination 
jurisdiction and register as required would be reportable to federal 
authorities as provided in Part XIII of the guidelines, and would 
generally result in investigation of the matter by federal supervision 
or law enforcement authorities. In the normal situation in which the 
released federal sex offender does appear in the destination 
jurisdiction as required, that jurisdiction would register the sex 
offender as it does sex offenders entering from other jurisdictions.

X. Keeping the Registration Current

    Some commenters expressed concern about requiring sex offenders to 
report changes of certain types of registration information through in-
person appearances. For example, SORNA Sec.  113(c) requires that 
changes of employment be reported through in-person appearances within 
three business days. Consider the effect, for example, in relation to a 
sex offender who obtains work--e.g., construction work or other manual 
labor--by showing up each morning at a site that contractors visit to 
recruit day labor. If the sex offender's employer varied day to day, 
the requirement to report changes in employment through in-person 
appearances might effectively require the sex offender to make an in-
person appearance to report his recent employment history every few 
days, with attendant burdens on the jurisdiction and the offender.
    In relation to required registration information, the proposed 
guidelines recognized that sex offenders may reside somewhere without 
having definite residence addresses, and similarly that sex offenders 
may be employed without fixed or settled employment. For such cases, 
Part VI of the guidelines affords necessary flexibility by providing 
that jurisdictions are to obtain information concerning such transient 
residence or employment with whatever definiteness is possible under 
the circumstances. The final guidelines incorporate comparable 
provisions in Part X so as to afford jurisdictions flexibility in 
dealing with the reporting of changes in residence or employment by sex 
offenders whose residence or employment is transient in character.
    Comments were also received concerning a potential gap in the 
reporting requirements for sex offenders who terminate residence, 
employment, or school attendance in a jurisdiction but do not have any 
definite expectation about residing, working, or attending school 
elsewhere. For example, consider the case of a transient sex offender 
who is moving out of a state in which he has been living, but cannot 
say in which state or other jurisdiction he will reside next. The 
proposed guidelines did not address the reporting requirements in such 
situations with adequate clarity. The final guidelines provide that the 
requirement for sex offenders to keep

[[Page 38044]]

the registration current includes requiring them to report consistently 
the termination of residence, employment, or school attendance to the 
appropriate jurisdiction in which they have been registered, regardless 
of whether any new place of residence, employment, or school attendance 
can be identified.
    Responding to comments and questions received, a final paragraph 
also has been added to Part X in the final guidelines to clarify 
further that the SORNA requirement that registrants report changes in 
registration information through in-person appearances pertains only to 
changes in name and to changes in residence, employment, or school 
attendance between or within jurisdictions. The manner in which sex 
offenders are to report other changes in registration information is a 
matter within jurisdictions' discretion.

XI. Verification/Appearance Requirements

    The discussion of SORNA's requirement of periodic in-person 
appearances by registrants to verify and update registration 
information has not been substantially modified in the final guidelines 
because it did not draw extensive comments, and no comments received 
provided any persuasive reasons to change the discussion of this 
requirement. However, responding to comments about situations in which 
a registrant dies, a paragraph has been added to Part XI in the final 
guidelines to provide advice to jurisdictions about the updating of 
registration information and public Web site postings in such 
situations.

XII. Duration of Registration

    As discussed in earlier portions of the summary, the explanation 
concerning the required duration of registration is revised in the 
final guidelines. The changes clarify further (i) the discretionary 
nature of tolling during subsequent periods in which the sex offender 
is in custody, and (ii) the discretion of jurisdictions to adopt 
registration periods that are longer than the required SORNA minimum.

XIII. Enforcement of Registration Requirements

    The discussion of enforcement of registration requirements in the 
proposed guidelines has not been modified in the final guidelines 
because it did not draw extensive comment and the comments received did 
not provide any persuasive reasons to change this part.

The National Guidelines for Sex Offender Registration and Notification

Contents

I. Introduction
II. General Principles
    A. Terminology
    B. Minimum National Standards
    C. Retroactivity
    D. Automation--Electronic Databases and Software
    E. Implementation
III. Covered Jurisdictions
IV. Covered Sex Offenses and Sex Offenders
    A. Convictions Generally
    B. Foreign Convictions
    C. Sex Offenses Generally
    D. Specified Offenses Against Minors
    E. Protected Witnesses
V. Classes of Sex Offenders
VI. Required Registration Information
VII. Disclosure and Sharing of Information
    A. Sex Offender Websites
    B. Community Notification and Targeted Disclosures
VIII. Where Registration is Required
IX. Initial Registration
X. Keeping the Registration Current
    A. Changes of Name, Residence, Employment, or School Attendance
    B. Changes in Other Registration Information
    C. International Travel
XI. Verification/Appearance Requirements
XII. Duration of Registration
XIII. Enforcement of Registration Requirements

I. Introduction

    The Sex Offender Registration and Notification Act (``SORNA'' or 
``the Act''), which is title I of the Adam Walsh Child Protection and 
Safety Act of 2006 (Pub. L. 109-248), provides a new comprehensive set 
of minimum standards for sex offender registration and notification in 
the United States. These Guidelines are issued to provide guidance and 
assistance to covered jurisdictions--the 50 States, the District of 
Columbia, the principal U.S. territories, and Indian tribal 
governments--in implementing the SORNA standards in their registration 
and notification programs.
    The adoption of these Guidelines carries out a statutory directive 
to the Attorney General, appearing in SORNA Sec.  112(b), to issue 
guidelines to interpret and implement SORNA. Other provisions of SORNA 
establish the Office of Sex Offender Sentencing, Monitoring, 
Apprehending, Registering, and Tracking (the ``SMART Office''), a 
component of the Office of Justice Programs of the U.S. Department of 
Justice. The SMART Office is authorized by law to administer the 
standards for sex offender registration and notification that are set 
forth in SORNA and interpreted and implemented in these Guidelines. It 
is further authorized to cooperate with and provide assistance to 
states, local governments, tribal governments, and other public and 
private entities in relation to sex offender registration and 
notification and other measures for the protection of the public from 
sexual abuse or exploitation. See SORNA Sec.  146(c). Accordingly, the 
SMART Office should be regarded by jurisdictions discharging 
registration and notification functions as their key partner and 
resource in the federal government in further developing and 
strengthening their sex offender registration and notification 
programs, and the SMART Office will provide all possible assistance for 
this purpose.
    The development of sex offender registration and notification 
programs in the United States has proceeded rapidly since the early 
1990s, and at the present time such programs exist in all of the 
states, the District of Columbia, and some of the territories and 
tribes. These programs serve a number of important public safety 
purposes. In their most basic character, the registration aspects of 
these programs are systems for tracking sex offenders following their 
release into the community. If a sexually violent crime occurs or a 
child is molested, information available to law enforcement through the 
registration program about sex offenders who may have been present in 
the area may help to identify the perpetrator and solve the crime. If a 
particular released sex offender is implicated in such a crime, 
knowledge of the sex offender's whereabouts through the registration 
system may help law enforcement in making a prompt apprehension. The 
registration program may also have salutary effects in relation to the 
likelihood of registrants committing more sex offenses. Registered sex 
offenders will perceive that the authorities' knowledge of their 
identities, locations, and past offenses reduces the chances that they 
can avoid detection and apprehension if they reoffend, and this 
perception may help to discourage them from engaging in further 
criminal conduct.
    Registration also provides the informational base for the other key 
aspect of the programs--notification--which involves making information 
about released sex offenders more broadly available to the public. The 
means of public notification currently include sex offender Web sites 
in all states, the District of Columbia, and some territories, and may 
involve other forms of notice as well. The availability of such 
information helps members of the public to take common sense measures 
for the protection of

[[Page 38045]]

themselves and their families, such as declining the offer of a 
convicted child molester to watch their children or head a youth group, 
or reporting to the authorities approaches to children or other 
suspicious activities by such a sex offender. Here as well, the effect 
is salutary in relation to the sex offenders themselves, since 
knowledge by those around them of their sex offense histories reduces 
the likelihood that they will be presented with opportunities to 
reoffend.
    While sex offender registration and notification in the United 
States are generally carried out through programs operated by the 
individual states and other non-federal jurisdictions, their 
effectiveness depends on also having effective arrangements for 
tracking of registrants as they move among jurisdictions and some 
national baseline of registration and notification standards. In a 
federal union like the United States with a mobile population, sex 
offender registration could not be effective if registered sex 
offenders could simply disappear from the purview of the registration 
authorities by moving from one jurisdiction to another, or if 
registration and notification requirements could be evaded by moving 
from a jurisdiction with an effective program to a nearby jurisdiction 
that required little or nothing in terms of registration and 
notification.
    Hence, there have been national standards for sex offender 
registration in the United States since the enactment of the Jacob 
Wetterling Crimes Against Children and Sexually Violent Offender Act 
(42 U.S.C. 14071) in 1994. The national standards from their inception 
have addressed such matters as the offenses for which registration 
should be required, updating and periodic verification of registration 
information, the duration of registration, public notification, and 
continued registration and tracking of sex offenders when they relocate 
from one jurisdiction to another.
    Following the enactment of the Wetterling Act in 1994, that Act was 
amended a number of times, in part reflecting and in part promoting 
trends in the development of the state registration and notification 
programs. Ultimately, Congress concluded that the patchwork of 
standards that had resulted from piecemeal amendments should be 
replaced with a comprehensive new set of standards--the SORNA reforms, 
whose implementation these Guidelines concern--that would close 
potential gaps and loopholes under the old law, and generally 
strengthen the nationwide network of sex offender registration and 
notification programs. Important areas of reform under the SORNA 
standards include:
    Extending the jurisdictions in which registration is required 
beyond the 50 States, the District of Columbia, and the principal U.S. 
territories, to include Indian tribal jurisdictions.
    Extending the classes of sex offenders and sex offenses for which 
registration is required.
    Consistently requiring that sex offenders in the covered classes 
register and keep the registration current in the jurisdictions in 
which they reside, work, or go to school.
    Requiring more extensive registration information.
    Adding to the national standards periodic in-person appearances by 
registrants to verify and update the registration information.
    Broadening the availability of information concerning registered 
sex offenders to the public, through posting on sex offender Web sites 
and by other means.
    Adopting reforms affecting the required duration of registration.
    In addition, SORNA strengthens the federal superstructure elements 
that leverage and support the sex offender registration and 
notification programs of the registration jurisdictions. These 
strengthened elements are: (i) Stepped-up federal investigation and 
prosecution efforts to assist jurisdictions in enforcing sex offender 
registration requirements; (ii) new statutory provisions for the 
national database and national Web site (i.e., the National Sex 
Offender Registry and the Dru Sjodin National Sex Offender Public Web 
site) that effectively compile information obtained under the 
registration programs of the states and other jurisdictions and make it 
readily available to law enforcement or the public on a nationwide 
basis; (iii) development by the federal government of software tools, 
which the states and other registration jurisdictions will be able to 
use to facilitate the operation of their registration and notification 
programs in conformity with the SORNA standards; and (iv) establishment 
of the SMART Office to administer the national standards for sex 
offender registration and notification and to assist registration 
jurisdictions in their implementation.
    Through the cooperative effort of the 50 States, the District of 
Columbia, the U.S. territories, and Indian tribal governments with the 
responsible federal agencies, the SORNA goal of an effective and 
comprehensive national system of registration and notification programs 
can be realized, with great benefit to the ultimate objective of 
``protect[ing] the public from sex offenders and offenders against 
children.'' SORNA Sec.  102. These Guidelines provide the blueprint for 
that effort.

II. General Principles

    Before turning to the specific SORNA standards and requirements 
discussed in the remainder of these Guidelines, certain general points 
should be noted concerning the interpretation and application of the 
Act and these Guidelines:

A. Terminology

    These Guidelines use key terms with the meanings defined in SORNA. 
In particular, the term ``jurisdiction'' is consistently used with the 
meaning set forth in SORNA Sec.  111(10). As defined in that provision, 
it refers to the 50 States, the District of Columbia, the five 
principal U.S. territories--i.e., the Commonwealth of Puerto Rico, 
Guam, American Samoa, the Northern Mariana Islands, and the United 
States Virgin Islands--and Indian tribes that elect to function as 
registration jurisdictions under SORNA Sec.  127. (For more concerning 
covered jurisdictions, see Part III of these Guidelines.) Thus, when 
these Guidelines refer to ``jurisdictions'' implementing the SORNA 
registration and notification requirements, the reference is to 
implementation of these requirements by the jurisdictions specified in 
SORNA Sec.  111(10). ``Jurisdictions'' is not used to refer to other 
territorial or political units or subdivisions, such as counties, 
cities, or towns of states or territories. Likewise, the term ``sex 
offense'' is not used to refer to any and all crimes of a sexual 
nature, but rather to those covered by the definition of ``sex offense 
'' appearing in SORNA Sec.  111(5), and the term ``sex offender'' has 
the meaning stated in SORNA Sec.  111(1). (For more concerning covered 
sex offenses and offenders, see Part IV of these Guidelines.)
    SORNA's registration requirements generally come into play when sex 
offenders are released from imprisonment, or when they are sentenced if 
the sentence does not involve imprisonment. See SORNA Sec.  113(b). 
``Imprisonment '' as it is used in SORNA and these Guidelines refers to 
incarceration pursuant to a conviction, regardless of the nature of the 
institution in which the offender serves the sentence. It is not used 
in any narrow technical sense, such as confinement in a state 
``prison'' as opposed to a local ``jail.''

[[Page 38046]]

    SORNA includes a number of references relating to implementation by 
jurisdictions of the requirements of ``this title.'' Section 125 
provides a mandatory 10% reduction in certain federal justice 
assistance funding for jurisdictions that fail, as determined by the 
Attorney General, to substantially implement ``this title'' within the 
time frame specified in section 124, and section 126 authorizes a Sex 
Offender Management Assistance grant program to help offset the costs 
of implementing ``this title.'' In the context of these provisions, the 
references to ``this title'' function as a shorthand for the SORNA sex 
offender registration and notification standards. They do not mean that 
funding under these provisions is affected by a jurisdiction's 
implementation or non-implementation of reforms unrelated to sex 
offender registration and notification that appear in later portions of 
title I of the Adam Walsh Child Protection and Safety Act of 2006 
(particularly, subtitle C of that title).
    Section 125(d) of SORNA states that the provisions of SORNA ``that 
are cast as directions to jurisdictions or their officials constitute, 
in relation to States, only conditions required to avoid the reduction 
of Federal funding under this section.'' Statements in these Guidelines 
that SORNA requires jurisdictions to adopt certain measures should be 
understood accordingly in their application to the states. Since the 
SORNA requirements relating to sex offender registration and 
notification are, in relation to the states, only partial funding 
eligibility conditions, creation of these requirements is within the 
constitutional authority of the federal government.

B. Minimum National Standards

    SORNA establishes a national baseline for sex offender registration 
and notification programs. In other words, the Act generally 
constitutes a set of minimum national standards and sets a floor, not a 
ceiling, for jurisdictions' programs. Hence, for example, a 
jurisdiction may have a system that requires registration by broader 
classes of convicted offenders than those identified in SORNA, or that 
requires, in addition, registration by certain classes of non-convicts 
(such as persons acquitted on the ground of insanity of sexually 
violent crimes or child molestation offenses, or persons released 
following civil commitment as sexually dangerous persons). A 
jurisdiction may require verification of the registered address or 
other registration information by sex offenders with greater frequency 
than SORNA requires, or by other means in addition to those required by 
SORNA (e.g., through the use of mailed address verification forms, in 
addition to in-person appearances). A jurisdiction may require sex 
offenders to register for longer periods than those required by the 
SORNA standards. A jurisdiction may require that changes in 
registration information be reported by registrants on a more stringent 
basis than the SORNA minimum standards--e.g., requiring that changes of 
residence be reported before the sex offender moves, rather than within 
three business days following the move. A jurisdiction may extend Web 
site posting to broader classes of registrants than SORNA requires and 
may post more information concerning registrants than SORNA and these 
Guidelines require.
    Such measures, which encompass the SORNA baseline of sex offender 
registration and notification requirements but go beyond them, 
generally have no negative implication concerning jurisdictions' 
implementation of or compliance with SORNA. This is so because the 
general purpose of SORNA is to protect the public from sex offenders 
and offenders against children through effective sex offender 
registration and notification, and it is not intended to preclude or 
limit jurisdictions' discretion to adopt more extensive or additional 
registration and notification requirements to that end. There is an 
exception to this general rule in SORNA Sec.  118(b), which requires 
that certain types of information, such as victim identity and 
registrants' Social Security numbers, be excluded from jurisdictions' 
publicly accessible sex offender Web sites, as discussed in Part VII of 
these Guidelines. In other respects, jurisdictions' discretion to go 
further than the SORNA minimum is not limited.

C. Retroactivity

    The applicability of the SORNA requirements is not limited to sex 
offenders whose predicate sex offense convictions occur following a 
jurisdiction's implementation of a conforming registration program. 
Rather, SORNA's requirements took effect when SORNA was enacted on July 
27, 2006, and they have applied since that time to all sex offenders, 
including those whose convictions predate SORNA's enactment. See 72 FR 
8894, 8895-96 (Feb. 28, 2007); 28 CFR 72.3. The application of the 
SORNA standards to sex offenders whose convictions predate SORNA 
creates no ex post facto problem ``because the SORNA sex offender 
registration and notification requirements are intended to be non-
punitive, regulatory measures adopted for public safety purposes, and 
hence may validly be applied (and enforced by criminal sanctions) 
against sex offenders whose predicate convictions occurred prior to the 
creation of these requirements. See Smith v. Doe, 538 U.S. 84 (2003).'' 
72 FR at 8896.
    As a practical matter, jurisdictions may not be able to identify 
all sex offenders who fall within the SORNA registration categories, 
where the predicate convictions predate the enactment of SORNA or the 
jurisdiction's implementation of the SORNA standards in its 
registration program, particularly where such sex offenders have left 
the justice system and merged into the general population long ago. But 
many sex offenders with such convictions will remain in (or reenter) 
the system because:
    They are incarcerated or under supervision, either for the 
predicate sex offense or for some other crime;
    They are already registered or subject to a pre-existing sex 
offender registration requirement under the jurisdiction's law; or
    They hereafter reenter the jurisdiction's justice system because of 
conviction for some other crime (whether or not a sex offense).
    Sex offenders in these three classes are within the cognizance of 
the jurisdiction, and the jurisdiction will often have independent 
reasons to review their criminal histories for penal, correctional, or 
registration/notification purposes. Accordingly, a jurisdiction will be 
deemed to have substantially implemented the SORNA standards with 
respect to sex offenders whose predicate convictions predate the 
enactment of SORNA or the implementation of SORNA in the jurisdiction's 
program if it registers these sex offenders, when they fall within any 
of the three classes described above, in conformity with the SORNA 
standards. (For more about the registration of sex offenders in these 
classes, see the discussion under ``retroactive classes'' in Part IX of 
these Guidelines.)
    The required retroactive application of the SORNA requirements will 
also be limited in some cases by the limits on the required duration of 
registration. As discussed in Part XII of these Guidelines, SORNA 
requires minimum registration periods of varying length for sex 
offenders in different categories, defined by criteria relating to the 
nature of their sex offenses and their history of recidivism. This 
means that a sex offender with a pre-SORNA conviction

[[Page 38047]]

may have been in the community for a greater amount of time than the 
registration period required by SORNA. For example, SORNA Sec.  115 
requires registration for 25 years for a sex offender whose offense 
satisfies the ``tier II'' criteria of section 111(3). A sex offender 
who was released from imprisonment for such an offense in 1980 is 
already more than 25 years out from the time of release. In such cases, 
a jurisdiction may credit the sex offender with the time elapsed from 
his or her release (or the time elapsed from sentencing, in case of a 
non-incarcerative sentence), and does not have to require the sex 
offender to register on the basis of the conviction, even if the 
criteria for retroactive application of the SORNA standards under this 
Part are otherwise satisfied.
    As with other requirements under SORNA and these Guidelines, the 
foregoing discussion identifies only the minimum required for SORNA 
compliance. Jurisdictions are free to require registration for broader 
classes of sex offenders with convictions that predate SORNA or the 
jurisdiction's implementation of the SORNA standards in its program.

D. Automation--Electronic Databases and Software

    Several features of SORNA contemplate, or will require as a 
practical matter, the use of current electronic and cyber technology to 
seamlessly track sex offenders who move from one jurisdiction to 
another, ensure that information concerning registrants is immediately 
made available to all interested jurisdictions, and make information 
concerning sex offenders immediately available to the public as 
appropriate. These include provisions for immediate information sharing 
among jurisdictions under SORNA Sec.  113(c); a requirement in section 
119(b) that the Attorney General ensure ``that updated information 
about a sex offender is immediately transmitted by electronic 
forwarding to all relevant jurisdictions''; and requirements in section 
121(b) that sex offender registration information and updates thereto 
be provided immediately to various public and private entities and 
individuals. (For more about these information sharing requirements and 
associated time frames, see Parts VII.B and X of these Guidelines.)
    Carrying out the SORNA information sharing requirements accordingly 
will entail maintenance by jurisdictions of their registries in the 
form of electronic databases, whose included information can be 
electronically transmitted to other jurisdictions and entities. This 
point is further discussed in connection with the specific SORNA 
standards, particularly in Parts VI, VII, and X of these Guidelines.
    Section 123 of SORNA directs the Attorney General, in consultation 
with the jurisdictions, to develop and support registry management and 
Web site software. The purposes of the software include facilitating 
the immediate exchange of sex offender information among jurisdictions, 
public access through the Internet to sex offender information and 
other forms of community notification, and compliance in other respects 
with the SORNA requirements. As required by section 123, the Department 
of Justice will develop and make available to the jurisdictions 
software tools for the operation of their sex offender registration and 
notification programs, which will, as far as possible, be designed to 
automate these processes and enable the jurisdictions to implement 
SORNA's requirements by utilizing the software.

E. Implementation

    Section 124 of SORNA sets a general time frame of three years for 
implementation, running from the date of enactment of SORNA, i.e., from 
July 27, 2006. The Attorney General is authorized to provide up to two 
one-year extensions of this deadline. Failure to comply within the 
applicable time frame would result in a 10% reduction of federal 
justice assistance funding under 42 U.S.C. 3750 et seq. (``Byrne 
Justice Assistance Grant'' funding). See SORNA Sec.  125(a). Funding 
withheld from jurisdictions because of noncompliance would be 
reallocated to other jurisdictions that are in compliance, or could be 
reallocated to the noncompliant jurisdiction to be used solely for the 
purpose of SORNA implementation.
    While SORNA sets minimum standards for jurisdictions' registration 
and notification programs, it does not require that its standards be 
implemented by statute. Hence, in assessing compliance with SORNA, the 
totality of a jurisdiction's rules governing the operation of its 
registration and notification program will be considered, including 
administrative policies and procedures as well as statutes.
    The SMART Office will be responsible for determining whether a 
jurisdiction has substantially implemented the SORNA requirements. The 
affected jurisdictions are encouraged to submit information to the 
SMART Office concerning existing and proposed sex offender registration 
and notification provisions with as much lead time as possible, so the 
SMART Office can assess the adequacy of existing or proposed measures 
to implement the SORNA requirements and work with the submitting 
jurisdictions to overcome any shortfalls or problems. At the latest, 
submissions establishing compliance with the SORNA requirements should 
be made to the SMART Office at least three months before the deadline 
date of July 27, 2009--i.e., by April 27, 2009--so that the matter can 
be determined before the Byrne Grant funding reduction required by 
SORNA Sec.  125 for noncompliant jurisdictions takes effect. If it is 
anticipated that a submitting jurisdiction may need an extension of 
time as described in SORNA Sec.  124(b), the submission to the SMART 
Office--which should be made by April 27, 2009, as noted--should 
include a description of the jurisdiction's implementation efforts and 
an explanation why an extension is needed.
    SORNA Sec.  125 refers to ``substantial'' implementation of SORNA. 
The standard of ``substantial implementation'' is satisfied with 
respect to an element of the SORNA requirements if a jurisdiction 
carries out the requirements of SORNA as interpreted and explained in 
these Guidelines. Hence, the standard is satisfied if a jurisdiction 
implements measures that these Guidelines identify as sufficient to 
implement (or ``substantially'' implement) the SORNA requirements.
    Jurisdictions' programs cannot be approved as substantially 
implementing the SORNA requirements if they substitute some basically 
different approach to sex offender registration and notification that 
does not incorporate SORNA's baseline requirements--e.g., a ``risk 
assessment'' approach that broadly authorizes the waiver of 
registration or notification requirements or their reduction below the 
minima specified in SORNA on the basis of factors that SORNA does not 
authorize as grounds for waiving or limiting registration or 
notification. Likewise, the ``substantial implementation'' standard 
does not mean that programs can be approved if they dispense wholesale 
with categorical requirements set forth in SORNA, such as by adopting 
general standards that do not require registration for offenses 
included in SORNA's offense coverage provisions, that set regular 
reporting periods for changes in registration information that are 
longer than those specified in

[[Page 38048]]

SORNA, or that prescribe less frequent appearances for verification or 
shorter registration periods than SORNA requires.
    The substantial implementation standard does, however, contemplate 
that there is some latitude to approve a jurisdiction's implementation 
efforts, even if they do not exactly follow in all respects the 
specifications of SORNA or these Guidelines. For example, section 116 
of SORNA requires periodic in-person appearances by sex offenders to 
verify their registration information. But in some cases this will be 
impossible, either temporarily (e.g., in the case of a sex offender 
hospitalized and unconscious because of an injury at the time of the 
scheduled appearance) or permanently (e.g., in the case of a sex 
offender who is in a persistent vegetative state). In other cases, the 
appearance may not be literally impossible, but there may be reasons to 
allow some relaxation of the requirement in light of the sex offender's 
personal circumstances. For example, a sex offender may unexpectedly 
need to deal with a family emergency at the time of a scheduled 
appearance, where failure to make the appearance will mean not 
verifying the registration information within the exact time frame 
specified by SORNA Sec.  116. A jurisdiction may wish to authorize 
rescheduling of the appearance in such cases. Doing so would not 
necessarily undermine substantially the objectives of the SORNA 
verification requirements, so long as the jurisdiction's rules or 
procedures require that the sex offender notify the official 
responsible for monitoring the sex offender of the difficulty, and that 
the appearance promptly be carried out once the interfering 
circumstance is resolved.
    In general, the SMART Office will consider on a case-by-case basis 
whether jurisdictions' rules or procedures that do not exactly follow 
the provisions of SORNA or these Guidelines ``substantially'' implement 
SORNA, assessing whether the departure from a SORNA requirement will or 
will not substantially disserve the objectives of the requirement. If a 
jurisdiction is relying on the authorization to approve measures that 
``substantially'' implement SORNA as the basis for an element or 
elements in its system that depart in some respect from the exact 
requirements of SORNA or these Guidelines, the jurisdiction's 
submission to the SMART Office should identify these elements and 
explain why the departure from the SORNA requirements should not be 
considered a failure to substantially implement SORNA.
    Beyond the general standard of substantial implementation, SORNA 
Sec.  125(b) includes special provisions for cases in which the highest 
court of a jurisdiction has held that the jurisdiction's constitution 
is in some respect in conflict with the SORNA requirements. If a 
jurisdiction believes that it faces such a situation, it should inform 
the SMART Office. The SMART Office will then work with the jurisdiction 
to see whether the problem can be overcome, as the statute provides. If 
it is not possible to overcome the problem, then the SMART Office may 
approve the jurisdiction's adoption of reasonable alternative measures 
that are consistent with the purposes of SORNA.
    Section 125 of SORNA, as discussed above, provides for a funding 
reduction for jurisdictions that do not substantially implement SORNA 
within the applicable time frame. Section 126 of SORNA authorizes 
positive funding assistance--the Sex Offender Management Assistance 
(``SOMA'') grant program--to all registration jurisdictions to help 
offset the costs of SORNA implementation, with enhanced payments 
authorized for jurisdictions that effect such implementation within one 
or two years of SORNA's enactment. Congress has not appropriated 
funding for the SOMA program at the time of the issuance of these 
Guidelines. If funding for this program is forthcoming in the future, 
additional guidance will be provided concerning application for grants 
under the program.

III. Covered Jurisdictions

    Section 112(a) of SORNA states that ``[e]ach jurisdiction shall 
maintain a jurisdiction-wide sex offender registry conforming to the 
requirements of this title,'' and section 124 provides specific 
deadlines for ``jurisdictions'' to carry out the SORNA implementation. 
Related definitions appear in section 111(9) and (10). Section 111(9) 
provides that ``sex offender registry'' means a registry of sex 
offenders and a notification program.
    Section 111(10) provides that ``jurisdiction'' refers to:
    The 50 States;
    The District of Columbia;
    The five principal U.S. territories--the Commonwealth of Puerto 
Rico, Guam, American Samoa, the Northern Mariana Islands, and the 
United States Virgin Islands; and
    Indian tribes to the extent provided in section 127.
    Some of the provisions in SORNA are formulated as directions to sex 
offenders, including those appearing in sections 113(a)-(b), 113(c) 
(first sentence), 114(a), 115(a), and 116. Other SORNA provisions are 
cast as directions to jurisdictions or their officials, such as those 
appearing in sections 113(c) (second sentence), 113(e), 114(b), 117(a), 
118, 121(b), and 122. To meet the requirement under sections 112 and 
124 that covered jurisdictions must implement SORNA in their 
registration and notification programs, each jurisdiction must 
incorporate in the laws and rules governing its registration and 
notification program the requirements that SORNA imposes on sex 
offenders, as well as those that are addressed directly to 
jurisdictions and their officials.
    While the ``jurisdictions'' assigned sex offender registration and 
notification responsibilities by SORNA are the 50 States, the District 
of Columbia, the principal territories, and Indian tribes (to the 
extent provided in section 127), as described above, this does not 
limit the ability of these jurisdictions to carry out these functions 
through their political subdivisions or other entities within the 
jurisdiction. For example, a jurisdiction may assign responsibility for 
initially registering sex offenders upon their release from 
imprisonment to correctional personnel who are employees of the 
jurisdiction's government, but the responsibility for continued 
tracking and registration of sex offenders thereafter may be assigned 
to personnel of local police departments, sheriffs' offices, or 
supervision agencies who are municipal employees. Moreover, in carrying 
out their registration and notification functions, jurisdictions are 
free to utilize (and to allow their agencies and political subdivisions 
to utilize) entities and individuals who may not be governmental 
agencies or employees in a narrow sense, such as contractors, 
volunteers, and community-based organizations that are capable of 
discharging these functions. SORNA does not limit jurisdictions' 
discretion concerning such matters. Rather, so long as a jurisdiction's 
laws and rules provide consistently for the discharge of the required 
registration and notification functions by some responsible individuals 
or entities, the specifics concerning such assignments of 
responsibility are matters within the jurisdiction's discretion. 
References in these Guidelines should be understood accordingly, so 
that (for example) a reference to an ``official'' carrying out a 
registration function does not mean that the function must be carried 
out by a government employee, but rather is simply a way of referring 
to whatever

[[Page 38049]]

individual is assigned responsibility for the function.
    With respect to Indian tribes, SORNA recognizes that tribes may 
vary in their capacities and preferences regarding the discharge of sex 
offender registration and notification functions, and accordingly 
section 127 of SORNA has special provisions governing the treatment of 
Indian tribes as registration jurisdictions or the delegation of 
registration and notification functions to the states. Specifically, 
section 127(a)(1) generally afforded federally recognized Indian tribes 
a choice between electing to carry out the sex offender registration 
and notification functions specified in SORNA in relation to sex 
offenders subject to its jurisdiction, or delegating those functions to 
a state or states within which the tribe is located. SORNA provided a 
period of one year commencing with SORNA's enactment on July 27, 2006 
for tribes to make this choice. SORNA further required that the 
election to become a SORNA registration jurisdiction, or to delegate to 
a state or states, be made by resolution or other enactment of the 
tribal council or comparable governmental body. Hence, the decision 
must have been made by a tribal governmental entity--``the tribal 
council or comparable governmental body''--that has the legal authority 
to make binding legislative decisions for the tribe. (However, 
delegation to the state or states is automatic for a tribe subject to 
state law enforcement jurisdiction under 18 U.S.C. 1162, and for a 
tribe that did not affirmatively elect to become a SORNA registration 
jurisdiction on or prior to July 27, 2007--see the discussion of 
section 127(a)(2) below.)
    If a tribe has elected to be a SORNA registration jurisdiction in 
conformity with section 127, its functions and responsibilities 
regarding sex offender registration and notification are the same as 
those of a state. Duplication of registration and notification 
functions by tribes and states is not required, however, and such 
tribes may enter into cooperative agreements with the states for the 
discharge of these functions, as discussed below in connection with 
section 127(b).
    If a tribe has elected to delegate to a state--or if a delegation 
to the state occurs pursuant to section 127(a)(2)--then the state is 
fully responsible for carrying out the SORNA registration and 
notification functions, and the delegation includes an undertaking by 
the tribe to ``provide access to its territory and such other 
cooperation and assistance as may be needed to enable [the state] to 
carry out and enforce the requirements of [SORNA].'' SORNA Sec.  
127(a)(1)(B). This does not mean, however, that tribal authorities in 
such a tribe are precluded from carrying out sex offender registration 
and notification functions. Sovereign powers that these tribes 
otherwise possess to prescribe registration and notification 
requirements for sex offenders subject to their jurisdiction are not 
restricted by SORNA, so long as there is no conflict with the state's 
discharge of its responsibilities under SORNA. Moreover, as discussed 
above, states generally have discretion concerning the entities within 
the state through which the SORNA registration and notification 
functions are to be carried out, and tribal entities are not excluded. 
For example, with respect to a tribe subject to state law enforcement 
jurisdiction under 18 U.S.C. 1162, the state may conclude that a tribal 
agency is best situated to carry out registration functions with 
respect to sex offenders residing in the tribe's territory. In some 
instances such tribes may have been operating sex offender registration 
programs of their own prior to the enactment of SORNA, and arranging 
with the tribe for the continued discharge of registration functions by 
the tribal authorities may be the most expedient way for the state to 
carry out the required SORNA functions in such a tribal area.
    Section 127(a)(2) of SORNA specifies three circumstances in which 
registration and notification functions are deemed to be delegated to 
the state or states in which a tribe is located, even if the tribe did 
not make an affirmative decision to delegate:
    Under subparagraph (A) of subsection (a)(2), these functions are 
always delegated to the state if the tribe is subject to the law 
enforcement jurisdiction of the state under 18 U.S.C. 1162. (If a 
tribe's land is in part subject to state law enforcement jurisdiction 
under 18 U.S.C. 1162 and in part outside of the areas subject to 18 
U.S.C. 1162, then: (i) Sex offender registration and notification 
functions are automatically delegated to the relevant state in the 
portion of the tribal land subject to 18 U.S.C. 1162, and (ii) the 
tribe could have made an election between functioning as a registration 
jurisdiction or delegating registration and notification functions to 
the state in the portion of its land that is not subject to 18 U.S.C. 
1162.)
    Under subparagraph (B) of subsection (a)(2), these functions are 
delegated to the state or states if the tribe did not make an 
affirmative election to function as a registration jurisdiction within 
one year of the enactment of SORNA--i.e., within one year of July 27, 
2006--or rescinds a previous election to function as a registration 
jurisdiction. Under subparagraph (C) of subsection (a)(2), these 
functions are delegated to the state or states if the Attorney General 
determines that the tribe has not substantially implemented the 
requirements of SORNA and is not likely to become capable of doing so 
within a reasonable amount of time.
    If a tribe did elect under section 127 to become a SORNA 
registration jurisdiction, section 127(b) specifies that this does not 
mean that the tribe must duplicate registration and notification 
functions that are fully carried out by the state or states within 
which the tribe is located, and subsection (b) further authorizes the 
tribes and the states to make cooperative arrangements for the 
discharge of some or all of these functions. For example, SORNA Sec.  
118 requires jurisdictions to make information concerning their sex 
offenders available to the public through the Internet. If a tribe did 
not want to maintain a separate sex offender Web site for this purpose, 
it would not need to do so, as long as a cooperative agreement was made 
with the state to have information concerning the tribe's registrants 
posted on the state's sex offender Web site. Likewise, a tribe that has 
elected to be a SORNA registration jurisdiction remains free to make 
cooperative agreements under which the state (or a political 
subdivision thereof) will handle registration of the tribe's sex 
offenders--such as initially registering these sex offenders, 
conducting periodic appearances of the sex offenders to verify the 
registration information, and receiving reports by the sex offenders 
concerning changes in the registration information--to the extent and 
in a manner mutually agreeable to the tribe and the state. In general, 
the use of cooperative agreements affords tribes flexibility in 
deciding which functions under SORNA they would seek to have state 
authorities perform, and which they wish to control or discharge 
directly. For example, the state could carry out certain registration 
functions, but the tribe could retain jurisdiction over the arrest 
within its territory of sex offenders who fail to register, update 
registrations, or make required verification appearances, if a 
cooperative agreement between the tribe and the state so provided.
    Tribes that have elected to be SORNA registration jurisdictions in 
conformity with section 127 may also make agreements or enter into 
arrangements with other such tribes for the cooperative or shared 
discharge of registration and notification functions.

[[Page 38050]]

For example, a group of tribes with adjacent territories might wish to 
enter into an agreement under which the participating tribes contribute 
resources and information to the extent of their capacities, but the 
tribal police department (or some other agency) of one of the tribes in 
the group has primary responsibility for the discharge of the SORNA 
registration functions in relation to sex offenders subject to the 
jurisdiction of any of the tribes in the group--such as initially 
registering sex offenders who enter the jurisdiction of any of the 
tribes, receiving information from those sex offenders concerning 
subsequent changes in residence or other registration information, and 
conducting periodic in-person appearances by the registrants to verify 
and update the registration information, as SORNA requires. Likewise, 
with respect to maintenance of Web sites providing public access to sex 
offender information, as required by SORNA Sec.  118, tribes could 
enter into agreements or arrangements among themselves for the shared 
administration or operation of Web sites covering the sex offenders of 
the participating tribes. So long as such agreements or arrangements 
among tribes are designed to ensure that the SORNA registration and 
notification functions are carried out consistently in relation to sex 
offenders subject to the jurisdiction of any of the participating 
tribes, discharge of the SORNA responsibilities by such means will be 
considered as satisfying the SORNA substantial implementation standard.

IV. Covered Sex Offenses and Sex Offenders

    SORNA refers to the persons required to register under its 
standards as ``sex offenders,'' and section 111(1) of SORNA defines 
``sex offender'' in the relevant sense to mean ``an individual who was 
convicted of a sex offense.'' ``Sex offense'' is in turn defined in 
section 111(5) and related provisions. The term encompasses a broad 
range of offenses of a sexual nature under the law of any 
jurisdiction--including offenses under federal, military, state, 
territorial, local, tribal, and foreign law, but with some 
qualification regarding foreign convictions as discussed below.

A. Convictions Generally

    A ``sex offender'' as defined in SORNA Sec.  111(1) is a person who 
was ``convicted'' of a sex offense. Hence, whether an individual has a 
sex offense ``conviction'' determines whether he or she is within the 
minimum categories for which the SORNA standards require registration.
    Because the SORNA registration requirements are predicated on 
convictions, registration (or continued registration) is normally not 
required under the SORNA standards if the predicate conviction is 
reversed, vacated, or set aside, or if the person is pardoned for the 
offense on the ground of innocence. This does not mean, however, that 
nominal changes or terminological variations that do not relieve a 
conviction of substantive effect negate the SORNA requirements. For 
example, the need to require registration would not be avoided by a 
jurisdiction's having a procedure under which the convictions of sex 
offenders in certain categories (e.g., young adult sex offenders who 
satisfy certain criteria) are referred to as something other than 
``convictions,'' or under which the convictions of such sex offenders 
may nominally be ``vacated'' or ``set aside,'' but the sex offender is 
nevertheless required to serve what amounts to a criminal sentence for 
the offense. Rather, an adult sex offender is ``convicted'' for SORNA 
purposes if the sex offender remains subject to penal consequences 
based on the conviction, however it may be styled. Likewise, the 
sealing of a criminal record or other action that limits the publicity 
or availability of a conviction, but does not deprive it of continuing 
legal validity, does not change its status as a ``conviction'' for 
purposes of SORNA.
    ``Convictions'' for SORNA purposes include convictions of juveniles 
who are prosecuted as adults. It does not include juvenile delinquency 
adjudications, except under the circumstances specified in SORNA Sec.  
111(8). Section 111(8) provides that delinquency adjudications count as 
convictions ``only if the offender is 14 years of age or older at the 
time of the offense and the offense adjudicated was comparable to or 
more severe than aggravated sexual abuse (as described in section 2241 
of title 18, United States Code), or was an attempt or conspiracy to 
commit such an offense.''
    Hence, SORNA does not require registration for juveniles 
adjudicated delinquent for all sex offenses for which an adult sex 
offender would be required to register, but rather requires 
registration only for a defined class of older juveniles who are 
adjudicated delinquent for committing particularly serious sexually 
assaultive crimes (or attempts or conspiracies to commit such crimes). 
Considering the relevant aspects of the federal ``aggravated sexual 
abuse'' offense referenced in section 111(8), it suffices for 
substantial implementation if a jurisdiction applies SORNA's 
requirements to juveniles at least 14 years old at the time of the 
offense who are adjudicated delinquent for committing (or attempting or 
conspiring to commit) offenses under laws that cover:
    Engaging in a sexual act with another by force or the threat of 
serious violence; or
    Engaging in a sexual act with another by rendering unconscious or 
involuntarily drugging the victim.
    ``Sexual act'' for this purpose should be understood to include any 
degree of genital or anal penetration, and any oral-genital or oral-
anal contact. This follows from the relevant portions of the definition 
of sexual act in 18 U.S.C. 2246(2), which applies to the 18 U.S.C. 2241 
``aggravated sexual abuse'' offense. (The summary of comments received 
on these Guidelines as initially proposed for public comment may be 
consulted for further explanation concerning this understanding of the 
requirements for substantial implementation of section 111(8).)
    As with other aspects of SORNA, the foregoing defines minimum 
standards. Hence, the inclusions and exclusions in the definition of 
``conviction'' for purposes of SORNA do not constrain jurisdictions 
from requiring registration by additional individuals--e.g., more 
broadly defined categories of juveniles adjudicated delinquent for sex 
offenses--if they are so inclined.

B. Foreign Convictions

    Section 111(5)(B) of SORNA instructs that registration need not be 
required on the basis of a foreign conviction if the conviction ``was 
not obtained with sufficient safeguards for fundamental fairness and 
due process for the accused under guidelines or regulations established 
[by the Attorney General].'' The following standards are adopted 
pursuant to section 111(5)(B):
    Sex offense convictions under the laws of Canada, United Kingdom, 
Australia, and New Zealand are deemed to have been obtained with 
sufficient safeguards for fundamental fairness and due process, and 
registration must be required for such convictions on the same footing 
as domestic convictions.
    Sex offense convictions under the laws of any foreign country are 
deemed to have been obtained with sufficient safeguards for fundamental 
fairness and due process if the U.S. State Department, in its Country 
Reports on Human Rights Practices, has concluded that an independent 
judiciary generally (or vigorously) enforced the right to a fair trial 
in that country during the year in which the conviction occurred. 
Registration must be required on the

[[Page 38051]]

basis of such convictions on the same footing as domestic convictions.
    With respect to sex offense convictions in foreign countries that 
do not satisfy the criteria stated above, a jurisdiction is not 
required to register the convicted person if the jurisdiction 
determines--through whatever process or procedure it may choose to 
adopt--that the conviction does not constitute a reliable indication of 
factual guilt because of the lack of an impartial tribunal, because of 
denial of the right to respond to the evidence against the person or to 
present exculpatory evidence, or because of denial of the right to the 
assistance of counsel.
    The foregoing standards do not mean that jurisdictions must 
incorporate these particular criteria or procedures into their 
registration systems. Jurisdictions may wish to register all foreign 
sex offense convicts, or to register such convicts with fewer 
qualifications or limitations than those allowed under the standards 
set forth above. The stated criteria only define the minimum categories 
of foreign convicts for whom registration is required for compliance 
with SORNA, and as is generally the case under SORNA, jurisdictions are 
free to require registration more broadly than the SORNA minimum.

C. Sex Offenses Generally

    The general definition of sex offenses for which registration is 
required under the SORNA standards appears in section 111(5)(A). The 
clauses in the definition cover the following categories of offenses:
    Sexual Act and Sexual Contact Offenses (Sec.  111(5)(A)(i)): The 
first clause in the definition covers ``a criminal offense that has an 
element involving a sexual act or sexual contact with another.'' 
(``Criminal offense'' in the relevant sense refers to offenses under 
any body of criminal law, including state, local, tribal, foreign, 
military, and other offenses, as provided in section 111(6).) The 
offenses covered by this clause should be understood to include all 
sexual offenses whose elements involve: (i) Any type or degree of 
genital, oral, or anal penetration, or (ii) any sexual touching of or 
contact with a person's body, either directly or through the clothing. 
Cf. 18 U.S.C. 2246(2)-(3) (federal law definitions of sexual act and 
sexual contact).
    Specified Offenses Against Minors (Sec.  111(5)(A)(ii)): The second 
clause in the definition covers ``a criminal offense that is a 
specified offense against a minor.'' The statute provides a detailed 
definition of ``specified offense against a minor'' in section 111(7), 
which is discussed separately below.
    Specified Federal Offenses (Sec.  111(5)(A)(iii)): The third clause 
covers most sexual offenses under federal law. The clause identifies 
chapters and offense provisions in the federal criminal code by 
citation.
    Specified Military Offenses (Sec.  111(5)(A)(iv)): The fourth 
clause covers sex offenses under the Uniform Code of Military Justice, 
as specified by the Secretary of Defense.
    Attempts and Conspiracies (Sec.  111(5)(A)(v)): The final clause in 
the definition covers attempts and conspiracies to commit offenses that 
are otherwise covered by the definition of ``sex offenses.'' This 
includes both offenses prosecuted under general attempt or conspiracy 
provisions, where the object offense falls under the SORNA ``sex 
offense'' definition, and particular offenses that are defined as, or 
in substance amount to, attempts or conspiracies to commit offenses 
that are otherwise covered. For example, in the latter category, a 
jurisdiction may define an offense of ``assault with intent to commit 
rape.'' Whether or not the word ``attempt'' is used in the definition 
of the offense, this is in substance an offense that covers certain 
attempts to commit rapes and hence is covered under the final clause of 
the SORNA definition.
    SORNA Sec.  111(5)(C) qualifies the foregoing definition of ``sex 
offense'' to exclude ``[a]n offense involving consensual sexual conduct 
* * * if the victim was an adult, unless the adult was under the 
custodial authority of the offender at the time of the offense, or if 
the victim was at least 13 years old and the offender was not more than 
4 years older than the victim.'' The general exclusion with respect to 
consensual sexual offenses involving adult victims means, for example, 
that a jurisdiction does not have to require registration based on 
prostitution offenses that consist of the offender paying or receiving 
payment from an adult for a sexual act between them (unless the victim 
is under the custodial authority of the offender). The exclusion for 
certain cases involving child victims based on victim age and age 
difference means that a jurisdiction may not have to require 
registration in some cases based on convictions under provisions that 
prohibit sexual acts or contact (even if consensual) with underage 
persons. For example, under the laws of some jurisdictions, an 18-year-
old may be criminally liable for engaging in consensual sex with a 15-
year-old. The jurisdiction would not have to require registration in 
such a case to comply with the SORNA standards, since the victim was at 
least 13 and the offender was not more than four years older.

D. Specified Offenses Against Minors

    The offenses for which registration is required under the SORNA 
standards include any ``specified offense against a minor'' as defined 
in section 111(7). The SORNA Sec.  111(7) definition of specified 
offense against a minor covers any offense against a minor--i.e., a 
person under the age of 18, as provided in section 111(14)--that 
involves any of the following:
    Kidnapping or False Imprisonment of a Minor (Sec.  111(7)(A)-(B)): 
These clauses cover ``[a]n offense (unless committed by a parent or 
guardian) involving kidnapping [of a minor]'' and ``[a]n offense 
(unless committed by a parent or guardian) involving false imprisonment 
[of a minor].'' The relevant offenses are those whose gravamen is 
abduction or unlawful restraint of a person, which go by different 
names in different jurisdictions, such as ``kidnapping,'' ``criminal 
restraint,'' or ``false imprisonment.'' Jurisdictions can implement the 
offense coverage requirement of these clauses by requiring registration 
for persons convicted of offenses of this type (however designated) 
whose victims were below the age of 18. It is left to jurisdictions' 
discretion under these clauses whether registration should be required 
for such offenses in cases where the offender is a parent or guardian 
of the victim.
    Solicitation of a Minor to Engage in Sexual Conduct (Sec.  
111(7)(C)): This clause covers ``[s]olicitation [of a minor] to engage 
in sexual conduct.'' ``Solicitation'' under this clause and other SORNA 
provisions that use the term should be understood broadly to include 
any direction, request, enticement, persuasion, or encouragement of a 
minor to engage in sexual conduct. ``Sexual conduct'' should be 
understood to refer to any sexual activity involving physical contact. 
(See the discussion later in this list of ``criminal sexual conduct'' 
under section 111(7)(H).) Hence, jurisdictions can implement the 
offense coverage requirement under this clause by requiring 
registration, in cases where the victim was below the age of 18, based 
on:
    Any conviction for an offense involving solicitation of the victim 
under a general attempt or solicitation provision, where the elements 
of the object offense include sexual activity involving physical 
contact, and
    Any conviction for an offense involving solicitation of the victim 
under any provision defining a

[[Page 38052]]

particular crime whose elements include soliciting or attempting to 
engage in sexual activity involving physical contact.
    Use of a Minor in a Sexual Performance (Sec.  111(7)(D)): This 
clause covers offenses involving ``[u]se [of a minor] in a sexual 
performance.'' That includes both live performances and using minors in 
the production of pornography, and has some overlap with section 
111(7)(G), which expressly covers child pornography offenses.
    Solicitation of a Minor to Practice Prostitution (Sec.  111(7)(E)): 
This clause covers offenses involving ``[s]olicitation [of a minor] to 
practice prostitution.'' Jurisdictions can implement the offense 
coverage requirement under this clause by requiring registration, in 
cases where the victim was below the age of 18, based on:
    Any conviction for an offense involving solicitation of the victim 
under a general attempt or solicitation provision, where the object 
offense is a prostitution offense, and
    Any conviction for an offense involving solicitation of the victim 
under any provision defining a particular crime whose elements include 
soliciting or attempting to get a person to engage in prostitution.
    Video Voyeurism Involving a Minor (Sec.  111(7)(F)): This clause 
covers ``[v]ideo voyeurism as described in section 1801 of title 18, 
United States Code [against a minor].'' The cited federal offense in 
essence covers capturing the image of a private area of another 
person's body, where the victim has a reasonable expectation of privacy 
against such conduct. Jurisdictions can implement the offense coverage 
requirement under this clause by requiring registration for offenses of 
this type, in cases where the victim was below the age of 18.
    Possession, Production, or Distribution of Child Pornography (Sec.  
111(7)(G)): This clause covers ``possession, production, or 
distribution of child pornography.'' Jurisdictions can implement the 
offense coverage requirement under this clause by requiring 
registration for offenses whose gravamen is creating or participating 
in the creation of sexually explicit visual depictions of persons below 
the age of 18, making such depictions available to others, or having or 
receiving such depictions.
    Criminal Sexual Conduct Involving a Minor and Related Internet 
Activities (Sec.  111(7)(H)): This clause covers ``[c]riminal sexual 
conduct involving a minor, or the use of the Internet to facilitate or 
attempt such conduct.'' The definition has two parts:
    The ``criminal sexual conduct involving a minor'' language in this 
definition covers sexual offenses whose elements involve physical 
contact with the victim--such as provisions defining crimes of 
``rape,'' ``sexual assault,'' ``sexual abuse,'' or ``incest''--in cases 
where the victim was below 18 at the time of the offense. In addition, 
it covers offenses whose elements involve using other persons in 
prostitution--such as provisions defining crimes of ``pandering,'' 
``procuring,'' or ``pimping''--in cases where the victim was below 18 
at the time of the offense. Coverage is not limited to cases where the 
victim's age is an element of the offense, such as prosecution for 
specially defined child molestation or child prostitution offenses. 
Jurisdictions can implement the offense coverage requirement under the 
``criminal sexual conduct involving a minor'' language of this clause 
by requiring registration for ``criminal sexual conduct'' offenses as 
described above whenever the victim was in fact below the age of 18 at 
the time of the offense. (Section 111(7)(C) and (E) separately require 
coverage of offenses involving solicitation of a minor to engage in 
sexual conduct or to practice prostitution, but registration must be 
required for offenses involving sexual conduct with a minor or the use 
of a minor in prostitution in light of section 111(7)(H), whether or 
not the offense involves ``solicitation'' of the victim.) Jurisdictions 
can implement the ``use of the Internet to facilitate or attempt such 
conduct'' part of this definition by requiring registration for 
offenses that involve use of the Internet in furtherance of criminal 
sexual conduct involving a minor as defined above, such as attempting 
to lure minors through Internet communications for the purpose of 
sexual activity.
    Conduct by Its Nature a Sex Offense Against a Minor (Sec.  
111(7)(I)): The final clause covers ``[a]ny conduct that by its nature 
is a sex offense against a minor.'' It is intended to ensure coverage 
of convictions under statutes defining sexual offenses in which the 
status of the victim as a minor is an element of an offense, such as 
specially defined child molestation or child prostitution offenses, and 
other offenses prohibiting sexual activity with underage persons. 
Jurisdictions can comply with the offense coverage requirement under 
this clause by including convictions for such offenses in their 
registration requirements.

E. Protected Witnesses

    The requirement that jurisdictions substantially implement SORNA 
does not preclude their taking measures needed to protect the security 
of individuals who have been provided new identities and relocated 
under the federal witness security program (see 18 U.S.C. 3521 et seq.) 
or under other comparable witness security programs operated by non-
federal jurisdictions. A jurisdiction may conclude that it is necessary 
to exclude an individual afforded protection in such a program from its 
sex offender registry or from public notification for security reasons, 
though the individual otherwise satisfies the criteria for registration 
and notification under SORNA. Alternatively, the jurisdiction may 
choose not to waive registration but may identify the registrant in the 
registration system records only by his or her new identity or data, if 
such modifications can be so devised that they are not transparent and 
do not permit the registrant's original identity or participation in a 
witness security program to be inferred. Jurisdictions are permitted 
and encouraged to make provision in their laws and procedures to 
accommodate consideration of the security of such individuals and to 
honor requests from the United States Marshals Service and other 
agencies responsible for witness protection in order to ensure that 
their original identities are not compromised.
    With respect to witnesses afforded federal protection, 18 U.S.C. 
3521(b)(1)(H) specifically authorizes the Attorney General to ``protect 
the confidentiality of the identity and location of persons subject to 
registration requirements as convicted offenders under Federal or State 
law, including prescribing alternative procedures to those otherwise 
provided by Federal or State law for registration and tracking of such 
persons.'' U.S. Department of Justice Witness Security Program 
officials accordingly determine on a case-by-case basis whether such 
witnesses will be required to register, and if registration occurs, 
whether it will utilize new identities, modified data, or other special 
conditions or procedures that are warranted to avoid jeopardizing the 
safety of the protected witnesses.

V. Classes of Sex Offenders

    Section 111(2)-(4) of SORNA defines three ``tiers'' of sex 
offenders. The tier classifications have implications in three areas: 
(i) Under section 115, the required duration of registration depends 
primarily on the tier; (ii) under section 116, the required frequency 
of in-person appearances by sex offenders to verify registration 
information depends on the tier; and (iii) under section 118(c)(1), 
information about tier

[[Page 38053]]

I sex offenders convicted of offenses other than specified offenses 
against a minor may be exempted from Web site disclosure.
    The use of the ``tier'' classifications in SORNA relates to 
substance, not form or terminology. Thus, to implement the SORNA 
requirements, jurisdictions do not have to label their sex offenders as 
``tier I,'' ``tier II,'' and ``tier III,'' and do not have to adopt any 
other particular approach to labeling or categorization of sex 
offenders. Rather, the SORNA requirements are met so long as sex 
offenders who satisfy the SORNA criteria for placement in a particular 
tier are consistently subject to at least the duration of registration, 
frequency of in-person appearances for verification, and extent of 
website disclosure that SORNA requires for that tier.
    For example, suppose that a jurisdiction decides to subject all sex 
offenders to lifetime registration, quarterly verification appearances, 
and full website posting as described in Part VII of these Guidelines. 
That would meet the SORNA requirements with respect to sex offenders 
satisfying the ``tier III'' criteria, and exceed the minimum required 
by SORNA with respect to sex offenders satisfying the ``tier II'' or 
``tier I'' criteria. Hence, such a jurisdiction would be able to 
implement the SORNA requirements with respect to all sex offenders 
without any labeling or categorization, and without having to assess 
individual registrants against the tier criteria in the SORNA 
definitions. Likewise, any other approach a jurisdiction may devise is 
acceptable if it ensures that sex offenders satisfying the criteria for 
each SORNA tier are subject to duration of registration, appearance 
frequency, and website disclosure requirements that meet or exceed 
those SORNA requires for the tier.
    Turning to the specific tier definitions, SORNA Sec.  111(2) 
defines ``tier I sex offender'' to mean ``a sex offender other than a 
tier II or tier III sex offender.'' Thus, tier I is a residual class 
that includes all sex offenders who do not satisfy the criteria for 
tier II or tier III. For example, tier I includes a sex offender whose 
registration offense is not punishable by imprisonment for more than 
one year, a sex offender whose registration offense is the receipt or 
possession of child pornography, and a sex offender whose registration 
offense is a sexual assault against an adult that involves sexual 
contact but not a completed or attempted sexual act. (With respect to 
the last-mentioned category, a sexual assault involving a completed or 
attempted sexual act would generally result in a tier III 
classification, as discussed below in connection with SORNA Sec.  
111(4)(A)(i)), but the offense coverage specifications for tier II and 
tier III do not otherwise provide a basis for higher classification of 
sexual contact or touching offenses involving adult victims.)
    The definitions of tier II and tier III--in section 111(3) and 
111(4) respectively--are both limited to cases in which the offense for 
which the sex offender is required to register ``is punishable by 
imprisonment for more than 1 year.'' This means that the statutory 
maximum penalty possible for the offense exceeds one year. It does not 
mean that inclusion in these tiers is limited to cases in which the sex 
offender is actually sentenced to more than a year of imprisonment.
    Because the definitions of tier II and tier III are limited to 
certain offenses punishable by imprisonment for more than one year, and 
federal law does not permit imprisonment for more than one year based 
on Indian tribal court convictions, all tribal court convictions are 
tier I offenses. However, sex offenses prosecuted in tribal courts may 
be serious crimes that would typically carry higher penalties if 
prosecuted in non-tribal jurisdictions. As the incidents of the tier 
classifications under SORNA only define minimum standards, tribal 
jurisdictions and other jurisdictions are free to premise more 
extensive registration and notification requirements on tribal court 
convictions than the minimum SORNA requires for tier I offenders, and 
may wish to do so considering the substantive nature of the offense or 
other factors.
    Regardless of which jurisdiction convicts the sex offender, the 
requirements with respect to the potential length of imprisonment under 
the statute relate to individual offenses rather than to aggregate 
penalties. For example, suppose that a sex offender is charged in three 
counts with the commission of sex offenses each of which is punishable 
by at most one year of imprisonment, and upon conviction is sentenced 
to three consecutive terms of six months of incarceration. Though the 
aggregate penalty is 18 months, these convictions do not place the sex 
offender above tier I, because each offense was not punishable by more 
than one year of imprisonment.
    The classification of sex offenders as tier II or tier III under 
SORNA depends in part on the nature of the offense for which the sex 
offender is required to register. In assessing whether the offense 
satisfies the criteria for tier II or tier III classification, 
jurisdictions generally may premise the determination on the elements 
of the offense, and are not required to look to underlying conduct that 
is not reflected in the offense of conviction. However, where the tier 
classification depends on commission of an offense against a victim who 
is below a certain age, the requirement to give weight to this factor 
(victim age) is not limited to cases involving convictions for offenses 
whose elements specify that the victim must be below that age. Rather, 
the requirement applies as well in cases in which the offender is 
convicted of a more generally defined offense that may be committed 
against victims of varying ages, if the victim was in fact below the 
relevant age. For example, in a case in which the sex offender was 
convicted of a generally defined ``sexual contact'' offense, whose 
elements include no specification as to victim age, tier II treatment 
is required if the victim was in fact below 18 (SORNA Sec.  
111(3)(A)(iv)), and tier III treatment is required if the victim was in 
fact below 13 (SORNA Sec.  111(4)(A)(ii)).
    Beyond the requirement of an offense punishable by imprisonment for 
more than one year, the specific offense-related criteria for tier II 
are that the registration offense falls within one of two lists. In 
general terms, these lists cover most sexual abuse or exploitation 
offenses against minors. (Here as elsewhere in SORNA, ``minor'' means a 
person under the age of 18--see SORNA Sec.  111(14).) The first list, 
appearing in section 111(3)(A), covers offenses committed against 
minors that are comparable to or more severe than a number of cited 
federal offenses--those under 18 U.S.C. 1591, 2422(b), 2423(a), and 
2244--and attempts and conspiracies to commit such offenses. The second 
list, appearing in section 111(3)(B), covers use of a minor in a sexual 
performance, solicitation of a minor to practice prostitution, and 
production or distribution of child pornography. Determining whether a 
jurisdiction's offenses satisfy the criteria for this tier is 
simplified by recognizing that the various cited and described offenses 
essentially cover:
    Offenses involving the use of minors in prostitution, and inchoate 
or preparatory offenses (including attempts, conspiracies, and 
solicitations) that are directed to the commission of such offenses;
    Offenses against minors involving sexual contact--i.e., any sexual 
touching of or contact with the intimate parts of the body, either 
directly or through the clothing--and inchoate or preparatory offenses 
(including attempts, conspiracies, and solicitations) that are directed 
to the commission of such offenses;

[[Page 38054]]

    Offenses involving use of a minor in a sexual performance; and
    Offenses involving the production or distribution of child 
pornography, i.e., offenses whose gravamen is creating or participating 
in the creation of sexually explicit visual depictions of minors or 
making such depictions available to others.
    Hence, jurisdictions can implement the relevant SORNA requirements 
by according ``tier II'' treatment to sex offenders convicted of 
offenses of these four types.
    The corresponding offense coverage specifications for ``tier III'' 
in section 111(4)(A)-(B) cover offenses punishable by more than one 
year of imprisonment in the following categories:
    Offenses comparable to or more severe than aggravated sexual abuse 
or sexual abuse as described in 18 U.S.C. 2241 and 2242, or an attempt 
or conspiracy to commit such an offense (see SORNA Sec.  111(4)(A)(i)). 
Considering the definitions of the cited federal offenses, comparable 
offenses under the laws of other jurisdictions would be those that 
cover:
    Engaging in a sexual act with another by force or threat (see 18 
U.S.C. 2241(a), 2242(1));
    Engaging in a sexual act with another who has been rendered 
unconscious or involuntarily drugged, or who is otherwise incapable of 
appraising the nature of the conduct or declining to participate (see 
18 U.S.C. 2241(b), 2242(2)); or
    Engaging in a sexual act with a child under the age of 12 (see 18 
U.S.C. 2241(c)). Considering the related definition in 18 U.S.C. 
2246(2), ``sexual act'' for this purpose would include: (i) Oral-
genital or oral-anal contact, (ii) any degree of genital or anal 
penetration, and (iii) direct genital touching of a child under the age 
of 16. Offenses against a minor below the age of 13 that are comparable 
to or more severe than abusive sexual contact as defined in 18 U.S.C. 
2244, or an attempt or conspiracy to commit such an offense (see SORNA 
Sec.  111(4)(A)(ii)). Considering the definitions of the federal 
offenses in 18 U.S.C. 2244 and the related definition in 18 U.S.C. 
2246(3), comparable offenses under the laws of other jurisdictions 
would be those that cover sexual touching of or contact with the 
intimate parts of the body, either directly or through the clothing, 
where the victim is under 13.
    Kidnapping of a minor (unless committed by a parent or guardian).
    Hence, jurisdictions can implement the relevant SORNA requirements 
by according ``tier III'' treatment to sex offenders convicted of 
offenses of these three types.
    In addition to including criteria relating to the nature of the 
registration offense, the definitions of tier II and tier III accord 
significance to a registrant's history of recidivism. Specifically, 
section 111(3)(C) places in tier II any sex offender whose registration 
offense is punishable by imprisonment for more than one year, where 
that offense ``occurs after the offender becomes a tier I sex 
offender.'' Thus, any sex offender whose registration offense is 
punishable by more than one year of imprisonment who has a prior sex 
offense conviction is at least in tier II. Likewise, section 111(4)(C) 
places in tier III any sex offender whose registration offense is 
punishable by imprisonment for more than one year, where that offense 
``occurs after the offender becomes a tier II sex offender.'' Thus, any 
sex offender whose registration offense is punishable by more than one 
year of imprisonment, and who at the time of that offense already 
satisfied the criteria for inclusion in tier II, is in tier III.
    In determining tier enhancements based on recidivism, prior 
convictions must be taken into account regardless of when they 
occurred, including convictions occurring prior to the enactment of 
SORNA or its implementation in a particular jurisdiction. For example, 
consider an individual who was previously convicted for committing a 
sexual contact offense (punishable by more than a year of imprisonment) 
against a 13-year-old victim in 2000, and who is subsequently convicted 
for committing a sexual contact offense (punishable by more than a year 
of imprisonment) against a 14-year-old victim in 2010. While the later 
offense would not in itself support tier III classification on the 
basis of section 111(4)(A)(ii), since the victim was not below 13, tier 
III treatment would nevertheless be required on the ground of 
recidivism, since the earlier offense satisfied the criterion for tier 
II classification under section 111(3)(A)(iv). It may not always be 
possible, however, to obtain a complete record of an offender's prior 
convictions, particularly when they occurred many years or decades ago, 
and available criminal history information may be uninformative as to 
factors such as victim age that can affect the SORNA tier 
classification. Jurisdictions may rely on the methods and standards 
they normally use in searching criminal records and on the information 
appearing in the records so obtained in assessing SORNA tier 
enhancements based on recidivism.
    In applying the SORNA tier definitions, it should be kept in mind 
that their significance under SORNA is in determining the extent of 
registration and notification requirements for offenders within the 
SORNA registration categories, and that they do not constitute 
independent requirements for jurisdictions to register offenders for 
whom SORNA does not otherwise require registration. In particular, the 
class of juvenile delinquents who are required to register under SORNA 
is defined by section 111(8), a class that is narrower in a number of 
respects than the class of offenders who satisfy the criteria for tier 
III classification under section 111(4). (See the discussion of section 
111(8) in Part IV.A of these Guidelines above.) Hence, a juvenile 
delinquent's satisfaction of the criteria for tier III classification 
under section 111(4) does not in itself mean that a jurisdiction must 
require the juvenile to register in order to comply with SORNA. Rather, 
that is only the case if the juvenile satisfies the criteria for 
required registration of juvenile delinquents under section 111(8).

VI. Required Registration Information

    Section 114 of SORNA defines the required minimum informational 
content of sex offender registries. It is divided into two lists. The 
first list, set forth in subsection (a) of section 114, describes 
information that the registrant will normally be in a position to 
provide. The second list, set forth in subsection (b), describes 
information that is likely to require some affirmative action by the 
jurisdiction to obtain, beyond asking the sex offender for the 
information. Supplementary to the information that the statute 
explicitly describes, section 114(a)(7) and (b)(8) authorize the 
Attorney General to specify additional information that must be 
obtained and included in the registry. This expansion authority is 
utilized to require including in the registries a number of additional 
types of information, such as information about registrants' e-mail 
addresses, telephone numbers, and the like, information concerning the 
whereabouts of registrants who lack fixed abodes or definite places of 
employment, and information about temporary lodging, as discussed 
below.
    Whether a type of information must be obtained by a jurisdiction 
and included in its sex offender registry is a distinct question from 
whether the jurisdiction must make that information available to the 
public. Many of the informational items whose inclusion in the registry 
is required by section 114

[[Page 38055]]

and these Guidelines are not subject to a public disclosure requirement 
under SORNA, and some are exempt from public disclosure on a mandatory 
basis. The public disclosure requirements under SORNA and exceptions 
thereto are explained in Part VII of these Guidelines.
    In order to implement requirements for the sharing of registration 
information appearing in other sections of SORNA (sections 113(c), 
119(b), 121(b)--see Parts VII and X of these Guidelines for 
discussion), jurisdictions will need to maintain all required 
registration information in digitized form that will enable it to be 
immediately accessed by or transmitted to various entities. Hence, the 
jurisdiction's registry must be an electronic database, and 
descriptions of required types of information in section 114 should 
consistently be understood as referring to digitizable information 
rather than hard copies or physical objects. This does not mean, 
however, that all required registration information must be reproduced 
in a single segregated database, since the same effect may be achieved 
by including in the central registry database links or identification 
numbers that provide access to the information in other databases in 
which it is included (e.g., with respect to criminal history, 
fingerprint, and DNA information). These points are further discussed 
in connection with the relevant informational items.
    As with SORNA's requirements generally, the informational 
requirements of section 114 and these Guidelines define a floor, not a 
ceiling, for jurisdictions' registries. Hence, jurisdictions are free 
to obtain and include in their registries a broader range of 
information than the minimum requirements described in this Part.
    The required minimum informational content for sex offender 
registries is as follows:
    Name, Aliases, and Remote Communication Identifiers and Addresses 
(Sec.  114(a)(1), (a)(7)):
    Names and Aliases (Sec.  114(a)(1)): The registry must include 
``[t]he name of the sex offender (including any alias used by the 
individual).'' The names and aliases required by this provision 
include, in addition to registrants' primary or given names, nicknames 
and pseudonyms generally, regardless of the context in which they are 
used, any designations or monikers used for self-identification in 
Internet communications or postings, and ethnic or tribal names by 
which they are commonly known.
    Internet Identifiers and Addresses (Sec.  114(a)(7)): In the 
context of Internet communications there may be no clear line between 
names or aliases that are required to be registered under SORNA Sec.  
114(a)(1) and addresses that are used for routing purposes. Moreover, 
regardless of the label, including in registries information on 
designations used by sex offenders for purposes of routing or self-
identification in Internet communications--e.g., e-mail and instant 
messaging addresses--serves the underlying purposes of sex offender 
registration and notification. Among other potential uses, having this 
information may help in investigating crimes committed online by 
registered sex offenders--such as attempting to lure children or 
trafficking in child pornography through the Internet--and knowledge by 
sex offenders that their Internet identifiers are known to the 
authorities may help to discourage them from engaging in such criminal 
activities. The authority under section 114(a)(7) is accordingly 
exercised to require that the information included in the registries 
must include all designations used by sex offenders for purposes of 
routing or self-identification in Internet communications or postings.
    Telephone Numbers (Sec.  114(a)(7)): Requiring sex offenders to 
provide their telephone numbers (both for fixed location phones and 
cell phones) furthers the objectives of sex offender registration. One 
obvious purpose in having such information is to facilitate 
communication between registration personnel and a sex offender in case 
issues arise relating to the sex offender's registration. Moreover, as 
communications technology advances, the boundaries blur between text-
based and voice-based communications media. Telephone calls may be 
transmitted through the Internet. Text messages may be sent between 
cell phones. Regardless of the particular communication medium, and 
regardless of whether the communication involves text or voice, sex 
offenders may potentially utilize remote communications in efforts to 
contact or lure potential victims. Hence, including phone numbers in 
the registration information may help in investigating crimes committed 
by registrants that involved telephonic communication with the victim, 
and knowledge that their phone numbers are known to the authorities may 
help sex offenders to resist the temptation to commit crimes by this 
means. The authority under section 114(a)(7) is accordingly exercised 
to require that the information included in the registries must include 
sex offenders' telephone numbers and any other designations used by sex 
offenders for purposes of routing or self-identification in telephonic 
communications.
    Social Security Number (Sec.  114(a)(2), (a)(7)): The registry must 
include ``[t]he Social Security number of the sex offender.'' In 
addition to any valid Social Security number issued to the registrant 
by the government, the information the jurisdiction requires 
registrants to provide under this heading must include any number that 
the registrant uses as his or her purported Social Security number 
since registrants may, for example, attempt to use false Social 
Security numbers in seeking employment that would provide access to 
children. To the extent that purported (as opposed to actual) Social 
Security numbers may be beyond the scope of the information required by 
section 114(a)(2), the authority under section 114(a)(7) is exercised 
to require that information on such purported numbers be obtained and 
included in the registry as well.
    Residence, Lodging, and Travel Information (Sec.  114(a)(3), 
(a)(7)):
    Residence Address (Sec.  114(a)(3)): The registry must include 
``the address of each residence at which the sex offender resides or 
will reside.'' As provided in SORNA Sec.  111(13), residence refers to 
``the location of the individual's home or other place where the 
individual habitually lives.'' (For more as to the meaning of 
``resides'' under SORNA, see Part VIII of these Guidelines.) The 
statute refers to places in which the sex offender ``will reside'' so 
as to cover situations in which, for example, a sex offender is 
initially being registered prior to release from imprisonment, and 
hence is not yet residing in the place or location to which he or she 
expects to go following release.
    Other Residence Information (Sec.  114(a)(7)): Sex offenders who 
lack fixed abodes are nevertheless required to register in the 
jurisdictions in which they reside, as discussed in Part VIII of these 
Guidelines. Such sex offenders cannot provide the residence address 
required by section 114(a)(3) because they have no definite ``address'' 
at which they live. Nevertheless, some more or less specific 
description should normally be obtainable concerning the place or 
places where such a sex offender habitually lives--e.g., information 
about a certain part of a city that is the sex offender's habitual 
locale, a park or spot on the street (or a number of such places) where 
the sex offender stations himself during the day or sleeps at night, 
shelters among which the sex offender circulates, or places in public

[[Page 38056]]

buildings, restaurants, libraries, or other establishments that the sex 
offender frequents. Having this type of location information serves the 
same public safety purposes as knowing the whereabouts of sex offenders 
with definite residence addresses. Hence, the authority under SORNA 
Sec.  114(a)(7) is exercised to require that information be obtained 
about where sex offenders who lack fixed abodes habitually live with 
whatever definiteness is possible under the circumstances. Likewise, in 
relation to sex offenders who lack a residence address for any other 
reason--e.g., a sex offender who lives in a house in a rural or tribal 
area that has no street address--the registry must include information 
that identifies where the individual has his or her home or habitually 
lives.
    Temporary Lodging Information (Sec.  114(a)(7)): Sex offenders who 
reoffend may commit new offenses at locations away from the places in 
which they have a permanent or long-term presence. Indeed, to the 
extent that information about sex offenders' places of residence is 
available to the authorities, but information is lacking concerning 
their temporary lodging elsewhere, the relative attractiveness to sex 
offenders of molesting children or committing other sexual crimes while 
traveling or visiting away from home increases. Hence, to achieve the 
objectives of sex offender registration, it is valuable to have 
information about other places in which sex offenders are staying, even 
if only temporarily. The authority under SORNA Sec.  114(a)(7) is 
accordingly exercised to provide that jurisdictions must require sex 
offenders to provide information about any place in which the sex 
offender is staying when away from his residence for seven or more 
days, including identifying the place and the period of time the sex 
offender is staying there. The benefits of having this information 
include facilitating the successful investigation of crimes committed 
by sex offenders while away from their normal places of residence, 
employment, or school attendance, and decreasing the attractiveness to 
sex offenders of committing crimes in such circumstances.
    Travel and Immigration Documents (Sec.  114(a)(7)): The authority 
under SORNA Sec.  114(a)(7) is exercised to provide that registrants 
must be required to produce or provide information about their 
passports, if they have passports, and that registrants who are aliens 
must be required to produce or provide information about documents 
establishing their immigration status. The registry must include 
digitized copies of these documents, document type and number 
information for such documents, or links to another database or 
databases that contain such information. Having this type of 
information in the registries serves various purposes, including 
helping to locate and apprehend registrants who may attempt to leave 
the United States after committing new sex offenses or registration 
violations; facilitating the tracking and identification of registrants 
who leave the United States but later reenter while still required to 
register (see SORNA Sec.  128); and crosschecking the accuracy and 
completeness of other types of information that registrants are 
required to provide--e.g., if immigration documents show that an alien 
registrant is in the United States on a student visa but the registrant 
fails to provide information concerning the school attended as required 
by SORNA Sec.  114(a)(5).
    Employment Information (Sec.  114(a)(4), (a)(7)):
    Employer Name and Address (Sec.  114(a)(4)): The registry must 
include ``[t]he name and address of any place where the sex offender is 
an employee or will be an employee.'' SORNA Sec.  111(12) explains that 
``employee'' includes ``an individual who is self-employed or works for 
any other entity, whether compensated or not.'' As the definitional 
provisions indicate, the information required under this heading is not 
limited to information relating to compensated work or a regular 
occupation, but includes as well name and address information for any 
place where the registrant works as a volunteer or otherwise works 
without remuneration. The statute refers to places in which the sex 
offender ``will be an employee'' so as to cover, for example, cases in 
which a sex offender is initially being registered prior to release 
from imprisonment and has secured employment that will commence upon 
his release, and other circumstances in which a sex offender reports an 
initiation or change of employment to a jurisdiction before the new 
employment commences. It does not mean that jurisdictions must include 
in their registries merely speculative information sex offenders have 
provided about places they may work in the future.
    Other Employment Information (Sec.  114(a)(7)): A sex offender who 
is employed may not have a fixed place of employment--e.g., a long-haul 
trucker whose ``workplace'' is roads and highways throughout the 
country, a self-employed handyman who works out of his home and does 
repair or home-improvement work at other people's homes, or a person 
who frequents sites that contractors visit to obtain day labor and 
works for whatever contractor hires him on a given day. Knowing as far 
as possible where such a sex offender is in the course of employment 
serves the same public safety purposes as the corresponding information 
regarding a sex offender who is employed at a fixed location. The 
authority under section 114(a)(7) is accordingly exercised to require 
that information be obtained and included in the registry concerning 
the places where such a sex offender works with whatever definiteness 
is possible under the circumstances, such as information about normal 
travel routes or the general area(s) in which the sex offender works.
    Professional Licenses (Sec.  114(a)(7)): The authority under 
section 114(a)(7) is exercised to require that information be obtained 
and included in the registry concerning all licensing of the registrant 
that authorizes the registrant to engage in an occupation or carry out 
a trade or business. Information of this type may be helpful in 
locating the registrant if he or she absconds, may provide a basis for 
notifying the responsible licensing authority if the registrant's 
conviction of a sex offense may affect his or her eligibility for the 
license, and may be useful in crosschecking the accuracy and 
completeness of other information the registrant is required to 
provide--e.g., if the registrant is licensed to engage in a certain 
occupation but does not provide name or place of employment information 
as required by section 114(a)(4) for such an occupation.
    School Information (Sec.  114(a)(5)): The registry must include 
``[t]he name and address of any place where the sex offender is a 
student or will be a student.'' Section 111(11) defines ``student'' to 
mean ``an individual who enrolls in or attends an educational 
institution, including (whether public or private) a secondary school, 
trade or professional school, and institution of higher education.'' As 
the statutory definition indicates, the requirement extends to all 
types of educational institutions. Hence, this information must be 
provided for private schools as well as public schools, including both 
parochial and non-parochial private schools, and regardless of whether 
the educational institution is attended for purposes of secular, 
religious, or cultural studies. The registration information 
requirement of section 114(a)(5) refers to the names and addresses of 
educational institutions where a sex offender has or will have a 
physical presence as a student. It does not require information about a 
sex

[[Page 38057]]

offender's participating in courses only remotely through the mail or 
the Internet. (Internet identifiers and addresses used by a sex 
offender in such remote communications, however, must be included in 
the registration information as provided in the discussion of 
``INTERNET IDENTIFIERS AND ADDRESSES'' earlier in this list.) As with 
residence and employment information, the statute refers to information 
about places the sex offender ``will be'' a student so as to cover, for 
example, circumstances in which a sex offender reports to a 
jurisdiction that he has enrolled in a school prior to his commencement 
of attendance at that school. It does not mean that jurisdictions must 
include in their registries merely speculative information sex 
offenders have provided about places they may attend school in the 
future.
    Vehicle Information (Sec.  114(a)(6), (a)(7)): The registry must 
include ``[t]he license plate number and a description of any vehicle 
owned or operated by the sex offender.'' This includes, in addition to 
vehicles registered to the sex offender, any vehicle that the sex 
offender regularly drives, either for personal use or in the course of 
employment. A sex offender may not regularly use a particular vehicle 
or vehicles in the course of employment, but may have access to a large 
number of vehicles for employment purposes, such as using many vehicles 
from an employer's fleet in a delivery job. In a case of this type, 
jurisdictions are not required to obtain information concerning all 
such vehicles to satisfy SORNA's minimum informational requirements, 
but jurisdictions are free to require such information if they are so 
inclined. The authority under Sec.  114(a)(7) is exercised to define 
and expand the required information concerning vehicles in two 
additional respects. First, the term ``vehicle'' should be understood 
to include watercraft and aircraft, in addition to land vehicles, so 
descriptive information must be required for all such vehicles owned or 
operated by the sex offender. The information must include the license 
plate number if it is a type of vehicle for which license plates are 
issued, or if it has no license plate but does have some other type of 
registration number or identifier, then information concerning such a 
registration number or identifier must be included. To the extent that 
any of the information described above may be beyond the scope of 
section 114(a)(6), the authority under section 114(a)(7) is exercised 
to provide that it must be obtained and included in the registry. 
Second, the sex offender must be required to provide and the registry 
must include information concerning the place or places where the 
registrant's vehicle or vehicles are habitually parked, docked, or 
otherwise kept. Having information of this type may help to prevent 
flight, facilitate investigation, or effect an apprehension if the 
registrant is implicated in the commission of new offenses or violates 
registration requirements.
    Date of Birth (Sec.  114(a)(7)). The authority under Sec.  
114(a)(7) is exercised to require date of birth information for 
registrants, which must be included in the registry. Since date of 
birth is regularly utilized as part of an individual's basic 
identification information, having this information in the registry is 
of obvious value in helping to identify, track, and locate registrants. 
The information the jurisdiction requires registrants to provide under 
this heading must include any date that the registrant uses as his or 
her purported date of birth--not just his or her actual date of birth--
since registrants may, for example, provide false date of birth 
information in seeking employment that would provide access to 
children.
    Physical Description (Sec.  114(b)(1)): The registry must include 
``[a] physical description of the sex offender.'' This must include a 
description of the general physical appearance or characteristics of 
the sex offender, and any identifying marks, such as scars or tattoos.
    Text of Registration Offense (Sec.  114(b)(2)): The registry must 
include ``[t]he text of the provision of law defining a criminal 
offense for which the sex offender is registered.'' As with other 
information in the registries, this does not mean that the registry 
must be a paper records system that includes a hard copy of the statute 
defining the registration offense. Rather, the registry must be an 
electronic database, and the relevant statutory provision must be 
included as electronic text. Alternatively, this requirement can be 
satisfied by including in the central registry database a link or 
citation to the statute defining the registration offense if: (i) Doing 
so provides online access to the linked or cited provision, and (ii) 
the link or citation will continue to provide access to the offense as 
formulated at the time the registrant was convicted of it, even if the 
defining statute is subsequently amended.
    Criminal History and Other Criminal Justice Information (Sec.  
114(b)(3)): The registry must include ``[t]he criminal history of the 
sex offender, including the date of all arrests and convictions; the 
status of parole, probation, or supervised release; registration status 
[i.e., whether the sex offender is in violation of the registration 
requirement and unlocatable]; and the existence of any outstanding 
arrest warrants for the sex offender.'' This requirement can be 
satisfied by including the specified types of information in the 
central registry database, or by including in that database links or 
identifying numbers that provide access to these types of information 
in criminal justice databases that contain them.
    Current Photograph (Sec.  114(b)(4)): The registry information must 
include ``[a] current photograph of the sex offender.'' As with other 
information in the registries, this does not mean that the registry 
must be a paper records system that includes physical photographs. 
Rather, the photographs of sex offenders must be included in digitized 
form in an electronic registry, so as to permit the electronic 
transmission of registration information that is necessary to implement 
other SORNA requirements. (For more about the taking of photographs and 
keeping them current, see the discussion of periodic in-person 
appearances in Part XI of these Guidelines.)
    Fingerprints and Palm Prints (Sec.  114(b)(5)): The registry 
information must include ``[a] set of fingerprints and palm prints of 
the sex offender.'' As with other registration information, this should 
be understood to refer to digitized fingerprint and palm print 
information rather than physical fingerprint cards and palm prints. The 
requirement can be satisfied by including such digitized fingerprint 
and palm print information in the central registry database, or by 
providing links or identifying numbers in the central registry database 
that provide access to fingerprint and palm print information in other 
databases for each registered sex offender.
    DNA (Sec.  114(b)(6)): The registry information must include ``[a] 
DNA sample of the sex offender.'' This means that a DNA sample must be 
taken, or must have been taken, from the sex offender, for purposes of 
analysis and entry of the resulting DNA profile into the Combined DNA 
Index System (CODIS). The requirement is satisfied by including 
information in the central registry database that confirms collection 
of such a sample from the sex offender for purposes of analysis and 
entry of the DNA profile into CODIS or inclusion of the sex offender's 
DNA profile in CODIS.
    Driver's License or Identification Card (Sec.  114(b)(7)): The 
registry information

[[Page 38058]]

must include ``[a] photocopy of a valid driver's license or 
identification card issued to the sex offender by a jurisdiction.'' The 
requirement can be satisfied by including a digitized photocopy of the 
specified documents in the central registry database for each sex 
offender to whom such a document has been issued. Alternatively, it can 
be satisfied by including in the central registry database links or 
identifying numbers that provide access in other databases (such as a 
Department of Motor Vehicles database) to the information that would be 
shown by such a photocopy. As noted, this requirement pertains to sex 
offenders to whom drivers' licenses or identification cards have been 
issued. It does not mean that jurisdictions must issue drivers' 
licenses or identification cards to sex offenders to whom they would 
not otherwise issue such documents in order to create this type of 
information for inclusion in the registry.

 VII. Disclosure and Sharing of Information

    The SORNA requirements for disclosure and sharing of information 
about registrants appear primarily in section 118, which is concerned 
with sex offender Web sites, and section 121, which is concerned with 
community notification in a broader sense and with some more targeted 
types of disclosures. The two sections will be discussed separately.

A. Sex Offender Web Sites

    Section 118(a) of SORNA states a general rule that jurisdictions 
are to ``make available on the Internet, in a manner that is readily 
accessible to all jurisdictions and to the public, all information 
about each sex offender in the registry.'' This general requirement is 
subject to certain mandatory and discretionary exemptions, appearing in 
subsections (b) and (c) of section 118, which are discussed below. As 
the later discussion explains, after the mandatory and discretionary 
exemptions are taken into account, the affirmative Web site posting 
requirements are limited to specified information concerning sex 
offenders' names, addresses or locations, vehicle descriptions and 
license plate numbers, physical descriptions, sex offenses for which 
convicted, and current photographs.
    Currently, all 50 states, the District of Columbia, Puerto Rico, 
and Guam have sex offender Web sites that make information about 
registered sex offenders available to the public. The listed 
jurisdictions may need to modify their existing Web sites to varying 
degrees to implement the requirements of section 118.
    Beyond stating a general rule of Web site posting for sex offender 
information (subject to exceptions and limitations as discussed below), 
subsection (a) of section 118 includes requirements about the field-
search capabilities of the jurisdictions' Web sites. In part, it states 
that these field search capabilities must include searches by ``zip 
code or geographic radius set by the user.'' In other words, the Web 
sites must be so designed that members of the public who access a Web 
site are able to specify particular zip code areas, and are able to 
specify geographic radii--e.g., within one mile of a specified 
address--and thereby bring up on the Web site the information about all 
of the posted sex offenders in the specified zip code or geographic 
area.
    Subsection (a) of section 118 further states that each Web site 
``shall also include * * * all field search capabilities needed for 
full participation in the Dru Sjodin National Sex Offender Public Web 
site and shall participate in that Web site as provided by the Attorney 
General.'' The statutory basis for the referenced National Sex Offender 
Public Web site (NSOPW) appears in SORNA Sec.  120. It is operated by 
the Department of Justice at the address www.nsopr.gov. All 50 states, 
the District of Columbia, Puerto Rico, and Guam currently participate 
in the NSOPW, which provides public access to the information in their 
respective sex offender Web sites through single-query searches on a 
national site. As noted, participation in the NSOPW is a required 
element of SORNA implementation. To satisfy the requirement under 
section 118(a) of having ``all field search capabilities needed for 
full participation in the [NSOPW],'' jurisdictions' sex offender Web 
sites must allow searches by name, county, and city/town, as well as 
having the zip code and geographic radius search capacities mentioned 
specifically in the statute.
    Other SORNA requirements relating to sex offender Web sites are 
discussed in the remainder of this Subpart under the following 
headings: Mandatory exemptions, discretionary exemptions and required 
inclusions, remote communication addresses, and other provisions.
Mandatory Exemptions
    Section 118(b)(1)-(3) identifies three types of information that 
are mandatorily exempt from disclosure, and section 118(b)(4) gives the 
Attorney General the authority to create additional mandatory 
exemptions. The limitations of subsection (b) only constrain 
jurisdictions in relation to the information made available on their 
publicly accessible sex offender Web sites. They do not limit the 
discretion of jurisdictions to disclose these types of information in 
other contexts. The types of information that are within the mandatory 
exemptions from public sex offender Web site disclosure are as follows:
    Victim Identity: Section 118(b)(1) exempts ``the identity of any 
victim of a sex offense.'' The purpose of this exemption is to protect 
victim privacy. So long as the victim is not identified, this does not 
limit jurisdictions' discretion to include on the Web site information 
about the nature and circumstances of the offense, which may include 
information relating to the victim, such as the age and gender of the 
victim, and the conduct engaged in by the sex offender against the 
victim.
    Social Security Number: Section 118(b)(2) exempts ``the Social 
Security number of the sex offender.''
    Arrests Not Resulting in Conviction: Section 118(b)(3) exempts 
``any reference to arrests of the sex offender that did not result in 
conviction.'' As noted, this mandatory exemption, like the others, only 
affects the information that may be posted on a jurisdiction's public 
sex offender Web site. It does not limit a jurisdiction's use or 
disclosure of arrest information in any other context, such as 
disclosure to law enforcement agencies for law enforcement purposes, or 
disclosure to the public (by means other than posting on the sex 
offender Web site) under ``open records'' laws.
    Travel and Immigration Document Numbers: The authority under 
section 118(b)(4) is exercised to exempt the numbers assigned to 
registrants' passports and immigration documents. This exemption 
reflects concerns that public posting of such information could 
facilitate identity theft and could provide a source of passport and 
immigration document numbers to individuals seeking to enter, remain 
in, or travel from the United States using forged documents or false 
identities. Like the other mandatory exemptions, this exemption only 
affects the information that may be posted on a jurisdiction's public 
sex offender Web site. It does not limit a jurisdiction's use or 
disclosure of registrants' travel or immigration document information 
in any other context, such as disclosure to agencies with law 
enforcement, immigration, or national security functions.

[[Page 38059]]

Discretionary Exemptions and Required Inclusions
    Section 118(c)(1)-(3) provides three optional exemptions, which 
describe information that jurisdictions may exempt from their Web sites 
in their discretion. The first of these is ``any information about a 
tier I sex offender convicted of an offense other than a specified 
offense against a minor.'' The meaning of ``tier I sex offender'' is 
explained in Part V of these Guidelines, and the meaning of ``specified 
offense against a minor'' is explained in Part IV.D of these 
Guidelines. The second and third optional exemptions are, respectively, 
``the name of an employer of the sex offender'' and ``the name of an 
educational institution where the sex offender is a student.'' As 
noted, these exclusions are discretionary. Jurisdictions are free to 
include these types of information on their sex offender Web sites if 
they are so inclined.
    Section 118(c)(4) provides a further optional exemption of ``any 
other information exempted from disclosure by the Attorney General.'' 
This authorization recognizes that there are some additional types of 
information that are required to be included in sex offender registries 
by section 114, but whose required disclosure through public sex 
offender Web sites may reasonably be regarded by particular 
jurisdictions as inappropriate or unnecessary. For example, public 
access to registrants' remote communication routing addresses (such as 
e-mail addresses) presents both risks and benefits. Minimizing the 
risks and maximizing the benefits depends on the appropriate design of 
the means and form of access. The recommended treatment of such 
information is discussed later in this Subpart. A number of other types 
of required registration information, such as fingerprints, palm 
prints, and DNA information, are primarily or exclusively of interest 
to law enforcement.
    In positive terms, as set out in the list below, there are eight 
core types of information whose public disclosure through the sex 
offender Web sites has the greatest value in promoting public safety by 
enabling members of the public to identify sex offenders, to know where 
they are, and to know what crimes they have committed. The list below 
is an exhaustive list of the types of registration information that 
jurisdictions must include on their public sex offender Web sites to 
satisfy the requirements for SORNA implementation. All other types of 
registration information are excluded from required Web site posting, 
either on a mandatory basis under section 118(b), on a discretionary 
basis under section 118(c)(1)-(3), or on the basis of the Attorney 
General's authority to allow additional discretionary exemptions under 
section 118(c)(4). The list of informational items that jurisdictions 
must include on their public sex offender Web sites is as follows:
    The name of the sex offender, including any aliases.
    The address of each residence at which the sex offender resides or 
will reside and, if the sex offender does not have any (present or 
expected) residence address, other information about where the sex 
offender has his or her home or habitually lives. If current 
information of this type is not available because the sex offender is 
in violation of the requirement to register or unlocatable, the Web 
site must so note.
    The address of any place where the sex offender is an employee or 
will be an employee and, if the sex offender is employed but does not 
have a definite employment address, other information about where the 
sex offender works.
    The address of any place where the sex offender is a student or 
will be a student.
    The license plate number and a description of any vehicle owned or 
operated by the sex offender.
    A physical description of the sex offender.
    The sex offense for which the sex offender is registered and any 
other sex offense for which the sex offender has been convicted.
    A current photograph of the sex offender.
    The foregoing list remains subject to the discretionary authority 
of jurisdictions under section 118(c)(1) to exempt information about a 
tier I sex offender convicted of an offense other than a specified 
offense against a minor.
Remote Communication Addresses
    Public access to or disclosure of sex offenders' remote 
communication routing addresses and their equivalent--such as e-mail 
addresses and telephone numbers--is discussed separately because the 
issue presents both risks and benefits and merits careful handling by 
jurisdictions.
    On the one hand, appropriately designed forms of access to such 
information may further the public safety objectives of sex offender 
registration and notification. For example, the operators of Internet 
social networking services that serve children may validly wish to 
check whether the e-mail addresses of individuals on their user lists 
are those of registered sex offenders, so that they can prevent sex 
offenders from using their services as avenues for Internet luring of 
children for purposes of sexual abuse. Likewise, a parent may 
legitimately wish to check whether the e-mail address of an unknown 
individual who is communicating with his or her child over the Internet 
is that of a registered sex offender, for the same protective purpose.
    On the other hand, some forms of public disclosure of this type of 
information--such as including sex offenders' e-mail addresses as part 
of the information in their individual listings on the sex offender Web 
sites, which also include their names, locations, etc.--could raise 
serious concerns about unintended consequences and misuse. Posting of 
the information in this form could provide ready access by sex 
offenders to the e-mail addresses of other sex offenders, thereby 
facilitating networking among such offenders through the Internet for 
such purposes as: Exchanging information about or providing access to 
child victims for purposes of sexual abuse; recruiting confederates and 
accomplices for the purpose of committing child sexual abuse or 
exploitation offenses or other sexually violent crimes; trafficking in 
child pornography; and sharing ideas and information about how to 
commit sexual crimes, avoid detection and apprehension for committing 
such crimes, or evade registration requirements.
    The public safety benefits of public access in this context may be 
realized, and the risks and concerns addressed, by not including remote 
communication routing addresses or information that would enable sex 
offenders to contact each other on the individual public Web site 
postings of registrants, but including on the Web sites a function by 
which members of the public may enter, e.g., an e-mail address or phone 
number and receive an answer whether the specified address or number 
has been registered as that of a sex offender. In the case of a 
concerned parent as described above, for example, this could enable the 
parent to ascertain that the e-mail address of an individual attempting 
to communicate through the Internet with his or her child is the 
address of a sex offender, but without providing sex offenders access 
to listings showing the e-mail addresses of other persons who may share 
their dispositions to commit sexual crimes.
    Jurisdictions are accordingly permitted and encouraged to provide 
public access to remote communication

[[Page 38060]]

address information included in the sex offender registries, in the 
form described above, i.e., a function that allows checking whether 
specified addresses are included in the registries as the addresses of 
sex offenders. The registry management and Web site software that the 
Justice Department is developing pursuant to SORNA Sec.  123 will 
include software for such a Web site function.
Other Provisions
    The final three subsections in section 118 contain additional Web 
site specifications as follows:
    Subsection (d) requires that sites ``include, to the extent 
practicable, links to sex offender safety and education resources.''
    Subsection (e) requires that sites ``include instructions on how to 
seek correction of information that an individual contends is 
erroneous.'' A jurisdiction could comply with this requirement, for 
example, by including on its Web site information identifying the 
jurisdiction's agency responsible for correcting erroneous information, 
and advising persons that they can contact this agency if they believe 
that information on the site is erroneous.
    Subsection (f) requires that sites include ``a warning that 
information on the site should not be used to unlawfully injure, 
harass, or commit a crime against any individual named in the registry 
or residing or working at any reported address,'' and further provides 
that the warning ``shall note that any such action could result in 
civil or criminal penalties.''

B. Community Notification and Targeted Disclosures

    Section 121(b) of SORNA states that ``immediately after a sex 
offender registers or updates a registration * * * the information in 
the registry (other than information exempted from disclosure by the 
Attorney General) about that offender'' must be provided to various 
specified entities and individuals. The requirement that the 
information must be provided to the specified recipients 
``immediately'' should be understood to mean that it must be provided 
within three business days. Cf. SORNA Sec. Sec.  113(b)(2), 117(a) 
(equating within three business days and ``immediately'' in relation to 
initial registration). The requirement that the information be provided 
immediately is qualified by section 121(c), which provides that 
recipients described in section 121(b)(6)-(7)--i.e., volunteer 
organizations in which contact with minors or other vulnerable 
individuals might occur, and any organization, company, or individual 
who requests notification--``may opt to receive the notification * * * 
no less frequently than once every five business days.''
    These requirements will be discussed in turn in relation to two 
groups of recipients--a group of four types of recipients that require 
special treatment, followed by suggestions for a uniform approach in 
relation to the remaining types of recipients. The four types that 
require special treatment are as follows:
    National Databases: Section 121(b)(1) states that the information 
is to be provided to ``[t]he Attorney General, who shall include that 
information in the National Sex Offender Registry or other appropriate 
databases.'' The National Sex Offender Registry (NSOR) is a national 
database maintained by the Federal Bureau of Investigation (FBI), which 
compiles information from the registration jurisdictions' sex offender 
registries and makes it available to criminal justice agencies on a 
nationwide basis. The current statutory basis for NSOR appears in SORNA 
Sec.  119(a). The statute refers to the Attorney General including the 
information submitted by jurisdictions in NSOR ``or other appropriate 
databases'' because some types of registry information described in 
SORNA Sec.  114, such as criminal history information, may be 
maintained by the FBI in other databases rather than directly in the 
NSOR database. In addition, the United States Marshals Service, which 
is the lead federal agency in investigating registration violations by 
sex offenders and assisting jurisdictions in enforcing their 
registration requirements, may establish an additional national 
database or databases to help in detecting, investigating, and 
apprehending sex offenders who violate registration requirements. 
Jurisdictions accordingly can implement the requirement of section 
121(b)(1) by submitting to the FBI within three business days the types 
of registry information that the FBI includes in NSOR or other national 
databases, and by submitting information within the same time frame to 
other federal agencies (such as the United States Marshals Service) in 
conformity with any requirements the Department of Justice or the 
Marshals Service may adopt for this purpose.
    Law Enforcement and Supervision Agencies: Section 121(b)(2), in 
part, identifies as further required recipients ``[a]ppropriate law 
enforcement agencies (including probation agencies, if appropriate) * * 
* in each area in which the individual resides, is an employee or is a 
student.'' ``Law enforcement agencies'' should be understood to refer 
to agencies with criminal investigation or prosecution functions, such 
as police departments, sheriffs' offices, and district attorneys' 
offices. ``Probation agencies, if appropriate'' should be understood to 
refer to all offender supervision agencies that are responsible for a 
sex offender's supervision. Jurisdictions can implement the requirement 
of section 121(b)(2) by making registration information available to 
these agencies within three business days, by any effective means--
permissible options include electronic transmission of registration 
information and provision of online access to registration information. 
Jurisdictions may define the relevant ``area[s]'' in which a registrant 
resides, is an employee, or is a student for purposes of section 
121(b)(2) in accordance with their own policies, or may avoid the need 
to have to specify such areas by providing access to sex offender 
registry information to law enforcement and supervision agencies 
generally, since doing so makes the information available to recipients 
in all areas (however defined). The authority under the introductory 
language in section 121(b) to exempt information from disclosure is not 
exercised in relation to these recipients with respect to any of the 
information required to be included in registries under section 114 
because law enforcement and supervision agencies need access to 
complete information about sex offenders to carry out their protective, 
investigative, prosecutorial, and supervisory functions.
    Jurisdictions: Section 121(b)(3) identifies as required recipients 
``[e]ach jurisdiction where the sex offender resides, is an employee, 
or is a student, and each jurisdiction from or to which a change of 
residence, employment, or student status occurs.'' This is part of a 
broader group of SORNA provisions concerning the exchange of 
registration information among jurisdictions and ensuring that all 
relevant jurisdictions have such information in an up-to-date form. The 
implementation of section 121(b)(3) and other provisions relating to 
these matters is discussed in Parts IX and X of these Guidelines.
    National Child Protection Act Agencies: Section 121(b)(4) 
identifies as required recipients ``[a]ny agency responsible for 
conducting employment-related background checks under section 3 of the 
National Child Protection Act of 1993 (42 U.S.C. 5119a).'' The National 
Child Protection Act (NCPA) provides procedures under which qualified 
entities (e.g., prospective employers of child care providers) may 
request an authorized

[[Page 38061]]

state agency to conduct a criminal history background check to obtain 
information bearing on an individual's fitness to have responsibility 
for the safety and well-being of children, the elderly, or individuals 
with disabilities. The authorized agency makes a determination whether 
the individual who is the subject of the background check has been 
convicted of, or is under indictment for, a crime bearing on the 
individual's fitness for such responsibilities, and conveys that 
determination to the qualified entity. Considering the nature of the 
recipients under section 121(b)(4) and the functions for which they 
need information about sex offenders, jurisdictions can implement 
section 121(b)(4) by making available to such agencies (i.e., those 
authorized to conduct NCPA background checks) within three business 
days all criminal history information in the registry relevant to the 
conduct of such background checks.
    Beyond the four categories specified above, section 121(b) requires 
that sex offender registration information be provided to several other 
types of recipients, as follows:
    Each school and public housing agency in each area in which the sex 
offender resides, is an employee, or is a student (section 121(b)(2)).
    Social service entities responsible for protecting minors in the 
child welfare system (section 121(b)(5)).
    Volunteer organizations in which contact with minors or other 
vulnerable individuals might occur (section 121(b)(6)).
    Any organization, company, or individual who requests such 
notification pursuant to procedures established by the jurisdiction 
(section 121(b)(7)).
    Implementing the required provision of information about 
registrants to these entities potentially presents a number of 
difficulties for jurisdictions, such as problems in identifying and 
maintaining comprehensive lists of recipients in these categories, 
keeping those lists up to date, subdividing recipients by ``area'' with 
respect to the notification under section 121(b)(2), and developing 
means of transmitting or providing access to the information for the 
various types of recipients. The objectives of these provisions, 
however, can be achieved by augmenting public sex offender Web sites to 
include appropriate notification functions. Specifically, a 
jurisdiction will be deemed to have satisfied the requirements of these 
provisions of section 121(b) if it adopts an automated notification 
system that incorporates substantially the following features:
    The information required to be included on sex offender Web sites, 
as described in Part VII.A of these Guidelines, is posted on the 
jurisdiction's sex offender Web site within three business days.
    The jurisdiction's sex offender Web site includes a function under 
which members of the public and organizations can request notification 
when sex offenders commence residence, employment, or school attendance 
within zip code or geographic radius areas specified by the requester, 
where the requester provides an e-mail address to which the notice is 
to be sent.
    Upon posting on the jurisdiction's sex offender Web site of new 
residence, employment, or school attendance information for a sex 
offender within an area specified by the requester, the system 
automatically sends an e-mail notice to the requester that identifies 
the sex offender, thus enabling the requester to access the 
jurisdiction's Web site and view the new information about the sex 
offender.

VIII. Where Registration Is Required

    Section 113(a) of SORNA provides that a sex offender shall register 
and keep the registration current in each jurisdiction in which the sex 
offender resides, is an employee, or is a student. Section 113(a) of 
SORNA further provides that, for initial registration purposes only, a 
sex offender must also register in the jurisdiction in which convicted 
if it is different from the jurisdiction of residence.
    Starting with the last--mentioned requirement--registration in 
jurisdiction of conviction if different from jurisdiction of 
residence--in some cases the jurisdiction in which a sex offender is 
convicted is not the same as the jurisdiction to which the sex offender 
goes to live immediately following release. For example, a resident of 
jurisdiction A is convicted for a sex offense in jurisdiction B. After 
being released following imprisonment or sentenced to probation in 
jurisdiction B, the sex offender returns immediately to jurisdiction A. 
Although jurisdiction B is not the sex offender's jurisdiction of 
residence following his release or sentencing, jurisdiction B as the 
convicting jurisdiction is in the best position initially to take 
registration information from the sex offender and to inform him of his 
registration obligations, as required by SORNA Sec.  117(a), and is 
likely to be the only jurisdiction in a position to do so within the 
time frames specified in SORNA Sec. Sec.  113(b) and 117(a)--i.e., 
before release from imprisonment, or within 3 business days of 
sentencing for a sex offender with a non-incarcerative sentence. Hence, 
SORNA Sec.  113(a) provides for initial registration in the 
jurisdiction of conviction in such cases. SORNA, however, never 
requires continued registration in the jurisdiction of conviction if 
the sex offender does not reside, work, or attend school in that 
jurisdiction.
    Beyond the special case of initial registration in the conviction 
jurisdiction where it differs from the residence jurisdiction, section 
113(a) requires both registration and keeping the registration current 
in each jurisdiction where a sex offender resides, is an employee, or 
is a student. Starting with jurisdictions of residence, this means that 
a sex offender must initially register in the jurisdiction of residence 
if it is the jurisdiction of conviction, and must thereafter register 
in any other jurisdiction in which the sex offender subsequently 
resides.
    The notion of ``residence'' requires definition for this purpose. 
Requiring registration only where a sex offender has a residence or 
home in the sense of a fixed abode would be too narrow to achieve 
SORNA's objective of ``comprehensive'' registration of sex offenders 
(see Sec.  102), because some sex offenders have no fixed abodes. For 
example, a sex offender may be homeless, living on the street or moving 
from shelter to shelter, or a sex offender may live in something that 
itself moves from place to place, such as a mobile home, trailer, or 
houseboat. SORNA Sec.  111(13) accordingly defines ``resides'' to mean 
``the location of the individual's home or other place where the 
individual habitually lives.'' This entails that a sex offender must 
register:
    In any jurisdiction in which he has his home; and
    In any jurisdiction in which he habitually lives (even if he has no 
home or fixed address in the jurisdiction, or no home anywhere).
    The scope of ``habitually lives'' in this context is not self-
explanatory and requires further definition. An overly narrow 
definition would undermine the objectives of sex offender registration 
and notification under SORNA. For example, consider the case of a sex 
offender who nominally has his home in one jurisdiction--e.g., he 
maintains a mail drop there, or identifies his place of residence for 
legal purposes as his parents' home, where he visits occasionally--but 
he lives most of the time with his girlfriend in an adjacent 
jurisdiction. Registration in the nominal home jurisdiction alone in 
such a case would mean that the registration information is not 
informative as to

[[Page 38062]]

where the sex offender is actually residing, and hence would not 
fulfill the public safety objectives of tracking sex offenders' 
whereabouts following their release into the community.
    ``Habitually lives'' accordingly should be understood to include 
places in which the sex offender lives with some regularity, and with 
reference to where the sex offender actually lives, not just in terms 
of what he would choose to characterize as his home address or place of 
residence for self-interested reasons. The specific interpretation of 
this element of ``residence'' these Guidelines adopt is that a sex 
offender habitually lives in the relevant sense in any place in which 
the sex offender lives for at least 30 days. Hence, a sex offender 
resides in a jurisdiction for purposes of SORNA if the sex offender has 
a home in the jurisdiction, or if the sex offender lives in the 
jurisdiction for at least 30 days. Jurisdictions may specify in the 
manner of their choosing the application of the 30-day standard to sex 
offenders whose presence in the jurisdiction is intermittent but who 
live in the jurisdiction for 30 days in the aggregate over some longer 
period of time. Like other aspects of SORNA, the requirement to 
register sex offenders who ``reside'' in the jurisdiction as defined in 
section 111(13) is a minimum requirement, and jurisdictions in their 
discretion may require registration more broadly (for example, based on 
presence in the jurisdiction for a period shorter than 30 days).
    As to the timing of registration based on changes of residence, the 
understanding of ``habitually lives'' to mean living in a place for at 
least 30 days does not mean that the registration of a sex offender who 
enters a jurisdiction to reside may be delayed until after he has lived 
in the jurisdiction for 30 days. Rather, a sex offender who enters a 
jurisdiction in order to make his home or habitually live in the 
jurisdiction must be required to register within three business days, 
as discussed in Part X.A of these Guidelines. Likewise, a sex offender 
who changes his place of residence within a jurisdiction must be 
required to report the change within three business days, as discussed 
in Part X.A.
    SORNA also requires sex offenders to register and keep the 
registration current in any jurisdiction in which the sex offender is 
an employee. Hence, a sex offender who resides in jurisdiction A and 
commutes to work in an adjacent jurisdiction B must register and keep 
the registration current in both jurisdictions--in jurisdiction A as a 
resident, and in jurisdiction B as an employee. SORNA Sec.  111(12) 
defines ``employee'' for this purpose to include ``an individual who is 
self-employed or works for any other entity, whether compensated or 
not.'' As with residence, the SORNA requirement to register in 
jurisdictions of employment is not limited to sex offenders who have 
fixed places of employment or definite employment addresses. For 
example, consider a person residing in jurisdiction A who works out of 
his home as a handyman, regularly doing repair or home-improvement work 
at other people's houses both in jurisdiction A and in an adjacent 
jurisdiction B. Since the sex offender works in both jurisdictions, he 
must register in jurisdiction B as well as jurisdiction A.
    The implementation measure for these SORNA requirements is for 
jurisdictions to require sex offenders who are employed in the 
jurisdiction, as described above, to register in the jurisdiction. If a 
sex offender has some employment-related presence in a jurisdiction, 
but does not have a fixed place of employment or regularly work within 
the jurisdiction, line drawing questions may arise, and jurisdictions 
may resolve these questions based on their own judgments. For example, 
if a sex offender who is a long haul trucker regularly drives through 
dozens of jurisdictions in the course of his employment, it is not 
required that all such jurisdictions must make the sex offender 
register based on his transient employment-related presence, but rather 
they may treat such cases in accordance with their own policies. (For 
more about required employment information, see the discussion in Part 
VI of these Guidelines.)
    The final SORNA basis of registration is being a student, which 
SORNA Sec.  111(11) defines to mean ``an individual who enrolls in or 
attends an educational institution, including (whether public or 
private) a secondary school, trade or professional school, and 
institution of higher education.'' Hence, for example, a sex offender 
who resides in jurisdiction A, and is enrolled in a college in an 
adjacent jurisdiction B to which he commutes for classes, must be 
required to register in jurisdiction B as well as jurisdiction A. 
School enrollment or attendance in this context should be understood as 
referring to attendance at a school in a physical sense. It does not 
mean that a jurisdiction has to require a sex offender in some distant 
jurisdiction to register in the jurisdiction based on his taking a 
correspondence course through the mail with a school in the 
jurisdiction, or based on his taking courses at the school remotely 
through the Internet, unless the participation in the educational 
program also involves some physical attendance at the school in the 
jurisdiction.
    In the context of SORNA's requirements concerning the jurisdictions 
in which sex offenders must register, as in all other contexts under 
SORNA and these Guidelines, ``jurisdiction'' has the meaning given in 
SORNA Sec.  111(10)--i.e., it refers to the 50 States, the District of 
Columbia, the five principal territories, and Indian tribes so 
qualifying under section 127. Hence, for example, if a sex offender 
resides in one county in a state but works in a different county in the 
same state, the state may wish to require the sex offender to appear 
for registration purposes before the responsible officials in both 
counties. But this is not a matter that SORNA addresses. Rather, the 
relevant ``jurisdiction'' for SORNA purposes in such a case is simply 
the state, and finer questions about particular locations, political 
subdivisions, or areas within the state in which a sex offender will be 
required to register are matters of state discretion under SORNA.

IX. Initial Registration

    Under sections 113(b) and 117(a) of SORNA, jurisdictions must 
normally require that sex offenders be initially registered before 
release from imprisonment for the registration offense or, in case of a 
non-imprisonment sentence, within three business days of sentencing for 
the registration offense. Upon entry of the registration information 
into the registry, the initial registration jurisdiction must 
immediately forward the registration information to all other 
jurisdictions in which the sex offender is required to register. This 
is required by SORNA Sec.  121(b)(3) (registration information is to be 
provided immediately to ``[e]ach jurisdiction where the sex offender 
resides, is an employee, or is a student.''). Hence, for example, if an 
imprisoned sex offender advises the conviction jurisdiction on initial 
registration that he will be residing in another jurisdiction following 
release, or that he will stay in the conviction jurisdiction but will 
be commuting to work in another jurisdiction, the conviction 
jurisdiction must notify the expected residence or employment 
jurisdiction by forwarding to that jurisdiction the sex offender's 
registration information (including the information about the expected 
residence or employment in that jurisdiction). The sex offender will 
then be required to make an in-person registration appearance within 
three

[[Page 38063]]

business days of commencing residence or employment in that 
jurisdiction, as discussed in Part X of these Guidelines.
    With respect to sex offenders released from imprisonment, section 
117(a) states that the initial registration procedures are to be 
carried out ``shortly before release of the sex offender from 
custody.'' ``Shortly'' does not prescribe a specific time frame, but 
jurisdictions should implement this requirement in light of the 
underlying objectives of ensuring that sex offenders have their 
registration obligations in mind when they are released, and avoiding 
situations in which registration information changes significantly 
between the time the initial registration procedures are carried out 
and the time the offender is released. However, jurisdictions are also 
encouraged, as a matter of sound policy, to effect initial registration 
with sufficient time in advance whenever possible so that the following 
can be done before the sex offender is released into the community: (i) 
Subjecting the registration information provided by the sex offender to 
any verification the jurisdiction carries out to ensure accuracy (e.g., 
cross checking with other records), (ii) obtaining any information 
needed for the registry that must be secured from sources other than 
the sex offender, (iii) posting of the sex offender's information on 
the jurisdiction's sex offender website, and (iv) effecting other 
required notifications and disclosures of information relating to the 
sex offender.
    The specific initial registration procedures required by section 
117(a) are as follows: Informing the sex offender of his or her duties 
under SORNA and explaining those duties. (Of course if the jurisdiction 
adopts registration requirements that encompass but go beyond the SORNA 
minimum, the sex offender should be informed of the full range of 
duties, not only those required by SORNA.)
    Requiring the sex offender to read and sign a form stating that the 
duty to register has been explained and that the sex offender 
understands the registration requirement. Ensuring that the sex 
offender is registered--i.e., obtaining the required registration 
information for the sex offender and submitting that information for 
inclusion in the registry.
    SORNA Sec. Sec.  113(d) and 117(b) recognize that the normal 
initial registration procedure described above will not be feasible in 
relation to certain special classes of sex offenders, and provides that 
the Attorney General may prescribe alternative rules for the 
registration of such sex offenders. The specific problem is one of 
timing; it is not always possible to carry out the initial registration 
procedures for sex offenders who are required to register under SORNA 
prior to release from imprisonment (or within three days of sentencing) 
for the registration offense. The situations in which there may be 
problems of this type, and the rules adopted for those situations, are 
as follows:
Retroactive Classes
    As discussed in Part II.C of these Guidelines, SORNA applies to all 
sex offenders, including those convicted of their registration offenses 
prior to the enactment of SORNA or prior to particular jurisdictions' 
incorporation of the SORNA requirements into their programs. 
Jurisdictions are specifically required to register such sex offenders 
if they remain in the system as prisoners, supervisees, or registrants, 
or if they later reenter the system because of conviction for some 
other crime (whether or not the new crime is a sex offense).
    In some cases this will create no difficulty for registering these 
sex offenders in conformity with the normal SORNA registration 
procedures. For example, suppose that a sex offender is convicted of an 
offense in the SORNA registration categories in 2005, that the 
jurisdiction implements SORNA in its registration program in 2008, and 
that the sex offender is released on completion of imprisonment in 
2010. Such a sex offender can be registered prior to release from 
imprisonment in the same manner as sex offenders convicted following 
the enactment of SORNA and its implementation by the jurisdiction.
    But in other cases this will not be possible, as illustrated by the 
following examples:

    Example 1: A sex offender convicted by a state for an offense in 
the SORNA registration categories is sentenced to probation, or 
released on post-imprisonment supervision, in 2005. The sex offender 
is not registered near the time of sentencing or before release from 
imprisonment, because the state did not require registration for the 
offense in question at that time. The state subsequently implements 
SORNA in 2008, which will include registering such a sex offender. 
But it is impossible to do so near the time of his sentencing or 
before his release from imprisonment, because that time is past. 
Likewise, a person convicted of a sex offense by an Indian tribal 
court in, e.g., 2005 may have not been registered near the time of 
sentencing or release because the tribe had not yet established any 
sex offender registration program at the time. If the person remains 
under supervision when the tribe implements SORNA, registration will 
be required by the SORNA standards, but the normal time frame for 
initial registration under SORNA will have passed some years ago, so 
registration within that time frame is impossible.
    Example 2: A sex offender is required to register for life by a 
jurisdiction based on a rape conviction in 1995 for which he was 
released from imprisonment in 2005. The sex offender was initially 
registered prior to his release from imprisonment on the basis of 
the jurisdiction's existing law, but the information concerning 
registration duties he was given at the time of release did not 
include telling him that he would have to appear periodically in 
person to verify and update the registration information (as 
required by SORNA Sec.  116), because the jurisdiction did not have 
such a requirement at the time. So the sex offender will have to be 
required to appear periodically for verification and will have to be 
given new instructions about that as part of the jurisdiction's 
implementation of SORNA.
    Example 3: A sex offender convicted in 1980 for an offense 
subject to lifetime registration under SORNA is released from 
imprisonment in 1990 but is not required to register at the time 
because the jurisdiction had not yet established a sex offender 
registration program. In 2010, following the jurisdiction's 
implementation of SORNA, the sex offender reenters the system 
because of conviction for a robbery. The jurisdiction will need to 
require the sex offender to register based on his 1980 conviction 
for a sex offense when he is released from imprisonment for the 
robbery offense. But it is not possible to carry out the initial 
registration procedure for the sex offender prior to his release 
from imprisonment for the registration offense-i.e., the sex offense 
for which he was convicted in 1980-because that time is past.

    With respect to sex offenders with pre-SORNA or pre-SORNA-
implementation convictions who remain in the prisoner, supervision, or 
registered sex offender populations at the time of implementation--
illustrated by the examples in the first and second bullets above--
jurisdictions should endeavor to register them in conformity with SORNA 
as quickly as possible, including fully instructing them about the 
SORNA requirements, obtaining signed acknowledgments of such 
instructions, and obtaining and entering into the registry all 
information about them required under SORNA. But this may entail newly 
registering or re-registering a large number of sex offenders in the 
existing sex offender population, and it may not be feasible for a 
jurisdiction to do so immediately. Jurisdictions are accordingly 
authorized to phase in SORNA registration for such sex offenders in 
conformity with the appearance schedule of SORNA Sec.  116. In other 
words, sex offenders in these existing sex offender populations who 
cannot be registered within the normal SORNA time frame (i.e., before 
release from imprisonment or within three

[[Page 38064]]

business days of sentencing for the registration offense) must be 
registered by the jurisdiction when it implements the SORNA 
requirements in its system within a year for sex offenders who satisfy 
the tier I criteria, within six months for sex offenders who satisfy 
the tier II criteria, and within three months for sex offenders who 
satisfy the tier III criteria. If a jurisdiction believes that it is 
not feasible for the jurisdiction to fully register the existing sex 
offender population in conformity with SORNA within these time frames, 
the jurisdiction should inform the SMART Office of the difficulty, and 
the SMART Office will consider whether an extension of time for 
implementation of SORNA under section 124(b) is warranted on that 
basis.
    In cases in which a sex offender reenters the system based on 
conviction of some other offense--illustrated by the third example 
above--and is sentenced or released from imprisonment following the 
jurisdiction's implementation of SORNA, the normal SORNA initial 
registration procedures and timing requirements will apply, but with 
the new offense substituting for the predicate registration offense as 
the basis for the time frame. In other words, such a sex offender must 
be initially registered in the manner specified in SORNA Sec.  117(a) 
prior to release from imprisonment for the new offense that brought him 
back into the system, or within three business days of sentencing for 
the new offense in case of a non-incarcerative sentence.
    It may not always be possible to obtain information about earlier 
convictions of sex offenders in the classes described above, 
particularly when they occurred many years or decades ago, and 
available criminal history information may be uninformative as to 
factors such as victim age that can affect the nature and extent of 
registration requirements under SORNA. Jurisdictions may rely on the 
methods and standards they normally use in searching criminal records 
and on the information appearing in the records so obtained in carrying 
out the requirements described above to register sex offenders with 
pre-SORNA (or pre-SORNA-implementation) sex offense convictions.
Federal and Military Sex Offenders
    There is no separate federal registration program for sex offenders 
required to register under SORNA who are released from federal or 
military custody. Rather, such sex offenders are integrated into the 
sex offender registration programs of the states and other (non-
federal) jurisdictions following their release. Provisions of federal 
law, appearing in 18 U.S.C. 4042(c) and section 115(a)(8)(C) of Public 
Law 105-119, require federal and military correctional and supervision 
personnel to notify the receiving jurisdiction's authorities concerning 
the release to their areas of such sex offenders so that this 
integration can be effected. Moreover, these sex offenders are required 
to comply with the SORNA registration requirements in the jurisdictions 
in which they reside, are employed, or attend school as mandatory 
conditions of their federal supervision, as provided in 18 U.S.C. 
3563(a)(8), 3583(d), 4209(a), and may be prosecuted under 18 U.S.C. 
2250 if they fail to do so.
    For example, consider a person convicted of aggravated sexual abuse 
under 18 U.S.C. 2241, who is released following his completion of the 
prison term for this offense. As provided in 18 U.S.C. 4042(c), the 
Federal Bureau of Prisons is required to inform the sex offender prior 
to his release that he must register as required by SORNA, and it 
notifies law enforcement and registration authorities in the 
jurisdiction in which the sex offender will reside following release. 
Situations of this type are in principle the same as those in which a 
sex offender enters a jurisdiction to reside following conviction in 
another (non-federal) jurisdiction--see Part X of these Guidelines for 
discussion--except that the federal authorities will not have 
registered the sex offender in the same manner that a non-federal 
jurisdiction would. The jurisdiction to which such a sex offender goes 
to reside following release from federal custody (or after sentencing 
for a federal offense, in case of a non-incarcerative sentence) 
accordingly must require the sex offender to appear in person to 
register within three business days, and must carry out the procedure 
described in SORNA Sec.  117(a) when the sex offender appears for that 
purpose. The jurisdiction must also immediately forward the 
registration information for the sex offender to any other jurisdiction 
in which the sex offender is required to register under SORNA (e.g., on 
the basis of employment), as required by SORNA Sec.  121(b)(3). If 
federal authorities notify the jurisdiction concerning the release of a 
sex offender to the jurisdiction, but the sex offender fails to appear 
and register as required, the jurisdiction must proceed as discussed in 
Part XIII of these Guidelines for cases involving possible violations 
of registration requirements.
Sex Offenders Incarcerated in Non-Conviction Jurisdictions
    A sex offender sentenced to imprisonment may serve his or her 
prison term in a facility outside of the convicting jurisdiction. For 
example, an Indian tribe may not have its own correctional facility and 
may accordingly lease bed space from a county jail. Or a state may 
lease prison space in a facility in an adjacent state, so that some of 
its offenders serve their prison terms in the other state's facilities. 
In such a case, the jurisdiction incarcerating the sex offender may be 
neither the jurisdiction of conviction nor the jurisdiction of expected 
residence following release. But it is likely to be in the best 
position to initially take the required registration information from 
the sex offender and to instruct the sex offender concerning 
registration obligations, while the jurisdiction that convicted the sex 
offender may be in no position to do so prior to the sex offender's 
release, because the facility in which the sex offender is incarcerated 
is in another jurisdiction.
    In such cases, the jurisdiction incarcerating the sex offender must 
carry out the initial registration procedure described in SORNA Sec.  
117(a) prior to releasing the sex offender and must immediately forward 
the registration information for the sex offender to any other 
jurisdiction in which the sex offender is required to register under 
SORNA (e.g., on the basis of expected residence), as required by SORNA 
Sec.  121(b)(3).
Registrants Based on Foreign Convictions
    Persons with foreign sex offense convictions are often required to 
register under SORNA, as discussed in Part IV.B of these Guidelines. 
Section 128 of SORNA directs the Attorney General, in consultation with 
the Secretary of State and the Secretary of Homeland Security, to 
establish a system for informing the relevant jurisdictions about 
persons entering the United States who are required to register under 
SORNA. Persons with foreign sex offense convictions provide an 
additional class who cannot be initially registered within the normal 
SORNA time frame. Since they are convicted and imprisoned in a foreign 
country, no domestic jurisdiction would normally be in a position to 
register them prior to their release from imprisonment (or near the 
time of sentencing in case of a non-incarcerative sentence).
    The procedure for initial registration of such persons is logically 
the same as

[[Page 38065]]

that for other analogous classes discussed above: A jurisdiction must 
require a person with a foreign conviction for which registration is 
required under SORNA to appear in person to register within three 
business days of entering the jurisdiction to reside or commencing 
employment or school attendance in the jurisdiction. If the sex 
offender has not previously been registered by another jurisdiction, 
the jurisdiction must carry out the initial registration procedure as 
provided in SORNA Sec.  117(a) when the sex offender appears. The 
jurisdiction must immediately forward the registration information to 
any other jurisdiction in which the sex offender is required to 
register under SORNA. If a jurisdiction is notified, by federal 
authorities pursuant to SORNA Sec.  128 or otherwise, that a sex 
offender is entering the United States and is expected to be locating 
in the jurisdiction, but the sex offender fails to appear and register 
as required, the jurisdiction must follow the procedures discussed in 
Part XIII of these Guidelines for cases involving possible violations 
of registration requirements.

X. Keeping the Registration Current

    There are a number of provisions in SORNA that are designed to 
ensure that changes in registration information are promptly reported, 
and that the registration information is kept fully up to date in all 
jurisdictions in which the sex offender is required to register:
    Section 113(a) provides that a sex offender must keep the 
registration current in each jurisdiction in which the sex offender 
resides, is an employee, or is a student.
    Section 113(c) provides that a sex offender must, not later than 
three business days after each change of name, residence, employment, 
or student status, appear in person in at least one jurisdiction in 
which the sex offender is required to register and inform that 
jurisdiction of all changes in the information required for that sex 
offender in the sex offender registry. It further provides that that 
information must immediately be provided to all other jurisdictions in 
which the sex offender is required to register.
    Section 119(b) provides that updated information about a sex 
offender must be immediately transmitted by electronic forwarding to 
all relevant jurisdictions.
    Section 121(b)(3) provides that immediately after a sex offender 
registers or updates a registration, the information in the registry 
(other than any exempted from disclosure by the Attorney General) must 
be provided to each jurisdiction where the sex offender resides, is an 
employee, or is a student, and each jurisdiction from or to which a 
change of residence, employment, or student status occurs.
    Section 128 directs the Attorney General, in consultation with the 
Secretary of State and the Secretary of Homeland Security, to establish 
a system for informing relevant jurisdictions about persons entering 
the United States who are required to register under SORNA.
    Implementation of these provisions requires the definition of 
implementation measures that can be carried out by the individual 
jurisdictions, whose collective effect will be to realize these 
provisions' objectives. The remainder of this Part of these Guidelines 
details the required implementation measures.

A. Changes of Name, Residence, Employment, or School Attendance

    The in-person appearance requirements of section 113(c) described 
above serve to ensure--in connection with the most substantial types of 
changes bearing on the identification or location of sex offenders 
(name, residence, employment, school attendance)--that there will be an 
opportunity to obtain all required registration information from sex 
offenders in an up to date form, including direct meetings for this 
purpose between the sex offenders and the personnel or agencies who 
will be responsible for their registration. The purposes served by in-
person appearances under the SORNA standards are further explained in 
Part XI of these Guidelines, in relation to the periodic in-person 
appearance requirements of section 116.
    The required implementation measures for the appearances required 
by section 113(c)--and other information updating/sharing and 
enforcement provisions under SORNA as they bear on such appearances--
are as follows:
    Residence Jurisdictions: Each jurisdiction must require a sex 
offender who enters the jurisdiction to reside, or who is registered in 
the jurisdiction as a resident and changes his or her name or place of 
residence within the jurisdiction, to appear in person to register or 
update the registration within three business days. Also, each 
jurisdiction in which a sex offender is registered as a resident must:
    Require the sex offender to inform the jurisdiction if the sex 
offender intends to commence residence, employment, or school 
attendance in another jurisdiction; and
    If so informed by the sex offender, notify that other jurisdiction 
by transmitting the sex offender's registration information (including 
the information concerning the sex offender's expected residence, 
employment, or school attendance in that jurisdiction) immediately by 
electronic forwarding to that jurisdiction.
    Employment Jurisdictions: Each jurisdiction must require a sex 
offender who commences employment in the jurisdiction, or changes 
employer or place of employment in the jurisdiction, to appear in 
person to register or update the registration within three business 
days.
    School Jurisdictions: Each jurisdiction must require a sex offender 
who commences school attendance in the jurisdiction, or changes the 
school attended or place of school attendance in the jurisdiction, to 
appear in person to register or update the registration within three 
business days.
    Information Sharing: In all cases in which a sex offender makes an 
in-person appearance in a jurisdiction and registers or updates a 
registration as described above, the jurisdiction must immediately 
transmit by electronic forwarding the registration information for the 
sex offender (including any updated information concerning name, 
residence, employment, or school attendance provided in the appearance) 
to all other jurisdictions in which:
    The sex offender is or will be required to register as a resident, 
employee, or student; or
    The sex offender was required to register as a resident, employee, 
or student until the time of a change of residence, employment, or 
student status reported in the appearance, even if the sex offender may 
no longer be required to register in that jurisdiction in light of the 
change of residence, employment, or student status.
    Failure to Appear: If a jurisdiction is notified that a sex 
offender is expected to commence residence, employment, or school 
attendance in the jurisdiction, but the sex offender fails to appear 
for registration as required, the jurisdiction must inform the 
jurisdiction that provided the notification that the sex offender 
failed to appear, and must follow the procedures for cases involving 
possible violations of registration requirements, as discussed in Part 
XIII of these Guidelines.
    Defining changes in such matters as residence and employment may 
present special difficulties in relation to sex offenders who lack 
fixed residence or employment. For example, a homeless sex offender may 
sleep on a different

[[Page 38066]]

park bench each night. Or the employer of a sex offender who does day 
labor, working for whatever contractor hires him on a given day, may 
change on a daily basis. In such cases, a jurisdiction is not required 
to treat all such changes as changes in residence or employment status 
that bring into play the requirement to conduct an in-person appearance 
within three business days for purposes of reporting the change. 
Rather, as discussed in Part VI of these Guidelines, the information in 
the registry describing the places of residence or employment for sex 
offenders who lack fixed residence or employment may be in more general 
terms, and jurisdictions may limit their reporting requirements to 
changes that would entail some modification of the registry information 
relating to these matters.
    In one respect, the foregoing procedures for updating registration 
information through in-person appearances do not fully ensure that 
registrations will be kept current with respect to residence, 
employment, and school attendance information, because they relate to 
situations in which future information about these matters is 
available. But that is not always the case. For example, a transient 
sex offender may be leaving the jurisdiction in which he is registered 
as a resident, but may be unable to say where he will be living 
thereafter. Or a sex offender registered as an employee or student in a 
jurisdiction may quit his job or leave school, but may have no prospect 
for subsequent employment or education at the time. If such changes 
were not reported, the affected jurisdictions' registries would not be 
kept current, but rather would contain outdated information showing sex 
offenders to be residing, employed, or attending school in places where 
they no longer are. Accordingly, a jurisdiction in which a sex offender 
is registered as a resident, employee, or student must also require the 
sex offender to inform the jurisdiction if the sex offender is 
terminating residence, employment, or school attendance in the 
jurisdiction, even if there is no ascertainable or expected future 
place of residence, employment, or school attendance for the sex 
offender.

B. Changes in Other Registration Information

    By incorporating the foregoing procedures into their registration 
programs, jurisdictions can implement the SORNA requirements for 
keeping the registration current in relation to name, residence, 
employment, and school attendance information. The registration 
information that sex offenders are required to provide under SORNA 
Sec.  114, however, as discussed in Part VI of these Guidelines, 
includes as well information about vehicles owned or operated by sex 
offenders, temporary lodging information--i.e., information about any 
place in which a sex offender is staying when away from his residence 
for seven or more days--and information about designations that sex 
offenders use for self-identification or routing purposes in Internet 
communications or postings or telephonic communications. If changes 
occur in these types of information, the changes may eventually be 
reported as part of the periodic verification appearances required by 
section 116 of SORNA, as discussed in Part XI of these Guidelines. But 
the registration information may become in some respects seriously out 
of date if the verification appearances are relied on exclusively for 
this purpose.
    For example, if a sex offender is on a yearly appearance schedule, 
the sex offender's motor vehicle information may be a year out of date 
by the time the sex offender reports at the next appearance that he has 
acquired a new vehicle. Temporary lodging at places away from a sex 
offender's residence might not be reported until long after the time 
when the sex offender was at the temporary location. Likewise, given 
the ease with which Internet addresses and identifiers and telephone 
numbers are added, dropped, or changed, the value of requiring 
information about them from registrants could be seriously undermined 
if they were only required to report changes periodically in the 
context of general verification meetings.
    Hence, an additional implementation measure is necessary to keep 
registrations current with respect to these informational items:
    Each jurisdiction in which a sex offender is registered as a 
resident must require the sex offender to report immediately changes in 
vehicle information, temporary lodging information, and changes in 
designations used for self-identification or routing in Internet 
communications or postings or telephonic communications, and must 
immediately transmit such changes in the registration information by 
electronic forwarding to all other jurisdictions in which the sex 
offender is required to register.
    In addition, with respect to temporary lodging information, the 
residence jurisdiction must immediately transmit the information by 
electronic forwarding to the jurisdiction in which the temporary 
lodging by the sex offender takes place (if different from the 
residence jurisdiction), even if that is not a jurisdiction in which 
the sex offender is required to register.

C. International Travel

    A sex offender who moves to a foreign country may pass beyond the 
reach of U.S. jurisdictions and hence may not be subject to any 
enforceable registration requirement under U.S. law unless and until he 
or she returns to the United States. But effective tracking of such sex 
offenders remains a matter of concern to the United States and its 
domestic jurisdictions, and some measures relating to them are 
necessary for implementation of SORNA.
    Relevant provisions include SORNA Sec.  128, which directs the 
Attorney General to establish a system for informing domestic 
jurisdictions about persons entering the United States who are required 
to register under SORNA, and 18 U.S.C. 2250(a)(2)(B), which makes it a 
federal crime for a sex offender to travel in foreign commerce and 
knowingly fail to register or update a registration as required by 
SORNA. To carry out its responsibilities under these provisions, the 
Department of Justice needs to know if sex offenders registered in U.S. 
jurisdictions are leaving the country, since such offenders will be 
required to resume registration if they later return to the United 
States to live, work, or attend school while still within their 
registration periods. Also, both for sex offenders who are convicted in 
the United States and then go abroad, and for sex offenders who are 
initially convicted in other countries, identifying such sex offenders 
when they enter or reenter the United States will require cooperative 
efforts between the Department of Justice (including the United States 
Marshals Service) and agencies of foreign countries. As a necessary 
part of such cooperative activities, foreign authorities may expect 
U.S. authorities to inform them about sex offenders coming to their 
jurisdictions from the United States, in return for their advising the 
United States about sex offenders coming to the United States from 
their jurisdictions. For this reason as well, federal authorities in 
the United States will need information about sex offenders leaving 
domestic jurisdictions to go abroad in order to effectively carry out 
the requirements of SORNA Sec.  128 and enforce 18 U.S.C. 
2250(a)(2)(B).
    International travel also implicates the requirement of SORNA Sec.  
113(a) that sex offenders keep the registration current in all 
jurisdictions in which they reside, work, or attend school. If a sex 
offender simply leaves the country

[[Page 38067]]

and does not inform the jurisdiction or jurisdictions in which he has 
been registered, then the requirement to keep the registration current 
will not have been fulfilled. Rather, the registry information in the 
domestic jurisdictions will show that the sex offender is residing in 
the jurisdiction (or present as an employee or student) when that is no 
longer the case.
    In addition, a sex offender who goes abroad may remain subject in 
some respects to U.S. jurisdiction. For example, a sex offender may be 
leaving to live on an overseas U.S. military base, as a service member, 
dependent, or employee, or to work as or for a U.S. military contractor 
in another country. In such cases, notification about the individual's 
status as a sex offender and intended activities abroad is of interest 
to federal authorities, because the presence of sex offenders 
implicates the same public safety concerns in relation to communities 
abroad for which the United States has responsibility (such as U.S. 
military base communities in foreign countries) as it does in relation 
to communities within the United States.
    The following requirements accordingly apply in relation to sex 
offenders who leave the United States:
    Each jurisdiction in which a sex offender is registered as a 
resident must require the sex offender to inform the jurisdiction if 
the sex offender intends to commence residence, employment, or school 
attendance outside of the United States.
    If so informed by the sex offender, the jurisdiction must: (i) 
Notify all other jurisdictions in which the sex offender is required to 
register through immediate electronic forwarding of the sex offender's 
registration information (including the information concerning the sex 
offender's expected residence, employment, or school attendance outside 
of the United States), and (ii) notify the United States Marshals 
Service and update the sex offender's registration information in the 
national databases pursuant to the procedures under SORNA Sec.  
121(b)(1).
    SORNA does not require that all notifications to jurisdictions by 
sex offenders concerning changes in their registration information be 
made through in-person appearances. Rather, the in-person appearance 
requirement of SORNA Sec.  113(c) relates to changes in name, and to 
changes in residence, employment, or school attendance between 
jurisdictions or within jurisdictions, which jurisdictions must require 
sex offenders to report through in-person appearances under the 
circumstances expressly identified in Subpart A of this Part. The means 
by which sex offenders are required to report other changes in 
registration information discussed in this Part are matters that 
jurisdictions may determine in their discretion.

 XI. Verification/Appearance Requirements

    Section 116 of SORNA states that ``[a] sex offender shall appear in 
person, allow the jurisdiction to take a current photograph, and verify 
the information in each registry in which that offender is required to 
be registered not less frequently than'': (i) Each year for a tier I 
sex offender, (ii) every six months for a tier II sex offender, and 
(iii) every three months for a tier III sex offender. Jurisdictions 
accordingly must require such periodic appearances by sex offenders who 
reside or are employees or students in the jurisdiction, since sex 
offenders must register in the jurisdictions of their residence, 
employment, and school attendance, as explained in Part VIII of these 
Guidelines. As with other SORNA requirements, jurisdictions may require 
in-person appearances by sex offenders with greater frequency than the 
minimum required by section 116.
    The in-person appearance requirements of section 116 further the 
purposes of sex offender registration and notification in a number of 
ways. A sex offender's physical appearance, like that of any other 
person, will change in the course of time. The in-person appearance 
requirements provide reasonably frequent opportunities to obtain a 
photograph of the sex offender and a physical description that reflects 
his or her current appearance, types of registration information that 
are required by section 114(b)(1), (4). The in-person appearances 
further provide an opportunity to review with the sex offender the full 
range of information in the registry, and to obtain from the sex 
offender information about any changes in the registration information 
or new information that has not been reported since the initial 
registration or the last appearance.
    Beyond these functions of directly helping to ensure the accuracy 
and currency of the registration information, the appearance 
requirement ensures periodic face-to-face encounters between the sex 
offender and persons responsible for his or her registration. For 
example, if the appearance requirement is implemented by a jurisdiction 
to require that registrants report to local police departments or 
sheriffs' offices, these meetings help to familiarize law enforcement 
personnel with the sex offenders in their areas. This may contribute to 
the effective discharge of the local law enforcement agency's 
protective and investigative functions in relation to these sex 
offenders, and help to ensure that the agency's responsibility to track 
these sex offenders is taken seriously and consistently enforced. 
Likewise, from the perspective of the sex offender, periodic in-person 
encounters with officials responsible for their monitoring may help to 
impress on them with greater vividness than remote communications that 
their identities, locations, and past criminal conduct are known to the 
authorities. Hence, there is a reduced likelihood of their avoiding 
detection and apprehension if they reoffend, and this may help them to 
resist the temptation to reoffend.
    As long as the appearances involve meetings between the sex 
offenders and officials who can carry out the required functions of the 
meetings, the specific arrangements for such appearances and the 
officials who will conduct them are matters that jurisdictions may 
determine in their discretion. For example, jurisdictions may require 
sex offenders to report to local law enforcement offices for this 
purpose, or may combine the appearances with meetings between sex 
offenders and their supervision officers if they are under supervision, 
or may have law enforcement, supervision, or registration personnel 
visit with sex offenders at their homes or meet with them at other 
arranged locations.
    The specific requirements for the conduct of such appearances are 
as follows: Appearances must be conducted at least annually for sex 
offenders satisfying the ``tier I'' criteria, at least semiannually for 
sex offenders satisfying the ``tier II'' criteria, and at least 
quarterly for sex offenders satisfying the ``tier III'' criteria. (The 
``tier'' classifications and what they entail are explained in Part V 
of these Guidelines.)
    The sex offender must allow a current photograph to be taken. This 
does not mean that jurisdictions must require officials conducting 
these meetings to take a new photograph at every appearance and enter 
the new photograph into the registry. Where the official sees that the 
sex offender's appearance has not changed significantly from a 
photograph in the registry, it may be concluded that the existing 
photograph remains sufficiently current and the taking of a new 
photograph does not have to be required in such circumstances.
    The sex offender must be required to review the existing 
information in the registry that is within his or her knowledge, to 
correct any item that has

[[Page 38068]]

changed or is otherwise inaccurate, and to provide any new information 
there may be in the required registration information categories.
    Upon entry of the updated information into the registry, it must be 
immediately transmitted by electronic forwarding to all other 
jurisdictions: (i) In which the sex offender is or will be required to 
register as a resident, employee, or student, or (ii) in which the sex 
offender was required to register as a resident, employee, or student 
until the time of a change of residence, employment, or student status 
reported in the appearance, even if the sex offender may no longer be 
required to register in that jurisdiction in light of the updated 
information. (This is necessary to carry out information sharing 
requirements appearing in SORNA Sec. Sec.  119(b) and 121(b)(3).)
    It may come to the attention of a jurisdiction's registration 
authorities that a sex offender has died when the sex offender fails to 
appear for a scheduled appearance under section 116 or by other means. 
While SORNA does not address the updating of registration information 
in such circumstances, jurisdictions are encouraged, as a matter of 
sound policy, to promptly update the information in the registry and 
the jurisdiction's public sex offender Web site to reflect the 
registrant's death, and to notify any other jurisdiction in which he 
was required to register. This does not necessarily mean, however, that 
all references to the sex offender should be removed from the registry 
and the Web site. Maintenance of historical information concerning a 
sex offender in the registry--together with the information that he is 
deceased--may remain of value, for example, in facilitating the 
solution of crimes he committed before his death by showing where he 
was at the time of the crimes. Likewise, maintenance of a public Web 
site posting for the sex offender (including the information that he is 
deceased) may remain of value since, for example, such a posting could 
enable victims of his crimes who have been checking on his status and 
location to ascertain that he is no longer alive.
    Like other SORNA registration requirements, the in-person 
appearance requirements of section 116 are only minimum standards. They 
do not limit, and are not meant to discourage, adoption by 
jurisdictions of more extensive or additional measures for verifying 
registration information. Thus, jurisdictions may require verification 
of registration information with greater frequency than that required 
by section 116, and may wish to include in their systems additional 
means of verification for registration information, such as mailing 
address verification forms to the registered residence address that the 
sex offender is required to sign and return, and cross-checking 
information provided by the sex offender for inclusion in the registry 
against other records systems. Section 631 of the Adam Walsh Act (P.L. 
109-248) authorizes a separate grant program to assist in residence 
address verification for sex offenders. Additional guidance will be 
provided concerning application for grants under that program if 
funding for the program becomes available.

XII. Duration of Registration

    Section 115(a) of SORNA specifies the minimum required duration of 
sex offender registration. It generally requires that sex offenders 
keep the registration current for 15 years in case of a tier I sex 
offender, for 25 years in case of a tier II sex offender, and for the 
life of the sex offender in case of a tier III sex offender, 
``excluding any time the sex offender is in custody or civilly 
committed.'' (The tier classifications and their import are explained 
in Part V of these Guidelines.) The required registration period begins 
to run upon release from custody for a sex offender sentenced to 
incarceration for the registration offense, and begins to run at the 
time of sentencing for a sex offender who receives a nonincarcerative 
sentence for the offense.
    The proviso relating to custody or civil commitment reflects the 
fact that the SORNA procedures for keeping up the registration--
including appearances to report changes of residence or other key 
information under section 113(c), and periodic appearances for 
verification under section 116--generally presuppose the case of a sex 
offender who is free in the community. Where a sex offender is 
confined, the public is protected against the risk of his reoffending 
in a more direct way, and more certain means are available for tracking 
his whereabouts. Hence, SORNA does not require that jurisdictions apply 
the registration procedures applicable to sex offenders in the 
community during periods in which a sex offender is in custody or 
civilly committed.
    However, jurisdictions are not required to ``toll'' the running of 
the registration period during such subsequent periods of confinement. 
For example, consider a sex offender released from imprisonment in 2010 
who is subject to 25 years of registration under the SORNA standards as 
a tier II offender, where the sex offender is subsequently convicted 
during the registration period for committing a robbery and imprisoned 
for three years for that offense. If the jurisdiction would otherwise 
require the sex offender to register until 2035 (the 25 year SORNA 
minimum), it may wish to extend that to 2038 so that the three years 
the sex offender spent in prison for the robbery is effectively not 
credited towards the running of the registration period. But that is a 
matter in the jurisdiction's discretion. Terminating the registration 
in 2035 would also be consistent with SORNA's requirements.
    Subsection (b) of section 115 allows the registration period to be 
reduced by 5 years for a tier I sex offender who has maintained a 
``clean record'' for 10 years, and allows registration to be terminated 
for a tier III sex offender required to register on the basis of a 
juvenile delinquency adjudication if the sex offender has maintained a 
``clean record'' for 25 years. (The circumstances in which registration 
is required on the basis of juvenile delinquency adjudications are 
explained in Part IV.A of these Guidelines.) There is no authorization 
to reduce the required 25-year duration of registration for tier II sex 
offenders, or to reduce the required lifetime registration for tier III 
sex offenders required to register on the basis of adult convictions.
    The specific requirements under section 115(b) to satisfy the 
``clean record'' precondition for reduction of the registration period 
are as follows:
    The sex offender must not be convicted of any offense for which 
imprisonment for more than one year may be imposed (Sec.  
115(b)(1)(A)).
    The sex offender must not be convicted of any sex offense (Sec.  
115(b)(1)(B)). In contrast to section 115(b)(1)(A), section 
115(b)(1)(B) is not limited to cases in which the offense is one 
potentially punishable by imprisonment for more than a year. Hence, 
conviction for a sex offense prevents satisfaction of the ``clean 
record'' requirement, even if the maximum penalty for the offense is 
less than a year.
    The sex offender must successfully complete any periods of 
supervised release, probation, and parole (Sec.  115(b)(1)(C)). The 
requirement of ``successfully'' completing periods of supervision means 
completing these periods without revocation.
    The sex offender must successfully complete an appropriate sex 
offender treatment program certified by a jurisdiction or by the 
Attorney General (Sec.  115(b)(1)(D)). Jurisdictions may make their own 
decisions concerning the design of such treatment programs, and 
jurisdictions may choose the criteria to

[[Page 38069]]

be applied in determining whether a sex offender has ``successfully'' 
completed a treatment program, which may involve relying on the 
professional judgment of the persons who conduct or oversee the 
treatment program.

XIII. Enforcement of Registration Requirements

    This final part of the Guidelines discusses enforcement of 
registration requirements under the SORNA provisions. It initially 
discusses the penalties for registration violations under SORNA, and 
then the practical procedures for investigating and dealing with such 
violations.
    SORNA contemplates that substantial criminal penalties will be 
available for registration violations at the state, local, and federal 
levels. Section 113(e) of SORNA requires jurisdictions (other than 
Indian tribes) to provide a criminal penalty that includes a maximum 
term of imprisonment greater than one year for the failure of a sex 
offender to comply with the SORNA requirements. Hence, a jurisdiction's 
implementation of SORNA includes having a failure-to-register offense 
for which the maximum authorized term of imprisonment exceeds a year. 
(Indian tribes are not included in this requirement because tribal 
court jurisdiction does not extend to imposing terms of imprisonment 
exceeding a year.) Section 141(a) of SORNA enacted 18 U.S.C. 2250, a 
new federal failure-to-register offense, which provides federal 
criminal penalties of up to 10 years of imprisonment for sex offenders 
required to register under SORNA who knowingly fail to register or 
update a registration as required where circumstances supporting 
federal jurisdiction exist, such as interstate or international travel 
by a sex offender, or conviction of a federal sex offense for which 
registration is required. Federal sex offenders are also required to 
comply with the SORNA registration requirements as mandatory conditions 
of their federal probation, supervised release, or parole, as provided 
pursuant to amendments adopted by section 141(d)-(e), (j) of SORNA.
    In terms of practical enforcement measures, SORNA Sec.  122 
requires that an appropriate official notify the Attorney General and 
appropriate law enforcement agencies of failures by sex offenders to 
comply with registration requirements, and that such registration 
violations must be reflected in the registries. The section further 
provides that the official, the Attorney General, and each such law 
enforcement agency are to take any appropriate action to ensure 
compliance. Complementary measures for federal enforcement appear in 
section 142, which directs the Attorney General to use the resources of 
federal law enforcement, including the United States Marshals Service, 
to assist jurisdictions in locating and apprehending sex offenders who 
violate registration requirements. (Also, SORNA Sec.  623 authorizes 
grants by the Attorney General to states, local governments, tribal 
governments, and other public and private entities to assist in 
enforcing sex offender registration requirements--additional guidance 
will be provided concerning application for grants under this provision 
if funding is made available for this program.)
    Translating the requirements of section 122 into practical 
procedures that will ensure effective enforcement of sex offender 
registration requires further definition. Jurisdictions can implement 
the requirements of section 122 by adopting the following procedures:
    Information may be received by a jurisdiction indicating that a sex 
offender has absconded--i.e., has not registered at all, or has moved 
to some unknown place other than the registered place of residence. For 
example, a sex offender may fail to make a scheduled appearance for 
periodic verification of registration information in his jurisdiction 
of residence as required by SORNA Sec.  116, or may fail to return an 
address verification form mailed to the registered address in a 
jurisdiction that uses that verification procedure. Or a jurisdiction 
may receive notice from some other jurisdiction providing grounds to 
expect that a sex offender will be coming to live in the jurisdiction--
such as notice that a sex offender will be moving to the jurisdiction 
from a jurisdiction in which he was previously registered, or notice 
from federal authorities about the expected arrival in the jurisdiction 
of a released federal sex offender or sex offender entering the United 
States from abroad--but the sex offender then fails to appear and 
register as required. Or a jurisdiction may notify another 
jurisdiction, based on information provided by a sex offender, that the 
sex offender will be relocating to the other jurisdiction, but the 
supposed destination jurisdiction thereafter informs the original 
registration jurisdiction that the sex offender has failed to appear 
and register.
    When such information is received by a jurisdiction indicating that 
a sex offender may have absconded, whether one registered in the 
jurisdiction or expected to arrive from another jurisdiction, an effort 
must be made to determine whether the sex offender has actually 
absconded. If non-law enforcement registration personnel cannot 
determine this, then a law enforcement agency with jurisdiction to 
investigate the matter must be notified. Also, if the information 
indicating the possible absconding came through notice from another 
jurisdiction or federal authorities, the authorities that provided the 
notification must be informed that the sex offender has failed to 
appear and register. If a jurisdiction receives information indicating 
that a sex offender may have absconded, as described in the preceding 
bullets, and takes the measures described therein but cannot locate the 
sex offender, then the jurisdiction must take the following steps:
    The information in the registry must be revised to reflect that the 
sex offender is an absconder or unlocatable.
    A warrant must be sought for the sex offender's arrest, if the 
legal requirements for doing so are satisfied.
    The United States Marshals Service, which is the lead federal 
agency for investigating sex offender registration violations, must be 
notified. Also, the jurisdiction must update the National Sex Offender 
Registry to reflect the sex offender's status as an absconder or 
unlocatable and enter the sex offender into the National Crime 
Information Center Wanted Person File (assuming issuance of a warrant 
meeting the requirement for entry into that file).
    The foregoing procedures must be adopted for possible absconder 
cases to implement SORNA Sec.  122. In addition, a jurisdiction's 
policies must require appropriate follow-up measures when information 
is received indicating violation of the requirement to register in 
jurisdictions of employment or school attendance, whether or not a 
violation of the requirement to register in jurisdictions of residence 
is implicated. Specifically, a jurisdiction may receive information 
indicating that a sex offender may be employed or attending school in 
the jurisdiction but has not registered as required--for example, 
failure by the sex offender to appear for a required periodic in-person 
appearance in the employment or school jurisdiction, as required by 
SORNA Sec.  116, or failure by a sex offender to appear and register in 
the jurisdiction following receipt of notice from another jurisdiction 
that the sex offender is expected to be commencing employment or school 
attendance in the jurisdiction. In such cases, an effort must be made 
to determine whether the sex offender is actually employed or attending 
school in the jurisdiction but has failed to register. If (non-law 
enforcement) registration personnel cannot determine this, then a law

[[Page 38070]]

enforcement agency with jurisdiction to investigate the matter must be 
notified.

    Dated: June 23, 2008.
Michael B. Mukasey,
Attorney General.
 [FR Doc. E8-14656 Filed 7-1-08; 8:45 am]

BILLING CODE 4410-18-P