[Federal Register Volume 63, Number 241 (Wednesday, December 16, 1998)]
[Rules and Regulations]
[Pages 69386-69387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33260]



[[Page 69385]]

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Part III





Department of Justice





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Bureau of Prisons



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28 CFR Part 571



Designation of Offenses Subject to Sex Offender Release Notification; 
Interim Rule

  Federal Register / Vol. 63, No. 241 / Wednesday, December 16, 1998 / 
Rules and Regulations  

[[Page 69386]]



DEPARTMENT OF JUSTICE

Bureau of Prisons

28 CFR Part 571

[BOP-1090-I]
RIN 1120-AA85


Designation of Offenses Subject to Sex Offender Release 
Notification

AGENCY: Bureau of Prisons, Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule designates various offenses as sexual 
offenses for purposes of 18 U.S.C. 4042(c). The designations ensure 
that notifications can be made for military offenders, for District of 
Columbia Code offenders, and for these and other federal inmates with a 
sex offense in their criminal history. This order is necessary for the 
protection of the public.

DATES: December 16, 1998; comments must be received by February 16, 
1999.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General 
Counsel, Bureau of Prisons, HOLC Room 754, 320 First Street, NW., 
Washington, DC 20534, telephone (202) 307-3062.

SUPPLEMENTARY INFORMATION: Section 4042(c) of Title 18, United States 
Code, effective as of November 26, 1998, provides for notification of 
sex offender release and certain related functions to facilitate 
effective sex offender registration and tracking. Notifications must be 
made for persons convicted of the federal offenses noted in subsection 
(c)(4)(A) through (D). Subsection (c)(4)(E) provides that the Attorney 
General may also designate other offenses as sexual offenses for 
purposes of subsection (c). The Attorney General has delegated this 
authority to the Director of the Bureau of Prisons. This interim rule 
designates additional offenses which are to be considered sexual 
offenses for purposes of 18 U.S.C. 4042(c). These additional 
designations being listed in new 28 CFR 571.72 include state sexual 
offenses, District of Columbia Code sexual offenses, and certain 
Uniform Code of Military Justice offenses.
    Paragraph (a) of Sec. 571.72 designates offenses under the law of 
any jurisdiction in certain descriptive categories. For example, an 
inmate may be serving a federal sentence for a non-sexual offense but 
may also be serving a concurrent sentence for a state offense which is 
sexual in nature or may have a prior conviction for a state offense 
which is sexual in nature. Notifying state and local law enforcement 
and registration authorities about such an inmate's release from Bureau 
custody is consistent with the intent of the statute and meets the goal 
of enhanced public safety. Paragraph (b) designates certain offenses 
under the Uniform Code of Military Justice (UCMJ). The Bureau has 
custody of some military offenders. While separate statutory authority 
(section 115(a)(8)(C)(iv) of Title I of Pub. L. 105-119) exists for 
release notification by the Bureau for military offenders, designating 
UCMJ offenses in this regulation makes it clear that persons convicted 
of military offenses in the pertinent categories are persons described 
in 18 U.S.C. 4042(c)(4) for all purposes, including post-release change 
of address notice by federal probation officers for persons under their 
supervision pursuant to section 4042(c)(2). Paragraph (c) designates 
pertinent District of Columbia Code offenses. Including District of 
Columbia Code offenses is a practical consequence of the Bureau's role 
in assuming custody of District of Columbia Code offenders under the 
National Capital Revitalization and Self-Government Improvement Act of 
1997.
    The Bureau finds that good cause exists under 5 U.S.C. 553(b) and 
(d)(3) for adopting this rule as an interim rule without the prior 
notice and comment period ordinarily required by 5 U.S.C. 553. The 
Bureau is publishing these additional designations as an interim rule 
in order to provide for the protection of the public by ensuring that 
state and local authorities receive timely notification of the release 
of sex offenders. Members of the public may submit comments concerning 
this rule by writing to the previously cited address. These comments 
will be considered before the rule is finalized.

Executive Order 12866

    This rule falls within a category of actions that the Office of 
Management and Budget (OMB) has determined not to constitute 
``significant regulatory actions'' under section 3(f) of Executive 
Order 12866 and, accordingly, it was not reviewed by OMB.

Executive Order 12612

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Regulatory Flexibility Act

    The Director of the Bureau of Prisons, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and by approving it certifies that this regulation will not 
have a significant economic impact upon a substantial number of small 
entities for the following reasons:
    This rule pertains to the correctional management of offenders 
committed to the custody of the Attorney General or the Director of the 
Bureau of Prisons, and its economic impact is limited to the Bureau's 
appropriated funds.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the 
clarity of these regulations, call or write Roy Nanovic, Rules Unit, 
Office of General Counsel, Bureau of Prisons, 320 First St., 
Washington, DC 20534; telephone (202) 514-6655.

List of Subjects in 28 CFR Part 571

    Prisoners.
Dennis R. Bidwell,
Acting Director, Bureau of Prisons.
    Accordingly, pursuant to the rulemaking authority vested in the 
Attorney General in 5 U.S.C. 552(a) and delegated to the Director, 
Bureau of Prisons in 28 CFR 0.96(p), part 571 in 28 CFR, chapter V, 
subchapter D, is amended as set forth below.

[[Page 69387]]

SUBCHAPTER D--COMMUNITY PROGRAMS AND RELEASE

PART 571--RELEASE FROM CUSTODY

    1. The authority citation for 28 CFR part 571 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 18 U.S.C. 3565, 3568-3569 (Repealed in 
part as to offenses committed on or after November 1, 1987), 3582, 
3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to 
offenses committed on or after November 1, 1987), 4161-4166 and 
4201-4218 (Repealed as to offenses committed on or after November 1, 
1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed 
after that date), 5031-5042; 28 U.S.C. 509, 510; U.S. Const., Art. 
II, Sec. 2; 28 CFR 0.95-0.99, 1.1-1.10.

    2. A new subpart H, consisting of Secs. 571.71 and 571.72, is added 
to read as follows:

Subpart H--Designation of Offenses for Purposes of 18 U.S.C. 4042(c)

Sec.
571.71  Purpose and scope.
571.72  Additional designated offenses.

Subpart H--Designation of Offenses for Purposes of 18 U.S.C. 
4042(c)


Sec. 571.71  Purpose and scope.

    The Director of the Bureau of Prisons is required to provide 
release and registration information (offender's name, criminal 
history, projected address, release conditions or restrictions) to 
state/local law enforcement and registration officials at least five 
calendar days prior to release of offenders who have been convicted of 
certain sexual offenses listed in 18 U.S.C. 4042(c)(4)(A) through (D). 
Under 18 U.S.C. 4042(c)(4)(E), the Attorney General is authorized to 
designate additional offenses as sexual offenses for the purpose of sex 
offender release notification and other related purposes. This 
authority has been delegated to the Director.


Sec. 571.72  Additional designated offenses.

    The following offenses are designated as additional sexual offenses 
for purposes of 18 U.S.C. 4042(c):
    (a) Any offense under the law of any jurisdiction that involved:
    (1) Engaging in sexual contact with another person without 
obtaining permission to do so (forcible rape, sexual assault, or sexual 
battery);
    (2) Possession, distribution, mailing, production, or receipt of 
child pornography or related paraphernalia;
    (3) Any sexual contact with a minor or other person physically or 
mentally incapable of granting consent (indecent liberties with a 
minor, statutory rape, sexual abuse of the mentally ill, rape by 
administering a drug or substance);
    (4) Any sexual act or contact not identified in paragraphs (a)(1) 
through (3) of this section that is aggressive or abusive in nature 
(rape by instrument, encouraging use of a minor for prostitution 
purposes, incest);
    (5) An attempt to commit any of the actions described in paragraphs 
(a)(1) through (4) of this section.
    (b) The following Defense Incident Based Reporting System (DIBRS) 
Code offenses under the Uniform Code of Military Justice:
    (1) 120A (Rape);
    (2) 120B1/2 (Carnal knowledge);
    (3) 125A (Forcible sodomy);
    (4) 125B1/2 (Sodomy of a minor);
    (5) 133D (Conduct unbecoming an Officer [involving any sexually 
violent offense or a criminal offense of a sexual nature against a 
minor or kidnaping of a minor]);
    (6) 134-B6 (Prostitution involving a minor);
    (7) 134-C1 (Indecent assault);
    (8) 134-C4 (Assault with intent to commit rape);
    (9) 134-C6 (Assault with intent to commit sodomy);
    (10) 134-R1 (Indecent act with a minor);
    (11) 134-R3 (Indecent language to a minor);
    (12) 134-S1 (Kidnaping of a minor (by a person not a parent));
    (13) 134-Z (Pornography involving a minor);
    (14) 134-Z (Conduct prejudicial to good order and discipline 
(involving any sexually violent offense or a criminal offense of a 
sexual nature against a minor or kidnaping of a minor));
    (15) 134-Y2 (Assimilative crime conviction (of a sexually violent 
offense or a criminal offense of a sexual nature against a minor or 
kidnaping of a minor)).
    (16) 080-A (Attempt (to commit any offense listed in paragraphs 
(b)(1)--(15) of this section));
    (17) 081-A (Conspiracy (to commit any offense listed in paragraphs 
(b)(1)--(15) of this section));
    (18) 082-A (Solicitation (to commit any offense listed in 
paragraphs (b)(1)--(15) of this section)).
    (c) The following District of Columbia Code offenses:
    (1) Sec. 22-501 (Assault) if it includes assault with the intent to 
commit first degree sexual abuse, second degree sexual abuse, or child 
sexual abuse;
    (2) Sec. 22-2012 (Sexual performances using minors--prohibited 
acts);
    (3) Sec. 22-2013 (Sexual performances using minors--penalties);
    (4) Sec. 22-2101 (Kidnaping) where the victim is a minor;
    (5) Sec. 22-2401 (Murder in the first degree) if it includes murder 
while committing or attempting to commit first degree sexual abuse;
    (6) Sec. 22-2704 (Abducting or enticing child from his or her home 
for purposes of prostitution; harboring such child);
    (7) Sec. 22-4102 (First degree sexual abuse);
    (8) Sec. 22-4103 (Second degree sexual abuse);
    (9) Sec. 22-4104 (Third degree sexual abuse);
    (10) Sec. 22-4105 (Fourth degree sexual abuse);
    (11) Sec. 22-4106 (Misdemeanor sexual abuse);
    (12) Sec. 22-4108 (First degree child sexual abuse);
    (13) Sec. 22-4109 (Second degree child sexual abuse);
    (14) Sec. 22-4110 (Enticing a child);
    (15) Sec. 22-4113 (First degree sexual abuse of a ward);
    (16) Sec. 22-4114 (Second degree sexual abuse of a ward);
    (17) Sec. 22-4115 (First degree sexual abuse of a patient or 
client);
    (18) Sec. 22-4116 (Second degree sexual abuse of a patient or 
client);
    (19) Sec. 22-4118 (Attempts to commit sexual offenses);
    (20) Sec. 22-4120 (Aggravating circumstances).
    (21) Sec. 22-103 (Attempts to commit crime) if it includes an 
attempt to commit any offense listed in paragraphs (c)(1)-(20) of this 
section.

[FR Doc. 98-33260 Filed 12-15-98; 8:45 am]
BILLING CODE 4410-05-P