[Federal Register Volume 86, Number 233 (Wednesday, December 8, 2021)]
[Rules and Regulations]
[Pages 69856-69887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26420]



[[Page 69855]]

Vol. 86

Wednesday,

No. 233

December 8, 2021

Part IV





Department of Justice





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28 CFR Part 72





Registration Requirements Under the Sex Offender Registration and 
Notification Act; Final Rule

  Federal Register / Vol. 86 , No. 233 / Wednesday, December 8, 2021 / 
Rules and Regulations  

[[Page 69856]]


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DEPARTMENT OF JUSTICE

28 CFR Part 72

[Docket No. OAG 157; AG Order No. 5244-2021]
RIN 1105-AB52


Registration Requirements Under the Sex Offender Registration and 
Notification Act

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice is adopting a rule that specifies 
the registration requirements under the Sex Offender Registration and 
Notification Act (``SORNA''). The rule in part reflects express 
requirements of SORNA and in part reflects the exercise of authorities 
SORNA grants to the Attorney General to interpret and implement SORNA's 
requirements. SORNA's requirements have previously been delineated in 
guidelines issued by the Attorney General for implementation of SORNA's 
requirements by registration jurisdictions.

DATES: This rule is effective January 7, 2022.

FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office 
of Legal Policy, U.S. Department of Justice, Washington, DC, 202-514-
3273.

SUPPLEMENTARY INFORMATION: This rule finalizes a proposed rule, 
Registration Requirements Under the Sex Offender Registration and 
Notification Act (OAG 157; RIN 1105-AB52) (published August 13, 2020, 
at 85 FR 49332).

Overview

    The Sex Offender Registration and Notification Act (``SORNA''), 
which is title I of the Adam Walsh Child Protection and Safety Act of 
2006, Public Law 109-248, 34 U.S.C. 20901 et seq., establishes national 
standards for sex offender registration and notification in the United 
States. SORNA has a dual character, imposing registration obligations 
on sex offenders as a matter of Federal law that are federally 
enforceable under circumstances supporting Federal jurisdiction, see 18 
U.S.C. 2250, and providing minimum national standards that non-Federal 
jurisdictions are expected to incorporate in their sex offender 
registration and notification programs, subject to a reduction of 
Federal funding for those that fail to do so, see 34 U.S.C. 20912(a), 
20926-27.
    The Justice Department's Office of Sex Offender Sentencing, 
Monitoring, Apprehending, Registering, and Tracking (``SMART Office'') 
administers the national standards for sex offender registration and 
notification under SORNA and assists all jurisdictions in implementing 
the SORNA standards in their programs. See id. 20945. As provided by 
SORNA, the Department of Justice also (i) prosecutes SORNA violations 
by sex offenders committed under circumstances supporting Federal 
jurisdiction, see 18 U.S.C. 2250; (ii) assists in the enforcement of 
sex offender registration requirements through the activities of the 
U.S. Marshals Service, see 34 U.S.C. 20941; (iii) operates, through the 
Federal Bureau of Investigation, the National Sex Offender Registry, 
which compiles the information obtained through the sex offender 
registration programs of the states and other registration 
jurisdictions and makes it available on a nationwide basis for law 
enforcement purposes, see id. 20921; and (iv) operates the Dru Sjodin 
National Sex Offender Public website, www.nsopw.gov, which provides 
public access through a single national site to the information about 
sex offenders posted on the public sex offender websites of the various 
registration jurisdictions, see id. 20922.
    SORNA generally directs the Attorney General to ``issue guidelines 
and regulations to interpret and implement [SORNA].'' Id. 20912(b). 
SORNA also authorizes the Attorney General to take more specific 
actions in certain contexts.
    One such provision is 34 U.S.C. 20913. That section states in 
subsection (b) that sex offenders are generally to register initially 
before release from imprisonment, or within three business days of 
sentencing if not sentenced to imprisonment, but it provides further in 
subsection (d) that the Attorney General has ``the authority to specify 
the applicability of the requirements of [SORNA] to sex offenders 
convicted before the enactment of [SORNA] or its implementation in a 
particular jurisdiction, and to prescribe rules for the registration of 
any such sex offenders and for other categories of sex offenders who 
are unable to comply with subsection (b).'' As discussed below in 
connection with 28 CFR 72.3, section 20913(d) is not a constitutionally 
impermissible delegation of legislative authority. Rather, it enables 
the Attorney General to effectuate the legislative intent that SORNA 
apply to all sex offenders, regardless of when they were convicted.
    Another relevant provision lists several types of information that 
sex offenders must provide for inclusion in sex offender registries, 
and states that sex offenders must also provide ``[a]ny other 
information required by the Attorney General.'' Id. 20914(a)(8). This 
provision as well is not an impermissible delegation of legislative 
authority, but rather is instrumental to the Attorney General's 
effectuating the legislative objective to ``protect the public from sex 
offenders and offenders against children'' by ``establish[ing] a 
comprehensive national system for the registration of those 
offenders.'' Id. 20901; see 73 FR at 38054-57; 76 FR at 1637. The 
Attorney General's exercise of the authority under section 20914(a)(8) 
is limited to requiring additional information that furthers the 
legislative public safety objective or the implementation or 
enforcement of SORNA's provisions. How that has been done is explained 
below in connection with 28 CFR 72.6 and 72.7.
    The Attorney General has exercised these authorities in previous 
rulemakings and issuances of guidelines under SORNA, as detailed in the 
rulemaking history and section-by-section analysis below, and the 
interpretations and policy decisions in this rule follow those already 
adopted in existing SORNA-related documents. The present rule provides 
a concise and comprehensive statement of what sex offenders must do to 
comply with SORNA's requirements.
    In addition to SORNA's original provisions, described above, this 
rulemaking draws on and implements provisions of the International 
Megan's Law to Prevent Child Exploitation and Other Sexual Crimes 
Through Advanced Notification of Traveling Sex Offenders 
(``International Megan's Law''), Public Law 114-119. Section 6 of 
International Megan's Law amended SORNA by (i) redesignating, in 34 
U.S.C. 20914(a), former paragraph (7) as paragraph (8) and adding a new 
paragraph (7) that requires a sex offender to provide for inclusion in 
the sex offender registry information relating to intended travel 
outside the United States, including several specified types of 
information ``and any other itinerary or other travel-related 
information required by the Attorney General''; (ii) adding a new 
subsection (c) to 34 U.S.C. 20914 that requires sex offenders to 
provide and update registration information required by SORNA ``in 
conformity with any time and manner requirements prescribed by the 
Attorney General''; and (iii) adding a new subsection (b) to SORNA's 
criminal provision, 18 U.S.C. 2250, that specifically reaches 
international travel reporting violations.
    This rulemaking is not innovative in terms of policy. Many of the 
requirements it articulates reflect

[[Page 69857]]

express SORNA requirements. These include, inter alia, statutory 
specifications about (i) where and when sex offenders must register; 
(ii) several categories of required registration information; (iii) how 
long sex offenders must continue to register, including different 
registration periods for sex offenders in different tiers and lifetime 
registration for those in the highest tier; and (iv) a requirement to 
appear periodically to verify the registration information. See 34 
U.S.C. 20911(2)-(4), 20913, 20914(a)(1)-(7), 20915, 20918.
    Other features of the rule reflect exercises of the Attorney 
General's powers to implement SORNA's requirements. These include 
additional specifications regarding information sex offenders must 
provide, how and when they must report certain changes in registration 
information, and the time and manner for complying with SORNA's 
registration requirements by sex offenders who cannot comply with 
SORNA's normal registration procedures. On these matters, however, the 
rule embodies the same policies as those appearing in the previously 
issued SORNA guidelines and prior rulemakings under SORNA.
    The rule also makes no change in what registration jurisdictions 
need to do to substantially implement SORNA in their registration 
programs, a matter that will continue to be governed by the previously 
issued guidelines for SORNA implementation.
    While this rule does not make new policy, as discussed above, it is 
expected to have a number of benefits. The rule will facilitate 
enforcement of SORNA's registration requirements through prosecution of 
noncompliant sex offenders under 18 U.S.C. 2250. By providing a 
comprehensive articulation of SORNA's registration requirements in 
regulations addressed to sex offenders, it will provide a more secure 
basis for prosecution of sex offenders who engage in knowing violations 
of any of SORNA's requirements. It will also resolve a number of 
specific concerns that have arisen in past litigation or could be 
expected to arise in future litigation, if not clarified and resolved 
by this rule. For example, as discussed below, the amendment of Sec.  
72.3 in the rule will ensure that its application of SORNA's 
requirements to sex offenders with pre-SORNA convictions is given 
effect consistently, resolving an issue resulting from the decision in 
United States v. DeJarnette, 741 F.3d 971 (9th Cir. 2013).
    Beyond the benefits to effective enforcement of SORNA's 
requirements, the rule will benefit sex offenders by providing a clear 
and comprehensive statement of their registration obligations under 
SORNA. This statement will make it easier for sex offenders to 
determine what they are required to do and thus facilitate compliance.
    By facilitating the enforcement of, and compliance with, SORNA's 
registration requirements, the rule will further SORNA's public safety 
objectives. See 34 U.S.C. 20901. More consistent adherence to these 
requirements will enable registration and law enforcement authorities 
to better track and monitor released sex offenders in the community and 
enhance the basis for public notification regarding registered sex 
offenders that SORNA requires. See id. 20920, 20923.
    Effective September 1, 2017, the provisions of SORNA, formerly 
appearing at 42 U.S.C. 16901 et seq., were recodified in a new title 34 
of the United States Code, and now appear at 34 U.S.C. 20901 et seq. 
See http://uscode.house.gov/editorialreclassification/t34/index.html. 
United States Code citations of SORNA provisions in this rule 
accordingly differ from the corresponding citations in earlier sources 
and documents.

Rulemaking History

    This rule is the tenth document the Attorney General has published 
pursuant to the statutory directive to the Attorney General to issue 
guidelines and regulations to interpret and implement SORNA. See 34 
U.S.C. 20912(b). The previous SORNA-related documents are as follows:
    (1) Interim rule entitled, ``Applicability of the Sex Offender 
Registration and Notification Act,'' published at 72 FR 8894 (Feb. 28, 
2007). The interim rule solicited public comments, and the comment 
period ended on April 30, 2007. The interim rule added a new part 72 to 
title 28 of the Code of Federal Regulations, entitled ``Sex Offender 
Registration and Notification.'' The interim rule provided that ``[t]he 
requirements of the Sex Offender Registration and Notification Act 
apply to all sex offenders, including sex offenders convicted of the 
offense for which registration is required prior to the enactment of 
that Act.'' 28 CFR 72.3.
    (2) Proposed guidelines, published at 72 FR 30210 (May 30, 2007), 
whose general purpose was to provide guidance and assistance to 
registration jurisdictions in implementing the SORNA standards in their 
sex offender registration and notification programs. The proposed 
guidelines solicited public comment, and the comment period ended on 
August 1, 2007.
    (3) Final guidelines for registration jurisdictions regarding SORNA 
implementation entitled, ``The National Guidelines for Sex Offender 
Registration and Notification'' (the ``SORNA Guidelines''), published 
at 73 FR 38030 (July 2, 2008).
    (4) Proposed supplemental guidelines for SORNA implementation, 
published at 75 FR 27362 (May 14, 2010), whose general purpose was to 
address certain issues arising in SORNA implementation that required 
that some aspects of the SORNA Guidelines be augmented or modified. The 
proposed supplemental guidelines solicited public comment, and the 
comment period closed on July 13, 2010.
    (5) Final rule entitled, ``Applicability of the Sex Offender 
Registration and Notification Act,'' published at 75 FR 81849 (Dec. 29, 
2010). This rule finalized the February 28, 2007, interim rule 
providing for SORNA's applicability to all sex offenders, including 
those with pre-SORNA convictions.
    (6) Final supplemental guidelines for SORNA implementation 
entitled, ``Supplemental Guidelines for Sex Offender Registration and 
Notification'' (the ``SORNA Supplemental Guidelines''), published at 76 
FR 1630 (Jan. 11, 2011).
    (7) Proposed supplemental guidelines, published at 81 FR 21397 
(Apr. 11, 2016), whose general purpose was to afford registration 
jurisdictions greater flexibility in their efforts to substantially 
implement SORNA's juvenile registration requirement. These proposed 
supplemental guidelines solicited public comment, and the comment 
period closed on June 10, 2016.
    (8) Final supplemental guidelines regarding substantial 
implementation of SORNA's juvenile registration requirement entitled, 
``Supplemental Guidelines for Juvenile Registration Under the Sex 
Offender Registration and Notification Act,'' published at 81 FR 50552 
(Aug. 1, 2016).
    (9) Proposed rule entitled, ``Registration Requirements Under the 
Sex Offender Registration and Notification Act,'' published at 85 FR 
49332 (Aug. 13, 2020). The proposed rule solicited public comments and 
the comment period closed on October 13, 2020.

Summary of Comments

    The Department of Justice received over 700 comments on this 
rulemaking from individuals and organizations. Most of the comments 
amounted to general criticisms of sex offender registration or SORNA. 
Some of the

[[Page 69858]]

comments proposed specific changes to the provisions of the proposed 
rule. Having carefully considered all comments, the Department of 
Justice has concluded that the regulations in this rulemaking should be 
promulgated without change from the proposed rule, except for amendment 
of Sec.  72.8(a)(1)(i)-(ii) to specify the circumstances in which SORNA 
violations may result in Federal criminal liability. The ensuing 
discussion summarizes the principal issues that were raised in the 
public comments.

General Comments

    Most of the comments received amounted to general criticisms of sex 
offender registration or associated public notification requirements. 
Comments of this nature generally argued that sex offender registration 
is of little or no value in protecting public safety and that any value 
it may have is outweighed by adverse effects on sex offenders and their 
families. Some comments in this class proposed that sex offender 
registration be restricted, if not entirely eliminated, such as by 
narrowly limiting the sex offenders or sex offenses for which 
registration is required, ending disclosure of information about sex 
offenders to the general public, setting shorter registration periods, 
or providing broader means for terminating registration. Some of these 
comments criticized requirements in this rule that track express 
statutory requirements, including the statutory requirements relating 
to the jurisdictions in which sex offenders must register, the 
information sex offenders must provide, the duration of registration 
periods, and reporting and verification of certain information through 
in-person appearances. See 34 U.S.C. 20913-16, 20918.
    These comments could not be accepted in this rulemaking because the 
Attorney General has no authority to repeal the requirements enacted by 
Congress in SORNA or the sex offender registration laws of non-Federal 
jurisdictions. This rule interprets and implements SORNA, as directed 
by 34 U.S.C. 20912(b). The Attorney General's regulatory authority 
under SORNA does not include second-guessing the underlying legislative 
policy judgments or nullifying the measures that Congress has adopted 
in the law. See 73 FR at 38036.
    Some comments criticized the rule's specification of registration 
requirements which, wholly or in part, do not appear expressly in 
SORNA. The matters criticized included requirements to provide 
information about actual and purported dates of birth and Social 
Security numbers, temporary lodging away from residence, passports and 
immigration documents, and professional licenses. In addition to 
comments criticizing the extent of the information required by the 
rule, some comments in this class criticized requirements adopted by 
the Attorney General to keep registration information up to date. These 
include requirements to report in advance departure from a 
jurisdiction, the requirement to report within three business days 
changes relating to remote communication identifiers, temporary 
lodging, and vehicle information, and the requirement to report 
international travel at least 21 days in advance.
    The Attorney General has adopted these measures in the exercise of 
powers that SORNA provides to interpret and implement SORNA, specify 
required registration information, and prescribe time-and-manner 
requirements for providing and updating the information. See 34 U.S.C. 
20912(b), 20914(a)(7)-(8), (c). Each of these measures is justified as 
a means of furthering SORNA's objective of protecting the public from 
sex offenders and offenders against children by establishing a 
comprehensive national registration system, see id. 20901, or as a 
means of implementing or enforcing SORNA's provisions. The specific 
reasons for the various requirements are explained in the section-by-
section analysis below. The comments received provided no persuasive 
grounds to abrogate or modify these requirements.
    Some comments argued that SORNA or this rule are unconstitutional 
on various grounds, such as the prohibitions of cruel and unusual 
punishment, double jeopardy, and ex post facto laws, the right to 
travel, and the requirement of due process. Claims of this nature are 
familiar to the Department of Justice, having been raised in litigative 
challenges to SORNA and rejected by the Federal courts. See, e.g., 
Willman v. Att'y Gen., 972 F.3d 819, 824-27 (6th Cir. 2020). The 
comments provided no persuasive reason to believe that any aspect of 
SORNA or this rule is unconstitutional.
    Some comments objected to the application of SORNA's requirements 
to sex offenders whose offenses or convictions predate SORNA, as 
provided in Sec.  72.3 in this rule. Section 72.3 is necessary to 
implement Congress's intent that SORNA apply to all sex offenders, 
regardless of when they were convicted. See Reynolds v. United States, 
565 U.S. 432, 442-45 (2012); id. at 448-49 & n. (Scalia, J., 
dissenting) (agreeing that Congress intended for SORNA to apply to all 
sex offenders); Gundy v. United States, 139 S. Ct. 2116, 2123-30 (2019) 
(plurality opinion). The section-by-section analysis below provides 
further explanation of the provisions and rationale of Sec.  72.3.
    Some comments objected to substantive restrictions imposed on sex 
offenders in some jurisdictions, such as restrictions on where they can 
live, prohibitions of proximity to schools or children, or exclusion 
from some types of employment. These comments are not germane to this 
rule, which articulates SORNA's registration requirements for sex 
offenders, because SORNA's requirements are informational in nature and 
do not restrict where sex offenders can go or what they can do. See 73 
FR at 38032. A similar response applies to comments that were critical 
of requirements under other laws that identification documents, such as 
passports and drivers' licenses, include notations identifying the 
holders as sex offenders. These comments are misdirected in relation to 
this rule because SORNA does not impose such requirements, and, where 
they are prescribed by other laws, the Attorney General has no 
authority to rescind or modify them by rulemaking.
    Some comments criticized public disclosure of information about sex 
offenders, arguing that access to information in the sex offender 
registries should be limited to law enforcement or otherwise narrowly 
restricted. These comments concern the scope of disclosure of sex 
offender information by registration jurisdictions and, as such, are 
not germane to this rule, which concerns SORNA's registration 
requirements for sex offenders. Disclosure of sex offender information 
is separately addressed in statutory provisions that are not implicated 
by this rulemaking and in the SORNA Guidelines and SORNA Supplemental 
Guidelines. See 34 U.S.C. 20916(c), 20920, 20922-23; 73 FR at 38042, 
38058-61; 76 FR at 1632-33, 1636-37.
    Some comments supported issuance of this rule. The benefits 
perceived by these commenters included protecting public safety, 
clarifying SORNA's registration requirements for sex offenders, and 
promoting compliance with those requirements.

A Comment Proposing 10 Changes in the Rule

    A lengthy comment proposed 10 specific changes in the rule:
    (i) The comment proposed that the rule and each discrete 
requirement therein should be revised to say that registrants need only 
comply when

[[Page 69859]]

circumstances supporting Federal jurisdiction are present. Section 
72.8(a)(1)(i)-(ii) in the final rule reproduces the required 
jurisdictional circumstances under 18 U.S.C. 2250, making clear the 
conditions that must be satisfied to support Federal criminal liability 
for SORNA violations. It would be misleading or incorrect to state that 
sex offenders need not comply with the requirements set forth in this 
rule in a broader sense, absent grounds supporting Federal 
jurisdiction, because those requirements are widely paralleled in the 
sex offender registration laws of the states and other non-Federal 
jurisdictions. See National Institute of Justice, Tracking Sex 
Offenders: Federal Law, Resources Have Led to Marked Improvement of 
State Registries, But More Work Is Needed (Nov. 13, 2020) (``At least 
half the states met implementation thresholds for 13 of the 14 SORNA 
standard areas; 75% of the states met the thresholds for at least nine 
areas; and 92% of the states met them for at least half of the SORNA 
areas.''). Sex offenders accordingly may be subject to criminal 
penalties under state law for violating these requirements, regardless 
of whether grounds for Federal jurisdiction exist. While Sec.  
72.8(a)(1)(i)-(ii) has been revised in the final rule to state 
explicitly the scope of Federal jurisdiction to prosecute SORNA 
violations under 18 U.S.C. 2250, the comment was not persuasive that 
the jurisdictional limitation should be referenced repeatedly 
throughout the rule, since the statement in Sec.  72.8(a)(1)(i)-(ii) is 
clear.
    (ii) The comment proposed that the rule incorporate a clear 
statement that a registrant's duty to act under SORNA arises only when 
the registrant travels interstate and that travel has a nexus to the 
alleged SORNA violation. In referring to a registrant's ``duty'' to 
act, the comment apparently meant amenability to Federal prosecution 
under 18 U.S.C. 2250 in case of a violation. The proposed change is 
legally incorrect. The grounds of Federal jurisdiction under section 
2250 include grounds other than interstate travel, such as conviction 
for a Federal sex offense or travel in foreign commerce, and section 
2250 specifies no required ``nexus'' between interstate travel and the 
charged SORNA violation beyond the temporal sequencing implied by the 
provision's language and structure. See Carr v. United States, 560 U.S. 
438, 446 (2010).
    (iii) The comment argued, based on the Supreme Court's decision in 
Nichols v. United States, 136 S. Ct. 1113 (2016), that the rule's 
requirements to report departure from a jurisdiction and termination of 
residence in a jurisdiction under Sec.  72.7(d) and (g) exceed the 
Attorney General's powers under 34 U.S.C. 20914(a) and (c). Adopting 
these requirements is within the Attorney General's powers under SORNA, 
and consistent with the Nichols decision, as explained in the section-
by-section analysis below.
    (iv) The comment proposed that the rule state that Sec.  72.7(g) 
absolves registrants of a duty to report information required by SORNA 
when state law or the local agency does not require that information. 
The proposed statement is legally incorrect because SORNA's 
requirements exist independently of state law requirements, see 
Willman, 972 F.3d at 821-24, and it is not needed to avoid unfairness 
to sex offenders based on differences between SORNA's requirements and 
state law requirements. Section 72.8(a)(1)(iii) in this rule explains 
that sex offenders are not held liable under 18 U.S.C. 2250 for 
violation of registration requirements of which they are unaware, and 
noncompliance with SORNA may be excused where compliance is prevented 
by circumstances beyond their control, such as a jurisdiction's failure 
to carry out a necessary complementary role. These principles apply to 
all requirements under SORNA, including the requirement of Sec.  72.6 
to provide specified types of information for inclusion in the 
registry. Hence, a sex offender is not held liable for failing to 
provide a type of information if he is unaware of a requirement to 
provide that information, as may be the case if a jurisdiction does not 
request that information in its registration forms, and failure to 
provide any type of information may be excused if a jurisdiction will 
not accept that information for inclusion in its registry.
    (v) The comment asserted that the interpretation of the affirmative 
defense of 18 U.S.C. 2250(c), in the analysis statement's discussion of 
Sec. Sec.  72.7(g) and 72.8, violates due process because it shifts the 
burden of proof to defendants. However, Sec.  72.8(a)(1)(iii) explains 
that liability under 18 U.S.C. 2250(a)-(b) is conditioned on the 
defendant's being aware of the requirement he is charged with 
violating. The regulation and the accompanying analysis do not impose 
on the defendant a burden of proving that he lacked such awareness. 
Section 72.8(a)(2) states that there is an affirmative defense to 
liability for noncompliance with SORNA in certain circumstances, 
pursuant to 18 U.S.C. 2250(c). The regulation and the accompanying 
discussion do not change the burden of proof on this defense, which 
Congress has expressly made an ``affirmative defense.'' Id.
    (vi) The comment asserted that Sec.  72.6(b), requiring the 
reporting of remote communication identifiers, violates the First 
Amendment on grounds of ambiguity and because, the comment claimed, it 
infringes on the right to anonymous speech unless accompanied by 
restrictions on public disclosure of the identifiers. The rule's 
specification of covered identifiers is similar to a statutory 
definition in 34 U.S.C. 20916(e)(2) and sufficiently definite. The 
conditions for disclosure of sex offender information by registration 
jurisdictions are beyond the scope of this rulemaking, which concerns 
the registration requirements for sex offenders under SORNA. Separate 
statutory provisions and the SORNA Guidelines and SORNA Supplemental 
Guidelines specify those conditions, which include restrictions on the 
disclosure of remote communication identifiers. See 34 U.S.C. 20916(c); 
73 FR at 38059-60; 76 FR at 1633, 1637.
    (vii) The comment asserted that Sec.  72.8 is deficient because it 
does not expressly refer to the required jurisdictional predicates 
under 18 U.S.C. 2250. As formulated in this final rule, Sec.  72.8 sets 
forth those jurisdictional predicates.
    (viii) The comment asserted that the rule is impermissibly vague in 
a number of respects, including its definition of remote communication 
identifiers, the requirement that sex offenders lacking fixed residence 
addresses or places of employment report the relevant locations with 
whatever definiteness is possible under the circumstances, the 
requirement that sex offenders report information concerning places 
they are staying when away from their residences for seven or more 
days, and the meaning of a ``clean record'' that may reduce the 
registration period for certain sex offenders. However, the 
specification of covered remote communication identifiers in Sec.  
72.6(b) is similar to a statutory definition in 34 U.S.C. 20916(e)(2) 
and sufficiently definite. Where sex offenders do not have definite 
places of residence or employment, the information they provide under 
Sec.  72.6(c)(1) and (c)(3) as to where they are living or working must 
be of a less definite nature, and it is reasonable to require that the 
information be provided with whatever definiteness is possible under 
the circumstances. The matter is further explained in the section-by-
section analysis below and in 73 FR at 38056. The information required 
by Sec.  72.6(c)(2)

[[Page 69860]]

is ``temporary lodging information'' and a related provision, Sec.  
72.7(e), requires sex offenders to report this information to their 
residence jurisdictions within three business days. The two provisions 
adequately convey that a sex offender, within three business days of 
returning to his residence, must report to the residence jurisdiction 
the places he has lodged while away from his residence for seven or 
more days. Section 72.5(c) refers to a ``clean record'' as described in 
34 U.S.C. 20915(b)(1), so the meaning set forth in that statutory 
provision applies.
    (ix) The comment proposed that Sec.  72.5(c) should clarify that 
clean record reductions for tier I offenders and (juvenile delinquent) 
tier III offenders are automatic. Section 72.5(c) states that 
satisfaction of the clean record requirement reduces the registration 
period for the affected classes of sex offenders. The conditions a sex 
offender must satisfy to effect such a reduction are those specified in 
the applicable statute: ``(A) not being convicted of any offense for 
which imprisonment for more than 1 year may be imposed; (B) not being 
convicted of any sex offense; (C) successfully completing any periods 
of supervised release, probation, and parole; and (D) successfully 
completing of [sic] an appropriate sex offender treatment program 
certified by a jurisdiction or by the Attorney General.'' 34 U.S.C. 
20915(b)(1).
    (x) The comment stated that the rule should be revised to include a 
federalism assessment and other requirements under Executive Order 
13132 and the Unfunded Mandates Reform Act. However, the relevant 
regulatory certifications below are correct as they are. This rule 
satisfies the requirements of Executive Order 13132 and the Unfunded 
Mandates Reform Act.

A Comment Proposing 13 Changes or Sets of Changes in the Rule

    Another comment proposed the following changes in the rule:
    (i) The comment argued that Sec.  72.5, relating to the duration of 
the registration period under SORNA, should be changed in various ways. 
It first argued that Sec.  72.5 as drafted conflicts with a provision 
of the Fair Credit Reporting Act, which, the comment asserted, states 
that arrests and convictions may only be reported on background checks 
for seven years after release from prison. The reference is apparently 
to 15 U.S.C. 1681c, which generally ``prohibits [consumer] reporting 
agencies from disclosing any arrest record or other adverse item more 
than seven years old but permits them to report `records of convictions 
of crimes' no matter how long ago they occurred.'' Aldaco v. RentGrow, 
Inc., 921 F.3d 685, 687 (7th Cir. 2019) (quoting 15 U.S.C. 1681c(a)). 
Section 72.5 describes the duration of registration required by SORNA. 
See 34 U.S.C. 20915. It does not affect what may be included in 
consumer reports and does not conflict with the Fair Credit Reporting 
Act. The comment also stated that Sec.  72.5 should be changed to 
establish standardized procedures for determining sex offenders' tiers, 
how long each offender will remain on the registry, and what 
restrictions can be placed on registrants in compliance with their 
constitutional rights, and should create a way for tier II offenders to 
petition for early removal from the registry. The procedures for 
registration jurisdictions to determine sex offenders' tiers are 
outside the scope of this rulemaking, but the SORNA Guidelines provide 
related guidance. See 73 FR at 38052-54. The duration of registration 
under SORNA is governed by statutory criteria, see 34 U.S.C. 20915, and 
cannot be changed by rulemaking. The statutes include no provision for 
reducing the registration periods of tier II offenders. Id. Assessing 
what restrictions can constitutionally be placed on sex offenders, such 
as restrictions on where sex offenders may live or work, is outside the 
scope of this rulemaking, which concerns SORNA's registration 
requirements for sex offenders.
    (ii) The comment criticized Sec.  72.6(b), relating to remote 
communication identifiers, as likely violating the First Amendment and 
overly vague. The comment provided no persuasive reason to believe that 
Sec.  72.6(b) is unconstitutional. The description of covered remote 
communication identifiers in Sec.  72.6(b) is similar to a statutory 
definition appearing in 34 U.S.C. 20916(e)(2) and sufficiently 
definite.
    (iii) The comment claimed that Sec.  72.6(c)(2)'s requirement to 
report temporary lodging information violates a constitutional right to 
travel because, the comment asserted, most places of lodging will not 
knowingly allow sex offenders to stay at their locations if a sex 
offender's travel plans are disclosed to them. The rule requires sex 
offenders to report temporary lodging information within three business 
days, not in advance, and it requires reporting of the information to 
the sex offender's residence jurisdiction, not the premises where he 
intends to stay. See Sec.  72.7(e). The comment provided no persuasive 
reason to believe that this requirement violates any constitutional 
right.
    (iv) The comment proposed to eliminate Sec.  72.6(c)(3), on the 
ground that disclosure of sex offenders' employment information will 
adversely affect the employers and adversely affect the sex offenders' 
ability to obtain employment. Section 72.6 only requires sex offenders 
to provide employment information to registration jurisdictions. It 
does not address the public disclosure of such information and, more 
broadly, the conditions for disclosure of information about sex 
offenders are outside the scope of this rulemaking. The SORNA 
Guidelines separately address the disclosure of sex offender 
information, including employment information. See 73 FR at 38042-43, 
38059.
    (v) The comment claimed that Sec.  72.6(c)(4)'s requirement to 
provide school attendance information violates a right to attend public 
schools without hindrance from the government and a First Amendment 
right of free association because, the comment asserted, most colleges 
and universities will not allow registered sex offenders to enroll. 
However, SORNA requires school attendance information, see 34 U.S.C. 
20914(a)(5), and that requirement cannot be abrogated by rulemaking. 
Section 72.6(c)(4) requires sex offenders to provide school attendance 
information for inclusion in the registries. It does not require or 
encourage schools to deny enrollment to registered sex offenders, and 
any schools that have such a policy would potentially deny admission to 
registered sex offenders regardless of whether SORNA or this rule 
requires sex offenders to provide school attendance information for 
inclusion in the registries. The comment provided no persuasive reason 
to believe that this requirement violates any provision of the 
Constitution.
    (vi) With respect to Sec.  72.6(d), which requires reporting of 
international travel information, the comment stated that the U.S. 
government should be prohibited from providing travel plans to foreign 
nations. Congress made a contrary judgment in International Megan's 
Law, whose purposes include, as stated in its title, ``[t]o protect 
children and others from sexual abuse and exploitation, including sex 
trafficking and sex tourism, by providing advance notice of intended 
travel by registered sex offenders outside the United States to the 
government of the country of destination''. Public Law 114-119; see Doe 
v. Kerry, Case No. 16-cv-0654-PJH, 2016 WL 5339804 (N.D. Cal. Sept. 23, 
2016), appeal dismissed, No. 16-17100, 2017 WL 5514566 (9th Cir. 2017)

[[Page 69861]]

(explaining the background and purposes of International Megan's Law 
and rejecting a constitutional challenge).
    (vii) The comment claimed that Sec.  72.6(g)'s requirement to 
disclose professional licenses violates a right to engage in commerce 
because states may revoke such licenses if notified that the licensee 
is a registered sex offender. The rule does not require states to 
revoke professional licenses issued to registered sex offenders. 
Whether and to what extent criminal histories including sex offenses 
should be disqualifying for professional licenses, such as licenses to 
teach children or to be care providers for persons in vulnerable 
populations, are matters for the states' judgment. The comment provided 
no persuasive reason to believe that requiring sex offenders to report 
professional licenses is unconstitutional.
    (viii) With respect to Sec.  72.8, the comment asserted that the 
jurisdictional predicate of travel in interstate or foreign commerce in 
18 U.S.C. 2250 should be interpreted to apply only on the basis of 
business-related travel. There is no basis for such a restriction; it 
would depart from the interpretation of travel in interstate or foreign 
commerce in other federal laws; and it would conflict with SORNA's 
objective of reliably tracking sex offenders as they relocate among 
jurisdictions or travel abroad.
    (ix) With respect to Sec.  72.6(c)(3), which requires sex offenders 
to report the names and addresses of places of employment, the comment 
argued that this information should not be made public. The matter is 
outside the scope of this rulemaking, which concerns the registration 
requirements for sex offenders under SORNA, not the conditions for 
disclosure of sex offender information by registration jurisdictions. 
The SORNA Guidelines address the latter issue, including disclosure of 
employment information. See 73 FR at 38042-43, 38059.
    (x) The comment took issue with the regulatory certification below 
relating to Executive Orders 12866 and 13563. The comment assumed that 
the requirements in this rule are new requirements and hence will 
result in increased costs for sex offenders and registration 
jurisdictions. The premise is incorrect. As the regulatory 
certification explains, there are no new costs for registration 
jurisdictions because their requirements under SORNA continue to be 
those articulated in the previously issued SORNA Guidelines and SORNA 
Supplemental Guidelines. Likewise, for sex offenders, the requirements 
articulated in the rule either appear expressly in SORNA or have 
previously been articulated by the Attorney General in the SORNA 
Guidelines and SORNA Supplemental Guidelines. This rule will not change 
the registration procedures of the registration jurisdictions or make 
those procedures more time-consuming or expensive. There is accordingly 
no reason to change the relevant regulatory certification.
    (xi) The comment took issue with the regulatory certification below 
relating to Executive Order 13132 (Federalism), claiming that this rule 
will have a significant impact on the relationship between the states 
and the Federal government by creating Federal criminal penalties for 
sex offenders who violate SORNA's requirements and by creating funding 
reductions for states that do not implement SORNA's requirements in 
their registration programs. The premise of this comment is incorrect 
because the relevant Federal criminal penalties and funding incentive 
have existed since SORNA's enactment in 2006. See 18 U.S.C. 2250; 34 
U.S.C. 20927.
    (xii) The comment took issue with the regulatory certification 
relating to subtitle E of title II of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (the ``Congressional Review Act''), 
assuming that the rule will result in novel requirements to provide and 
disclose sex offenders' employment information with adverse effects on 
sex offenders and their employers. The assumption is incorrect because 
the requirements relating to employment information have existed for 
many years in SORNA and the SORNA Guidelines. See 34 U.S.C. 
20914(a)(4); 73 FR 38042-43, 38059.
    (xiii) With respect to Sec.  72.6(c)(2), the comment stated that 
the rule must forbid a sex offender's home jurisdiction from routinely 
notifying a jurisdiction to which a registrant plans to travel or 
notifying a place of lodging that a registrant plans to stay there. The 
comment argues that such notification violates a constitutional right 
to travel because the destination jurisdictions may impose unwanted 
requirements and restrictions on sex offenders if it is known they are 
coming and the temporary lodging providers may not allow registered sex 
offenders to stay on their properties. However, the rule requires sex 
offenders to report temporary lodging information within three business 
days, not in advance. See Sec.  72.7(e). If the residence jurisdiction 
knows about the sex offender's travel plans in advance anyway, and 
conveys the information to the destination jurisdiction or persons 
therein, no persuasive reason appears to believe that doing so is 
unconstitutional. Be that as it may, this rule concerns the 
registration requirements for sex offenders under SORNA, and the 
conditions for disclosure of information about sex offenders by 
registration jurisdictions, including temporary lodging information, 
are outside of its scope. The SORNA Guidelines separately address the 
conditions for such disclosure. See 73 FR at 38058-61.

A Comment Proposing 24 Changes in the Rule

    Another comment proposed 24 changes in the rule:
    (i) With respect to Sec.  72.1, the comment stated that subsection 
(b) should be revised to allow states to adopt requirements less 
stringent than SORNA without fear of losing federal funds, or 
alternatively, clarify the existing rule that states may adopt 
registration requirements that are substantially similar to SORNA. The 
matter is outside the scope of this rulemaking, which is concerned with 
the registration requirements for sex offenders under SORNA, not the 
requirements for registration jurisdictions. The funding reduction or 
reallocation for jurisdictions that do not substantially implement 
SORNA is a statutory matter and cannot be abrogated by rulemaking. See 
34 U.S.C. 20927. The SORNA Guidelines and SORNA Supplemental Guidelines 
explain the substantial implementation requirement and the funding 
incentive. See 73 FR at 38047-48; 76 FR at 1638-39.
    (ii) With respect to Sec.  72.3, the comment proposed removing the 
application of SORNA based on pre-SORNA offenses, or specifying that 
SORNA does not apply to sex offenders not already required to register 
prior to SORNA's enactment. That conflicts with Congress's intent that 
SORNA apply to all sex offenders, regardless of when they were 
convicted, as discussed above and in the section-by-section analysis 
below.
    (iii) With respect to Sec.  72.5, the comment proposed clarifying 
that classification of sex offenders should be based upon the risk 
posed by offenses as represented by tier levels, and revising 
subsection (c) to allow reductions for all levels consistent with 
scientific research or recidivism risk. SORNA specifies the criteria 
for its tier classifications and the conditions for reducing 
registration periods. See 34 U.S.C. 20911(2)-(4); 20915. These matters 
are determined by statute and cannot be changed by rulemaking.
    (iv) With respect to Sec.  72.6(b), relating to remote 
communication identifiers, the comment proposed clarifying that IP

[[Page 69862]]

addresses are not required and proposed stating that requiring 
telephone numbers of ``known associates'' is a violation of privacy 
laws. Section 72.6(b) requires that sex offenders provide the 
designations they use for purposes of routing or self-identification in 
internet or telephonic communications or postings, including email 
addresses and telephone numbers. The specification of required 
information, which is similar to a statutory definition appearing in 34 
U.S.C. 20916(e)(2), is sufficiently clear as drafted, and does not 
require sex offenders to provide IP addresses or the telephone numbers 
of ``known associates.''
    (v) With respect to Sec.  72.6(c), relating to provision of 
information concerning residence, temporary lodging, employment, and 
school attendance, the comment proposed providing grace periods for 
registration to reflect that loss of housing and employment can occur 
without warning and that it may take time to locate a replacement. 
SORNA and the rule generally allow three business days to report 
changes in residence, employment, and school attendance, or temporary 
lodging information. See Sec.  72.7(c), (e). There is no need to 
stipulate a ``grace period'' for sex offenders who have nothing within 
the scope of Sec.  72.6(c) to report, as may be the case with a sex 
offender who has just lost his residence or job and has no expectation 
about where he will be living or working in the future.
    (vi) The comment proposed eliminating Sec.  72.6(c)(2), relating to 
temporary lodging information, or alternatively, specifying that this 
information is not part of the public record and may not be promulgated 
by third-party sites without penalty. The section-by-section analysis 
below explains the justification for requiring temporary lodging 
information. The conditions for public disclosure of information about 
sex offenders by registration jurisdictions, including temporary 
lodging information, are outside the scope of this rulemaking, which is 
concerned with the registration requirements for sex offenders under 
SORNA. The SORNA Guidelines separately address disclosure of sex 
offender information by registration jurisdictions and do not require 
registration jurisdictions to disclose sex offenders' temporary lodging 
information on the public sex offender websites. See 73 FR at 38059. 
The Attorney General has no authority to create penalties for third-
party sites that disclose sex offenders' temporary lodging information.
    (vii) With respect to Sec.  72.6(c)(3), relating to employment 
information, the comment proposed defining place of employment. Section 
72.6(c)(3) is sufficiently clear as drafted, requiring the name and 
address of any place where a sex offender is or will be an employee or, 
for sex offenders who are or will be employed but with no fixed place 
of employment, other information describing where the sex offender 
works or will work with whatever definiteness is possible under the 
circumstances. In referring to place of employment, the language of 
Sec.  72.6(c)(3) tracks the statutory requirement that sex offenders 
provide ``[t]he name and address of any place where the sex offender is 
an employee or will be an employee,'' 34 U.S.C. 20914(a)(4).
    (viii) With respect to Sec.  72.6(c)(1), the comment proposed 
defining residence, specifically asking how a person registers a 
residence address if he is transient or homeless. The comment 
identified no lack of clarity in Sec.  72.6(c)(1) that would require 
further definition. A person who has no residence address cannot, of 
course, report a residence address. For such situations, Sec.  
72.6(c)(1) provides that ``if the sex offender has no present or 
expected residence address,'' then the sex offender must provide 
``other information describing where the sex offender resides or will 
reside with whatever definiteness is possible under the 
circumstances.''
    (ix) With respect to Sec.  72.6(d) and (e), relating to information 
about international travel and passports and immigration documents, the 
comment proposed that the rule prohibit this information from becoming 
part of the public record. The conditions for public disclosure by 
registration jurisdictions of information about sex offenders, 
including information about their international travel and their 
passports and immigration documents, are outside the scope of this 
rulemaking, which concerns the registration requirements for sex 
offenders under SORNA. Disclosure of sex offender information is 
addressed in statutes not implicated by this rulemaking and in the 
SORNA Guidelines and SORNA Supplemental Guidelines, which do not 
require inclusion of international travel, passport, and immigration 
document information on the public sex offender websites. See 73 FR at 
38059.
    (x) With respect to Sec.  72.6(f), relating to vehicle information, 
the comment asked for evidence that watercraft and aircraft have been 
used in the commission of sexual offenses to justify the collection of 
information about such vehicles. As the section-by-section analysis 
below explains, vehicle information may be useful to help prevent 
flight, facilitate investigation, or effect an apprehension if a sex 
offender commits new offenses or violates registration requirements. 
This rationale applies to watercraft and aircraft, as well as land 
vehicles, whether or not the particular vehicles are used in committing 
sex offenses.
    (xi) The comment proposed to specify in Sec.  72.6(g), relating to 
information about professional licenses, that professional licensing 
shall not be denied based on conviction for a sexual offense unless it 
has a relationship to the responsibilities of the job. SORNA imposes no 
professional or occupational disqualifications on sex offenders, and 
the matter is outside the scope of this rulemaking, which concerns the 
registration requirements for sex offenders under SORNA. The Attorney 
General has no authority to prohibit or restrict any professional or 
occupational disqualifications for sex offenders that states may adopt.
    (xii) The comment said that Sec.  72.6 should be revised because 
SORNA does not require public disclosure of certain types of 
information about sex offenders, mentioning specifically employer name, 
information about tier I sex offenders (not convicted of a specified 
offense against a minor), and non-sexual offenses. The requirements and 
exceptions for public disclosure of information about sex offenders by 
registration jurisdictions are outside the scope of this rulemaking, 
which concerns the registration requirements for sex offenders under 
SORNA, and they are not within the subject matter of Sec.  72.6, which 
identifies types of information sex offenders must provide for 
inclusion in the registries. Public disclosure of sex offender 
information is separately addressed in statutes not germane to this 
rulemaking and in the SORNA Guidelines and SORNA Supplemental 
Guidelines, which do not require registration jurisdictions to include 
on their public sex offender websites the types of information 
referenced in this part of the comment. See 73 FR at 38059.
    (xiii) The comment said that the regulations should require 
accurate information (about sex offenders), provide penalties for 
inaccurate information or for use of the information to harm the family 
of the person required to register, and discourage third-party 
dissemination of information. These matters are outside the scope of 
this rulemaking, which concerns the registration requirements for sex 
offenders under SORNA. SORNA independently directs registration 
jurisdictions to ``include instructions on

[[Page 69863]]

how to seek correction of information that an individual contends is 
erroneous'' on their public sex offender websites. 34 U.S.C. 20920(e). 
It further directs that these websites ``shall 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 that ``[t]he 
warning shall note that any such action could result in civil or 
criminal penalties.'' Id. Sec.  20920(f).
    (xiv) With respect to Sec.  72.7(b), regarding periodic in-person 
verification of registration information, the comment proposed 
providing an alternative to in-person verification in instances of 
natural disasters. The in-person verification requirement is statutory, 
see 34 U.S.C. 20918, and cannot be changed by rulemaking. However, 
Sec.  72.8(a)(2) in this rule explains that noncompliance with SORNA's 
requirements (including its in-person appearance requirements) may be 
excused if compliance is prevented by circumstances beyond the sex 
offender's control, circumstances that could include the exigencies 
presented in natural disasters.
    (xv) With respect to Sec.  72.8, regarding criminal liability under 
18 U.S.C. 2250, the comment proposed (a) providing that the penalty for 
state violations shall be governed by state law, (b) providing a 
defense for individuals compliant with state law, and (c) providing a 
defense for persons with out-of-state convictions who fail to register 
through good-faith belief that registration is not required. These 
proposed changes are in part legally incorrect and in part already 
covered. Congress enacted SORNA's criminal provision to provide Federal 
criminal penalties for both state and Federal sex offenders who violate 
SORNA's requirements under circumstances supporting Federal 
jurisdiction. See 18 U.S.C. 2250(a)-(b); 34 U.S.C. 20911(1), (5)-(8). 
SORNA's requirements apply to both state and Federal sex offenders 
regardless of whether they are paralleled in state law registration 
requirements. See Willman, 972 F.3d at 821-24 and Sec.  72.3 in this 
rule. As provided in Sec.  72.8(a)(1)(iii), sex offenders are not 
subject to liability under 18 U.S.C. 2250 for violating registration 
requirements of which they are unaware, a limitation that applies 
regardless of whether their convictions are in-state or out-of-state.
    (xvi) The comment proposed establishing that these regulations are 
not intended to replace the legislative process. With respect to the 
Federal legislative process, this rule interprets and implements 
Congress's decisions in SORNA, see 34 U.S.C. 20912(b), and does not 
supplant or replace them. Rather, the many comments proposing that this 
rule abrogate SORNA's requirements seek the replacement of the Federal 
legislative process with inconsistent rulemaking. The Attorney 
General's actions in this rulemaking are not exercises of Federal 
legislative power barred by the non-delegation doctrine, as explained 
in the section-by-section analysis below. With respect to state 
legislative processes, the Attorney General has no authority over what 
state legislatures choose to do and cannot replace their processes by 
rulemaking.
    (xvii) The comment proposed providing that (state) judicial 
precedents apply in the case of any rules that conflict with state 
supreme court decisions. State judicial decisions finding state 
registration laws to be in conflict with the state constitution do not 
affect the validity of the corresponding requirements under SORNA. 
However, SORNA allows such decisions to be taken into account in 
determining whether states have substantially implemented SORNA's 
requirements in their registration programs. See 34 U.S.C. 20927(b).
    (xviii) The comment proposed clarification of the process for 
classification of out-of-state offenders. The process by which states 
classify out-of-state offenders is outside the scope of this 
rulemaking, which concerns the registration requirements for sex 
offenders under SORNA. The SORNA Guidelines provide guidance to the 
states and other registration jurisdictions regarding the application 
of SORNA's tiering criteria to all sex offenders, including out-of-
state offenders. See 73 FR at 38052-54.
    (xix) The comment proposed discouraging the inclusion of non-
essential information in the public sex offender websites. The matter 
is outside the scope of this rulemaking, which concerns the 
registration requirements for sex offenders under SORNA. Other 
provisions of SORNA and the SORNA Guidelines and SORNA Supplemental 
Guidelines address the types of information that should or should not 
be included on the public websites, or whose inclusion or exclusion is 
within the discretion of the registration jurisdictions. See 34 U.S.C. 
20920; 73 FR at 38058-61; 76 FR at 1636-37.
    (xx) The comment proposed encouraging states to provide penalties 
for vigilantism. All states already have criminal penalties for 
unlawful violence against persons, including sex offenders, whether by 
vigilantes or others, and the Department of Justice rejects and 
condemns all unlawful violence against persons, including sex 
offenders. SORNA's standards provide that public sex offender websites 
``shall 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 ``note that any such action could result in civil or 
criminal penalties.'' 34 U.S.C. 20920(f).
    (xxi) The comment proposed encouraging states to use risk 
assessment and other proven methods for the identification, treatment, 
and termination of low-risk offenders. The criteria for classification 
of sex offenders and early termination of registration are statutory 
and cannot be changed by rulemaking. See 34 U.S.C. 20911(2)-(4), 20915. 
Assessment of sex offenders for purposes of treatment is outside the 
scope of this rulemaking, which concerns the registration requirements 
for sex offenders under SORNA.
    (xxii) The comment proposed discouraging states from utilizing 
residency restrictions or other proximity restrictions. SORNA does not 
prescribe or encourage residency or other proximity restrictions, and 
the matter is outside the scope of this rulemaking, which concerns the 
registration requirements for sex offenders under SORNA.
    (xxiii) The comment proposed discouraging states from lifetime 
registration for all, and instead recommending adoption of SORNA's 
tiered registration periods as provided in Sec.  72.5. SORNA's 
requirements generally constitute a floor rather than a ceiling for 
state registration programs. See 73 FR at 38032-35, 38046. Whether 
registration jurisdictions choose to adopt more stringent registration 
requirements than SORNA's minimum national standards, including longer 
registration periods, is a matter within their discretion. See id. 
Recommending that states go no further than SORNA's requirements is not 
necessary for the purposes of this rulemaking, which articulates the 
registration requirements for sex offenders under SORNA, and the 
comment was not persuasive that the rule should incorporate such a 
recommendation. In responding to public comments of a similar nature, 
the SORNA Guidelines noted that ``many jurisdictions have adopted 
durational requirements for registration that . . . may . . . exceed 
the . . . SORNA minimum . . . such as making lifetime registration the 
norm in relation to registrants generally.'' 73 FR at 38034. 
Consequently, ``taking the SORNA standards as a ceiling . . . would 
require many jurisdictions to reduce or

[[Page 69864]]

eliminate requirements that they were free to adopt . . . and currently 
apply,'' which ``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.'' Id.
    (xxiv) The comment proposed providing that International Megan's 
Law, residency restrictions, and other regulatory measures only apply 
for the duration of registration. International Megan's Law added the 
international travel reporting requirements of SORNA and related 
authorities, appearing in 34 U.S.C. 20914(a)(7), (c) and implemented by 
Sec. Sec.  72.6(d), 72.7(f) of this rule. In common with the other 
requirements under SORNA appearing in this rule, those requirements 
continue to apply until the end of the SORNA registration period. 
Whether registration jurisdictions choose to impose such requirements 
for longer periods than the registration periods prescribed by SORNA is 
within their discretion. See 73 FR at 38046. Residency restrictions, 
where they exist, are based on the laws of the jurisdictions that 
choose to adopt them. SORNA does not require such restrictions, the 
Attorney General has no authority to specify their duration, and they 
are outside the scope of this rulemaking.

A Comment Proposing Five Changes in the Rule

    Another comment proposed five changes in the rule:
    (i) The comment stated that the Attorney General should disclose 
all ``ex parte contacts'' with United States Attorneys because, the 
comment asserted, some parts of the rule (such as Sec.  72.3) appear to 
be targeting common defenses raised by sex offenders accused of failing 
to register and hence may be the product of litigation strategy rather 
than reasoned rulemaking. The comment reflects a false opposition 
between addressing issues that have arisen in litigation and reasoned 
rulemaking. This rulemaking carries out a statutory directive to the 
Attorney General to issue regulations to interpret and implement SORNA, 
see 34 U.S.C. 20912(b), in furtherance of SORNA's objective of 
protecting the public from sex offenders by establishing a 
comprehensive national system for their registration, see id. 20901. In 
carrying out this responsibility, the Attorney General reasonably 
resolves issues and problems that have arisen in SORNA implementation, 
including those arising in the enforcement of SORNA by means of the 
criminal provision Congress has enacted for that purpose, 18 U.S.C. 
2250.
    (ii) The comment said that the rule, for fair notice reasons, 
should specify that other uncodified legislative rules imposing 
registration duties on sex offenders under SORNA are abrogated. The 
comment did not identify ``legislative rules'' outside of these 
regulations that it was referring to or provide a persuasive reason for 
declaring that such rules are abrogated. This rule encompasses all 
current regulations issued by the Attorney General under SORNA. The 
other SORNA-related final documents the Attorney General has published 
in the Federal Register, listed in the ``rulemaking history'' section 
above, are guidelines that provide guidance and assistance to 
registration jurisdictions in implementing SORNA. Section 
72.8(a)(1)(iii) in this rule moots fair notice concerns by explaining 
that sex offenders are not held liable under 18 U.S.C. 2250 for 
violating registration requirements of which they are unaware.
    (iii) The comment said that the Attorney General, for Tenth 
Amendment and fair notice reasons, should specify that states are 
permitted to impose less stringent registration requirements than 
SORNA's standards and that registrants fully comply with SORNA by 
complying with state registration laws even if the state has not 
implemented SORNA. However, this rule articulates SORNA's registration 
requirements for sex offenders; it does not compel states to do 
anything. States are afforded a funding incentive to substantially 
implement SORNA's requirements in their registration programs, a 
statutory condition that cannot be abrogated by rulemaking. See 34 
U.S.C. 20927. Section 72.8(a)(1)(iii) in this rule moots fair notice 
concerns by explaining that sex offenders are not held liable under 18 
U.S.C. 2250 for violating requirements of which they are unaware, and 
Sec.  72.8(a)(2) further explains that noncompliance with SORNA may be 
excused where compliance was prevented by a state's failure to carry 
out a necessary complementary role. The notion that sex offenders need 
only comply with SORNA's registration requirements where state law 
imposes the same requirements is incorrect as a matter of law. See 
Willman, 972 F.3d at 821-24.
    (iv) Section 72.5(b) in the rule states that the registration 
period of a sex offender sentenced to imprisonment begins to run when 
he is released from custody. The comment asserted to the contrary that 
a sex offender's registration period begins to run when the registrant 
is convicted, for three reasons. First, the comment argued that there 
is no reason to suspend the running of the registration period during 
the sex offender's initial confinement. This argument is question-
begging because it assumes that the registration period is already 
running before the sex offender is released. Second, the comment 
asserted that Sec.  72.5(b)'s interpretation of SORNA is implausible 
because it would mean that a sex offender must initially register 
before the registration period has begun, given the requirement of 34 
U.S.C. 20913(b)(1) that a sex offender initially register before 
completing his sentence of imprisonment. However, SORNA logically 
requires that a sex offender be advised of his registration obligations 
and initially registered shortly before his release from custody, see 
34 U.S.C. 20919(a), because that is the point at which he is about to 
be released into the community and the post-release tracking and 
notification functions of sex offender registration are initially 
implicated. See 73 FR at 38062-63. Third, the comment asserted that 
running the registration period from conviction provides a readily 
ascertainable starting date and is consistent with Congress's decision 
to base sex offenders' registration duties on the crimes for which they 
have been convicted. Running the registration period from release 
likewise provides a definite starting point that is consistent with 
SORNA's tiering criteria for sex offenders and the associated 
registration periods. See 34 U.S.C. 20911(2)-(4), 20915. The section-
by-section analysis below provides further explanation regarding the 
commencement of sex offenders' registration periods under SORNA and why 
the starting point is release from custody for an imprisoned offender.
    (v) The comment argued that Sec.  72.7(f) violates a constitutional 
right to travel by requiring sex offenders to report intended 
international travel at least 21 days in advance because, the comment 
asserted, it makes registrants liable for felony convictions every time 
they travel without providing 21 days' notice. It further asserted that 
Congress's failure to incorporate the 21-day notice requirement into 
International Megan's Law evinces a congressional judgment that the 
requirement is unnecessary and unduly burdensome, and that advance 
notice of less than 21 days may afford Federal authorities adequate 
time to notify destination countries. However, the Attorney General 
initially adopted the 21-day advance notice requirement in the SORNA 
Supplemental Guidelines, reflecting the judgment of

[[Page 69865]]

the responsible Federal agencies concerning the time needed for 
effective notification regarding international travel by sex offenders, 
but recognizing that exceptions to that requirement may be necessary 
and appropriate in certain circumstances. See 76 FR at 1637-38. This 
rule follows the same approach, generally requiring 21-day advance 
notice, but allowing later notice when a sex offender does not 
anticipate a trip abroad that far in advance. See Sec. Sec.  72.6(d), 
72.7(f), 72.8(a)(2) Ex. 3, and the accompanying discussion in the 
section-by-section analysis below. The analysis explains that ``[t]he 
21-day advance notice requirement is designed to provide relevant 
agencies . . . sufficient lead time for any investigation or inquiry 
that may be warranted relating to the sex offender's international 
travel, and for notification of U.S. and foreign authorities in 
destination countries, prior to the sex offender's arrival in a 
destination country.'' In SORNA, as amended by International Megan's 
Law, Congress empowered the Attorney General to prescribe ``time and 
manner requirements'' in conformity with which sex offenders must 
``provide and update information . . . relating to intended travel 
outside the United States,'' 34 U.S.C. 20914(c), which Congress would 
not logically have done if it deemed unnecessary and unduly burdensome 
the 21-day advance notice requirement that the Attorney General had 
already adopted in the SORNA Supplemental Guidelines. The comment 
provided no persuasive reason to believe that any constitutional right 
is violated by these aspects of the rule, which are within the scope of 
the express authority Congress has given the Attorney General to 
prescribe timing requirements for reporting international travel.

A Comment Alleging Four Inconsistencies With SORNA

    A comment argued that this rule is inconsistent with SORNA in four 
respects.
    (i) The comment claimed that Sec.  72.3, providing in part that sex 
offenders must comply with SORNA's requirements regardless of whether a 
jurisdiction has substantially implemented those requirements, is 
inconsistent with SORNA because Congress did not intend to punish sex 
offenders for jurisdictions' failures to implement SORNA. However, 
Sec.  72.3 accurately states the law. See Willman, 972 F.3d at 821-24. 
Section 72.8(a)(1)(iii) explains that sex offenders are not held liable 
for violating requirements under SORNA of which they are unaware, and 
Sec.  72.8(a)(2) explains that failure to comply with SORNA's 
requirements may be excused where compliance is prevented by a 
jurisdiction's failure to carry out a necessary complementary role. 
There is accordingly no punishment of sex offenders based on 
jurisdictions' shortcomings.
    (ii) The comment claimed that Sec. Sec.  72.7(d) and 72.6(c), in 
requiring departure-notification by sex offenders in certain 
circumstances, conflict with 34 U.S.C. 20913(c), as interpreted by the 
Supreme Court in Nichols, 136 S. Ct. at 1117-19. However, as the 
section-by-section analysis below explains, the departure-notification 
provisions of the rule are premised on powers of the Attorney General 
under other provisions of SORNA and are consistent with Nichols.
    (iii) The comment claimed that Sec.  72.7(c) is inconsistent with 
SORNA in requiring that a sex offender must report changes in 
residence, employment, and school attendance in the jurisdictions in 
which they occur, because 34 U.S.C. 20913(c) only requires that a sex 
offender appear in person and report the change ``in at least 1 
jurisdiction involved'' without further specification. However, the 
section-by-section analysis below explains that the specification of 
the relevant jurisdiction is within the Attorney General's authority 
under 34 U.S.C. 20912(b) and 34 U.S.C. 20914(c) to interpret and 
implement SORNA and to prescribe the manner in which sex offenders must 
provide and update information required by SORNA. The analysis also 
explains the justification for this specification based on the purposes 
of SORNA's in-person appearance requirements.
    (iv) The comment proposed amending Sec.  72.7(e) and (f), which 
require sex offenders to report to the residence jurisdiction 
information relating to remote communication identifiers, temporary 
lodging, vehicles, and international travel. Specifically, the comment 
said that sex offenders should be permitted to report such changes to 
any ``involved jurisdiction,'' as referenced in 34 U.S.C. 20913(c). In 
support of the proposed amendment, the comment argued that, for 
example, it could be nearly impossible for an offender who works long 
hours at a job in State A, but lives in State B, to report the required 
information in State B during normal business hours without having to 
miss work. However, Sec.  72.7(e) and (f) do not require the reporting 
of information through in-person appearances, but rather allow 
reporting by whatever means the jurisdiction allows, such as an email 
or phone call.

Other Comments

    Other comments proposed additional changes to this rule, beyond 
those discussed above, but did not provide persuasive reasons for such 
changes. The proposals put forward by one or more commenters included 
the following:
    A comment proposed that Sec.  72.6(c)(2)'s requirement that a sex 
offender report temporary lodging when away from his residence for 
seven or more days should be changed to require such reporting only 
when the sex offender is away from his residence for 14 or more days. 
The reasons given by the comment were that vacation time is generally 
two weeks and, for families on opposite coasts, it is impossible to 
drive across the country, visit, and drive back within seven days. 
However, Sec.  72.6(c)(2) does not prohibit sex offenders from 
traveling away from their residences for any amount of time. It just 
requires them to report to the residence jurisdiction within three 
business days lodging away from their residences for seven or more 
days. See Sec.  72.7(e).
    A comment objected to the requirement of Sec.  72.6(f) that sex 
offenders provide information as to where any vehicle owned or operated 
by the sex offender is habitually parked, docked, or otherwise kept, on 
the ground that innocent people should not get dragged onto the 
registry because they allow a registered sex offender to visit. 
However, the referenced provision in Sec.  72.6(f) does not require sex 
offenders to report the identities or addresses of people they visit. 
It just requires reporting where they habitually keep their vehicles. 
As the section-by-section analysis below explains, this information may 
be useful to help prevent flight, facilitate investigation, or effect 
an apprehension if a sex offender commits new offenses or violates 
registration requirements.
    A comment objected that the rule would burden sex offenders who 
telework or telelearn with employers or schools in remote jurisdictions 
by requiring them to travel to those jurisdictions to register or 
report changes. However, Sec.  72.4 in the rule requires a sex offender 
to register and keep the registration current in each jurisdiction in 
which the offender resides, is an employee, or is a student, and Sec.  
72.7(c) requires a sex offender to report a change in residence, 
employment, or school attendance through in-person appearance in the 
relevant jurisdiction. These provisions implement statutory 
requirements

[[Page 69866]]

appearing in 34 U.S.C. 20913(a), (c). They do not expand the range of 
jurisdictions in which sex offenders are required to register or report 
changes beyond those identified in the statute. In particular, 
Sec. Sec.  72.4 and 72.7(c) do not require a sex offender to register 
or appear in a jurisdiction in which he has a telework or telelearning 
connection but no physical presence. See 73 FR at 38062. Nor do they 
require a sex offender to register in a jurisdiction in which he has 
some work-related presence but in which he does not regularly work or 
have a fixed place of employment. See id.
    A comment requested clarification regarding (i) the state offenses 
for which SORNA requires registration and (ii) whether SORNA requires 
sex offenders to register in states whose own laws do not require 
registration by those offenders. Regarding the first question, SORNA 
identifies the types of offenses, including state offenses, for which 
it requires registration, see 34 U.S.C. 20911(1), (5)-(8), and the 
SORNA Guidelines provide further explanation, see 73 FR at 38050-52. If 
a sex offender does not know that he is required to register because he 
is unaware that the offense for which he was convicted gave rise to a 
duty to register, then he is not held liable under 18 U.S.C. 2250, 
which only penalizes violations of known registration obligations, as 
explained in Sec.  72.8(a)(1)(iii) in this rule. Regarding the second 
question, SORNA's registration requirements are independent of state 
law registration requirements, see Willman, 972 F.3d at 821-24, but a 
sex offender's noncompliance with SORNA may be excused where compliance 
is prevented by a state's failure to carry out a necessary 
complementary role, as explained in Sec.  72.8(a)(2) in this rule.
    A comment proposed that the rule clarify Federal prosecutorial 
priorities with respect to SORNA violations in jurisdictions that have 
not implemented SORNA, suggesting that Federal prosecution be limited 
or forgone where the jurisdiction's laws do not impose the same 
requirements. However, as Sec.  72.8(a)(1)(iii) in this rule explains, 
sex offenders are not held liable under 18 U.S.C. 2250 for violation of 
registration requirements of which they are unaware, and, as Sec.  
72.8(a)(2) explains, noncompliance with SORNA may be excused where 
compliance is prevented by circumstances beyond their control, such as 
a jurisdiction's failure to carry out a necessary complementary role. 
The comment was not persuasive that the Department of Justice should 
adopt a policy of not prosecuting sex offenders for violating known 
registration obligations under SORNA, where nothing prevented those 
offenders from complying, just because the registration jurisdiction 
had not implemented some aspects of SORNA in its registration program. 
Federal prosecutorial priorities are usually not established by 
regulation, and addressing prosecutorial priorities is not necessary 
for purposes of this rulemaking, which articulates sex offenders' 
registration requirements under SORNA.
    A comment asserted that Sec.  72.3's application of SORNA's 
requirements to all sex offenders, regardless of when they were 
convicted, may violate due process because, at the state level, courts 
may determine whether particular sex offenders are required to 
register. Section 72.3 addresses the general scope of SORNA's 
application, not whether particular sex offenders are required to 
register under state law, and raises no due process issue.
    A comment proposed adding to Sec.  72.5 a provision requiring that 
a sex offender be removed from the sex offender registry if he receives 
a pardon, and that the offense be expunged from all court and law 
enforcement records. However, only pardons on the ground of innocence 
terminate registration obligations under SORNA, see 73 FR at 38050, and 
the Attorney General has no authority to require registration 
jurisdictions to expunge the records of sex offenders who are pardoned 
in those jurisdictions.
    A comment asserted that Sec.  72.6(g), which requires sex offenders 
to report professional licenses, is vague and not required by SORNA. 
Section 72.6 is sufficiently definite, requiring sex offenders to 
provide information concerning licensing that authorizes them to engage 
in an occupation or carry out a trade or business. Adopting this 
requirement is an exercise of the Attorney General's authority under 34 
U.S.C. 20914(a)(8) to require sex offenders to provide other 
information, beyond that expressly described in the statute. The 
section-by-section analysis below explains that information concerning 
professional licenses may be helpful in locating a registered sex 
offender if he absconds, may provide a basis for notifying the 
responsible licensing authority if the offender's conviction of a sex 
offense may affect his eligibility for the license, and may be useful 
in crosschecking the accuracy and completeness of other information the 
offender is required to provide, e.g., if the sex offender is licensed 
to engage in a certain occupation but does not provide name and address 
information for a place of employment as required by 34 U.S.C. 
20914(a)(4).
    A comment proposed generally replacing SORNA's in-person reporting 
requirements with reporting through remote communication technology. 
SORNA's requirements to report or verify certain information through 
in-person appearances are statutory and cannot be abrogated by 
rulemaking. See 34 U.S.C. 20913(c), 20918.
    A comment proposed expanding the language in the rule about 
circumstances that may excuse noncompliance with SORNA's requirements 
to include public health emergencies and natural disasters. However, 
Sec.  72.8(a)(2) in the rule makes clear that any uncontrollable 
circumstances preventing compliance with SORNA, regardless of their 
character, may excuse noncompliance under the conditions stated in 18 
U.S.C. 2250(c).
    A comment proposed encouraging registration jurisdictions to 
conform their registration regulations to SORNA to achieve uniformity 
across jurisdictions. Jurisdictions are encouraged to conform their 
registration requirements to SORNA's minimum national standards by the 
funding incentive of 34 U.S.C. 20927 and the extensive guidance and 
assistance that the Department of Justice provides to SORNA 
implementation through the SMART Office. See 76 FR at 1638. As Sec.  
72.1 in this rule notes, the adoption of more extensive or stringent 
requirements is within the discretion of the registration 
jurisdictions. The matter is explained in the section-by-section 
analysis below and in the SORNA Guidelines, see 73 FR at 38032-35, 
38046. Making recommendations regarding jurisdictions' adoption of 
measures not required by SORNA is outside the scope of this rulemaking, 
which articulates SORNA's registration requirements for sex offenders.

Section-by-Section Analysis

    The present rule expands part 72 of title 28 of the Code of Federal 
Regulations to provide a full statement of the registration 
requirements for sex offenders under SORNA. It revises the statement of 
purpose and definitional sections in 28 CFR 72.1 and 72.2. It maintains 
the existing provision in 28 CFR 72.3 stating that SORNA's requirements 
apply to all sex offenders, regardless of when they were convicted, and 
incorporates additional language in Sec.  72.3 to reinforce that point. 
It also adds to part 72 provisions--Sec. Sec.  72.4 through 72.8--
articulating where sex offenders must register, how long they must 
register, what information they must provide, how they must register 
and keep their registrations current to

[[Page 69867]]

satisfy SORNA's requirements, and the liability they face for 
violations, following SORNA's express requirements and the prior 
articulation of standards for these matters in the SORNA Guidelines and 
the SORNA Supplemental Guidelines.

Section 72.1--Purpose

    Section 72.1(a) states part 72's purpose to specify SORNA's 
registration requirements and their scope of application. It further 
notes that the Attorney General has the authority pursuant to 
provisions of SORNA to specify these requirements and their 
applicability as provided in part 72.
    Section 72.1(b) states that part 72 does not preempt or limit any 
obligations of or requirements relating to sex offenders under other 
laws, rules, or policies. It further notes that states and other 
governmental entities may prescribe requirements, with which sex 
offenders must comply, that are more extensive or stringent than those 
prescribed by SORNA. This reflects the fact that SORNA provides minimum 
national standards for sex offender registration. It is intended to 
establish a floor rather than a ceiling for the registration programs 
of states and other jurisdictions, which can prescribe registration 
requirements binding on sex offenders under their own laws independent 
of SORNA. Jurisdictions accordingly are free to adopt more stringent or 
extensive registration requirements for sex offenders than those set 
forth in this part, including more stringent or extensive requirements 
regarding where, when, and how long sex offenders must register, what 
information they must provide, and what they must do to keep their 
registrations current. See 73 FR at 38032-35, 38046.

Section 72.2--Definitions

    Section 72.2 states that terms used in part 72 have the same 
meaning as in SORNA. Hence, for example, references in the part to 
registration ``jurisdictions'' mean the 50 states, the District of 
Columbia, the five principal U.S. territories, and Indian tribes 
qualifying under 34 U.S.C. 20929. See id. 20911(10); 73 FR at 38045, 
38048. Likewise, where the part uses such terms as sex offender (and 
tiers thereof), sex offense, convicted or conviction, sex offender 
registry, student, employee or employment, and reside or residence, the 
meaning is the same as in SORNA. See 34 U.S.C. 20911(1)-(9), (11)-(13); 
73 FR at 38050-57, 38061-62.

Section 72.3--Applicability of the Sex Offender Registration and 
Notification Act

    Section 72.3 carries forward in substance current 28 CFR 72.3, 
which states that SORNA's requirements apply to all sex offenders, 
including those whose sex offense convictions predate SORNA's 
enactment. This section was initially adopted on February 28, 2007, and 
amended on December 29, 2010. The section and its rationale are 
explained further in the interim and final rulemakings that adopted it. 
See 72 FR 8894; 75 FR 81849.
    Section 72.3, and its modification by this rulemaking, are 
constitutionally sound. In Smith v. Doe, 538 U.S. 84 (2003), the 
Supreme Court upheld the retroactive application of sex offender 
registration requirements against an ex post facto challenge, in 
reviewing a state registration system whose major features paralleled 
SORNA's in many ways. The commonalities between SORNA and the state 
registration program upheld in Smith include required registration 
before release from imprisonment; provision of name, address, 
employment, vehicle, and other registration information; continued 
registration and periodic verification of registration information for 
at least 15 years; lifetime registration and quarterly verification for 
certain registrants convicted of aggravated or multiple sex offenses; 
and public internet posting of information about registrants. See id. 
at 90-91. The Federal courts have consistently rejected ex post facto 
challenges to SORNA itself. See, e.g., United States v. Felts, 674 F.3d 
599, 605-06 (6th Cir. 2012).
    Section 72.3 also is not premised on any constitutionally 
impermissible delegation of legislative authority to the executive 
branch of government. Congress intended that SORNA apply to all sex 
offenders, regardless of when they were convicted. See Reynolds, 565 
U.S. at 442-45; id. at 448-49 & n. (Scalia, J., dissenting) (agreeing 
that Congress intended for SORNA to apply to all sex offenders). 
Congress authorized the Attorney General to specify the applicability 
of SORNA's requirements to sex offenders with pre-SORNA and pre-SORNA-
implementation convictions, see 34 U.S.C. 20913(d), in order to 
effectuate that intent while enabling the Attorney General to address 
transitional issues presented in integrating the existing sex offender 
population into SORNA's comprehensive nationwide registration system. 
See Reynolds, 565 U.S. at 440-42; 72 FR at 8895-97; 73 FR at 38035-36, 
38046, 38063-64; 75 FR at 81850-52. In adopting Sec.  72.3, the 
Attorney General implemented the relevant legislative policy--that 
SORNA's requirements should apply to all sex offenders--to the maximum, 
having found no reason to delay or qualify its implementation. 
Consequently, as an articulation of a legislative policy embodied in 
SORNA, the issuance of Sec.  72.3 pursuant to 34 U.S.C. 20913(d) 
involved no exercise of legislative authority and did not contravene 
the non-delegation doctrine. See Gundy, 139 S. Ct. at 2123-30 
(plurality opinion); id. at 2130-31 (Alito, J., concurring in the 
judgment); id., Brief for the United States at 22-38.
    Moreover, regardless of any question concerning the validity of 34 
U.S.C. 20913(d), Sec.  72.3 is adequately supported on the basis of the 
Attorney General's authority to issue guidelines and regulations to 
interpret and implement SORNA, appearing in 34 U.S.C. 20912(b). In 
Sec.  72.3, the Attorney General interpreted SORNA as intended by 
Congress to apply to all sex offenders regardless of when they were 
convicted--an interpretation endorsed by the Supreme Court, see 
Reynolds, 565 U.S. at 440-45; see also Gundy, 139 S. Ct. at 2123-31--
and he implemented that legislative policy by embodying it in a clearly 
stated rule.
    The same considerations apply to the amended version of Sec.  72.3 
adopted here, which effectuates more reliably the legislative policy 
judgment that SORNA's requirements should apply to all sex offenders by 
restating the current rule with additional specificity, but which 
involves no change in substance. In comparison with the current 
formulation of Sec.  72.3, this rule adds a second sentence stating 
that (i) all sex offenders must comply with all requirements of SORNA, 
regardless of when they were convicted; (ii) this is so regardless of 
whether a registration jurisdiction has substantially implemented SORNA 
or any particular SORNA requirement; and (iii) this is so regardless of 
whether a particular requirement or class of sex offenders is mentioned 
in examples in the rules or guidelines issued by the Attorney General.
    The first part of the added sentence reiterates Sec.  72.3's 
specification of SORNA's applicability to all sex offenders in the form 
of an affirmative direction to sex offenders, and it states explicitly 
that all of SORNA's requirements so apply.
    The added sentence further states that the registration duties 
SORNA prescribes for sex offenders are not conditional on registration 
jurisdictions' having adopted SORNA's requirements

[[Page 69868]]

in their own registration laws or policies. For example, SORNA requires 
sex offenders to register in the states (and other registration 
jurisdictions) in which they reside, work, or attend school. See 34 
U.S.C. 20913(a). All of the states have sex offender registration 
programs, which were initially established long before the enactment of 
SORNA. Hence, sex offenders are able to register in these existing 
state programs. The fact that a particular state has not modified its 
registration program at this time to incorporate the full range of 
SORNA requirements does not prevent a sex offender required to register 
by SORNA from registering in the state or excuse a failure to do so. 
See, e.g., Felts, 674 F.3d at 603-05.
    The same principle applies in situations in which a jurisdiction's 
law does not track or incorporate a particular SORNA requirement 
affecting a sex offender. Consider a situation of this nature in which 
SORNA requires a sex offender to register but the law of the state in 
which he resides does not. This may occur, for example, because state 
law does not require registration based on the particular sex offense 
for which the offender was convicted, or because state law requires 
registration by sex offenders for shorter periods of time than SORNA, 
or because state law does not apply its registration requirements 
``retroactively'' as broadly as Sec.  72.3 applies SORNA's requirements 
to sex offenders with pre-SORNA convictions. Notwithstanding the 
absence of a parallel state law, the registration authorities in the 
state may be willing to register the sex offender because Federal law 
(i.e., SORNA) requires him to register. Cf. Doe v. Keathley, 290 S.W.3d 
719 (Mo. 2009) (state constitutional prohibition of retrospective laws 
does not preclude registration based on SORNA). If the state 
registration authorities are willing to register the sex offender, he 
is not relieved of the duty to register merely because state law does 
not track the Federal law registration requirement.
    Hence, sex offenders can be held liable for violating any 
requirement stated in this rule, regardless of when they were 
convicted, and regardless of whether the jurisdiction in which the 
violation occurs has adopted the requirement in its own law. This does 
not mean, however, that SORNA unfairly holds sex offenders liable for 
failing to comply with its requirements, where the requirement is 
unknown to the sex offender or impossible for him to carry out. Cf. 
Felts, 674 F.3d at 605 (noting concern). Federal enforcement of SORNA's 
requirements occurs primarily through SORNA's criminal provision, 18 
U.S.C. 2250. That provision makes it a Federal crime for a person 
required to register by SORNA to knowingly fail to register or update a 
registration as required by SORNA under circumstances supporting 
Federal jurisdiction, such as conviction of a Federal sex offense or 
interstate or foreign travel. As discussed below, section 2250 holds 
sex offenders liable only for violations of known registration 
obligations, and it excuses failures to comply with SORNA under certain 
conditions if the noncompliance results from circumstances beyond the 
sex offenders' control.
    Consider first the concern that sex offenders may lack notice 
regarding registration obligations. Under the procedures prescribed by 
SORNA, and under standard procedures that have generally been adopted 
by registration jurisdictions whether or not they have implemented 
SORNA's requirements, the registration of sex offenders normally 
involves (i) informing sex offenders of their registration duties, (ii) 
obtaining from sex offenders signed acknowledgments confirming receipt 
of that information, and (iii) having sex offenders provide the 
required registration information. See 34 U.S.C. 20919(a); 73 FR at 
38062-63.
    Registration procedures of this nature inform sex offenders of what 
they must do, and the acknowledgments obtained from them provide 
evidence that they were so informed. See 76 FR at 1638. If a 
jurisdiction that registers a sex offender has not fully revised its 
processes for conformity to SORNA, then it may not tell the sex 
offender about some of the registration requirements imposed by SORNA, 
such as those that the jurisdiction has not incorporated in its own 
laws. If the jurisdiction fails to inform a sex offender about some of 
SORNA's registration requirements, the sex offender then does not know 
about some of his registration obligations under SORNA based on the 
information received from the jurisdiction, and may not learn of them 
from other sources. In such cases, the possibility of liability under 
18 U.S.C. 2250 continues to be limited to cases in which a sex offender 
``knowingly fails to register or update a registration as required by 
[SORNA].'' The limitation to ``knowing[ ]'' violations provides a 
safeguard against liability based on unwitting violations of SORNA 
requirements of which a sex offender was not aware. Section 
72.8(a)(1)(iii) of this rule, and the accompanying discussion below, 
provide further explanation about the limitation of liability under 18 
U.S.C. 2250 to cases involving violation of known registration 
obligations.
    The second concern about fairness involves situations in which a 
sex offender has failed to do something SORNA requires because it is 
impossible for him to do so. For example, as noted above, a 
jurisdiction with laws that do not require registration based on the 
particular offense for which a sex offender was convicted may 
nevertheless be willing to register him in light of his Federal law 
(SORNA) registration obligation. But alternatively, the jurisdiction's 
law or practice may constrain its registration personnel to register 
only sex offenders whom its own laws require to register. In such a 
case, it is impossible for the sex offender to register in that 
jurisdiction, though subject to a registration duty under SORNA. This 
is so because registration is by its nature a two-party transaction, 
involving a sex offender's providing information about where he resides 
and other matters as required, and acceptance of that information by 
the jurisdiction for inclusion in the sex offender registry. If the 
jurisdiction is unwilling to carry out its side of the transaction, 
then the sex offender cannot register.
    Concerns of this nature are also addressed in SORNA's criminal 
provision, 18 U.S.C. 2250. Subsection (c) of section 2250 provides an 
affirmative defense to liability for SORNA violations if ``(1) 
uncontrollable circumstances prevented the individual from complying; 
(2) the individual did not contribute to the creation of such 
circumstances in reckless disregard of the requirement to comply; and 
(3) the individual complied as soon as such circumstances ceased to 
exist.'' A registration jurisdiction's law or practice that precludes 
registration of a sex offender, as described above, is a circumstance 
that the sex offender cannot control and to which he did not 
contribute, so he cannot be held liable for failure to register with 
that jurisdiction as SORNA requires.
    The defense in section 2250(c) comes with the proviso that the 
defendant must comply with SORNA ``as soon as [the preventing] 
circumstances cease[ ] to exist.'' For example, consider the case posed 
above of a jurisdiction that refuses to register sex offenders based on 
a particular offense for which SORNA requires registration, so that a 
sex offender residing in the jurisdiction who was convicted of that 
offense cannot register there. Suppose that the jurisdiction later 
progresses in its implementation of SORNA and becomes willing to 
register offenders who have been convicted for that sex offense. In

[[Page 69869]]

light of the proviso, the sex offender's obligation to register revives 
once the jurisdiction becomes willing to register him. That is fair, 
because the circumstance preventing his compliance with the SORNA 
registration requirement no longer exists.
    Section 72.8(a)(2) of this rule, and the accompanying discussion 
below, provide further explanation about the contours of the 
impossibility defense under 18 U.S.C. 2250(c).
    Returning to the text of Sec.  72.3, the added sentence states at 
the end that sex offenders must comply with SORNA's requirements 
``regardless of whether any particular requirement or class of sex 
offenders is mentioned in examples in this regulation or in other 
regulations or guidelines issued by the Attorney General.'' In 
conjunction with the earlier statement in the provision that all sex 
offenders must comply with all SORNA requirements, the added language 
responds to a judicial decision that did not give full effect to the 
current regulation.
    Section 72.3, as currently formulated, states that SORNA's 
``requirements . . . apply to all sex offenders,'' exercising the 
Attorney General's ``authority to specify the applicability of the 
requirements of [SORNA] to sex offenders convicted before the enactment 
of [SORNA] or its implementation in a particular jurisdiction.'' 34 
U.S.C. 20913(d); see Reynolds, 565 U.S. at 441-45 (explaining 
Congress's decision to give the Attorney General authority to apply 
SORNA's requirements to sex offenders with pre-SORNA convictions). 
Nevertheless, in United States v. DeJarnette, 741 F.3d 971 (9th Cir. 
2013), the court believed that the Attorney General had not made all of 
SORNA's requirements applicable to all sex offenders. The case 
concerned the applicability of SORNA's requirement that a sex offender 
register initially in the jurisdiction in which he is convicted, if it 
differs from his residence jurisdiction, see 34 U.S.C. 20913(a) (second 
sentence), where the sex offender's conviction predated SORNA's 
enactment. Notwithstanding 28 CFR 72.3, the court concluded that the 
Attorney General had not made this SORNA requirement applicable to sex 
offenders with pre-SORNA convictions, if they were already subject to 
state law registration requirements. DeJarnette, 741 F.3d at 982. The 
decision was largely premised on the fact that the particular SORNA 
requirement at issue was not mentioned in relation to that particular 
class of sex offenders in the examples of sex offenders subject to 
SORNA's requirements in 28 CFR 72.3 and the SORNA Guidelines. 
DeJarnette, 741 F.3d at 976-80.
    The sentence added to Sec.  72.3 by this rulemaking will foreclose 
future decisions of this nature and ensure that Sec.  72.3's 
application of SORNA's requirements to all sex offenders is given 
effect consistently.
    The rule includes one further change in Sec.  72.3, affecting the 
first example in the provision. The example as currently formulated 
describes a sex offender convicted in 1990 and released following 
imprisonment in 2007, and says that the sex offender is subject to 
SORNA's requirements. In Reynolds, the Supreme Court held that SORNA's 
requirements did not apply to sex offenders with pre-SORNA convictions 
prior to the Attorney General's exercise of the authority under 34 
U.S.C. 20913(d) to specify SORNA's applicability to those offenders. 
565 U.S. at 434-35. It follows that SORNA's requirements did not apply 
to such sex offenders before the Attorney General's original issuance 
of 28 CFR 72.3 on February 28, 2007. Example 1 in Sec.  72.3 might be 
misunderstood as suggesting the contrary, i.e., that a sex offender 
with a pre-SORNA conviction released from imprisonment at any time in 
2007 was immediately subject to SORNA's requirements. Hence, to avoid 
any possible inconsistency or apparent inconsistency with the Supreme 
Court's decision in Reynolds, the rule changes the example by 
substituting a later year for 2007.

Section 72.4--Where Sex Offenders Must Register

    Section 72.4 tracks SORNA's express requirement that a sex offender 
must register and keep the registration current in each jurisdiction in 
which the sex offender resides, is an employee, or is a student, and 
must also initially register in the jurisdiction in which the offender 
was convicted if that jurisdiction differs from the jurisdiction of 
residence. See 34 U.S.C. 20913(a); 73 FR at 38061-62.

Section 72.5--How Long Sex Offenders Must Register

    Section 72.5 sets out SORNA's requirements regarding the duration 
of registration. SORNA classifies sex offenders into three ``tiers,'' 
based on the nature and seriousness of their sex offenses and their 
histories of recidivism. See 34 U.S.C. 20911(2)-(4); 73 FR at 38052-54. 
The tier in which a sex offender falls affects how long the offender 
must continue to register under SORNA. The required registration 
periods are generally 15 years for a tier I sex offender, 25 years for 
a tier II sex offender, and life for a tier III sex offender. See 34 
U.S.C. 20915(a); 73 FR at 38068. Paragraph (a) in Sec.  72.5 reproduces 
these requirements.
    Paragraph (a) of Sec.  72.5 provides an exception ``when the sex 
offender is in custody or civilly committed,'' incorporating in 
substance an express proviso appearing in SORNA, 34 U.S.C. 20915(a). 
The exception and proviso mean that SORNA does not require a sex 
offender to carry out its processes for registering or updating 
registrations during subsequent periods of confinement, e.g., when 
imprisoned because of conviction for some other offense following his 
release from imprisonment for the sex offense. This reflects that ``the 
SORNA procedures for keeping up the registration . . . generally 
presuppose the case of a sex offender who is free in the community'' 
and that ``[w]here 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.'' 73 FR at 
38068. However, registration jurisdictions may see incremental value in 
requiring sex offenders to carry out their processes for registering 
and updating registrations during subsequent confinement and are free 
to do so, though SORNA does not require it.
    The proviso relating to custody or civil commitment does not 
pertain to or limit SORNA's requirement that initial registration is to 
occur while the sex offender is still imprisoned following conviction 
for the predicate sex offense. See 34 U.S.C. 20913(b)(1), 20919(a). 
Rather, as indicated above, it affects a sex offender's registration 
obligations under SORNA if he is later reincarcerated after his 
release. The proviso relating to custody or civil commitment also does 
not mean that the running of the SORNA registration period is suspended 
during such subsequent confinement, and does not otherwise affect the 
commencement or duration of a sex offender's registration period under 
SORNA.
    For example, consider a sex offender, released in 2010 from 
imprisonment for a sex offense conviction, whom SORNA requires to 
register for 25 years as a tier II sex offender, and suppose the sex 
offender is subsequently convicted during the registration period for 
committing a robbery and imprisoned for three years for the latter 
offense. SORNA's registration requirement for that sex offender 
terminates in 2035, although he was incarcerated for three years of the 
25-year SORNA registration period. Sex offenders should keep in mind, 
however, that their registration jurisdictions are free to impose more

[[Page 69870]]

extensive requirements than SORNA, including longer registration 
periods. Hence, the basic registration period under the law of a 
jurisdiction in which such a sex offender is registered may be longer 
than 25 years. And even if the basic registration period under the 
jurisdiction's law is the same as the 25 years required by SORNA, the 
jurisdiction may choose not to credit the three years the sex offender 
spent in prison for the robbery towards the running of the registration 
period under state law. See 73 FR at 38032-35, 38046, 38068. Expiration 
of the SORNA registration period accordingly does not obviate the need 
for sex offenders to check with registration jurisdictions whether they 
remain subject to registration requirements under the jurisdictions' 
laws.
    As provided in paragraph (b) of Sec.  72.5, the registration period 
under SORNA begins to run upon release from imprisonment following a 
sex offense conviction, or at the time of sentencing for a sex offense 
where imprisonment does not ensue. See 73 FR at 38068. The sex 
offender's release from imprisonment, which marks the start of the 
registration period for an incarcerated sex offender, may occur later 
than the end of the sentence imposed for the sex offense itself. For 
example, suppose that a sex offender is convicted for a fatal sexual 
assault upon a victim, resulting in a sentence of three years of 
imprisonment for the sexual assault and a concurrent or consecutive 
sentence of 25 years of imprisonment for murder. Or consider a case in 
which a sex offender is sentenced to three years of imprisonment for a 
sexual assault and at a later time he is sentenced to 25 years of 
imprisonment for an unrelated murder, while still imprisoned for the 
sex offense. Or suppose that a sex offender is already serving a 25-
year prison term for an unrelated murder, when he is sentenced to three 
years of imprisonment for a sexual assault. In all such cases, the 
registration period under SORNA starts to run when the sex offender 
actually completes his imprisonment and is released. It does not start 
to run while the sex offender is still imprisoned but has completed the 
portion of the sentence attributable to the sex offense.
    This conclusion follows from the general design and specific 
requirements of SORNA's registration procedures. SORNA provides that 
incarcerated sex offenders must initially register ``before completing 
a sentence of imprisonment with respect to the [registration] 
offense.'' 34 U.S.C. 20913(b)(1). SORNA further states that the 
correlative responsibilities of registration officials in effecting the 
initial registration are to be carried out ``shortly before release of 
the sex offender from custody.'' Id. 20919(a); see 73 FR at 38063 
(explaining requirement to register shortly before release from 
custody). Thereafter, sex offenders must ``keep the registration[s] 
current'' for specified periods of time, depending on their 
``tier[s].'' 34 U.S.C. 20915(a). In light of these provisions, the 
registration period is logically understood as being framed at the 
start by the release from custody and at the end by the termination of 
the specified time period.
    Considering specifically cases in which a sex offender is serving 
an aggregate prison term for multiple crimes, 34 U.S.C. 20913(b)(1) 
requires registration ``before completing a sentence of imprisonment 
with respect to the offense giving rise to the registration 
requirement.'' (Emphasis added). It does not require registration 
``before completing a sentence of imprisonment for the offense giving 
rise to the registration requirement.'' The broader ``with respect to'' 
language is best understood to mean that the relevant prison term under 
section 20913(b)(1) is not the specific sentence imposed for the 
predicate sex offense alone, but rather is the full related sentence of 
imprisonment, including any prison time imposed for other crimes. The 
corresponding language in section 20919(a) supports this understanding, 
requiring initial registration of the sex offender ``shortly before 
release of the sex offender from custody.'' This language does not 
signify that initial registration is to occur when the sex offender is 
about to complete the portion of an aggregate sentence attributable 
specifically to the sex offense, though the sex offender will remain in 
custody because he is serving additional time for another offense or 
offenses. Rather, by its terms, section 20919(a) contemplates that 
initial registration will occur shortly before the sex offender is 
actually released, and section 20913(b)(1) must be understood in the 
same way, because section 20913(b)(1) and section 20919(a) describe the 
same transaction (initial registration) from different perspectives.
    For example, consider the case of a sex offender convicted and 
sentenced for a fatal sexual assault, resulting in a three-year prison 
term for the sexual assault and a concurrent or consecutive 25-year 
sentence for murder. Suppose that the sexual assault involved was a 
sexual contact offense against an adult victim, resulting in the 
classification of the sex offender as a tier I sex offender and a 
registration period of 15 years. See 34 U.S.C. 20911(2)-(4), 
20915(a)(1). If the registration period started to run at the end of 
the first three years of the sex offender's incarceration, then the 15-
year registration period would expire long before the sex offender's 
release, because of the extension of his imprisonment by the murder 
sentence. This result would be at odds with section 20919(a)'s 
direction that sex offenders are to be initially registered ``shortly 
before release . . . from custody,'' because the sex offender's 
registration obligation under SORNA would be a thing of the past by 
that time, and also with the requirements under sections 20913 and 
20915(a)(1) that the sex offender register and keep the registration 
current for 15 years, because his registration period would be over 
before he registered in the first place.
    In addition to the inconsistency with the statutory provisions 
discussed above, starting the running of the registration period upon 
the conclusion of the portion of a sentence attributable to the 
registration offense would result in arbitrary differences in 
registration requirements, depending on fortuities in the structuring 
of criminal sentences or their descriptions in judgments. For example, 
considering again the case of a fatal sexual assault, suppose that the 
resulting sentence involves a three-year prison term for the sexual 
assault, followed by a consecutive 25-year prison term for murder. As 
discussed above, the assumed 15-year registration period for the sexual 
assault would then run out long before the sex offender's release, and 
he would never have to register at all. But suppose the sentence is 
cast instead as a 25-year prison term for murder, followed by a 
consecutive three-year prison term for the sexual assault. The 
completion of the prison term for the sexual assault would then 
coincide with the sex offender's release from prison, and he would have 
to register and keep the registration current for 15 years. Because the 
ordering of the sexual assault and murder sentences has no relevance to 
the public safety purposes served by sex offender registration, the 
discrepancy between the two cases as to resulting registration 
requirements would be irrational. For this reason as well, the 
registration period under SORNA starts to run when the sex offender is 
actually released, and not at an earlier time upon completion of the 
portion of an aggregate sentence specifically attributable to the 
predicate sex offense.
    By way of comparison, an offender's term of post-imprisonment 
supervised release for a sex offense does not start to run until he is 
released from prison,

[[Page 69871]]

including in cases in which the offender's release is delayed by his 
serving additional prison time for another offense or offenses. This is 
not unfair or illogical; it rationally reflects the nature of 
supervision as a measure designed for overseeing and managing offenders 
following their release. While sex offender registration differs from 
supervision in being a non-punitive, civil regulatory measure, see, 
e.g., Smith, 538 U.S. at 92-106; Felts, 674 F.3d at 605-06, it is 
likewise concerned with the post-release treatment of sex offenders in 
the community. Hence, as with periods of supervision, it is rational 
for an offender's registration period for a sex offense to begin to run 
when he is released from prison, including in cases in which the 
offender's release is delayed by his serving additional prison time for 
other criminal conduct. This reflects the nature of registration as a 
measure designed for tracking and monitoring sex offenders following 
their release.
    The principle that the registration period under SORNA commences on 
release also applies to cases in which the sex offender is not 
imprisoned for the sex offense per se but is imprisoned because of 
conviction for another offense. For example, suppose that a sex 
offender is convicted of sexually assaulting and robbing a victim, 
resulting in a sentence of probation for the sexual assault and a 
sentence of five years of imprisonment for the robbery. Considering the 
relevant statutory provisions, section 20913(b)(2) makes applicable an 
alternative time for initial registration--three business days after 
sentencing--only ``if the sex offender is not sentenced to a term of 
imprisonment.'' Correspondingly, section 20919(a) provides for initial 
registration immediately after sentencing, rather than shortly before 
release from custody, only ``if the sex offender is not in custody.'' 
These provisions, by their terms, do not apply to a sex offender who 
remains in custody, though on the basis of an offense other than the 
predicate sex offense. Hence, cases of this nature must fall under the 
requirement of sections 20913(b)(1) and 20919(a) to effect initial 
registration shortly before the sex offender's release, and the 
consequences are the same as in the cases discussed above involving 
aggregate prison terms for the registration offense and other crimes. 
Where the sex offender receives a non-incarcerative sentence for the 
registration offense and a prison term for another offense, the 
registration period starts upon the sex offender's release, so that 
once registered and out in the community he must keep the registration 
current for the full registration period specified in 34 U.S.C. 20915, 
and not just for a truncated period reduced by his incarceration for 
another offense.
    In terms of underlying policy, registration is by definition 
concerned with tracking sex offenders in the community following their 
release. See 73 FR at 38044-45. The tiers and the associated 
registration periods under SORNA reflect categorical legislative 
judgments as to how long sex offenders should be tracked following 
release for public safety purposes. These judgments do not come into 
play until the sex offender is released. When that happens may be 
affected by many factors--such as the length of the prison term the sex 
offender receives for the sex offense; whether the sex offender makes 
parole (in a state system having parole) or gets good-conduct credit; 
whether the jurisdiction adopts an early release program because of 
prison crowding; and whether the sex offender gets additional prison 
time because of sentencing for other offenses, related or unrelated to 
the sex offense.
    Whatever the reasons may be, it is logical to start a post-release 
tracking regime--i.e., registration--when the sex offender is actually 
released. Initial registration is to occur ``shortly before'' that, as 
34 U.S.C. 20919(a) requires, ``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.'' 73 FR at 38063.
    Hence, the registration period under SORNA starts to run when a sex 
offender is released from imprisonment, and not at an earlier time when 
the specific sentence for the registration offense has been served, if 
the two times differ. This follows from the features of the statutory 
provisions discussed above, from the absurdities entailed by a 
different interpretation, and from the basic character of registration 
as a post-release tracking measure. To the extent that there might be 
any uncertainty or argument to the contrary, the Attorney General in 
this rule exercises his authority under 34 U.S.C. 20912(b) to interpret 
and implement SORNA's provisions affecting the duration of registration 
in the manner stated.
    Paragraph (c) in Sec.  72.5 sets out SORNA's reduction of its 
registration period for certain sex offenders who maintain a ``clean 
record'' in accordance with statutory standards. The specific ``clean 
record'' conditions are that the sex offender not be convicted of any 
felony or any sex offense, successfully complete any period of 
supervision, and successfully complete an appropriate sex offender 
treatment program (certified by a registration jurisdiction or the 
Attorney General). The SORNA registration period is reduced by five 
years for a tier I sex offender who maintains a clean record for 10 
years, and reduced to the period for which the clean record is 
maintained for a tier III sex offender required to register on the 
basis of a juvenile delinquency adjudication who maintains a clean 
record for 25 years. See 34 U.S.C. 20915(a), (b); 73 FR at 38068-69.

Section 72.6--Information Sex Offenders Must Provide

    Section 72.6 sets out the registration information sex offenders 
must provide. Much of the specified information is expressly required 
by SORNA, see 34 U.S.C. 20914(a)(1)-(7), and the remainder reflects 
SORNA's direction that sex offenders must provide ``[a]ny other 
information required by the Attorney General,'' id. 20914(a)(8).
    In general terms, the required information comprises (i) name, 
birth date, and Social Security number; (ii) remote communication 
identifiers (including email addresses and telephone numbers); (iii) 
information about places of residence, non-residential lodging, 
employment, and school attendance; (iv) international travel; (v) 
passports and immigration documents; (vi) vehicle information; and 
(vii) professional licenses. By providing basic information about who a 
sex offender is, where he is, how he gets around, and what he is 
authorized to do, these requirements implement SORNA and further its 
public safety objectives.
    Paragraph (a)(1) of Sec.  72.6 requires that a sex offender provide 
his name, including any alias, which is an express SORNA requirement. 
See 34 U.S.C. 20914(a)(1); 73 FR at 38055.E0.
    Paragraph (a)(2) of Sec.  72.6 requires a sex offender to provide 
date of birth information, a requirement the Attorney General has 
adopted in the SORNA Guidelines and this rule because date of birth 
information is regularly utilized as part of an individual's basic 
identification information and hence is of value in helping to 
identify, track, and locate registered sex offenders. The paragraph 
requires that any date that the sex offender uses as his or her 
purported date of birth must be provided, in addition to the actual 
date of birth, because sex offenders may, for example,

[[Page 69872]]

provide false date of birth information in seeking employment that 
would provide access to children or other potential victims. See 73 FR 
at 38057.
    Paragraph (a)(3) of Sec.  72.6 requires that a sex offender provide 
his Social Security number, which is an express SORNA requirement. See 
34 U.S.C. 20914(a)(2). The paragraph further requires provision of any 
number that a sex offender uses as his purported Social Security 
number. The Attorney General has adopted the latter requirement--
already appearing in the SORNA Guidelines in 2008--because sex 
offenders may, for example, attempt to use false Social Security 
numbers in seeking employment that would provide access to children or 
other potential victims. See 73 FR at 38055.
    Paragraph (b) of Sec.  72.6 requires a sex offender to provide all 
remote communication identifiers that he uses in internet or telephonic 
communications or postings, including email addresses and telephone 
numbers. A provision of the Keeping the internet Devoid of Sexual 
Predators Act of 2008 (KIDS Act), Public Law 110-400, directed the 
Attorney General to use the authority under paragraph (7) of 34 U.S.C. 
20914(a) [now designated paragraph (8)] to require sex offenders to 
provide internet identifiers. The Attorney General has previously 
exercised that authority to require the specified information in the 
SORNA Guidelines. See 34 U.S.C. 20916(a); 73 FR at 38055; 76 FR at 
1637. The Attorney General has exercised the same authority to require 
telephone numbers--a requirement also already appearing in the SORNA 
Guidelines--for a number of reasons, including facilitating 
communication between registration personnel and sex offenders, and 
addressing the potential use of telephonic communication by sex 
offenders in efforts to contact or lure potential victims. See 73 FR at 
38055.
    Paragraph (c)(1) of Sec.  72.6 requires a sex offender to provide 
residence address information or other residence location information 
if the sex offender lacks a residence address. Providing residence 
address information is an express SORNA requirement. See 34 U.S.C. 
20914(a)(3). In the SORNA Guidelines, and now in this rule, the 
Attorney General has adopted the requirement to provide other residence 
location information for sex offenders who do not have residence 
addresses, such as homeless sex offenders or sex offenders living in 
rural areas that lack street addresses, because having this type of 
location information serves the same public safety purposes as knowing 
the whereabouts of sex offenders with definite residence addresses. See 
73 FR at 38055-56, 38061-62.
    Paragraph (c)(2) of Sec.  72.6 requires a sex offender to provide 
information about temporary lodging while away from his residence for 
seven or more days. In the SORNA Guidelines, and now in this rule, the 
Attorney General has adopted this requirement because sex offenders may 
reoffend at locations away from the places in which they have a 
permanent or long-term presence, and indeed could be encouraged to do 
so to the extent that information about their places of residence is 
available to the authorities but information is lacking concerning 
their temporary lodgings elsewhere. 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 and discouraging sex offenders from committing crimes in such 
circumstances. See 73 FR at 38056.
    Paragraph (c)(3) of Sec.  72.6 requires a sex offender to provide 
employer name and address information, or other employment location 
information if the sex offender lacks a fixed place of employment. 
Providing employer name and address information is an express SORNA 
requirement. See 34 U.S.C. 20914(a)(4). The Attorney General has 
adopted, in the SORNA Guidelines and this rule, the requirement to 
provide other employment location information for sex offenders who 
work but do not have fixed places 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 any contractor who hires him on a given day. The Attorney 
General has adopted this requirement because knowing where such sex 
offenders are in the course of employment serves the same public safety 
purposes as knowing the whereabouts of sex offenders who work at fixed 
locations. See 73 FR at 38056, 38062.
    Paragraph (c)(4) of Sec.  72.6 requires a sex offender to provide 
the name and address of any place where the sex offender is or will be 
a student, an express SORNA requirement. See 34 U.S.C. 20914(a)(5); 73 
FR at 38056-57, 38062.
    Paragraph (d) of Sec.  72.6 requires a sex offender to provide 
information about intended travel outside of the United States. This is 
an express SORNA requirement, added by International Megan's Law. See 
34 U.S.C. 20914(a)(7); Public Law 114-119, sec. 6(a)(1). A related 
provision in Sec.  72.7(f) of this rule requires sex offenders to 
report international travel information at least 21 days in advance. 
Exercising the general authority under paragraph (8) of 34 U.S.C. 
20914(a) [then designated paragraph (7)] to expand the required range 
of registration information, the Attorney General initially adopted 
these requirements in the SORNA Supplemental Guidelines, see 76 FR at 
1637-38, even before the enactment of International Megan's Law, for a 
number of reasons:
    (i) Realizing SORNA's public safety objectives requires that 
registered sex offenders be effectively tracked as they leave and 
return to the United States, and that other sex offenders who enter the 
United States be identified, so that domestic registration and law 
enforcement authorities know about the sex offenders' presence in the 
United States and can ensure that they register while here as SORNA 
requires. To that end, SORNA directs the Attorney General to establish 
and maintain a system for informing relevant registration jurisdictions 
about persons entering the United States whom SORNA requires to 
register. See 34 U.S.C. 20930. Sections 72.6(d) and 72.7(f) of this 
rule are part of that system, requiring registered sex offenders to 
inform their registration jurisdictions about travel abroad, including 
information that encompasses both their departure from and return to 
the United States. Beyond this direct benefit, learning about sex 
offenders' entry into the United States may depend on notice from the 
authorities of the countries they come from--authorities who may expect 
reciprocal notice about sex offenders traveling to their countries from 
the United States. Having U.S. sex offenders inform their registration 
jurisdictions of travel abroad provides information that is used by 
U.S. authorities, including the U.S. Marshals Service and INTERPOL 
Washington-U.S. National Central Bureau, to notify the authorities in 
the destination countries about sex offenders traveling to their areas. 
These foreign authorities may in return advise U.S. authorities about 
sex offenders traveling to the United States from their countries, 
facilitating the notification of domestic registration jurisdictions 
about the sex offenders' presence that section 20930 contemplates. See 
73 FR at 38066; 76 FR at 1637.
    (ii) Sex offenders traveling abroad may remain subject in some 
respects to U.S. jurisdiction, e.g., because a sex offender intends to 
go to an overseas

[[Page 69873]]

U.S. military base or to work as or for a U.S. military contractor in 
another country. In such cases, the intended travel of the sex offender 
may implicate the same public safety concerns in relation to 
communities abroad for which the United States has responsibility as it 
does in relation to communities within the United States. See 73 FR at 
38067; 76 FR at 1637-38.
    (iii) More broadly, for a sex offender disposed to reoffend, it may 
be attractive to travel to foreign countries where law enforcement is 
weaker (or perceived to be weaker), where sexually trafficked children 
or other vulnerable victims may be more readily available, and where 
the registration and notification measures to which the sex offender is 
subject in the United States are inoperative. The United States does 
not wish to export the public safety threat posed by its sex offenders 
to other countries. Requiring sex offenders in the United States to 
inform their registration jurisdictions about international travel 
provides a basis for notifying foreign authorities in the destination 
countries, which helps to reduce the resulting risks. If these sex 
offenders do reoffend in other countries, the resulting human harm to 
victims is no less because it occurs in a foreign country, and the 
United States' image and foreign relations interests may be adversely 
affected as well. Sex offenders from the United States who commit sex 
offenses in other countries may be subject to prosecution under various 
Federal laws, which reflect the United States' policy of, and 
commitment to, combating the commission of crimes of sexual abuse and 
exploitation internationally as well as domestically. See, e.g., 18 
U.S.C. 1591, 2251(c), 2260, 2423. Consistent tracking of international 
travel by sex offenders helps to deter and prevent such crimes, and to 
facilitate their investigation if they occur.
    Beyond creating a general requirement to report travel outside of 
the United States at least 21 days in advance, the SORNA Supplemental 
Guidelines authorized the requirement of more definite information 
about international travel plans. 76 FR at 1638 (additional directions 
may be issued by the SMART Office ``concerning the information to be 
required in sex offenders' reports of intended international travel, 
such as information concerning expected itinerary, departure and return 
dates, and means and purpose of travel''); see Notice of International 
Travel, https://smart.ojp.gov/sorna/notice-international-travel 
(providing such directions). Section 72.6(d) in this rule specifically 
directs sex offenders traveling abroad to report information regarding 
any anticipated itinerary, dates and places of departure, arrival, or 
return, carrier and flight numbers for air travel, destination 
countries and address or contact information therein, and means and 
purpose of travel. More detailed information of this type is needed 
because notice only that a sex offender intends to travel somewhere 
outside of the United States at some time three weeks or more in the 
future would be inadequate to realize the objectives of international 
tracking of sex offenders--objectives that include, as discussed above, 
notification as appropriate of U.S. and foreign authorities in 
destination countries for public safety purposes, preventing and 
detecting the offenders' commission of sex offenses in other countries, 
and reliably tracking sex offenders as they leave and enter the United 
States for purposes of enforcing registration requirements. Requiring 
the specified information concerning international travel is justified 
by its value in furthering these objectives. See 73 FR at 38066-67; 76 
FR at 1634, 1637-38.
    Congress endorsed these objectives and the stated conclusion in 
International Megan's Law, whose purposes include ``[t]o protect 
children and others from sexual abuse and exploitation, including sex 
trafficking and sex tourism, by providing advance notice of intended 
travel by registered sex offenders outside the United States to the 
government of the country of destination [and] requesting foreign 
governments to notify the United States when a known sex offender is 
seeking to enter the United States.'' Public Law 114-119; see 162 Cong. 
Rec. H390-94 (Feb. 1, 2016) (explanation in House floor debate on 
passage). As noted above, the measures adopted by International Megan's 
Law in support of its international notification system include an 
express requirement that sex offenders report intended international 
travel, making this requirement a permanent feature of SORNA that 
exists independently of regulatory action. See 34 U.S.C. 20914(a)(7); 
Public Law 114-119, sec. 6(a)(1).
    Section 72.6(d) in this rule follows the new SORNA travel 
information provision added by International Megan's Law, which states 
that sex offenders must provide ``[i]nformation relating to intended 
travel of the sex offender outside the United States, including any 
anticipated dates and places of departure, arrival, or return, carrier 
and flight numbers for air travel, destination country and address or 
other contact information therein, means and purpose of travel, and any 
other itinerary or other travel-related information required by the 
Attorney General.'' 34 U.S.C. 20914(a)(7). A sex offender must report 
all anticipated information in these categories in relation to both the 
United States and destination countries as the language of Sec.  
72.6(d) makes clear. For example, a sex offender who is leaving the 
United States must report any anticipated date and place of departure 
from the United States, and also any anticipated date and place of 
return to the United States if the sex offender expects to return. 
Likewise, with respect to each foreign country to be visited, the sex 
offender must report any anticipated date and place of arrival in that 
country and any anticipated date and place of departure from that 
country.
    Paragraph (e) of Sec.  72.6 requires a sex offender to provide 
information concerning any passport or passports he has, and concerning 
documents establishing his immigration status if he is an alien. The 
passports referenced in the paragraph include passports of all types 
and nationalities, not just U.S. passports. Where the sex offender has 
multiple passports, as may occur, for example, in cases involving dual 
citizenship, the paragraph's reference to ``each passport'' the sex 
offender has means that the sex offender must report all of his 
passports. The Attorney General has included information about 
passports and immigration documents as required registration 
information in the SORNA Guidelines and in this rule because having 
this type of information in the registries serves various purposes. 
These include locating and apprehending 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 34 U.S.C. 20930, 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 school attendance information as 
required by 34 U.S.C. 20914(a)(5). See 73 FR at 38056.
    Paragraph (f) of Sec.  72.6 requires a sex offender to provide 
information concerning any vehicle owned or operated by the sex 
offender, information concerning the license plate number or other 
registration number or identifier for the vehicle, and information as 
to where the vehicle is habitually kept. In part, the paragraph 
reflects the express SORNA requirement

[[Page 69874]]

in 34 U.S.C. 20914(a)(6) that a sex offender provide ``[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. See 73 FR at 
38057. The remainder of the paragraph reflects the Attorney General's 
requirement (previously adopted in the SORNA Guidelines) of additional 
vehicle-related information that serves similar purposes or may be 
useful to help prevent flight, facilitate investigation, or effect an 
apprehension if the sex offender commits new offenses or violates 
registration requirements. See id.
    Paragraph (g) of Sec.  72.6 requires a sex offender to provide 
information concerning all licensing of the offender that authorizes 
him to engage in an occupation or carry out a trade or business. The 
Attorney General has adopted this requirement, initially in the SORNA 
Guidelines and now in this rule, because information of this type (i) 
may be helpful in locating a registered sex offender if he absconds, 
(ii) may provide a basis for notifying the responsible licensing 
authority if the offender's conviction of a sex offense may affect his 
eligibility for the license, and (iii) may be useful in crosschecking 
the accuracy and completeness of other information the offender is 
required to provide--e.g., if the sex offender is licensed to engage in 
a certain occupation but does not provide name or place of employment 
information as required by 34 U.S.C. 20914(a)(4) for such an 
occupation. See 73 FR at 38056.

Section 72.7--How Sex Offenders Must Register and Keep the Registration 
Current

    SORNA requires sex offenders to register and keep the registrations 
current in jurisdictions in which they reside, work, or attend school. 
Section 72.7 sets out the procedures for doing so, addressing the 
timing requirements for registering and updating registrations, the 
jurisdictions to which changes in registration information must be 
reported, and the means for reporting such changes. In general terms, 
the section requires (i) initial registration before release from 
imprisonment, or within three business days after sentencing if the sex 
offender is not imprisoned; (ii) periodic in-person appearances to 
verify and update the registration information; (iii) reporting of 
changes in name, residence, employment, or school attendance; (iv) 
reporting of intended departure or termination of residence, 
employment, or school attendance in a jurisdiction; (v) reporting of 
changes relating to remote communication identifiers, temporary lodging 
information, and vehicle information; (vi) reporting of international 
travel; and (vii) compliance with a jurisdiction's rules if a sex 
offender has not complied with the normal time and manner 
specifications for carrying out a SORNA requirement.
    The requirements articulated in this section in part appear 
expressly in SORNA and in part reflect exercises of the powers SORNA 
confers on the Attorney General to further specify its requirements. 
The authorities relied on include the following:
    SORNA directs the Attorney General to issue rules and guidelines to 
``interpret and implement'' its provisions, which include the basic 
requirement that each sex offender must ``register . . . and keep the 
registration current.'' 34 U.S.C. 20912(b), 20913(a). Previously in the 
SORNA Guidelines, see 73 FR at 38062-67, and now in this rule, the 
Attorney General interprets his authority to ``interpret and 
implement'' SORNA as including the authority to articulate a 
comprehensive, gap-free set of procedural requirements for registering 
and updating registrations. Authority of this nature is needed to 
implement SORNA in conformity with the legislative objective of 
protecting the public from sex offenders by establishing a 
comprehensive national system for their registration. 34 U.S.C. 20901. 
Beyond the public safety need, this understanding of section 20912(b) 
``takes Congress to have filled potential lacunae'' in SORNA in a 
manner consistent with fair notice concerns, empowering the Attorney 
General to eliminate any ``vagueness and uncertainty'' regarding how 
sex offenders are to comply with SORNA's registration requirements. 
Reynolds, 565 U.S. at 441-42.
    The Attorney General's authority to interpret and implement SORNA 
includes in particular the authority to adopt additional specifications 
regarding the time and manner in which its requirements must be carried 
out. For example, SORNA expressly requires that sex offenders must 
appear in person to report changes of name, residence, employment, and 
student status within three business days of such changes. 34 U.S.C. 
20913(c). But SORNA does not expressly require the reporting within a 
particular timeframe of changes relating to other types of registration 
information that also bear directly and importantly on the 
identification, tracking, and location of sex offenders. These include 
remote communication identifiers (such as email addresses), temporary 
lodging information, international travel information, and vehicle 
information, as described in Sec.  72.6(b), (c)(2), (d), and (f) of 
this rule. Absent a requirement that changes in these types of 
information be reported promptly, the information in the registries 
about these matters could become seriously out of date, which would in 
turn impair SORNA's basic objective of effectively tracking and 
locating sex offenders in the community following their release. See 73 
FR at 38044-45, 38066-67. The Attorney General accordingly has adopted 
definite timing requirements for reporting changes in these types of 
information, previously in the guidelines for SORNA implementation, and 
now in Sec.  72.7(e)-(f) in this rule.
    Adopting such rules reflects an exercise of the Attorney General's 
authority to ``interpret and implement'' SORNA, 34 U.S.C. 20912(b), and 
more specifically to interpret and implement SORNA's requirement that 
sex offenders must ``keep the registration current,'' id. 20913(a). 
While the heading of subsection (c) of section 20913 is ``[k]eeping the 
registration current,'' the heading only signifies that the subsection 
sets out an updating rule for the most basic types of registration 
information. It does not signify that nothing more can be required to 
keep the registration current. The contrary is evident from section 
20915(a), which specifies the duration of required registration under 
SORNA. Section 20915(a) uses the same terminology, stating that a sex 
offender ``shall keep the registration current'' for the relevant 
period of time. Obviously, in providing that a sex offender must ``keep 
the registration current'' for a specified period, section 20915(a) 
defines the period of time during which a sex offender must continue to 
comply with all of SORNA's requirements, given the absence of any other 
provision in SORNA specifying how long sex offenders must comply with 
its various requirements. Among other consequences, this means that sex 
offenders must appear in person periodically to verify and update their 
registration information, as required by section 20918, for the 
specified period of time--not just that they must report changes in 
name, residence, employment, and school attendance, as provided in 
section 20913(c), for the specified period of time. That consideration 
alone demonstrates that section 20913(c) does not exhaust SORNA's 
requirements for ``keep[ing] the registration current.''

[[Page 69875]]

    Regarding other matters, such as changes in registration 
information relating to remote communication identifiers, temporary 
lodging, vehicles, and international travel, the Attorney General has 
understood the authority to interpret and implement SORNA's requirement 
to keep the registration current as including the authority to adopt 
specific time and manner requirements for the reporting of such 
changes. Congress ratified this understanding in the KIDS Act. In that 
Act, Congress provided that (i) ``[t]he Attorney General, using the 
authority provided in [34 U.S.C. 20914(a)(8)], shall require that each 
sex offender provide to the sex offender registry those internet 
identifiers the sex offender uses or will use'' and (ii) ``[t]he 
Attorney General, using the authority provided in [34 U.S.C. 20912(b)], 
shall specify the time and manner for keeping current information 
required to be provided under this section.'' 34 U.S.C. 20916(a)-(b). 
Notably, Congress did not find it necessary to make new grants of 
authority to the Attorney General for these purposes and instead 
directed the Attorney General to utilize the pre-existing authorities 
under SORNA to require internet identifier information and specify the 
time and manner for keeping it current. This confirms that the section 
20912(b) authority includes the authority to adopt additional time and 
manner requirements in the rules and guidelines the Attorney General 
issues.
    SORNA directs sex offenders to provide for inclusion in the sex 
offender registry several expressly described types of registration 
information and, in addition, ``[a]ny other information required by the 
Attorney General.'' Id. 20914(a)(8). The section 20914(a)(8) authority 
underlies the specification of required types of registration 
information in Sec.  72.6 in this rule beyond those expressly set forth 
in section 20914(a)(1)-(7). The section 20914(a)(8) authority also 
provides an additional, independent legal basis for various 
requirements in Sec.  72.7, including a number of timing rules it 
incorporates.
    In relation to some types of required registration information 
under this rule, which may be based wholly or in part on the exercise 
of the Attorney General's authority under section 20914(a)(8), a timing 
requirement is inherent in the nature of the information that must be 
reported. This is true of the requirement under Sec.  72.7(d) to report 
if a sex offender will be commencing residence, employment, or school 
attendance elsewhere or will be terminating residence, employment, or 
school attendance in a jurisdiction. It is likewise true of the 
requirement under Sec.  72.7(f) to report intended international 
travel. Because these provisions constitute requirements to report 
present intentions regarding expected future actions, the information 
they require necessarily must be reported in advance of the expected 
actions.
    Section 20914(a)(8) also provides an additional, independent legal 
basis for more specific timeframe requirements appearing in Sec.  72.7 
of this rule. One of these requirements is that intended international 
travel is to be reported at least 21 days in advance of the travel, as 
provided in Sec.  72.7(f). In substance, this is a requirement that a 
sex offender report to the residence jurisdiction an intention to 
travel outside of the United States at some time 21 days or more in the 
future. Viewing the expected timing of the travel as an aspect of the 
required information, it is within the Attorney General's authority 
under 34 U.S.C. 20914(a)(8) to require sex offenders to provide ``[a]ny 
other information''--and following the adoption of section 20914(a)(7) 
by International Megan's Law, within the Attorney General's more 
specific authority under the latter provision to require ``any other . 
. . travel-related information.'' Essentially the same point applies to 
the rule's specification that sex offenders must report within three 
business days changes relating to certain types of registration 
information the Attorney General has required. Section 72.7(e) directs 
reporting of changes in information within that timeframe relating to 
remote communication identifiers, temporary lodging, and vehicles. 
Viewed as requirements to report the information that certain actions 
or occurrences have taken place within the preceding three business 
days, these requirements are within the Attorney General's authority 
under 34 U.S.C. 20914(a)(8).
    Turning to another SORNA provision supporting time and manner 
requirements, 34 U.S.C. 20913(d) authorizes the Attorney General to 
specify the applicability of SORNA's requirements to sex offenders 
convicted before the enactment of SORNA or its implementation in a 
particular jurisdiction ``and to prescribe rules for the registration 
of any such sex offenders and for other categories of sex offenders who 
are unable to comply with subsection (b).'' The cross-referenced 
``subsection (b)'' is the SORNA provision that requires sex offenders 
to register initially before release from imprisonment, or within three 
business days of sentencing if the sex offender is not imprisoned. As 
discussed below in connection with Sec.  72.7(a)(2) of this rule, sex 
offenders released from Federal or military custody and sex offenders 
convicted in foreign countries generally are unable to register prior 
to release. The section 20913(d) authority to prescribe registration 
rules for sex offenders ``unable to comply with subsection (b)'' 
accordingly provides one of the legal bases for the alternative timing 
rules in Sec.  72.7(a)(2), which direct registration by sex offenders 
in the affected classes within three business days of entering a 
jurisdiction following release.
    The authorities described above--under 34 U.S.C. 20912(b), 
20913(d), and 20914(a)(8)--provided the basis for the Attorney 
General's adoption of time and manner specifications for complying with 
SORNA's registration requirements in previously issued guidelines under 
SORNA. More recently, International Megan's Law added an express, 
general grant of authority to the Attorney General to make such 
specifications. The relevant provision is 34 U.S.C. 20914(c), which 
reads as follows: ``(c) TIME AND MANNER.--A sex offender shall provide 
and update information required under subsection (a), including 
information relating to intended travel outside the United States 
required under paragraph (7) of that subsection, in conformity with any 
time and manner requirements prescribed by the Attorney General.''
    The cross-referenced ``subsection (a)'' is SORNA's list of all the 
registration information that sex offenders must provide. Hence, the 
new section 20914(c) requires sex offenders to comply with the Attorney 
General's directions regarding the time and manner for providing and 
updating all registration information required by SORNA. In addition to 
empowering the Attorney General to specify the time and manner for 
reporting particular types of registration information, this provision 
enables the Attorney General to specify the time and manner for 
registration. This is so because registration on the part of a sex 
offender consists of providing required registration information to the 
registration jurisdiction for inclusion in the sex offender registry. 
Given that the Attorney General has the authority under section 
20914(c) to specify the time and manner for a sex offender's provision 
of each required type of registration information, it follows that the 
Attorney General has the authority under section 20914(c) to specify 
the time and manner for a sex offender's provision of the required 
types of information collectively, which constitutes registration under 
SORNA.

[[Page 69876]]

Paragraph (a)--Initial Registration
    Paragraph (a)(1) of Sec.  72.7 tracks SORNA's general rule that a 
sex offender must initially register--that is, register for the first 
time based on a sex offense conviction--before release from 
imprisonment, or within three business days of sentencing in case of a 
non-incarcerative sentence. See 34 U.S.C. 20913(b) (initial 
registration by sex offenders); id. 20919(a) (complementary duties of 
registration officials); 73 FR at 38062-65 (related explanation in 
guidelines).
    Paragraph (a)(2)(i) of Sec.  72.7 addresses the situation of sex 
offenders who are released from Federal or military custody or 
sentenced for a Federal or military sex offense. There is no separate 
Federal registration program for such offenders. Hence, Federal 
authorities cannot register these offenders prior to their release from 
custody or near the time of sentencing. This is in contrast to the 
authorities of the SORNA registration jurisdictions--the states, the 
District of Columbia, the five principal U.S. territories, and 
qualifying Indian tribes--who may register their sex offenders prior to 
release or near sentencing as provided in 34 U.S.C. 20913(b), 20919(a). 
SORNA instead enacted special provisions under which Federal 
correctional and supervision authorities (i) are required to inform 
Federal (including military) offenders with sex offense convictions 
that they must register as required by SORNA and (ii) must notify the 
(non-Federal) jurisdictions in which the sex offenders will reside 
following release or sentencing so that these jurisdictions can 
integrate the sex offenders into their registration programs. See 18 
U.S.C. 4042(c); Public Law 105-119, sec. 115(a)(8)(C), as amended by 
Public Law 109-248, sec. 141(i) (10 U.S.C. 951 note); 73 FR at 38064; 
see also 18 U.S.C. 3563(a)(8); id. 3583(d) (third sentence); id. 
4209(a) (second sentence) (mandatory Federal supervision condition to 
comply with SORNA); 34 U.S.C 20931 (requiring the Secretary of Defense 
to provide to the Attorney General military sex offender information 
for inclusion in the National Sex Offender Registry and National Sex 
Offender Public website).
    The timing rule adopted for such situations is that sex offenders 
released from Federal or military custody or convicted of Federal or 
military sex offenses but not sentenced to imprisonment must register 
within three business days of entering or remaining in a jurisdiction 
to reside, see 73 FR at 38064, which parallels SORNA's normal timeframe 
for registering or updating a registration following changes of 
residence, see 34 U.S.C. 20913(c). Section 72.7(a)(2)(i) refers to a 
sex offender entering ``or remaining'' in a jurisdiction to reside 
because, for example, a Federal sex offender released from a Federal 
prison located in a state may remain in that state to reside, rather 
than relocating to some other state. In such a case, the three-
business-day period for registering with the state runs from the time 
of the sex offender's release.
    In terms of legal authority, the requirement of Sec.  72.7(a)(2)(i) 
is supported by the Attorney General's authority to interpret and 
implement SORNA's requirement to register in the jurisdiction of 
residence, 34 U.S.C. 20912(b), 20913(a); the Attorney General's 
authority under section 20913(d) to prescribe rules for the 
registration of sex offenders who are unable to comply with section 
20913(b)'s timing rule for initial registration; and the Attorney 
General's authority under section 20914(c) to adopt time and manner 
specifications for providing and updating registration information, 
which includes the authority to adopt time and manner specifications 
for registration as discussed above. Viewing a sex offender's being 
released from Federal or military custody and taking up residence in a 
jurisdiction as a change of residence, this requirement is also 
supportable as a direct application of section 20913(c).
    Paragraph (a)(2)(ii) of Sec.  72.7 addresses the situation of 
persons required to register on the basis of foreign sex offense 
convictions. Registration by the convicting state is not an available 
option under SORNA in such cases because foreign states are not 
registration jurisdictions under SORNA. See 34 U.S.C. 20911(10). Also, 
there may be no domestic jurisdiction in which SORNA requires such 
offenders to register--if they are not residing, working, or attending 
school in the United States at the time they are released from custody 
or sentenced in the foreign country--but SORNA's requirements will 
apply if they travel or return to the United States. The rule adopted 
for foreign conviction situations is that the sex offender must 
register within three business days of entering a domestic jurisdiction 
to reside, work, or attend school, see 73 FR at 38050-51, 38064-65, 
which parallels SORNA's normal timeframe for registering or updating a 
registration following changes of residence, employment, or student 
status, see 34 U.S.C. 20913(c).
    In terms of legal authority, this requirement is supported by the 
Attorney General's authority to interpret and implement SORNA's 
requirement to register in jurisdictions of residence, employment, and 
school attendance, 34 U.S.C. 20912(b), 20913(a); the Attorney General's 
authority under section 20913(d) to prescribe rules for the 
registration of sex offenders who are unable to comply with section 
20913(b)'s timing rule for initial registration; and the Attorney 
General's authority under section 20914(c) to adopt time and manner 
specifications for providing and updating registration information, 
which includes the authority to adopt time and manner specifications 
for registration as discussed above. Insofar as a sex offender's travel 
or return to the United States following a foreign conviction involves 
a change of residence, employment, or student status, this requirement 
is also supportable as a direct application of section 20913(c).
Paragraph (b)--Periodic In-Person Verification
    Paragraph (b) of Sec.  72.7 sets out the express requirement of 34 
U.S.C. 20918 that sex offenders periodically appear in person in the 
jurisdictions in which they are required to register, allow the 
jurisdictions to take current photographs, and verify their 
registration information, with the frequency of the required 
appearances determined by their tiering. See 73 FR at 38067-68.
    The second sentence of paragraph (b), exercising the Attorney 
General's authority under 34 U.S.C. 20912(b), interprets and implements 
section 20918's requirement of verifying the information in each 
registry to include correcting any information that is out of date or 
inaccurate and reporting any new registration information. With respect 
to most types of registration information, other provisions of Sec.  
72.7 require reporting of changes within shorter timeframes than the 
intervals between periodic in-person appearances for verification. 
Hence, a sex offender who has complied with SORNA's requirements is 
likely to have reported changes in most types of registration 
information prior to his next verification appearance. But Sec.  72.7 
does not specially address the time and manner for reporting changes in 
some types of registration information. See Sec.  72.6(a)(2)-(3), (e), 
(g) (requiring as well information concerning actual and purported 
dates of birth and Social Security numbers, passports and immigration 
documents, and professional licenses). Sex offenders can

[[Page 69877]]

keep their registrations current with respect to the latter categories 
of information by reporting any changes in their periodic 
verifications. See 73 FR at 38067-68.
Paragraph (c)--Reporting of Initiation and Changes Concerning Name, 
Residence, Employment, and School Attendance
    Paragraph (c) of Sec.  72.7 is based on SORNA's express requirement 
that ``[a] sex offender shall, not later than 3 business days after 
each change of name, residence, employment, or student status, appear 
in person in at least 1 jurisdiction involved pursuant to [34 U.S.C. 
20913(a)] and inform that jurisdiction of all changes in the 
information required for that offender in the sex offender registry.'' 
34 U.S.C. 20913(c); see 73 FR at 38065-66.
    While SORNA provides a definite timeframe for reporting these 
changes (within three business days), specifies a means of reporting 
(through in-person appearance), and requires reporting of a change in 
``at least 1 jurisdiction,'' it does not specify the particular 
jurisdiction in which each kind of change--i.e., change in name, 
residence, employment, or school attendance--is to be reported. As 
discussed earlier, the Attorney General's authority under 34 U.S.C. 
20912(b) to interpret and implement SORNA includes the authority to 
further specify the manner in which changes in registration information 
are to be reported where there are such gaps or ambiguities in SORNA's 
statutory provisions. In addition, the Attorney General now has express 
authority under 34 U.S.C. 20914(c) to prescribe the manner in which all 
required registration information is to be provided and updated. 
Exercising those authorities in paragraph (c) in Sec.  72.7, the 
Attorney General interprets and implements the requirement of section 
20913(c), and prescribes the manner in which sex offenders must provide 
and update information about name, residence, employment, or student 
status, by specifying the particular jurisdiction in which a sex 
offender must appear to report the changes section 20913(c) describes--
in the residence jurisdiction to report a change of name or residence, 
in the employment jurisdiction to report a change of employment, and in 
the jurisdiction of school attendance to report a change in school 
attendance. See 73 FR at 38065.
    For example, suppose that a sex offender resides in state A and 
commutes to work in State B. Pursuant to 34 U.S.C. 20913(a), the sex 
offender must register in both states--in State A as his residence 
state, and in State B as his employment state. Suppose that the sex 
offender changes his place of residence in State A and continues to 
work at the same place in State B. Logically, the sex offender should 
carry out his in-person appearance in State A to report his change of 
residence in State A, rather than in State B, where his contact with 
the latter state (employment) has not changed. Conversely, varying the 
example, suppose that the sex offender changes his place of employment 
from one employer to another in State B, but continues to reside in the 
same place in State A. The sex offender should carry out his in-person 
appearance in state B to report his change of employment in State B, 
rather than in State A, where his contact with the latter state 
(residence) has not changed.
    These conclusions follow from the underlying policies of SORNA's 
in-person appearance requirements, which aim to provide opportunities 
for face to face encounters between sex offenders and persons 
responsible for their registrations in the local areas in which they 
will be present. Such encounters may help law enforcement personnel to 
familiarize themselves with the sex offenders in their areas, thereby 
facilitating the effective discharge of their protective and 
investigative functions in relation to those sex offenders, and helping 
to ensure that their responsibilities to track those offenders are 
taken seriously and carried out consistently. Likewise, from the 
perspective of sex offenders, face to face encounters with officers 
responsible for their monitoring in the local areas where they are 
present may help to impress on them that their identities, locations, 
and past criminal conduct are known to the authorities in those areas. 
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. See 73 FR at 38065, 38067.
    These policies are furthered by sex offenders appearing in person 
to report changes in residence, employment, and school attendance in 
the jurisdictions in which the changes occur, rather than in other 
jurisdictions where they may be required to register, but within whose 
borders there has been no change in the location of the sex offender. 
Section 72.7(c) in the rule accordingly provides that changes in the 
most basic types of location information--residence, employment, school 
attendance--are to be reported through in-person appearances in the 
jurisdictions in which they occur. Section 72.7(c) also provides 
definiteness regarding the reporting of name changes under 34 U.S.C. 
20913(c), providing that such changes are to be reported in the 
residence jurisdiction, as the jurisdiction in which a sex offender is 
likely to have his most substantial presence and contacts.
Paragraph (d)--Reporting of Departure and Termination Concerning 
Residence, Employment, and School Attendance
    Paragraph (d) of Sec.  72.7 requires sex offenders to inform the 
jurisdictions in which they reside if they will be commencing 
residence, employment, or school attendance in another jurisdiction or 
outside of the United States, and to inform the relevant jurisdictions 
if they will be terminating residence, employment, or school attendance 
in a jurisdiction. The Attorney General has previously articulated 
these requirements in the SORNA Guidelines. See 73 FR at 38065-67. 
These requirements are not part of the requirement under 34 U.S.C. 
20913(c) to report certain changes through in-person appearances and 
they may be reported by any means allowed by registration jurisdictions 
in their discretion. See 73 FR at 38067.
    Paragraph (d)(1) of Sec.  72.7, relating to notice about intended 
commencement of residence, employment, or school attendance outside of 
a jurisdiction, and paragraph (d)(2), relating to notice about 
termination of residence, employment, or school attendance in a 
jurisdiction, are complementary, each applying in certain situations 
that may be outside the scope of the other. For example, Sec.  
72.7(d)(1) requires a sex offender to inform his residence jurisdiction 
if he will be starting a job in another jurisdiction, even if he will 
continue to reside where he has resided and will not be terminating any 
existing connection to the residence jurisdiction. Section 72.7(d)(2) 
requires a sex offender to inform a jurisdiction of his intended 
termination of residence, employment, or school attendance in that 
jurisdiction ``even if there is no ascertainable or expected future 
place of residence, employment, or school attendance for the sex 
offender.'' 73 FR at 38066.
    Regarding the underlying legal authority for Sec.  72.7(d), its 
informational requirements overlap with types of information 34 U.S.C. 
20914(a) expressly requires sex offenders to provide, which include 
information as to where a sex offender ``will reside,'' ``will be an 
employee,'' or ``will be a student.'' Id. 20914(a)(3)-(5). To the 
extent Sec.  72.7(d) goes beyond the registration information that 
SORNA expressly requires, it is a straightforward exercise of the 
Attorney

[[Page 69878]]

General's authority under 34 U.S.C. 20914(a)(8) to require any 
additional registration information.
    Even before the enactment of International Megan's Law, the 
Attorney General's implementation authority under 34 U.S.C. 20912(b) 
was understood to include the authority to specify time and manner 
requirements for providing and updating registration information, as 
discussed above. Currently, section 20914(c) confers express authority 
on the Attorney General to adopt the time and manner requirements set 
forth in Sec.  72.7(d)--i.e., that (i) intended commencement of 
residence, employment, or school attendance in another jurisdiction or 
outside the United States is to be reported to the residence 
jurisdiction (by whatever means it allows) prior to any termination of 
residence in that jurisdiction and prior to commencing residence, 
employment, or school attendance in the other jurisdiction or outside 
of the United States; and (ii) intended termination of residence, 
employment, or school attendance in a jurisdiction is to be reported to 
the jurisdiction (by whatever means it allows) prior to the termination 
of residence, employment, or school attendance in the jurisdiction. 
Section 72.7(d)'s requirement that the intended actions or changes are 
to be reported prior to the termination of residence, employment, or 
school attendance in the relevant jurisdiction ensures that the 
reporting requirement applies while the sex offender is still subject 
to the requirement to register and keep the registration current in the 
jurisdiction pursuant to 34 U.S.C. 20913(a). This approach avoids any 
question about the validity of requiring a sex offender to provide or 
update information in a jurisdiction in which he is no longer required 
to register under SORNA.
    The exercise of the authorities described above in Sec.  72.7(d) 
furthers SORNA's objective of creating a ``comprehensive national 
system for the registration of [sex] offenders,'' 34 U.S.C. 20901, 
which reliably tracks sex offenders as they move away from and into 
registration jurisdictions. A sex offender's departure from a 
jurisdiction in which he is registered may eventually be discovered--
e.g., because he fails to appear for the next periodic verification of 
his registration, see id. 20918--even if he does not affirmatively 
notify the jurisdiction that he is leaving. But considerable time may 
elapse before that happens, leaving a cold trail for law enforcement 
efforts to locate the sex offender, if he does not register in the 
destination jurisdiction as SORNA requires.
    For example, for a sex offender who decides to change his residence 
from one state to another, Sec.  72.7(d) requires the sex offender to 
inform the state he is leaving prior to his departure, and Sec.  
72.7(c) requires him to inform the destination state within three 
business days of his arrival there. Under SORNA's procedures for 
information sharing among registration jurisdictions, the state of 
origin in such a case directly notifies the identified destination 
state. See 34 U.S.C. 20921(b), 20923(b)(3); 73 FR at 38065; 76 FR at 
1638. If the sex offender then fails to appear and register as expected 
in the destination state, appropriate follow-up ensues, which may 
include investigative efforts by state and local law enforcement and 
the U.S. Marshals Service to locate the sex offender, issuance of a 
warrant for his arrest, and entry of information into national law 
enforcement databases reflecting the sex offender's status as an 
absconder or unlocatable. See 34 U.S.C. 20924; 73 FR at 38069. In the 
context of this system, the requirement of Sec.  72.7(d) for a sex 
offender to notify the residence jurisdiction concerning his departure 
is an important element. It helps to ensure that agencies and officials 
responsible for sex offender registration and its enforcement are 
promptly made aware of major changes in the location of sex offenders, 
and thereby reduces the risk that sex offenders will disappear in the 
interstices between jurisdictions.
    In so doing, Sec.  72.7(d) resolves certain potential problems in 
the operation of SORNA's registration system following the Supreme 
Court's decision in Nichols v. United States, 136 S. Ct. 1113 (2016), 
and a similar earlier decision by the Eighth Circuit Court of Appeals, 
United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013). Nichols 
involved a sex offender who abandoned his residence in Kansas and 
relocated to the Philippines, without informing the Kansas registration 
authorities of his departure. The issue in the case was whether Nichols 
had violated 34 U.S.C. 20913(c), which requires a sex offender ``not 
later than three business days after each change of name, residence, 
employment, or student status'' to ``appear in person in at least 1 
jurisdiction involved pursuant to subsection (a) and inform that 
jurisdiction of all changes'' in the required registration information.
    The Court noted that subsection (a) of section 20913 mentions three 
jurisdictions as possibly ``involved''--``where the offender resides, 
where the offender is an employee, and where the offender is a 
student''-- which would not include the state of Kansas after Nichols 
had moved to the Philippines. Nichols, 136 S. Ct. at 1117 (quoting 34 
U.S.C. 20913(a)). The Court further noted that section 20913(c) 
requires appearance and registration within three business days after a 
change of residence, and Nichols could not have appeared in Kansas 
after he left the state. Id. at 1117-18. The Court accordingly 
concluded that Nichols' failure to inform Kansas of his departure was 
not a violation of section 20913(c), since Kansas was no longer an 
``involved'' jurisdiction in which section 20913(c) may require a sex 
offender to report changes in residence. Id. at 1118.
    Applying the same reasoning to the domestic context, if a sex 
offender terminates his residence in a state and thereafter takes up 
residence in another state, he cannot violate section 20913(c) by 
failing to inform the state he is leaving. For, following the 
termination of residence in that state, it is no longer a 
``jurisdiction involved'' for purposes of section 20913(c).
    There is no comparable problem, however, with Sec.  72.7(d)'s 
requirement that a sex offender inform a jurisdiction in which he 
resides of his intended departure from the jurisdiction, because Sec.  
72.7(d) does not depend on the requirements of section 20913(c). 
Rather, Sec.  72.7(d) is grounded in the requirement of section 
20914(a) that sex offenders provide certain information, including 
``[a]ny other information required by the Attorney General,'' and the 
requirement of section 20914(c) that they report the required 
information in the ``time and manner . . . prescribed by the Attorney 
General.''
    The Attorney General's exercise of his authorities under section 
20914(a) and 20914(c) to require sex offenders to inform their 
registration jurisdictions that they will be going elsewhere in no way 
conflicts with Nichols' conclusion that section 20913(c) does not 
require such pre-departure notice of intended relocation. Section 
20914(a)(8) says that sex offenders must provide ``[a]ny other 
information required by the Attorney General.'' The statute does not 
say that sex offenders must provide ``[a]ny other information required 
by the Attorney General, except for information about intended 
departure from the jurisdiction.'' Nichols' interpretation of section 
20913(c) provides no basis for reading such an unstated limitation into 
section 20914(a)(8). Likewise, Nichols provides no basis for reading 
unstated limitations into the Attorney General's authority--now 
expressly granted by section 20914(c)--to prescribe time and manner 
requirements for providing and updating registration information, which 
adequately supports Sec.  72.7(d)'s

[[Page 69879]]

requirement that a sex offender inform the jurisdiction in which he 
resides about intended departure prior to any termination of residence 
and before going elsewhere.
    The Attorney General's adoption of the Sec.  72.7(d) requirements 
is also consistent with the Supreme Court's analysis of particular 
arguments and issues in Nichols. The salient points are as follows:
    First, the Court in Nichols noted that the predecessor Federal sex 
offender registration law (the ``Wetterling Act'') required a sex 
offender to ``report the change of address to the responsible agency in 
the State the person is leaving,'' while SORNA contains no comparable 
provision that expressly requires sex offenders to notify jurisdictions 
they are leaving. 136 S. Ct. at 1118 (quoting 42 U.S.C. 14071(b)(5) 
(2000)). However, SORNA does not attempt to articulate all the 
particulars of its registration requirements for sex offenders, instead 
authorizing the Attorney General to complete the regulatory scheme 
through interpretation and implementation of SORNA. See, e.g., 34 
U.S.C. 20912(b), 20913(d), 20914(a)(8), 20914(c). Given the extent of 
the Attorney General's powers under SORNA, it was not necessary for 
Congress to include an express provision in SORNA requiring sex 
offenders to notify jurisdictions they are leaving. Nor can there be 
any doubt that requiring such notification is now within the terms of 
the Attorney General's powers under SORNA, as discussed above. Indeed, 
34 U.S.C. 20923(b)(3)--which provides that a jurisdiction's officials 
are to inform each jurisdiction ``from or to which a change of 
residence, employment, or student status occurs''--contemplates the 
Attorney General's adoption of requirements like those appearing in 
Sec.  72.7(d). For if sex offenders were not required to advise the 
jurisdictions they leave of their departure and destination, those 
jurisdictions could not inform the jurisdictions ``to which'' sex 
offenders relocate.
    Second, the Court in Nichols rejected an argument that a 
jurisdiction necessarily remains ``involved'' for purposes of section 
20913(c) if the sex offender continues to appear on the jurisdiction's 
registry as a current resident. The Court responded that section 
20913(a) gives jurisdictions where the offender resides, is an 
employee, or is a student as the only possibilities for an ``involved'' 
jurisdiction, and does not include a jurisdiction ``where the offender 
appears on a registry.'' 136 S. Ct. at 1118. The Court said ``[w]e 
decline the . . . invitation to add an extra clause to the text of 
Sec.  [20]913(a).'' Id. In contrast, Sec.  72.7(d) in this rule does 
not require the addition of an extra clause to section 20913(a). It 
involves the exercise of the Attorney General's authorities under SORNA 
to include the information described in Sec.  72.7(d) in the 
information that a sex offender must provide to the jurisdictions 
described in the actual clauses of section 20913(a)--i.e., those in 
which he resides, is an employee, or is a student.
    Third, the Court rejected an argument that Nichols was required to 
inform Kansas of his intended departure based on 34 U.S.C. 
20914(a)(3)'s direction to sex offenders to provide information about 
where they ``will reside.'' The Court noted that ``Sec.  [20]914(a) 
merely lists the pieces of information that a sex offender must provide 
if and when he updates his registration; it says nothing about whether 
the offender has an obligation to update his registration in the first 
place.'' 136 S. Ct. at 1118. In context, the Court's point was that 
section 20914(a)(3) just specifies a type of information sex offenders 
must provide, and does not say when they must provide it, so section 
20914(a)(3) does not in itself require sex offenders to provide change 
of residence information in advance when they leave a jurisdiction. For 
example, without more, section 20914(a)(3) might be taken to entail 
that sex offenders must advise where they ``will reside'' when 
initially registering before release from imprisonment, see 34 U.S.C. 
20913(b)(1), but not necessarily that they give advance notice to their 
registration jurisdictions of expected future residence on subsequent 
relocations.
    However, this understanding of section 20914(a)(3) does not imply 
any limitation on the Attorney General's authority to require a sex 
offender to ``update his registration in the first place,'' Nichols, 
136 S. Ct. at 1118, on the basis of 34 U.S.C. 20914(c), which directs 
that ``[a] sex offender shall provide and update information required 
under subsection (a) . . . in conformity with any time and manner 
requirements prescribed by the Attorney General.'' Nor does it imply 
any limitation on the Attorney General's authority under SORNA to 
require sex offenders to report the full range of information described 
in Sec.  72.7(d). In Sec.  72.7(d), as discussed above, the Attorney 
General exercises these authorities to require sex offenders to inform 
jurisdictions of intended departure and expected future residence prior 
to any termination of residence in a jurisdiction.
    Finally, the Court in Nichols rejected an argument that Nichols had 
to notify Kansas of his departure on the theory that he engaged in two 
changes of residence--the first when he abandoned his residence in 
Kansas, and the second when he checked into a hotel in the Philippines. 
136 S. Ct. at 1118-19. Section 72.7(d) in this rule, however, does not 
assume any such multiplicity in changes of residence. Rather, it 
establishes a freestanding requirement to inform registration 
jurisdictions in advance of termination of residence and commencement 
of intended future residence.
    At the end of the Nichols decision, the Court noted that--
considering the International Megan's Law amendments to SORNA--``[o]ur 
interpretation of the SORNA provisions at issue in this case in no way 
means that sex offenders will be able to escape punishment for leaving 
the United States without notifying the jurisdictions in which they 
lived while in this country.'' 136 S. Ct. at 1119. The Court noted the 
addition of a new subsection (b) to 18 U.S.C. 2250, which 
``criminalized the `knowin[g] fail[ure] to provide information required 
by [SORNA] relating to intended travel in foreign commerce,' '' and the 
addition of 34 U.S.C. 20914(a)(7), which requires sex offenders to 
provide information about intended international travel. 136 S. Ct. at 
1119 (brackets in original) (quoting 18 U.S.C. 2250(b)(2)). The Court 
concluded: ``We are thus reassured that our holding today is not likely 
to create `loopholes and deficiencies' in SORNA's nationwide sex-
offender registration scheme.'' Id. (quoting United States v. 
Kebodeaux, 570 U.S. 387, 399 (2013)).
    Section 72.7(d) in this rule similarly helps to ensure that the 
interpretation of 34 U.S.C. 20913(c) in Nichols and Lunsford does not 
create ``loopholes and deficiencies'' in the operation of SORNA's 
tracking system, in relation to both domestic and international 
relocations. For example, consider a sex offender who terminates his 
residence in a state without informing the state. Suppose the sex 
offender is later found elsewhere in the United States, but he cannot 
be shown to have taken up residence--or to have been employed or a 
student--in another jurisdiction after leaving the original state of 
residence. In light of Nichols, section 20913(c) does not require the 
sex offender to report his relocation to the original state because it 
is no longer an ``involved'' jurisdiction after he leaves, and there 
may be no other relevant jurisdiction in which he must report the 
change, i.e., one in which he presently resides, is employed, or is a 
student. However,

[[Page 69880]]

with Sec.  72.7(d) in effect, a sex offender in this circumstance will 
have violated 34 U.S.C. 20914(a) and (c)'s requirements to provide 
registration information, including ``[a]ny other information'' 
prescribed by the Attorney General, in the time and manner prescribed 
by the Attorney General. At a minimum, in the case described, the sex 
offender would have failed to provide the information that he is 
terminating his residence in the original state of residence prior to 
his termination of residence in that state, contravening Sec.  72.7(d).
    Hence, Sec.  72.7(d) provides an additional safeguard against 
registered sex offenders simply disappearing without informing anyone 
about their relocation. The consequences for noncompliant sex offenders 
include potential prosecution by registration jurisdictions, which have 
been encouraged to adopt departure notification requirements similar to 
Sec.  72.7(d) in their registration laws by the Attorney General's 
prior articulation of those requirements in the SORNA Guidelines. See 
73 FR at 38065-66. The consequences of noncompliance with Sec.  72.7(d) 
will also include potential Federal prosecution under 18 U.S.C. 2250 
for violations committed under circumstances supporting Federal 
jurisdiction.
    Sex offenders must comply both with the requirements of Sec.  
72.7(c) and with the requirements of Sec.  72.7(d). For example, 
suppose a sex offender changes residence from State A to State B. It is 
not sufficient if (i) the sex offender complies with Sec.  72.7(d) by 
telling State A that he is leaving and going to State B, but (ii) he 
fails to appear in State B and register there as required by Sec.  
72.7(c), and then (iii) he attempts to excuse his failure to comply 
with Sec.  72.7(c) on the ground that State A could have told State B 
about his relocation. Likewise, it is not sufficient if the sex 
offender in such a case (i) complies with Sec.  72.7(c) by registering 
in State B, but (ii) he fails to inform State A about the intended 
relocation prior to his departure, and then (iii) he attempts to excuse 
his failure to comply with Sec.  72.7(d) on the ground that State B 
could have told State A about his relocation. As discussed above, 
appearance and registration by sex offenders in jurisdictions in which 
they commence residence, employment, or school attendance, as required 
by Sec.  72.7(c), and notification by sex offenders to jurisdictions in 
which they terminate residence, employment, or school attendance, as 
required by Sec.  72.7(d), both serve important purposes in SORNA's 
registration system as articulated in this rule and the previously 
issued SORNA guidelines. Compliance with both requirements is necessary 
to the seamless and effective operation of that system for the reasons 
explained above.
Paragraph (e)--Reporting of Changes in Information Relating to Remote 
Communication Identifiers, Temporary Lodging, and Vehicles
    Paragraph (e) requires sex offenders to report to their residence 
jurisdictions within three business days changes in remote 
communication identifier information, temporary lodging information, 
and vehicle information. In terms of legal authority, as discussed 
earlier, these requirements are supportable on the basis of the 
Attorney General's authority to interpret and implement SORNA's 
requirement to keep the registration current, the Attorney General's 
authority to expand the information that sex offenders must provide to 
registration jurisdictions, and the Attorney General's authority to 
prescribe the time and manner for providing and updating registration 
information. See 34 U.S.C. 20912(b), 20913(a), 20914(a)(8), (c), 
20916(b); 73 FR at 38066; 76 FR at 1637. (The SORNA Guidelines state 
that such changes are to be reported ``immediately'' and explain at an 
earlier point that ``immediately'' in the context of SORNA's timing 
requirements means within three business days, see 73 FR at 38060, 
38066.) SORNA does not require that these changes be reported through 
in-person appearances and they may be reported by any means allowed by 
registration jurisdictions in their discretion. See id. at 38067.
Paragraph (f)--Reporting of International Travel
    Paragraph (f) of Sec.  72.7 requires sex offenders to report 
intended travel outside of the United States to their residence 
jurisdictions. The expected travel must be reported at least 21 days in 
advance and, if applicable, prior to any termination of residence in 
the jurisdiction. Reporting of information about intended international 
travel is an express SORNA requirement following SORNA's amendment by 
International Megan's Law. See 34 U.S.C. 20914(a)(7); Public Law 114-
119, sec. 6(a). The underlying reasons for requiring reporting of 
international travel are explained above in connection with Sec.  
72.6(d) of this rule.
    The 21-day advance notice requirement is designed to provide 
relevant agencies, including the U.S. Marshals Service and INTERPOL 
Washington-U.S. National Central Bureau, sufficient lead time for any 
investigation or inquiry that may be warranted relating to the sex 
offender's international travel, and for notification of U.S. and 
foreign authorities in destination countries, prior to the sex 
offender's arrival in a destination country. The requirement that the 
intended international travel be reported prior to any termination of 
residence in the jurisdiction--potentially an issue in cases in which 
the sex offender is terminating his U.S. residence and relocating to a 
foreign country--ensures that a SORNA violation has occurred in case of 
noncompliance while the sex offender is still residing in the 
jurisdiction and hence required by 34 U.S.C. 20913(a) to register and 
keep the registration current in that jurisdiction. The requirement to 
report intended international travel at least 21 days in advance 
applies in relation to all international travel, including both cases 
in which the sex offender is temporarily traveling abroad while 
maintaining a domestic residence and cases in which the sex offender is 
terminating his residence in the particular jurisdiction or the United 
States.
    The rule recognizes, however, that reporting of intended 
international travel 21 days in advance is not possible in some 
circumstances. Section 72.8(a)(2) of the rule generally addresses 
situations in which sex offenders cannot comply with SORNA requirements 
because of circumstances beyond their control, and it specifically 
addresses inability to comply with the timeframe for reporting of 
international travel in Example 3 in that provision.
    In terms of legal authority, the requirement to report intended 
international travel to the residence jurisdiction at least 21 days in 
advance and prior to any termination of residence is supportable as an 
exercise of the express authority of the Attorney General under 34 
U.S.C. 20914(c), which states in part that ``[a] sex offender shall 
provide and update . . . information relating to intended travel 
outside the United States . . . in conformity with any time and manner 
requirements prescribed by the Attorney General.'' As discussed above, 
the international travel reporting requirement, including its 
associated timeframe requirement, is also supportable on the basis of 
other SORNA authorities of the Attorney General, which were relied on 
in SORNA guidelines preceding the addition of 34 U.S.C. 20914(a)(7), 
(c) by International Megan's Law. These authorities include the 
Attorney General's authority under 34 U.S.C. 20914(a)(8) to expand the 
range of

[[Page 69881]]

required registration information and the Attorney General's authority 
under 34 U.S.C. 20912(b) to issue rules to interpret and implement 
SORNA's requirement to keep the registration current.
Paragraph (g)--Compliance With Jurisdictions' Requirements for 
Registering and Keeping the Registration Current
    Paragraph (g) of Sec.  72.7 requires sex offenders to register and 
keep the registration current in conformity with the time and manner 
requirements of their registration jurisdictions, where they have not 
done so in the time and manner normally required under SORNA.
    SORNA generally requires sex offenders to register initially before 
release from imprisonment or within three business days of sentencing, 
but it recognizes that sex offenders may be unable to comply with these 
requirements in some circumstances. The difficulty can arise in cases 
in which a jurisdiction has no provision for registering certain sex 
offenders as required by SORNA at the time of their release--or even no 
registration program at all at that time--but the jurisdiction can 
register them later as it progresses in its implementation of SORNA's 
requirements. The SORNA Guidelines provide guidance to registration 
jurisdictions about integrating previously excluded sex offenders into 
their registration programs in such circumstances and ensuring that 
these sex offenders fully comply with SORNA's requirements. See 73 FR 
at 38063-64; see also Smith, 538 U.S. 84 (application of new sex 
offender registration requirements to previously convicted sex 
offenders does not violate the constitutional prohibition on ex post 
facto laws).
    Because the normal timeframe for initial registration under SORNA 
may be past in these situations, SORNA authorizes the Attorney General 
to prescribe rules for registration. Specifically, 34 U.S.C. 20913(d) 
gives the Attorney General the authority to specify the applicability 
of SORNA's requirements to sex offenders with pre-SORNA or pre-SORNA-
implementation convictions, ``and to prescribe rules for the 
registration of any such sex offenders and for other categories of sex 
offenders who are unable to comply with'' SORNA's initial registration 
requirements. More broadly, as discussed above, the Attorney General's 
general authority under 34 U.S.C. 20912(b) to interpret and implement 
SORNA includes the authority to fill gaps in SORNA's time and manner 
requirements for registering and keeping the registration current, and 
34 U.S.C. 20914(c) expressly requires sex offenders to provide and 
update registration information required by SORNA in the time and 
manner prescribed by the Attorney General.
    In section 72.7(g) in this rule, the Attorney General exercises his 
authorities under 34 U.S.C. 20912(b), 20913(d), and 20914(c) to require 
sex offenders to register and keep their registrations current in the 
time and manner specified by their registration jurisdictions, where 
the sex offenders have not registered or kept the registrations up to 
date in the time and manner normally required by SORNA as articulated 
in the earlier portions of Sec.  72.7. This requirement complements the 
directions to registration jurisdictions in the SORNA Guidelines about 
integrating previously excluded sex offenders and previously omitted 
SORNA requirements into their registration programs, with suitable 
timeframes and procedures, as the jurisdictions progress with SORNA 
implementation. See 73 FR at 38063-64. Of course sex offenders are 
independently required by the laws of their registration jurisdictions 
to comply with the jurisdictions' time and manner specifications for 
registering and updating their registrations. The effect of Sec.  
72.7(g) is to adopt the jurisdictions' time and manner specifications 
as SORNA requirements in the situations it covers.
    Section 72.7(g)(1) includes four examples. The first example 
concerns a situation in which a state does not register sex offenders 
before release, but a sex offender can register soon after release in 
conformity with the state's procedures. The second example concerns a 
situation in which a jurisdiction does not register certain sex 
offenders at all at the time of their release or entry into the 
jurisdiction, but a sex offender in the excluded class becomes able to 
register at a later time and is directed by the jurisdiction to do so 
after it extends its registration requirements.
    As the Supreme Court noted in Reynolds, SORNA, in section 20913(b), 
``says that a sex offender must register before completing his prison 
term, but the provision says nothing about when a pre-Act offender who 
completed his prison term pre-Act must register. . . . Pre-Act 
offenders . . . might, on their own, reach different conclusions about 
whether, or how, the new registration requirements applied to them. A 
ruling from the Attorney General [under section 20913(d)], however, 
could diminish or eliminate those uncertainties. . . .'' 565 U.S. at 
441-42. In Sec.  72.7(g), the Attorney General exercises his 
authorities under sections 20912(b), 20913(d), and 20914(c) to 
``eliminate those uncertainties'' in conformity with Congress's intent 
concerning the filling of ``potential lacunae'' in SORNA, 565 U.S. at 
441-42. Section 72.7(g) fills the gaps in such cases by adopting the 
timing rules and procedures of the relevant registration jurisdictions. 
This applies in relation to sex offenders who do not register initially 
in conformity with SORNA because they were convicted and released 
before SORNA's enactment, as described by the Court in Reynolds, and in 
relation to all other sex offenders who do not register in accordance 
with the normal time and manner requirements under SORNA, e.g., because 
of shortfalls in a jurisdictions' registration requirements that may 
later be corrected or that allow registration in some variant way.
    The third example in Sec.  72.7(g)(1) concerns a sex offender in a 
jurisdiction that initially has no procedure for sex offenders to 
periodically update registrations through verification appearances as 
required by SORNA, but the jurisdiction later directs the sex offender 
to do so after it incorporates this aspect of SORNA into its 
registration program. Since the periodic verification appearances 
required by 34 U.S.C. 20918 fall under SORNA's requirement to keep the 
registration current and involve updating the registration information 
required by SORNA, it is within the Attorney General's authority under 
34 U.S.C. 20912(b) and 20914(c) to specify the time and manner for the 
verifications where SORNA's verification requirement or normal 
timeframes for verifications have not been followed. Section 72.7(g)(1) 
directs sex offenders to comply with the jurisdiction's requirements 
for periodic verification in such situations.
    The fourth example in Sec.  72.7(g)(1) concerns a sex offender who 
does not provide particular information within the time required by 
SORNA because a jurisdiction's informational requirements fall short of 
SORNA's requirements but are later brought into line. The example 
illustrates the point by reference to email addresses. As provided in 
Sec.  72.6(b), sex offenders must include this information when they 
register and, as provided in Sec.  72.7(e), they must report any 
subsequent changes within three business days. Where the normal 
reporting time is past when a jurisdiction decides to include a type of 
information in its sex offender registry,

[[Page 69882]]

Sec.  72.7(g)(1) requires sex offenders to comply with the 
jurisdiction's directions to provide the information at a later time.
    Section 72.7(g)(2) provides that, in a prosecution under 18 U.S.C. 
2250, Sec.  72.7(g)(1) does not relieve a sex offender of the need to 
show an inability to comply with SORNA as an affirmative defense to 
liability. The situations described in Sec.  72.7(g)(1), which may 
involve noncompliance with SORNA's requirements because of deficits in 
registration jurisdictions' requirements or procedures, overlap with 
situations in which a sex offender may have a defense under 18 U.S.C. 
2250(c) because he was prevented from complying with SORNA by 
circumstances beyond his control. However, the purpose and effect of 
Sec.  72.7(g)(1) are to hold sex offenders to compliance with the 
registration rules and procedures of registration jurisdictions in the 
situations it covers. Section 72.7(g) does not, in any case, relieve 
sex offenders of the obligation to comply fully with SORNA if able to 
do so or shift the burden of proof to the government to establish that 
a registration jurisdiction's procedures would have allowed a sex 
offender to register or keep the registration current in conformity 
with SORNA. Rather, the defense under 18 U.S.C. 2250(c) is an 
affirmative defense, as that provision explicitly provides, and as 
Sec. Sec.  72.7(g)(2) and 72.8(a)(2) in this rule reiterate.

Section 72.8--Liability for Violations

    Section 72.8 of the rule explains the liability of sex offenders 
for SORNA violations and limitations on that potential liability.
Paragraph (a)(1)--Offense
    SORNA's criminal provision, 18 U.S.C. 2250, provides criminal 
liability for sex offenders based on SORNA violations.
    Section 72.8(a)(1)(i) in the rule refers to potential criminal 
liability under 18 U.S.C. 2250(a). Section 2250(a) authorizes 
imprisonment for up to 10 years based on a knowing failure to register 
or update a registration as required by SORNA. Federal criminal 
liability may result under this provision when the violation occurs 
under circumstances supporting Federal jurisdiction as specified in the 
statute. These jurisdictional circumstances include (i) violation of 
SORNA by sex offenders convicted of sex offenses under Federal 
(including military) law, the law of the District of Columbia, Indian 
tribal law, or the law of a U.S. territory or possession; and (ii) 
travel in interstate or foreign commerce or entering, leaving, or 
residing in Indian country. Section 2250(a) reaches all types of SORNA 
violations, including failure to register or keep the registration 
current in each jurisdiction of residence, employment, or school 
attendance, as required by 34 U.S.C. 20913; failure to provide or 
update registration information required by 34 U.S.C. 20914; or failure 
to appear periodically and verify the registration information, as 
required by 34 U.S.C. 20918.
    Section 72.8(a)(1)(ii) in the rule refers to potential criminal 
liability under 18 U.S.C. 2250(b), which was added by International 
Megan's Law. See Public Law 114-119, sec. 6(b). Section 2250(b) defines 
an offense that specifically reaches violations of SORNA's 
international travel reporting requirement. The provision authorizes 
imprisonment for up to 10 years for a sex offender who (i) knowingly 
fails to provide information required by SORNA relating to intended 
travel in foreign commerce and (ii) ``engages or attempts to engage in 
the intended travel in foreign commerce.'' The jurisdictional language 
in section 2250(b) reaches cases in which the contemplated travel is 
not carried out, in addition to those in which the sex offender does 
travel abroad. For example, consider a sex offender who (i) purchases a 
plane ticket to a foreign destination but (ii) fails to report the 
intended international travel as required by SORNA and (iii) does not 
actually leave the country because the unreported travel is detected by 
the authorities who arrest him at the airport. The attempted travel in 
foreign commerce provides a sufficient jurisdictional basis for Federal 
prosecution under section 2250(b).
    Section 72.8(a)(1)(iii) in the rule explains the condition for 
liability under 18 U.S.C. 2250(a)-(b) that the defendant ``knowingly'' 
fail to comply with a SORNA requirement. The ``knowingly'' limitation 
ensures that sex offenders are not held liable under section 2250 for 
violations of registration requirements they did not know about. 
However, this does not require knowledge that the requirement is 
imposed by SORNA. State sex offenders, for example, are likely to be 
instructed in the registration process regarding many of the 
registration requirements appearing in SORNA, which are widely 
paralleled in state registration laws, such as the need to report 
changes in residence, employment, internet identifiers, and vehicle 
information; the need to report intended international travel; and the 
need to appear periodically to update and verify registration 
information. The acknowledgment forms obtained from sex offenders in 
registration often provide a means of establishing their knowledge of 
the registration requirements in later prosecutions for violations. See 
76 FR at 1634-35, 1638. But sex offenders may not be informed that the 
registration requirements they are subject to are imposed by a 
particular Federal law, SORNA. This does not impugn the fairness or 
propriety of holding sex offenders liable under 18 U.S.C. 2250 for 
knowingly violating a registration requirement that is in fact imposed 
by SORNA, so long as they are aware of an obligation from some source 
to comply with the requirement. See, e.g., United States v. Elkins, 683 
F.3d 1039, 1050 (9th Cir. 2012); United States v. Whaley, 577 F.3d 254, 
261-62 (5th Cir. 2009). Section 72.8(a)(1)(iii) makes these points 
about 18 U.S.C. 2250's knowledge requirement in the rule.
Paragraph (a)(2)--Defense
    Subsection (c) of 18 U.S.C. 2250 provides an affirmative defense to 
liability under certain conditions where uncontrollable circumstances 
prevented a sex offender from complying with SORNA, so long as the sex 
offender complied as soon as the preventing circumstances ceased. 
Section 72.8(a)(2) in the rule reproduces this affirmative defense 
provision and provides examples of its operation.
    Registration is a reciprocal process, involving the provision of 
registration information by sex offenders, and the registration 
jurisdiction's acceptance of the information for inclusion in the sex 
offender registry. The circumstances preventing compliance with SORNA 
under section 2250(c) accordingly may be a registration jurisdiction's 
failure or refusal to carry out the reciprocal role needed to effect 
registration, or the updating of a registration, as required by SORNA.
    Example 1 in Sec.  72.8(a)(2) illustrates this type of situation, 
describing a case in which a sex offender cannot appear and report an 
inter-jurisdictional change of residence within three business days 
because the office with which he needs to register will not meet with 
him for a week. The case implicates both 34 U.S.C. 20913(a)'s 
requirement that a sex offender register in each jurisdiction in which 
he resides and 34 U.S.C. 20913(c)'s requirement that sex offenders 
report changes of residence within three business days. These 
provisions' net effect is that a sex offender establishing residence in 
a new jurisdiction must register there but with a three-business-day 
grace period. In the

[[Page 69883]]

case described, 18 U.S.C. 2250(c) would excuse the failure to report 
within the three-business-day timeframe. However, the inability to meet 
section 20913(c)'s specific timeframe does not obviate the need to 
comply with section 20913(a)'s requirement to register in each state of 
residence. Nothing prevents the sex offender from complying with this 
registration requirement once the office is willing to meet with him, 
so he will need to appear and carry out the registration at the 
appointed time in order to have the benefit of the 18 U.S.C. 2250(c) 
defense.
    Example 2 in Sec.  72.8(a)(2) also illustrates a situation in which 
the circumstance preventing compliance with SORNA is a failure by the 
registration jurisdiction to carry out a necessary reciprocal role. The 
specific situation described in the example is a state's refusal to 
register sex offenders based on the offense for which the sex offender 
was convicted. For example, SORNA requires registration based on 
conviction for child pornography possession offenses, see 34 U.S.C. 
20911(7)(G), but some states that have not fully implemented SORNA's 
requirements in their registration programs may be unwilling to 
register a sex offender on the basis of such an offense. Section 
2250(c)'s excuse of the failure to register terminates if the state 
subsequently becomes willing to register the sex offender, because the 
circumstance preventing compliance with SORNA no longer exists. 
However, liability based on a continuing failure by the sex offender to 
comply with SORNA in such a case--following a change in state policy or 
practice allowing compliance--depends on the sex offender's becoming 
aware of the change since, as discussed above, 18 U.S.C. 2250 does not 
impose liability for violation of unknown registration obligations. Cf. 
73 FR at 38063-64 (direction to registration jurisdictions to instruct 
sex offenders about new or additional registration duties in connection 
with SORNA implementation).
    Example 3 in Sec.  72.8(a)(2) describes a situation in which the 
circumstance preventing compliance with SORNA relates to the situation 
of the sex offender rather than the registration jurisdiction. The 
second sentence of Sec.  72.7(f) in the rule requires in part that a 
sex offender report intended international travel 21 days in advance, 
which he cannot do if he does not anticipate a trip abroad that far in 
advance. In such a case, as described in the example, 18 U.S.C. 2250(c) 
would excuse a sex offender's failure to report the travel 21 days in 
advance. Cf. 76 FR at 1638 (``[R]equiring 21 days advance notice may 
occasionally be unnecessary or inappropriate. For example, a sex 
offender may need to travel abroad unexpectedly because of a family or 
work emergency.''). However, inability to comply with the 21-day 
timeframe in a particular case does not prevent a sex offender from 
otherwise complying with SORNA's requirements to inform the residence 
jurisdiction about intended international travel, appearing in 34 
U.S.C. 20914(a)(7) and in Sec. Sec.  72.6(d) and 72.7(f) in this rule. 
Hence, once the intention to travel exists, the sex offender must 
inform the registration jurisdiction to avoid liability under 18 U.S.C. 
2250.
Paragraph (b)--Supervision Condition
    Section 72.8(b) recounts that, for sex offenders convicted of 
Federal offenses, compliance with SORNA is a mandatory condition of 
probation and supervised release. See 18 U.S.C. 3563(a)(8), 3583(d) 
(third sentence). Violation of this condition may result in revocation 
of release. See 18 U.S.C. 3565(a)(2), 3583(e)(3). Section 72.8(b) also 
notes that compliance with SORNA is a mandatory condition of parole for 
sex offenders convicted of Federal offenses, see 18 U.S.C. 4209(a) 
(second sentence), a requirement of narrow application given the 
abolition of parole in Federal cases, except for offenses committed 
before November 1, 1987.

Regulatory Flexibility Act

    The Attorney General, 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 on a substantial number of small entities for the purposes of 
that Act because the regulation only articulates SORNA's registration 
requirements for sex offenders.

Executive Orders 12866 and 13563--Regulatory Planning and Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation, and Executive Order 13563, ``Improving 
Regulation and Regulatory Review.'' The regulation expands part 72 of 
title 28 of the Code of Federal Regulations to provide a concise and 
comprehensive statement of what sex offenders must do to comply with 
SORNA's requirements, following express requirements appearing in SORNA 
and previous exercises of authority SORNA grants to the Attorney 
General to interpret and implement SORNA. The justification of these 
requirements as means of furthering SORNA's objectives is explained in 
the preamble to this regulation and in previous SORNA-related 
documents, including the rulemaking entitled ``Applicability of the Sex 
Offender Registration and Notification Act,'' 75 FR 81849 (final rule), 
72 FR 8894 (interim rule); the SORNA Guidelines, 73 FR 38030; and the 
SORNA Supplemental Guidelines, 76 FR 1630. The Office of Management and 
Budget has determined that this rule is a ``significant regulatory 
action'' under Executive Order 12866, section 3(f), and accordingly 
this rule has been reviewed by the Office of Management and Budget.
    The Department of Justice expects that the rule will not entail new 
costs and will result in a number of benefits. For registration 
jurisdictions, there are no new costs because their requirements under 
SORNA continue to be those articulated in the previously issued SORNA 
guidelines. Likewise, for sex offenders, the requirements articulated 
in the rule either appear expressly in SORNA or have previously been 
articulated by the Attorney General in the SORNA guidelines. The 
procedures by which sex offenders register will continue to depend on 
the registration processes of the jurisdictions that register them, 
which will not be made more time-consuming or expensive or otherwise 
changed by this rule.
    In terms of benefits, the rule will provide in one place a clear, 
concise, and comprehensive statement of sex offenders' registration 
requirements under SORNA. This will reduce any expenditure by sex 
offenders of time or money required for inquiry with state or Federal 
authorities or others to resolve uncertainties, or required in 
attempting to comply with perceived registration requirements under 
SORNA that go beyond the requirements the Attorney General has actually 
specified. The clarity provided by this rule will make it easier for 
sex offenders to determine what SORNA requires them to do and thereby 
facilitate compliance with SORNA.
    There are also expected benefits for the government. As the 
preamble explains, the rule's comprehensive articulation of SORNA's 
registration requirements in regulations addressed to sex offenders 
will provide a secure basis for Federal prosecution of knowing 
violations of any of SORNA's requirements. It will resolve specific 
problems that have arisen in past litigation or can be expected to 
arise in future litigation if not clarified and resolved by this rule, 
thereby avoiding

[[Page 69884]]

the expenditure of litigation resources on these matters. As discussed 
in the preamble, previously or potentially litigated matters this rule 
elucidates include such issues as the starting point and duration of 
registration periods under SORNA, the applicability of SORNA's 
requirements to all sex offenders regardless of when they were 
convicted, the particular jurisdictions in which sex offenders are 
required to report changes in registration information, the requirement 
that relocating sex offenders notify a registration jurisdiction prior 
to departure, the time frame for reporting intended international 
travel, the mens rea (state of mind) requirement for violation of 
SORNA's criminal provision (18 U.S.C. 2250), and the contours of the 
impossibility defense under that provision.
    As explained in the existing SORNA guidelines, SORNA aims to 
prevent the commission of sex offenses, and to bring the perpetrators 
of such offenses to justice more speedily and reliably, by enabling the 
authorities to better identify, track, and monitor released sex 
offenders and by informing the public regarding the presence of 
released sex offenders in the community. See 73 FR at 38044-45. Hence, 
by facilitating the enforcement of, and compliance with, SORNA's 
registration requirements, and enhancing the basis for public 
notification, the rule is expected to further SORNA's public safety 
objectives and reduce the time and resources required in achieving 
these objectives.

Executive Order 13132--Federalism

    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. There has been substantial consultation 
with state officials regarding the interpretation and implementation of 
SORNA. The previously issued SORNA Guidelines and SORNA Supplemental 
Guidelines articulate the requirements for implementation of the SORNA 
standards by states and other jurisdictions in their sex offender 
registration and notification programs, requirements that are not 
changed by this regulation's provision of a separate statement of the 
registration obligations of sex offenders under SORNA. Therefore, in 
accordance with Executive Order 13132, it is determined that this rule 
does not have sufficient federalism implications to warrant the 
preparation of a federalism assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in section 
3(a) and 3(b)(2) of Executive Order 12988.

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 
million 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. This rule adds provisions to part 72 of title 28 of the Code of 
Federal Regulations that articulate SORNA's registration requirements 
for sex offenders, including where, when, and how long sex offenders 
must register, what information they must provide, and how they must 
keep their registrations current. The Attorney General has previously 
addressed these matters and has resolved them in the same way in the 
SORNA Guidelines, appearing at 73 FR 38030, and in the SORNA 
Supplemental Guidelines, appearing at 76 FR 1630. Those previously 
issued sets of guidelines determine what state, local, and tribal 
jurisdictions must do to achieve substantial implementation of the 
SORNA standards in their registration programs. Reiteration of some of 
these requirements in a concise set of directions to sex offenders in 
this rule will not change what jurisdictions need to do to implement 
SORNA or affect their costs in doing so.

Congressional Review Act

    This rule is not a ``major rule'' as defined by the Congressional 
Review Act, 5 U.S.C. 804(2). The Department of Justice will submit the 
report required by 5 U.S.C. 801 to each House of Congress and the 
Comptroller General.

List of Subjects in 28 CFR Part 72

    Crime, Information, Law enforcement, Prisoners, Prisons, Probation 
and parole, Records.

    Accordingly, for the reasons stated in the preamble, amend chapter 
I of title 28 of the Code of Federal Regulations by revising part 72 to 
read as follows:

PART 72--SEX OFFENDER REGISTRATION AND NOTIFICATION

Sec.
72.1 Purpose.
72.2 Definitions.
72.3 Applicability of the Sex Offender Registration and Notification 
Act.
72.4 Where sex offenders must register.
72.5 How long sex offenders must register.
72.6 Information sex offenders must provide.
72.7 How sex offenders must register and keep the registration 
current.
72.8 Liability for violations.

    Authority:  34 U.S.C. 20901-45; Pub. L. 109-248, 120 Stat. 587; 
Pub. L. 114-119, 130 Stat. 15.


Sec.  72.1   Purpose.

    (a) This part specifies the registration requirements of the Sex 
Offender Registration and Notification Act (SORNA), 34 U.S.C. 20901 et 
seq., and the scope of those requirements' application. The Attorney 
General has the authority to specify the requirements of SORNA and 
their applicability as provided in this part pursuant to provisions of 
SORNA, including 34 U.S.C. 20912(b), 20913(d), and 20914(a)(8), (c).
    (b) This part does not preempt or limit any obligations of or 
requirements relating to sex offenders under other Federal laws, rules, 
or policies, or under the laws, rules, or policies of registration 
jurisdictions or other entities. States and other governmental entities 
may prescribe registration requirements and other requirements, with 
which sex offenders must comply, that are more extensive or stringent 
than those prescribed by SORNA.


Sec.  72.2   Definitions.

    All terms used in this part have the same meaning as in SORNA.


Sec.  72.3   Applicability of the Sex Offender Registration and 
Notification Act.

    The requirements of SORNA apply to all sex offenders. All sex 
offenders must comply with all requirements of that Act, regardless of 
when the conviction of the offense for which registration is required 
occurred (including if the conviction occurred before the enactment of 
that Act), regardless of whether a jurisdiction in which registration 
is required has substantially implemented that Act's requirements or 
has implemented any particular requirement of that Act, and regardless 
of whether any particular requirement or class of sex offenders is 
mentioned in examples in this regulation or in other regulations or 
guidelines issued by the Attorney General.
    Example 1 to Sec.  72.3. A sex offender is federally convicted of 
aggravated sexual abuse under 18 U.S.C. 2241 in 1990 and is released 
following imprisonment in 2009. The sex offender is subject to the 
requirements of SORNA and could be held criminally liable under 18 
U.S.C. 2250 for failing to register or keep the registration current in 
any jurisdiction

[[Page 69885]]

in which the sex offender resides, is an employee, or is a student.
    Example 2 to Sec.  72.3. A sex offender is convicted by a state 
jurisdiction in 1997 for molesting a child and is released following 
imprisonment in 2000. The sex offender initially registers as required 
but relocates to another state in 2009 and fails to register in the new 
state of residence. The sex offender has violated the requirement under 
SORNA to register in any jurisdiction in which he resides, and could be 
held criminally liable under 18 U.S.C. 2250 for the violation because 
he traveled in interstate commerce.


 Sec.  72.4   Where sex offenders must register.

    A sex offender must register, and keep the registration current, in 
each jurisdiction in which the offender resides, is an employee, or is 
a student. For initial registration purposes only, a sex offender must 
also register in the jurisdiction in which convicted if that 
jurisdiction is different from the jurisdiction of residence.


 Sec.  72.5   How long sex offenders must register.

    (a) Duration. A sex offender has a continuing obligation to 
register and keep the registration current (except when the sex 
offender is in custody or civilly committed) for the following periods 
of time:
    (1) 15 years, if the offender is a tier I sex offender;
    (2) 25 years, if the offender is a tier II sex offender; and
    (3) The life of the offender, if the offender is a tier III sex 
offender.
    (b) Commencement. The registration period begins to run:
    (1) When a sex offender is released from imprisonment following 
conviction for the offense giving rise to the registration requirement, 
including in cases in which the term of imprisonment is based wholly or 
in part on the sex offender's conviction for another offense; or
    (2) If the sex offender is not sentenced to imprisonment, when the 
sex offender is sentenced for the offense giving rise to the 
registration requirement.
    (c) Reduction. If a tier I sex offender has maintained for 10 years 
a clean record, as described in 34 U.S.C. 20915(b)(1), the period for 
which the sex offender must register and keep the registration current 
under paragraph (a) of this section is reduced by 5 years. If a tier 
III sex offender required to register on the basis of a juvenile 
delinquency adjudication has maintained a clean record, as described in 
34 U.S.C. 20915(b)(1), for 25 years, the period for which the sex 
offender must register and keep the registration current under 
paragraph (a) of this section is reduced to the period for which the 
clean record has been maintained.


 Sec.  72.6   Information sex offenders must provide.

    Sex offenders must provide the following information for inclusion 
in the sex offender registries of the jurisdictions in which they are 
required to register:
    (a) Name, date of birth, and Social Security number. (1) The name 
of the sex offender, including any alias used by the sex offender.
    (2) The sex offender's date of birth and any date that the sex 
offender uses as his purported date of birth.
    (3) The Social Security number of the sex offender and any number 
that the sex offender uses as his purported Social Security number.
    (b) Remote communication identifiers. All designations the sex 
offender uses for purposes of routing or self-identification in 
internet or telephonic communications or postings, including email 
addresses and telephone numbers.
    (c) Residence, temporary lodging, employment, and school 
attendance. (1) The address of each residence at which the sex offender 
resides or will reside or, if the sex offender has no present or 
expected residence address, other information describing where the sex 
offender resides or will reside with whatever definiteness is possible 
under the circumstances.
    (2) Information about any place in which the sex offender is 
staying when away from his residence for seven or more days, including 
the identity of the place and the period of time the sex offender is 
staying there.
    (3) The name and address of any place where the sex offender is or 
will be an employee or, if the sex offender is or will be employed but 
with no fixed place of employment, other information describing where 
the sex offender works or will work with whatever definiteness is 
possible under the circumstances.
    (4) The name and address of any place where the sex offender is a 
student or will be a student.
    (d) International travel. Information relating to intended travel 
outside the United States, including any anticipated itinerary, dates 
and places of departure from, arrival in, or return to the United 
States and each country visited, carrier and flight numbers for air 
travel, destination country or countries and address or other contact 
information therein, and means and purpose of travel.
    (e) Passports and immigration documents. Information about each 
passport the sex offender has and, if the sex offender is an alien, 
information about any document or documents establishing the sex 
offender's immigration status, including passport or immigration 
document type and number.
    (f) Vehicle information. The license plate number and a description 
of any vehicle owned or operated by the sex offender, including 
watercraft and aircraft in addition to land vehicles. If a vehicle has 
no license plate but has some other type of registration number or 
identifier, then the registration number or identifier must be 
provided. Information must also be provided as to where any vehicle 
owned or operated by the sex offender is habitually parked, docked, or 
otherwise kept.
    (g) Professional licenses. Information concerning all licensing of 
the sex offender that authorizes the sex offender to engage in an 
occupation or carry out a trade or business.


Sec.  72.7   How sex offenders must register and keep the registration 
current.

    (a) Initial registration--(1) In general. Except as provided in 
paragraph (a)(2) of this section, a sex offender must register before 
release from imprisonment following conviction for the offense giving 
rise to the registration requirement, or, if the sex offender is not 
sentenced to imprisonment, within three business days after being 
sentenced for that offense.
    (2) Special rules for certain cases. The following special 
requirements apply:
    (i) Federal and military offenders. A sex offender who is released 
from Federal or military custody, or who is convicted for a Federal or 
military sex offense but not sentenced to imprisonment, must register 
within three business days of entering or remaining in a jurisdiction 
to reside following the release or sentencing.
    (ii) Foreign convictions. A sex offender required to register on 
the basis of a conviction in a foreign country must register within 
three business days of entering any jurisdiction in the United States 
to reside, work, or attend school.
    (b) Periodic in-person verification. A sex offender must appear in 
person, allow the jurisdiction to take a current photograph, and verify 
the information in each registry in which the offender is required to 
register. In carrying out the required verification of information in 
each registry, the sex offender must correct any information that has 
changed or is otherwise inaccurate and must report any new registration 
information. A sex offender must appear

[[Page 69886]]

in person for these purposes not less frequently than--
    (1) Each year, if the offender is a tier I sex offender;
    (2) Every six months, if the offender is a tier II sex offender; 
and
    (3) Every three months, if the offender is a tier III sex offender.
    (c) Reporting of initiation and changes concerning name, residence, 
employment, and school attendance. A sex offender who enters a 
jurisdiction to reside, or who resides in a jurisdiction and changes 
his name or his place of residence in the jurisdiction, must appear in 
person in that jurisdiction and register or update the registration 
within three business days. A sex offender who commences employment or 
school attendance in a jurisdiction, or who changes employer, school 
attended, or place of employment or school attendance in a 
jurisdiction, must appear in person in that jurisdiction and register 
or update the registration within three business days.
    (d) Reporting of departure and termination concerning residence, 
employment, and school attendance. (1) A sex offender residing in a 
jurisdiction must inform that jurisdiction (by whatever means the 
jurisdiction allows) if the sex offender will be commencing residence, 
employment, or school attendance in another jurisdiction or outside of 
the United States. The sex offender must so inform the jurisdiction in 
which he is residing prior to any termination of residence in that 
jurisdiction and prior to commencing residence, employment, or school 
attendance in the other jurisdiction or outside of the United States.
    (2) A sex offender who will be terminating residence, employment, 
or school attendance in a jurisdiction must so inform that jurisdiction 
(by whatever means the jurisdiction allows) prior to the termination of 
residence, employment, or school attendance in the jurisdiction.
    (e) Reporting of changes in information relating to remote 
communication identifiers, temporary lodging, and vehicles. A sex 
offender must report within three business days to his residence 
jurisdiction (by whatever means the jurisdiction allows) any change in 
remote communication identifier information, as described in Sec.  
72.6(b), temporary lodging information, as described in Sec.  
72.6(c)(2), and any change in vehicle information, as described in 
Sec.  72.6(f).
    (f) Reporting of international travel. A sex offender must report 
intended travel outside the United States, including the information 
described in Sec.  72.6(d), to his residence jurisdiction (by whatever 
means the jurisdiction allows). The sex offender must report the travel 
information to the jurisdiction at least 21 days in advance of the 
intended travel and, if the sex offender is terminating his residence 
in the jurisdiction, prior to his termination of residence in the 
jurisdiction.
    (g) Compliance with jurisdictions' requirements for registering and 
keeping the registration current. (1) A sex offender who does not 
comply with a requirement of SORNA in conformity with the time and 
manner specifications of paragraphs (a) through (f) of this section 
must comply with the requirement in conformity with any applicable time 
and manner specifications of a jurisdiction in which the offender is 
required to register.
    Example 1 to paragraph (g)(1). A sex offender convicted in a state 
does not initially register before release from imprisonment, as 
required by 34 U.S.C. 20913(b)(1) and paragraph (a)(1) of this section, 
because the state has no procedure for pre-release registration of sex 
offenders. Instead, the state informs sex offenders that they must go 
to a local police station within seven days of release to register. The 
sex offender must comply with the state's requirements for initial 
registration, i.e., the offender must report to the police station to 
register within seven days of release.
    Example 2 to paragraph (g)(1). A sex offender does not register 
when he is released from custody, or does not register upon entering a 
jurisdiction to reside as required by 34 U.S.C. 20913(c) and paragraph 
(c) of this section, because the jurisdiction, at the time, does not 
register sex offenders based on the offense for which he was convicted. 
The jurisdiction later sends the sex offender a notice advising that it 
has extended its registration requirements to include sex offenders 
like him and directing him to report to a specified agency within 90 
days to register. The sex offender must report to the agency to 
register within the specified timeframe.
    Example 3 to paragraph (g)(1). A sex offender registers as required 
when released from imprisonment or upon entering a jurisdiction to 
reside, but the jurisdiction has no procedure for sex offenders to 
appear periodically in person to update and verify the registration 
information as required by 34 U.S.C. 20918 and paragraph (b) of this 
section. The jurisdiction later sends the sex offender a notice 
advising that it has adopted a periodic verification requirement and 
directing the sex offender to appear at a designated time and place for 
an initial update meeting. The sex offender must appear and update the 
registration as directed.
    Example 4 to paragraph (g)(1). A sex offender does not report his 
email address to the jurisdiction in which he resides when he initially 
registers, or within three business days of a change as required by 
paragraph (e) of this section, because email addresses are not among 
the information the jurisdiction accepts for inclusion in its registry. 
The jurisdiction later notifies the sex offender that it has extended 
the registration information it collects to include email addresses and 
directs him to send a reply within a specified time that provides his 
current email address. The sex offender must comply with this 
direction.
    (2) In a prosecution under 18 U.S.C. 2250, paragraph (g)(1) of this 
section does not in any case relieve a sex offender of the need to 
establish as an affirmative defense an inability to comply with SORNA 
because of circumstances beyond his control as provided in 18 U.S.C. 
2250(c) and Sec.  72.8(a)(2).


Sec.  72.8   Liability for violations.

    (a) Criminal liability--(1) Offense. (i) A sex offender may be 
liable to criminal penalties under 18 U.S.C. 2250(a) if the sex 
offender--
    (A) Is required to register under SORNA;
    (B)(1) Is a sex offender as defined for the purposes of SORNA by 
reason of a conviction under Federal law (including the Uniform Code of 
Military Justice), the law of the District of Columbia, Indian tribal 
law, or the law of any territory or possession of the United States; or
    (2) Travels in interstate or foreign commerce, or enters or leaves, 
or resides in, Indian country; and
    (C) Knowingly fails to register or update a registration as 
required by SORNA.
    (ii) A sex offender may be liable to criminal penalties under 18 
U.S.C. 2250(b) if the sex offender--
    (A) Is required to register under SORNA;
    (B) Knowingly fails to provide information required by SORNA 
relating to intended travel in foreign commerce; and
    (C) Engages or attempts to engage in the intended travel in foreign 
commerce.
    (iii) As a condition of liability under 18 U.S.C. 2250(a)-(b) for 
failing to comply with a requirement of SORNA, a sex offender must have 
been aware of the requirement he is charged with violating, but need 
not have been aware

[[Page 69887]]

that the requirement is imposed by SORNA.
    (2) Defense. A sex offender may have an affirmative defense to 
liability, as provided in 18 U.S.C. 2250(c), if uncontrollable 
circumstances prevented the sex offender from complying with SORNA, 
where the sex offender did not contribute to the creation of those 
circumstances in reckless disregard of the requirement to comply and 
complied as soon as the circumstances preventing compliance ceased to 
exist.
    Example 1 to paragraph (a)(2). A sex offender changes residence 
from one jurisdiction to another, bringing into play SORNA's 
requirement to register in each jurisdiction where the sex offender 
resides and SORNA's requirement to appear in person and report changes 
of residence within three business days. See 34 U.S.C. 20913(a), (c). 
The sex offender attempts to comply with these requirements by 
contacting the local sheriff's office, which is responsible for sex 
offender registration in the destination jurisdiction. The sheriff's 
office advises that it cannot schedule an appointment for him to 
register within three business days but that he should come by in a 
week. The sex offender would have a defense to liability if he appeared 
at the sheriff's office at the appointed time and registered as 
required. The sex offender's temporary inability to register and 
inability to report the change of residence within three business days 
in the new residence jurisdiction was due to a circumstance beyond his 
control--the sheriff office's refusal to meet with him until a week had 
passed--and he complied with the requirement to register as soon as the 
circumstance preventing compliance ceased to exist.
    Example 2 to paragraph (a)(2). A sex offender cannot register in a 
state in which he resides because its registration authorities will not 
register offenders on the basis of the offense for which the sex 
offender was convicted. The sex offender would have a defense to 
liability because the state's unwillingness to register sex offenders 
like him is a circumstance beyond his control. However, if the sex 
offender failed to register after becoming aware of a change in state 
policy or practice allowing his registration, the 18 U.S.C. 2250(c) 
defense would no longer apply, because in such a case the circumstance 
preventing compliance with the registration requirement would no longer 
exist.
    Example 3 to paragraph (a)(2). A sex offender needs to travel to a 
foreign country on short notice--less than 21 days--because of an 
unforeseeable family or work emergency. The sex offender would have a 
defense to liability for failing to report the intended travel 21 days 
in advance, as required by Sec.  72.7(f), because it is impossible to 
report an intention to travel outside the United States before the 
intention exists. However, if the sex offender failed to inform the 
registration jurisdiction (albeit on short notice) once he intended to 
travel, 18 U.S.C. 2250(c) would not excuse that failure, because the 
preventing circumstance--absence of an intent to travel abroad--would 
no longer exist.
    (b) Supervision condition. For a sex offender convicted of a 
Federal offense, compliance with SORNA is a mandatory condition of 
probation, supervised release, and parole. The release of such an 
offender who does not comply with SORNA may be revoked.

    Dated: November 29, 2021.
Merrick B. Garland,
Attorney General.
[FR Doc. 2021-26420 Filed 12-7-21; 8:45 am]
BILLING CODE 4410-18-P