[Federal Register Volume 67, Number 207 (Friday, October 25, 2002)]
[Notices]
[Pages 65598-65603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27257]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

[OAG 103F; A.G. Order No. 2623-2002]
RIN 1105-AA81


Guidelines for the Campus Sex Crimes Prevention Act Amendment to 
the Jacob Wetterling Crimes Against Children and Sexually Violent 
Offender Registration Act

AGENCY: Department of Justice.

ACTION: Final guidelines.

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SUMMARY: The United States Department of Justice is publishing Final 
Guidelines to implement an amendment to the Jacob Wetterling Crimes 
Against Children and Sexually Violent Offender Registration Act enacted 
by the Campus Sex Crimes Prevention Act.

EFFECTIVE DATE: October 25, 2002.

FOR FURTHER INFORMATION CONTACT: C. Camille Cain, Deputy Director for 
Programs, Bureau of Justice Assistance, 810 Seventh Street NW, 
Washington, D.C. 20531. Telephone: (202) 514-6278. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: Section 170101 of the Violent Crime Control 
and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796, 2038 
(codified at 42 U.S.C. 14071) contains the Jacob Wetterling Crimes 
Against Children and Sexually Violent Offender Registration Act (the 
``Wetterling Act''). The Wetterling Act sets minimum national standards 
for state sex offender registration and community notification 
programs, and directs the Attorney General to issue guidelines for such 
programs. The current Wetterling Act guidelines were published in the 
Federal Register at 64 FR 572 (Jan. 5, 1999), with corrections at 64 FR 
3590 (Jan. 22, 1999). States that fail to comply with the Wetterling 
Act's requirements (as implemented and explained in the Attorney 
General's guidelines) are subject to a mandatory 10% reduction of the 
formula grant funding available under the Edward Byrne Memorial State 
and Local Law Enforcement Assistance Program (42 U.S.C. 3756), which is 
administered by the Bureau of Justice Assistance of the Department of 
Justice.
    Subsequent to the publication of the current Wetterling Act 
guidelines, Congress amended the Wetterling Act in the Campus Sex 
Crimes Prevention Act (the ``CSCPA''), Pub. L. 106-386, div. B, Sec.  
1601, 114 Stat. 1464, 1537 (2000). The CSCPA provides special 
requirements relating to registration and community notification for 
sex offenders who are enrolled in or work at institutions of higher 
education. The CSCPA amendment to the Wetterling Act takes effect two 
years after its enactment date of October 28, 2000.
    Supplementary guidelines are necessary to take account of the CSCPA 
amendment to the Wetterling Act. On March 8, 2002, the U.S. Department 
of Justice published Proposed Guidelines in the Federal Register (67 FR 
10758) for that purpose.

Summary of Comments on the Proposed Guidelines

    Following the publication of the Proposed Guidelines, the 
Department received several comments, all of which were carefully 
considered in finalizing the guidelines. A summary of the comments and 
responses to them are provided in the following paragraphs.

[[Page 65599]]

A. Availability of Information to the Campus Community

    A number of comments noted that the Proposed Guidelines did not 
discuss the requirement under the CSCPA that information concerning the 
presence of registered sex offenders be made available to campus 
communities, and recommended that this requirement be articulated more 
clearly in the Final Guidelines. Comments to this effect were received 
from Senator Jon Kyl, the sponsor of the CSCPA, and from Daniel S. 
Carter, Senior Vice President of Security On Campus, Inc.
    This issue was not addressed at length in the Proposed Guidelines 
because responsibility for implementation of the CSCPA is divided 
between the Attorney General and the Secretary of Education, and this 
issue relates to federal education law amendments that are within the 
purview of the Secretary of Education.
    In part, the CSCPA added a new subsection to the Wetterling Act, 42 
U.S.C. 14071(j), which requires states to obtain information concerning 
registrants' enrollment or employment at institutions of higher 
education, and to provide this information to campus police departments 
or other appropriate law enforcement agencies. The Attorney General is 
responsible for issuing guidelines relating to the Wetterling Act 
amendment of the CSCPA as part of his general responsibility for the 
issuance of guidelines under the Wetterling Act. See 42 U.S.C. 
14071(a). The detailed discussion in the Proposed Guidelines was 
accordingly limited to the portions of the CSCPA that affect the 
Wetterling Act. The Proposed Guidelines explained: ``These guidelines 
relate solely to the provisions of the CSCPA that amended the 
Wetterling Act, and hence affect state eligibility for full Byrne Grant 
funding.''
    The Proposed Guidelines, however, also noted: ``In addition to 
adding subsection (j) to the Wetterling Act, the CSCPA amended federal 
education laws to ensure the availability to the campus community of 
information concerning the presence of registered sex offenders.'' 67 
FR at 10759. The Department of Education is responsible for the 
issuance of regulations relating to those laws.
    The CSCPA's education law amendments include the addition of a new 
provision, section 485(f)(1)(I) of the Higher Education Act of 1965 (20 
U.S.C. 1092(f)(1)(I)). This provision requires a statement advising the 
campus community where it can obtain the information identifying 
registered sex offenders who are enrolled or employed at the 
institution of higher education--information that the state is required 
to provide to the campus police department or other appropriate law 
enforcement agency pursuant to 42 U.S.C. 14071(j):

    (I) A statement advising the campus community where law 
enforcement agency information provided by a State under section 
170101(j) of the Violent Crime Control and Law Enforcement Act of 
1994 (42 U.S.C. 14071(j)), concerning registered sex offenders may 
be obtained, such as the law enforcement office of the institution, 
a local law enforcement agency with jurisdiction for the campus, or 
a computer network address.

In addition, the CSCPA added a provision to section 444(b) of the 
Family Educational Rights and Privacy Act of 1974 (20 U.S.C. 
1232g(b)(7)(A)), which specifies that that Act does not prohibit 
educational institutions from disclosing information provided to them 
concerning registered sex offenders.
    Thus, under the CSCPA's provisions, information identifying the 
registered sex offenders at an institution of higher education must be 
provided to the campus police department or other appropriate law 
enforcement agency, and the campus community must be advised where it 
can obtain this information. The net effect of these provisions is that 
information identifying the registered sex offenders at an institution 
of higher education must be made available to the campus community by 
some means, for otherwise it would be impossible to comply with the 
requirement that the campus community be advised where this information 
can be obtained. The CSCPA affords discretion concerning the specific 
means by which this information will be made available to the campus 
community, and indicates more specifically by way of illustration that 
permissible options would include making the information available at 
an appropriate law enforcement office, or making the information 
available online. See 20 U.S.C. 1092(f)(1)(I) (quoted above).
    In addition to the special provisions of the CSCPA concerning the 
availability of sex offender information to campus communities, the 
general community notification provision of the Wetterling Act, 42 
U.S.C. 14072(e)(2), applies to registered sex offenders who are 
enrolled or employed at institutions of higher education just as it 
applies to other registered sex offenders. Subsection (e)(2) requires 
that relevant information be released concerning registrants as 
necessary to protect the public. The Attorney General's guidelines for 
the Wetterling Act explain the meaning and application of this 
requirement. See 64 FR 572, 581-82.

B. Mandatory or Discretionary Character of the CSCPA's Standards

    James Thomas, Executive Director of the Pennsylvania Commission on 
Crime and Delinquency, provided comments on behalf of the Commonwealth 
of Pennsylvania. In part, the comments suggested that the CSCPA does 
not require states to obtain information concerning registered sex 
offenders' enrollment or employment at institutions of higher 
education, or to provide such information to law enforcement agencies.
    Pennsylvania's comments pointed out that 42 U.S.C. 14071(j)(1)(A) 
states that persons required to register shall provide notice relating 
to their enrollment or employment at institutions of higher education 
``as required under State law,'' and that 42 U.S.C. 14071(j)(1)(B) 
provides that such persons shall report changes in their enrollment or 
employment status ``in the manner provided by State law.'' The comments 
interpreted these phrases to mean that the states have discretion under 
the CSCPA's standards as to whether they will impose such obligations 
on registrants at all. In support of this interpretation, the comments 
stated that other federal statutes uniformly use the phrase ``as 
required under State law'' in referring to pre-existing state duties--
citing 12 U.S.C. 1813(m)(4); 15 U.S.C. 1612(d); 26 U.S.C. 
832(b)(7)(E)--rather than with the intent to impose a new federal 
obligation on states. (Only one of the cited statutes uses the exact 
phrase ``as required under State law''; the other two use ``as required 
by State law.'') The comments also asserted that the phrase ``in the 
manner provided by State law'' is not used elsewhere in the United 
States Code.
    However, the phrase ``in the manner provided by State law'' is used 
at an earlier point in the Wetterling Act itself, as part of a 
provision requiring change-of-address notice by registrants. 
Specifically, 42 U.S.C. 14071(b)(4) provides that a change of address 
by a person required to register under the Wetterling Act shall be 
reported by the person ``in the manner provided by State law,'' and 
that ``State procedures shall ensure'' that the updated address 
information is promptly made available to an appropriate law 
enforcement agency and entered into the appropriate state records or 
data system. This provision does not mean that states have discretion 
under the Wetterling Act's standards as to whether or not they will

[[Page 65600]]

require change of address notice by registrants, but only conveys state 
discretion as to the manner in which this notice will be effected--for 
example, specifying which particular agency or official must be given 
the notice. See 64 FR 572, 580 (explanation of 42 U.S.C. 14071(b)(4) in 
Attorney General's guidelines).
    In parallel fashion, 42 U.S.C. 14071(j)(1)(B) provides that a 
change of enrollment or employment status shall be reported by the 
person ``in the manner provided by State law,'' and that ``State 
procedures shall ensure'' that the updated information is promptly made 
available to an appropriate law enforcement agency and entered into the 
appropriate state records or data system. The similarity of language 
evidences a similarity of legislative intent. Like 42 U.S.C. 
14071(b)(4), 42 U.S.C. 14071(j)(1)(B) conveys state discretion 
concerning the particular manner in which changes in registration 
information will be reported, but does not convey discretion as to 
whether or not the reporting of such information will be required at 
all.
    The other qualifying phrase noted in Pennsylvania's comments 
appears in 42 U.S.C. 14071(j)(1)(A), which says that, in addition to 
any other requirements of the Wetterling Act, a person who is required 
to register shall provide notice ``as required under State law'' 
concerning enrollment or employment at an institution of higher 
education in the state. In effect, the comments suggest that ``as 
required under State law'' should be read to mean: ``if required under 
State law.''
    The phrase ``as required under State law'' does not appear verbatim 
elsewhere in the Wetterling Act, but a similar phrase--``as provided by 
State law''--appears in 42 U.S.C. 14071(b)(1)(A)(ii)-(iii). Section 
14071(b)(1)(A)(ii)-(iii) requires state officials to advise registrants 
that if they change address, they must ``report the change of address 
as provided by State law.'' This phrase does not mean that registrants 
are to be told that they have an obligation to report a change of 
address only if the state, in its discretion, chooses to impose such an 
obligation by state law. Rather, ``as provided by State law'' in Sec.  
14071(b)(1)(A)(ii)-(iii) evidently has the same meaning as ``in the 
manner provided by State law'' in Sec.  14071(b)(4), referring to the 
specification by state law of the particular manner in which change of 
address information is to be reported.
    Similarly, the requirement under Sec.  14071(j)(1)(A) that 
registrants are to provide notice ``as required under State law'' means 
that they are to provide notice in the manner required under state law, 
not if required under state law. The parallel usages elsewhere in the 
Wetterling Act are more persuasive on this point than the appearance of 
``as required under [or by] State law'' in a few statutes (cited in 
Pennsylvania's comments) that use that phrase in entirely different 
contexts and that have no relationship to the Wetterling Act or its 
subject matter.
    Beyond the foregoing textual points, the interpretation suggested 
in Pennsylvania's comments is clearly inconsistent with the 
understanding presented to Congress in its consideration of the CSCPA:

    The purpose of [the CSCPA] is to guarantee that, when a 
convicted sex offender enrolls or begins employment at a college or 
university, members of the campus community will have the 
information they need to protect themselves. . . . The Campus Sex 
Crimes Prevention Act provides that offenders must register the name 
of any higher education institution where they enroll as a student 
or commence employment. It also requires that this information be 
promptly made available to law enforcement agencies in the 
jurisdictions where the institutions of higher education are 
located. . . .
    In order to ensure that the information is readily accessible to 
the campus community, the Campus Sex Crimes Prevention Act requires 
colleges and universities to provide the campus community with clear 
guidance as to where this information can be found, and clarifies 
that federal laws governing the privacy of education records do not 
prevent campus security agencies or other administrators from 
disclosing such information.

146 Cong. Rec. S10216 (Oct. 11, 2000) (remarks of Senator Kyl).
    In contrast, under the interpretation suggested in Pennsylvania's 
comments, the CSCPA would not guarantee that information concerning the 
presence of registered sex offenders at institutions of higher 
education is obtained by or made available to anyone, because the 
decision whether to collect such information would be left to the 
discretion of individual states.
    In addition to the interpretive issues discussed above, the 
comments received from Pennsylvania expressed a number of concerns 
about the practical impact of the CSCPA amendment to the Wetterling 
Act. Specifically, the comments expressed concern that: (1) Requiring 
employment and schooling information from registrants will complicate 
the registration process and result in fewer offenders registering 
properly and providing the required notifications concerning changes; 
(2) legislation will be needed to effectively implement the new 
requirements; and (3) the new requirements will have a fiscal impact in 
a tight budgetary situation, including the expense of modifying the 
registration database to add the fields and logic necessary to store 
and process the new data, and additional staff for the State Police 
Megan's Law section because of increased workload. The comments stated 
that Pennsylvania had not had sufficient time to implement the proposed 
guidelines and requested an extension of the implementation deadline, 
or if that could not be effected, an extension of the effective date of 
the reduction of Byrne Grant funding in case of noncompliance.
    In response, the Department of Justice notes that the requirement 
to obtain information from registrants concerning enrollment or 
employment at institutions of higher education, and to make this 
information available to appropriate law enforcement agencies, is 
integral to the CSCPA amendment to the Wetterling Act and cannot be 
changed by the guidelines. States have considerable latitude as to the 
particular procedures to be used in carrying out these requirements, 
and may adopt procedures consistent with the statute and guidelines 
that minimize resulting costs and burdens in the context of their 
registration systems. As with other provisions of the Wetterling Act, 
the Department provides advice and consultation to states on request 
concerning the consistency of measures they are considering to 
implement subsection (j) with the statute and the guidelines.
    Under the original provisions of the Wetterling Act and most 
previous amendments, the legislation allowed states three years to come 
into compliance, and authorized the Attorney General to grant an 
additional two years to states that were making good faith efforts to 
come into compliance. See 64 FR at 572 (explanation of deadlines in 
Attorney General's guidelines). However, the CSCPA provides that its 
amendment to the Wetterling Act takes effect two years after enactment, 
and does not give the Attorney General authority to grant additional 
time. The Department is accordingly required to reduce by 10% any 
formula Byrne Grant award to a state made after October 27, 2002, if 
the state is not in compliance with the requirements of 42 U.S.C. 
14071(j) at the time of the award. Since the deadline is statutory and 
not subject to extension by the Attorney General, any request for 
additional time would need to be addressed to Congress.

[[Page 65601]]

C. Comments From the American Council on Education

    David Ward, President of the American Council on Education (ACE), 
sent a letter on behalf of the ACE expressing support for the proposed 
guidelines for the CSCPA amendment to the Wetterling Act. The letter 
advised that the ACE had worked with Senator Kyl and other members of 
Congress in developing the CSCPA so that community members at 
institutions of higher education could have access to information 
regarding registered sex offenders enrolled or employed at a particular 
college or university; that the ACE intended to offer more detailed 
comments to the Department of Education as it develops guidelines to 
ensure the availability of information concerning the presence of 
registered sex offenders; and that the proposed guidelines from the 
Department of Justice accurately and appropriately represent the 
intention of the law and that the ACE does not recommend any changes.

D. Comments From a Kansas Respondent

    Tiffany Muller, Sexual Assault Advocacy Coordinator at the Kansas 
Coalition Against Sexual and Domestic Violence (hereafter, the ``Kansas 
Coalition''), submitted comments reflecting discussion of the CSCPA by 
a Sexual Assault Task Group made up of representatives from rape crisis 
centers and other interested agencies. The comments stated that the 
CSCPA was well received in Kansas, and that it provides a number of 
benefits, but that there were concerns about implementation and 
effectiveness in light of other current barriers. The specific concerns 
and suggestions were as follows:

1. Time for Registration in Interstate Situations

    The comments from the Kansas Coalition asked how the duration of 
registration, and the related requirement to report attendance at a 
university, would be handled in situations involving multiple states 
with different registration periods--e.g., a situation in which a 
person was initially registered in a state that requires registration 
for 10 years, but then attends a university in a neighboring state that 
requires registration for 15 years.
    One type of situation this question covers is that in which a sex 
offender is convicted and initially registered in one state, but then 
changes his residence to another state and attends a university in the 
new state of residence. Under the standards of the CSCPA amendment to 
the Wetterling Act, the offender would be required to notify the new 
state of residence concerning his enrollment or employment at 
institutions of higher education in that state for however long he is 
required to register in that state. See 42 U.S.C. 14071(j) (``a person 
who is required to register in a State'' shall provide notice 
concerning enrollment or employment at an institution of higher 
education in that state).
    A second type of situation the question may refer to is one in 
which a sex offender continues to reside in the state in which he is 
convicted and initially registered, but attends a university in another 
state. This situation falls under another provision of the Wetterling 
Act, 42 U.S.C. 14071(b)(7)(B), which relates to registration by a state 
of non-residents who are in the state for purposes of employment or 
school attendance. The state of employment or school attendance must 
accept registration information from such non-residents for as long as 
they are required to be registered in their states of residence under 
the Wetterling Act's standards. See 64 FR 572, 585 (explanation of 
subsection (b)(7)(B) in Attorney General's guidelines).
    The question may also be seeking more general information about the 
Wetterling Act's requirements regarding the duration of registration in 
interstate situations. In general, the Wetterling Act's standards 
require registration of at least 10 years for offenders in the offense 
categories covered by the Act, and lifetime registration for certain 
types of offenders. See 42 U.S.C. 14071(b)(6); 64 FR 572, 576, 582-83, 
584. These requirements apply regardless of whether the registrant 
moves from one state to another. If an offender who is subject only to 
the limited (ten-year) registration requirement of the Wetterling Act 
changes his state of residence, the new state of residence may give him 
credit towards satisfaction of the ten-year requirement based on the 
amount of time he was registered in the previous state of residence. 
See 64 FR 572, 578, 580. In all circumstances, states are free to 
require registration for longer periods than the minimum required under 
the Wetterling Act's standards. See 64 FR 572, 575.

2. Breakdown in Communication

    The comments from the Kansas Coalition stated that in some cities a 
campus police department would have immediate jurisdiction over the 
campus, but often would not patrol some student housing, and that 
campus police in Kansas often do not share information with local 
police departments. The comments suggested that the concerns raised by 
this breakdown in communication might be addressed by notifying both 
the campus and local law enforcement.
    On this point, the Proposed Guidelines, and the Final Guidelines 
below, make it clear that states are free to notify both a campus 
police department and other law enforcement agencies: ``Regardless of 
whether an institution of higher education has its own law enforcement 
unit, the Wetterling Act does not limit the discretion of states to 
make information concerning registrants enrolled or working at the 
institution available to other law enforcement agencies as well.''

3. Use of Pamphlets in Notification

    The comments from the Kansas Coalition suggested that schools could 
distribute pamphlets to help notify people that information is 
available about such matters as crime rates and registered offenders at 
institutions of higher education.
    This comment relates to the means of carrying out provisions of the 
Higher Education Act of 1965, including the CSCPA amendment to that Act 
(20 U.S.C. 1092(f)(1)(I)), rather than to the CSCPA amendment to the 
Wetterling Act.

4. Standardized Guidelines

    The comments from the Kansas Coalition noted a suggestion that 
states should have more standardized sex offender registration 
guidelines.
    On this point, it may be noted that the Wetterling Act, and the 
Attorney General's guidelines for the Wetterling Act, provide minimum 
national standards for state sex offender registration programs, and 
thereby establish a baseline of common features for the state programs.

5. Monitoring of Offenders

    The comments from the Kansas Coalition expressed concern that it 
would be fairly easy for offenders to be without monitoring--especially 
those in a very transient college population--since updates come from 
the offenders themselves and states are only required to check in with 
registered offenders once a year.
    The Wetterling Act's standards require annual address verification 
for registrants generally, but quarterly address verification for 
certain registrants. States are free to check or verify address 
information and other registration information with greater

[[Page 65602]]

frequency than the minimum required by the Wetterling Act. See 42 
U.S.C. 14071(b)(3); 64 FR 572, 575, 581, 584.

6. Inaccurate Reporting

    The comments from the Kansas Coalition stated that many campuses 
are not accurately reporting and continue to cover up incidences of 
sexual assault, and that these same campuses may be resistant to 
reporting registered offenders to the public.
    This comment relates to compliance with provisions of the Higher 
Education Act of 1965, including the CSCPA amendment to that Act (20 
U.S.C. 1092(f)(1)(I)), rather than to the CSCPA amendment to the 
Wetterling Act.

E. Comments From a Tennessee Respondent

    Tim Burchett, a state senator in Tennessee, sent a letter stating 
that he had recently learned that the U.S. Department of Justice, in a 
brief filed with the Supreme Court, had articulated a requirement that 
campus sex offender notifications must be made categorically without 
regard to any risk assessment. Senator Burchett stated that he had 
sponsored the law in Tennessee designed to achieve compliance with the 
campus notification requirements of the CSCPA, and that he wanted to 
make sure that Tennessee's law will meet this new requirement.
    Senator Burchett further stated that Tennessee will make 
categorical notifications on campus for all registrants after the 
Tennessee law's effective date of October 27, 2002, and that for 
convictions prior to that date release of the information is at the 
discretion of law enforcement. He asked whether this would meet the 
CSCPA's requirements, or whether further amendment of the law would be 
needed requiring categorical notifications without regard to conviction 
date. He also suggested that it would be very helpful if an explanation 
of the categorical notification requirement could be included in the 
Final Guidelines, so that states will know exactly what is needed for 
compliance.
    In three briefs filed with the Supreme Court, the Department of 
Justice has noted the CSCPA's requirements relating to the availability 
to campus communities of information concerning the presence of 
registered sex offenders. See Brief for the United States as Amicus 
Curiae Supporting Petitioner, at 2-3, 10, in Connecticut Department of 
Public Safety v. Doe, No. 01-1231 (April 2002) (amicus brief supporting 
the granting of certiorari); Brief for the United States as Amicus 
Curiae Supporting Petitioners, at 2, 6, 22-23, in Godfrey v. Doe, No. 
01-729 (June 2002) (amicus brief supporting petitioners on the merits); 
Brief for the United States as Amicus Curiae Supporting Petitioners, at 
4-5, 27-28, in Connecticut Department of Public Safety v. Doe, No. 01-
1231 (July 2002) (amicus brief supporting petitioners on the merits). 
These requirements are categorical in that information must be made 
available to a campus community concerning the identities of all 
registered sex offenders who are enrolled or employed at the 
institution of higher education. As explained above, this follows from 
the requirement of 42 U.S.C. 14071(j) that information identifying all 
registrants at an institution of higher education must be provided to 
the campus police department or other appropriate law enforcement 
agency, together with the requirement of 20 U.S.C. 1092(f)(1)(I) that 
the campus community must be told where it can obtain this information.
    The Wetterling Act's requirements generally apply to registrants 
who are convicted at any time after a state's establishment of a 
registration system that conforms to these requirements. Hence, a state 
must at a minimum apply the requirements of 42 U.S.C. 14071(j) to all 
persons registered on the basis of convictions occurring after the 
effective date of state legislation that implements the requirements of 
42 U.S.C. 14071(j) in the state's registration system. States are also 
free to apply the requirements of 42 U.S.C. 14071(j) more broadly to 
persons registered on the basis of convictions occurring before the 
enactment or effectiveness of such state legislation. See 64 FR 572, 
575, 581, 583.

Final Guidelines

    The Campus Sex Crimes Prevention Act (CSCPA) provisions appear in 
subsection (j) of the Wetterling Act (42 U.S.C. 14071(j)). As provided 
in subsection (j), any person required to register under a state sex 
offender registration program must notify the state concerning each 
institution of higher education (i.e., post-secondary school) in the 
state at which the person is a student or works, and of each change in 
enrollment or employment status of the person at such an institution. 
States can comply with the Wetterling Act's requirements concerning 
these registrants, in part, by: (1) Advising registrants concerning 
these specific obligations when they are generally advised of their 
registration obligations, as discussed in part II.A of the January 5, 
1999, Wetterling Act guidelines (64 FR 572, 579), (2) including in the 
registration information obtained from each registrant information 
concerning any enrollment or employment at an institution of higher 
education in the state, and (3) establishing procedures for registrants 
to notify the state concerning any subsequent commencement or 
termination of enrollment or employment at an institution of higher 
education in the state. The failure of a registrant to notify the state 
concerning enrollment or employment at an institution of higher 
education or the termination of such enrollment or employment would 
constitute a failure to register or keep such registration current for 
purposes of subsection (d) of the Wetterling Act (42 U.S.C. 14071(d)), 
and must be subject to criminal penalties as provided in that 
subsection.
    Under the requirements of subsection (j) of the Wetterling Act, 
state procedures must also ensure that information concerning a 
registrant enrolled or working at an institution of higher education is 
promptly made available to a law enforcement agency having jurisdiction 
where the institution is located, and entered into the appropriate 
state records or data system. This requirement applies both to any 
information initially obtained from registrants concerning enrollment 
or employment at institutions of higher education in the state, and 
information concerning subsequent changes in such enrollment or 
employment status. As paragraph (3) of subsection (j) makes clear, 
subsection (j) does not place any burden on an educational institution 
to request information about registrants enrolled or employed at the 
institution from the state, and the requirement that the state make the 
information available to a law enforcement agency having jurisdiction 
where the institution is located is not contingent on a request from 
the institution.
    Subsection (j)'s requirement to promptly make the information 
available to a law enforcement agency having jurisdiction where the 
institution is located is supplementary to the requirement under 
subsection (b)(2)(A) and (4) of the Wetterling Act (42 U.S.C. 
14071(b)(2)(A), (4)) to promptly make information concerning 
registrants available to a law enforcement agency having jurisdiction 
where the registrant resides. The legislative history of the CSCPA 
explains subsection (j)'s requirement as follows:

    Once information about an offender's enrollment * * * or 
employment * * * [at] * * * an institution of higher education has 
been provided to a state's sex offender registration program, that 
information should

[[Page 65603]]

be shared with that school's law enforcement unit as soon as 
possible.
    The reason for this is simple. An institution's law enforcement 
unit will have the most direct responsibility for protecting that 
school's community and daily contact with those that should be 
informed about the presence of the convicted offender.
    If an institution does not have a campus police department, or 
other form of state recognized law enforcement agency, the sex 
offender information could then be shared with a local law 
enforcement agency having primary jurisdiction for the campus.

146 Cong. Rec. S10216 (Oct. 11, 2000) (remarks of Senator Kyl).

    Thus, if an institution of higher education has a campus police 
department or other form of state recognized law enforcement agency, 
state procedures must ensure that information concerning the enrollment 
or employment of registrants at that institution (and subsequent 
changes in registrants' enrollment or employment status) is promptly 
made available to the campus police department or law enforcement 
agency. If there is no such department or agency at the institution, 
then state procedures must ensure that this information is promptly 
made available to some other law enforcement agency having jurisdiction 
where the institution is located. Regardless of whether an institution 
of higher education has its own law enforcement unit, the Wetterling 
Act does not limit the discretion of states to make information 
concerning registrants enrolled or working at the institution available 
to other law enforcement agencies as well.
    The language of subsection (j) refers specifically to any 
registrant who ``is employed, carries on a vocation, or is a student'' 
at an institution of higher education in the state. These terms have 
defined meanings set forth in subsection (a)(3)(F)-(G) of the 
Wetterling Act (42 U.S.C. 14071(a)(3)(F)-(G)). In light of these 
definitions, the registrants to whom the requirements of subsection (j) 
apply are those who: (1) are enrolled in any institution of higher 
education in the state on a full-time or part-time basis, or (2) have 
any sort of full-time or part-time employment at an institution of 
higher education in the state, with or without compensation, for more 
than 14 days, or for an aggregate period exceeding thirty days in a 
calendar year.
    The CSCPA provisions in subsection (j) of the Wetterling Act are 
supplementary to, and do not limit or supersede, the provisions in 
subsection (b)(7)(B) of the Wetterling Act that require states to 
accept registration information from offenders who reside outside a 
state but come into the state in order to work or attend school. 
Subsection (b)(7)(B) applies only to non-resident workers and students, 
but it is not limited in scope to those who work at or attend 
institutions of higher education (as opposed to other places of 
employment or schools). The requirements under subsection (b)(7)(B) are 
explained in part V.B.2 of the January 5, 1999, Wetterling Act 
guidelines (64 FR 572, 585).
    The CSCPA's effective date for its amendment to the Wetterling Act 
is two years after enactment. Hence, following October 27, 2002, Byrne 
Formula Grant awards to states that are not in compliance with 
subsection (j) of the Wetterling Act will be subject to a mandatory 10% 
reduction. If a state's funding is reduced because of a failure to 
comply with the CSCPA amendment to the Wetterling Act or other 
Wetterling Act requirements by an applicable deadline, the state may 
regain eligibility for full funding thereafter by establishing 
compliance with all applicable requirements of the Wetterling Act. 
States are encouraged to submit information concerning existing and 
proposed sex offender registration provisions relating to compliance 
with the CSCPA amendment as soon as possible.
    After the reviewing authority has determined that a state is in 
compliance with the Wetterling Act, the state has a continuing 
obligation to maintain its system's consistency with the Wetterling 
Act's standards, and will be required as part of the Byrne Formula 
Grant application process in subsequent program years to certify that 
the state remains in compliance with the Wetterling Act.
    These guidelines relate solely to the provisions of the CSCPA that 
amended the Wetterling Act, and hence affect state eligibility for full 
Byrne Grant funding. In addition to adding subsection (j) to the 
Wetterling Act, the CSCPA amended federal education laws to ensure the 
availability to the campus community of information concerning the 
presence of registered sex offenders. The Department of Education is 
responsible for the issuance of regulations relating to those laws.
    As noted above, the general guidelines for the Wetterling Act were 
published on January 5, 1999, and appear at 64 FR 572, with corrections 
at 64 FR 3590 (Jan. 22, 1999). The new CSCPA provisions in subsection 
(j), which these supplementary guidelines address, are only one part of 
the Wetterling Act. States must comply with all of the Wetterling Act's 
requirements in order to maintain eligibility for full Byrne Grant 
funding.

    Dated: October 22, 2002.
Larry D. Thompson,
Acting Attorney General.
[FR Doc. 02-27257 Filed 10-24-02; 8:45 am]
BILLING CODE 4410-19-P