[Federal Register Volume 81, Number 69 (Monday, April 11, 2016)]
[Notices]
[Pages 21397-21400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08249]


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DEPARTMENT OF JUSTICE

Office of the Attorney General

[Docket No. OAG 151; AG Order No. 3659-2016]
RIN 1121-AA87


Supplemental Guidelines for Juvenile Registration Under the Sex 
Offender Registration and Notification Act

AGENCY: Department of Justice.

ACTION: Notice; proposed guidelines.

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SUMMARY: The Sex Offender Registration and Notification Act (SORNA) 
requires registration of individuals convicted of sex offenses as 
adults and, in addition, registration of juveniles adjudicated 
delinquent for certain serious sex offenses. SORNA also provides for a 
reduction of justice assistance funding to eligible jurisdictions that 
fail to ``substantially implement'' SORNA's requirements, including the 
juvenile registration requirement, in their sex offender registration 
programs. These proposed guidelines provide guidance regarding the 
substantial implementation of the juvenile registration requirement by 
eligible jurisdictions. The Justice Department's Office of Sex Offender 
Sentencing, Monitoring, Apprehending, Registering, and Tracking will 
examine the following factors when assessing whether a jurisdiction has 
substantially implemented SORNA's juvenile registration provisions: 
Policies and practices to prosecute as adults juveniles who commit 
serious sex offenses; policies and practices to register juveniles 
adjudicated delinquent for serious sex offenses; and other policies and 
practices to identify, track, monitor, or manage juveniles adjudicated 
delinquent for serious sex offenses who are in the community and to 
ensure that the records of their identities and sex offenses are 
available as needed for public safety purposes. By affording 
jurisdictions greater flexibility in their efforts to substantially 
implement SORNA's juvenile registration requirement, the proposed 
guidelines will further SORNA's public safety objectives in relation to 
serious juvenile sex offenders and facilitate jurisdictions' 
substantial implementation of all aspects of SORNA. The proposed 
guidelines concern only substantial implementation of SORNA's juvenile 
registration requirement and do not affect substantial implementation 
of SORNA's registration requirements for individuals convicted of sex 
offenses as adults.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before June 10, 2016. Comments received by mail will 
be considered timely if they are postmarked on or before that date. The 
electronic Federal Docket Management System (FDMS) will accept comments 
until midnight Eastern Time at the end of that day.

ADDRESSES: To ensure proper handling of comments, please reference OAG 
Docket No. 151 in all electronic and written correspondence. The 
Department encourages the electronic submission of all comments through 
http://www.regulations.gov using the electronic comment form provided 
on that site. An electronic copy of this document is also available at 
the http://www.regulations.gov Web site for easy reference. Paper 
comments that duplicate the electronic submission are not necessary as 
all comments submitted to http://www.regulations.gov will be posted for 
public review and are part of the official docket record. Should you, 
however, wish to submit written comments by mail, they should be sent 
to Luis C.deBaca, Director, SMART Office, Office of Justice Programs, 
United States Department of Justice, 810 7th St. NW., Washington, DC 
20531.

FOR FURTHER INFORMATION CONTACT: Luis C.deBaca, Director, Office of Sex 
Offender Sentencing, Monitoring, Apprehending, Registering, and 
Tracking; Office of Justice Programs, United States Department of 
Justice, Washington, DC, (202) 514-4689.

SUPPLEMENTARY INFORMATION:

Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying 
information (such as your name and address) voluntarily submitted by 
the commenter.
    You are not required to submit personal identifying information in 
order to comment on these proposed guidelines. Nevertheless, if you 
want to submit personal identifying information (such as your name and 
address) as part of your comment, but do not want it to be posted 
online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You also must 
locate all of the personal identifying information that you do not want 
posted online in the first paragraph of your comment and identify what 
information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the paragraph above entitled FOR FURTHER INFORMATION 
CONTACT.

Background

    The Sex Offender Registration and Notification Act (``SORNA''), 
title I of the Adam Walsh Child Protection and Safety Act of 2006, 
Public Law 109-248, was enacted on July 27, 2006. SORNA (42 U.S.C. 
16901 et seq.) establishes minimum national standards for sex offender 
registration and notification in the jurisdictions to which it applies. 
``Jurisdictions'' in the relevant sense are the 50 states, the District 
of Columbia,

[[Page 21398]]

the five principal U.S. territories, and federally recognized Indian 
tribes that satisfy certain criteria. 42 U.S.C. 16911(10).
    SORNA provides a financial incentive for eligible jurisdictions to 
adopt its standards, by requiring a 10 percent reduction of federal 
justice assistance funding to an eligible jurisdiction if the Attorney 
General determines that the jurisdiction has failed to ``substantially 
implement'' SORNA. 42 U.S.C. 16925(a). SORNA also directs the Attorney 
General to issue guidelines and regulations to interpret and implement 
SORNA. See id. 16912(b). To this end, the Attorney General issued the 
National Guidelines for Sex Offender Registration and Notification 
(``SORNA Guidelines''), 73 FR 38030, on July 2, 2008, and the 
Supplemental Guidelines for Sex Offender Registration and Notification 
(``Supplemental Guidelines''), 76 FR 1630, on January 11, 2011. The 
Justice Department's Office of Sex Offender Sentencing, Monitoring, 
Apprehending, Registering, and Tracking (``SMART Office'') assists all 
jurisdictions in their SORNA implementation efforts and determines 
whether they have substantially implemented SORNA's requirements in 
their registration and notification programs. See 42 U.S.C. 16945; 73 
FR at 38044, 38047-48; 76 FR at 1638-39.
    In addition to requiring registration based on adult convictions 
for sex offenses, SORNA includes as covered ``sex offender[s]'' 
juveniles at least 14 years old who have been adjudicated delinquent 
for particularly serious sex offenses. 42 U.S.C. 16911(1), (8); see id. 
16913 (setting forth registration requirements). In relation to the 
juvenile registration requirement, as in other contexts, the SMART 
Office ``consider[s] on a case-by-case basis whether jurisdictions' 
rules or procedures that do not exactly follow the provisions of SORNA 
. . . `substantially' implement SORNA, assessing whether the departure 
from a SORNA requirement will or will not substantially disserve the 
objectives of the requirement.'' 73 FR at 38048.
    The SORNA Guidelines explained, in particular, that substantial 
implementation of SORNA need not include registration of juveniles 
adjudicated delinquent for certain lesser offenses within the scope of 
SORNA's juvenile registration provisions. The Guidelines stated that 
jurisdictions can achieve substantial implementation if they cover 
offenses by juveniles at least 14 years old that consist of engaging 
(or attempting or conspiring to engage) in a sexual act with another by 
force or the threat of serious violence or by rendering unconscious or 
involuntarily drugging the victim. Id. at 38050. This interpretation of 
substantial implementation addressed concerns about the potential 
registration of juveniles in some circumstances based on consensual 
sexual activity with other juveniles, which is outside the scope of the 
coverage required by the Guidelines. See id. at 38040-41.
    The Supplemental Guidelines included a subsequent change affecting 
the treatment of all persons required to register on the basis of 
juvenile delinquency adjudications. SORNA authorizes the Attorney 
General to create exemptions from SORNA's requirement that information 
about registered sex offenders be made available to the public through 
Web site postings and other means. See 42 U.S.C. 16918(c)(4), 16921(b). 
The Supplemental Guidelines noted that the SORNA Guidelines had 
endeavored to facilitate jurisdictions' compliance with SORNA's 
registration requirement for ``juveniles at least 14 years old who are 
adjudicated delinquent for particularly serious sex offenses,'' but 
that ``resistance by some jurisdictions to public disclosure of 
information about sex offenders in this class has continued to be one 
of the largest impediments to SORNA implementation.'' 76 FR at 1636. 
The Attorney General accordingly exercised his exemption authority ``to 
allow jurisdictions to exempt from public . . . disclosure information 
concerning sex offenders required to register on the basis of juvenile 
delinquency adjudications.'' Id. This exemption did not change the 
requirement that such juveniles be registered and that information 
about them be transmitted or made available ``to the national (non-
public) databases of sex offender information, to law enforcement and 
supervision agencies, and to registration authorities in other 
jurisdictions.'' Id. at 1637.
    Based on additional experience with SORNA implementation, and 
further reflection on the practicalities and effects of juvenile 
registration, these proposed guidelines modify the approach the SMART 
Office will take in assessing whether a jurisdiction has substantially 
implemented SORNA's juvenile registration requirement. As explained 
below, the modification will enhance public safety by incentivizing a 
broader range of measures that may protect the public from serious 
juvenile sex offenders.
    While most states provide for registration of some sex offenders 
based on juvenile delinquency adjudications, many do not or do so only 
on a discretionary basis. See SMART Office, SMART Summary: Prosecution, 
Transfer, and Registration of Serious Juvenile Sex Offenders 10-11, 24-
29 (Mar. 2015) (``SMART Juvenile Summary''), www.smart.gov/pdfs/smartjuvenilessum.pdf. Too rigid an approach to implementation of the 
juvenile registration aspect of SORNA, which affects a limited subclass 
of sex offenders, may conflict at a practical level with the objective 
of implementing SORNA's more broadly applicable reforms, which affect 
the whole universe of convicted sex offenders. This occurs when a 
jurisdiction's unwillingness or inability to implement the juvenile 
registration requirement discourages or stymies further efforts to 
implement SORNA generally, because the deficit regarding juvenile 
registration alone precludes approval of the jurisdiction as having 
substantially implemented SORNA. Moreover, the juvenile registration 
requirement is in some respects unique in terms of its scope and 
rationale and the potential for furthering its objectives by other 
means.
    First, juveniles may be subject to prosecution in either of two 
distinct justice systems--the juvenile justice system or the adult 
criminal justice system. The SORNA Guidelines provide that registration 
jurisdictions may substantially implement SORNA's juvenile registration 
requirement by registering persons at least 14 years old at the time of 
the offense who are adjudicated delinquent for an offense amounting to 
rape or its equivalent, or an attempt or conspiracy to commit such an 
offense. See 73 FR at 38041, 38050. Practically all states authorize or 
require adult prosecution for many or all such juveniles. See SMART 
Juvenile Summary 5-9, 16, 19-23. Where juveniles are prosecuted as 
adults, the resulting convictions are treated as adult convictions 
under SORNA, and SORNA's general provisions require the sex offender to 
register. See 73 FR at 38050.
    Consequently, a jurisdiction may advance SORNA's public safety 
goals in relation to serious juvenile sex offenders not only by 
prescribing mandatory registration for those offenders adjudicated 
delinquent, but also by prosecuting such offenders in the adult 
criminal justice system. Consider a jurisdiction that normally subjects 
sex offenders in SORNA's juvenile registration category to adult 
prosecution and conviction, with resulting registration, but that does 
not have mandatory registration for the relatively few offenders in 
this category who are proceeded against in the juvenile justice system. 
With respect to most sex offenders, the jurisdiction

[[Page 21399]]

protects the public through registration at least as effectively as a 
jurisdiction that proceeds against more offenders as juveniles and has 
mandatory registration based on delinquency adjudications, because all 
individuals convicted of qualifying sex offenses as adults are required 
to register. In some respects, a jurisdiction oriented towards adult 
prosecution of the most serious juvenile sex offenders may more 
effectively advance SORNA's public safety objectives, because 
prosecution as an adult also makes available the more substantial 
incarceration and supervision sanctions of the adult criminal justice 
system. But if mandatory juvenile registration is treated as a sine qua 
non of substantial SORNA implementation, that jurisdiction could not be 
approved as having substantially implemented SORNA.
    A second feature unique to juvenile sex offenders is that SORNA 
requires registration only for certain juveniles who are adjudicated 
delinquent for particularly serious sex offenses--that is, sex offenses 
that are ``comparable to or more serious than aggravated sexual abuse'' 
(or attempt or conspiracy to commit such offenses). 42 U.S.C. 16911(8). 
Jurisdictions that allow for discretionary registration of juveniles 
adjudicated delinquent for sex offenses may in practice capture many of 
the juveniles in SORNA's juvenile registration category--especially 
those who pose the most danger to others--in their registration 
schemes. Rather than simply rejecting a jurisdiction's approach to 
juvenile registration for having a discretionary aspect, examination of 
these registration programs as applied would allow the SMART Office to 
determine whether, when considered as part of a jurisdiction's overall 
registration scheme, this variance does or does not substantially 
disserve SORNA's purposes.
    Considering discretionary juvenile registration might appear to be 
inconsistent with the response to public comments accompanying the 
issuance of the SORNA Guidelines, which stated that registration as ``a 
matter of judicial discretion'' is insufficient to substantially 
implement SORNA's juvenile registration requirement. 73 FR at 38038. 
However, that response addressed comments urging that discretionary 
registration should in itself be considered sufficient implementation 
of SORNA's requirements, ``ignor[ing] what SORNA provides on this 
issue, and instead do[ing] something different that the commenters 
believe to be better policy.'' Id. That is not the approach of these 
proposed guidelines, which contemplate that the SMART Office will 
consider the full range of pertinent measures a jurisdiction may adopt, 
and do not assume that simply replacing a mandatory registration 
requirement with a discretionary one achieves in substance what SORNA 
requires. For example, consider a jurisdiction that (i) largely 
requires registration by sex offenders in SORNA's juvenile registration 
class because those offenders are likely to be prosecuted and convicted 
in the adult criminal justice system, (ii) allows registration on a 
discretionary basis for sex offenders who remain in the juvenile 
justice system, and (iii) provides other effective post-release 
monitoring and identification measures for juvenile sex offenders as 
discussed below. In assessing whether such a jurisdiction has 
substantially implemented SORNA's juvenile registration requirement, it 
is appropriate to take into account the jurisdiction's discretionary 
registration of adjudicated delinquents along with other factors, and 
doing so does not conflict with the prior rejection of approaches that 
``ignore[ ] what SORNA provides.'' Id.
    A third feature specific to the juvenile context is the prevalence 
of juvenile confidentiality provisions, which can limit the 
availability of information about the identities, locations, and 
criminal histories of juvenile sex offenders. Potential consequences of 
these confidentiality provisions include that (i) law enforcement 
agencies may lack information about certain sex offenders in their 
areas that could, if known, assist in solving new sex crimes and 
apprehending the perpetrators; (ii) sex offenders may be less 
effectively discouraged from engaging in further criminal conduct, 
because the authorities do not know their identities, locations, and 
criminal histories; and (iii) offenders' histories of sexual violence 
or child molestation, which might disqualify them from positions giving 
them control over or access to potential victims (such as childcare 
positions), may not be disclosed through background check systems or 
affirmative notice to appropriate authorities. These confidentiality 
provisions accordingly may negatively affect the achievement of SORNA's 
public safety objectives. See 73 FR at 38044-45, 38060-61. Congress's 
decision to subject certain juvenile sex offenders to SORNA's 
registration requirements was an effort to overcome risks to the public 
posed by juvenile confidentiality requirements that Congress considered 
too broad. See H.R. Rep. No. 109-218, pt. 1, at 25 (2005).
    A jurisdiction that does not implement juvenile registration in the 
exact manner specified in SORNA's juvenile registration provisions may 
nevertheless adopt other measures that address the underlying concerns 
as part of its substantial implementation of SORNA. For example, a 
jurisdiction may have means of monitoring or tracking juvenile sex 
offenders following release, such as extended post-release supervision 
regimes or address-reporting requirements, that may not incorporate all 
aspects of SORNA's registration system, but that may nevertheless help 
law enforcement agencies to identify the sex offenders in their areas 
and the perpetrators of new sex offenses. Confidentiality requirements 
for juvenile records may be appropriately defined and limited so as not 
to conceal risks to potential victims from persons who committed 
serious sex offenses as juveniles.
    In sum, a number of factors are reasonably considered in 
ascertaining whether a jurisdiction has substantially implemented 
SORNA's juvenile registration provisions, which have not been 
articulated or given weight to the same extent under previous 
guidelines. Accordingly, in these proposed guidelines, the Attorney 
General expands the matters that the SMART Office will consider in 
determining substantial implementation of this SORNA requirement. This 
expansion recognizes that jurisdictions may adopt myriad robust 
measures to protect the public from serious juvenile sex offenders, and 
will help to promote and facilitate jurisdictions' substantial 
implementation of all aspects of SORNA.

Proposed Supplemental Guidelines for Juvenile Registration Under the 
Sex Offender Registration and Notification Act

    If a jurisdiction does not register juveniles at least 14 years old 
who are adjudicated delinquent for particularly serious sex offenses in 
exact conformity with SORNA's provisions--for example, because the 
jurisdiction uses a discretionary process for determining such 
registration--the SMART Office will examine the following factors when 
assessing whether the jurisdiction has nevertheless substantially 
implemented SORNA's juvenile registration requirements: (i) Policies 
and practices to prosecute as adults juveniles who commit serious sex 
offenses; (ii) policies and practices to register juveniles adjudicated 
delinquent for serious sex offenses; and (iii) other policies and

[[Page 21400]]

practices to identify, track, monitor, or manage juveniles adjudicated 
delinquent for serious sex offenses who are in the community and to 
ensure that the records of their identities and sex offenses are 
available as needed for public safety purposes. Consistent with the 
requirements for other aspects of a jurisdiction's program that do not 
exactly follow SORNA's provisions, a jurisdiction that seeks to rely on 
these factors in establishing substantial implementation must identify 
any departure from SORNA's requirements in its submission to the SMART 
Office and ``explain why the departure from the SORNA requirements 
should not be considered a failure to substantially implement SORNA.'' 
73 FR at 38048. The SMART Office will determine that a jurisdiction 
relying on these factors has substantially implemented SORNA's juvenile 
registration requirement only if it concludes that these factors, in 
conjunction with that jurisdiction's other policies and practices, have 
resulted or will result in the registration, identification, tracking, 
monitoring, or management of juveniles who commit serious sex offenses, 
and in the availability of the identities and sex offenses of such 
juveniles as needed for public safety purposes, in a manner that does 
not substantially disserve SORNA's objectives.

    Dated: March 14, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-08249 Filed 4-8-16; 8:45 am]
 BILLING CODE 4410-18-P