Designation of Offenses Subject to Sex Offender Release Notification

SUMMARY: This interim rule designates various offenses as sexual

offenses for purposes of 18 U.S.C. 4042(c). The designations ensure

that notifications can be made for military offenders, for District of

Columbia Code offenders, and for these and other federal inmates with a

sex offense in their criminal history. This order is necessary for the

protection of the public.

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

1999.

FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General

Counsel, Bureau of Prisons, HOLC Room 754, 320 First Street, NW.,

Washington, DC 20534, telephone (202) 307-3062.

SUPPLEMENTARY INFORMATION: Section 4042(c) of Title 18, United States

Code, effective as of November 26, 1998, provides for notification of

sex offender release and certain related functions to facilitate

effective sex offender registration and tracking. Notifications must be

made for persons convicted of the federal offenses noted in subsection

(c)(4)(A) through (D). Subsection (c)(4)(E) provides that the Attorney

General may also designate other offenses as sexual offenses for

purposes of subsection (c). The Attorney General has delegated this

authority to the Director of the Bureau of Prisons. This interim rule

designates additional offenses which are to be considered sexual

offenses for purposes of 18 U.S.C. 4042(c). These additional

designations being listed in new 28 CFR 571.72 include state sexual

offenses, District of Columbia Code sexual offenses, and certain

Uniform Code of Military Justice offenses.

Paragraph (a) of Sec. 571.72 designates offenses under the law of

any jurisdiction in certain descriptive categories. For example, an

inmate may be serving a federal sentence for a non-sexual offense but

may also be serving a concurrent sentence for a state offense which is

sexual in nature or may have a prior conviction for a state offense

which is sexual in nature. Notifying state and local law enforcement

and registration authorities about such an inmate's release from Bureau

custody is consistent with the intent of the statute and meets the goal

of enhanced public safety. Paragraph (b) designates certain offenses

under the Uniform Code of Military Justice (UCMJ). The Bureau has

custody of some military offenders. While separate statutory authority

(section 115(a)(8)(C)(iv) of Title I of Pub. L. 105-119) exists for

release notification by the Bureau for military offenders, designating

UCMJ offenses in this regulation makes it clear that persons convicted

of military offenses in the pertinent categories are persons described

in 18 U.S.C. 4042(c)(4) for all purposes, including post-release change

of address notice by federal probation officers for persons under their

supervision pursuant to section 4042(c)(2). Paragraph (c) designates

pertinent District of Columbia Code offenses. Including District of

Columbia Code offenses is a practical consequence of the Bureau's role

in assuming custody of District of Columbia Code offenders under the

National Capital Revitalization and Self-Government Improvement Act of

1997.

The Bureau finds that good cause exists under 5 U.S.C. 553(b) and

(d)(3) for adopting this rule as an interim rule without the prior

notice and comment period ordinarily required by 5 U.S.C. 553. The

Bureau is publishing these additional designations as an interim rule

in order to provide for the protection of the public by ensuring that

state and local authorities receive timely notification of the release

of sex offenders. Members of the public may submit comments concerning

this rule by writing to the previously cited address. These comments

will be considered before the rule is finalized.

Executive Order 12866

This rule falls within a category of actions that the Office of

Management and Budget (OMB) has determined not to constitute

``significant regulatory actions'' under section 3(f) of Executive

Order 12866 and, accordingly, it was not reviewed by OMB.

Executive Order 12612

This regulation will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Regulatory Flexibility Act

The Director of the Bureau of Prisons, in accordance with the

Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this

regulation and by approving it certifies that this regulation will not

have a significant economic impact upon a substantial number of small

entities for the following reasons:

This rule pertains to the correctional management of offenders

committed to the custody of the Attorney General or the Director of the

Bureau of Prisons, and its economic impact is limited to the Bureau's

appropriated funds.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of

$100,000,000 or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by the Small Business

Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule

will not result in an annual effect on the economy of $100,000,000 or

more; a major increase in costs or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of United States-based companies to

compete with foreign-based companies in domestic and export markets.

Plain Language Instructions

We try to write clearly. If you can suggest how to improve the

clarity of these regulations, call or write Roy Nanovic, Rules Unit,

Office of General Counsel, Bureau of Prisons, 320 First St.,

Washington, DC 20534; telephone (202) 514-6655.

List of Subjects in 28 CFR Part 571

Prisoners.

Dennis R. Bidwell,

Acting Director, Bureau of Prisons.

Accordingly, pursuant to the rulemaking authority vested in the

Attorney General in 5 U.S.C. 552(a) and delegated to the Director,

Bureau of Prisons in 28 CFR 0.96(p), part 571 in 28 CFR, chapter V,

subchapter D, is amended as set forth below.

[[Page 69387]]

SUBCHAPTER D--COMMUNITY PROGRAMS AND RELEASE

PART 571--RELEASE FROM CUSTODY

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

follows:

Authority: 5 U.S.C. 301; 18 U.S.C. 3565, 3568-3569 (Repealed in

part as to offenses committed on or after November 1, 1987), 3582,

3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to

offenses committed on or after November 1, 1987), 4161-4166 and

4201-4218 (Repealed as to offenses committed on or after November 1,

1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed

after that date), 5031-5042; 28 U.S.C. 509, 510; U.S. Const., Art.

II, Sec. 2; 28 CFR 0.95-0.99, 1.1-1.10.

2. A new subpart H, consisting of Secs. 571.71 and 571.72, is added

to read as follows:

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

Sec.

571.71 Purpose and scope.

571.72 Additional designated offenses.

Subpart H--Designation of Offenses for Purposes of 18 U.S.C.

4042(c)

Sec. 571.71 Purpose and scope.

The Director of the Bureau of Prisons is required to provide

release and registration information (offender's name, criminal

history, projected address, release conditions or restrictions) to

state/local law enforcement and registration officials at least five

calendar days prior to release of offenders who have been convicted of

certain sexual offenses listed in 18 U.S.C. 4042(c)(4)(A) through (D).

Under 18 U.S.C. 4042(c)(4)(E), the Attorney General is authorized to

designate additional offenses as sexual offenses for the purpose of sex

offender release notification and other related purposes. This

authority has been delegated to the Director.

Sec. 571.72 Additional designated offenses.

The following offenses are designated as additional sexual offenses

for purposes of 18 U.S.C. 4042(c):

(a) Any offense under the law of any jurisdiction that involved:

(1) Engaging in sexual contact with another person without

obtaining permission to do so (forcible rape, sexual assault, or sexual

battery);

(2) Possession, distribution, mailing, production, or receipt of

child pornography or related paraphernalia;

(3) Any sexual contact with a minor or other person physically or

mentally incapable of granting consent (indecent liberties with a

minor, statutory rape, sexual abuse of the mentally ill, rape by

administering a drug or substance);

(4) Any sexual act or contact not identified in paragraphs (a)(1)

through (3) of this section that is aggressive or abusive in nature

(rape by instrument, encouraging use of a minor for prostitution

purposes, incest);

(5) An attempt to commit any of the actions described in paragraphs

(a)(1) through (4) of this section.

(b) The following Defense Incident Based Reporting System (DIBRS)

Code offenses under the Uniform Code of Military Justice:

(1) 120A (Rape);

(2) 120B1/2 (Carnal knowledge);

(3) 125A (Forcible sodomy);

(4) 125B1/2 (Sodomy of a minor);

(5) 133D (Conduct unbecoming an Officer [involving any sexually

violent offense or a criminal offense of a sexual nature against a

minor or kidnaping of a minor]);

(6) 134-B6 (Prostitution involving a minor);

(7) 134-C1 (Indecent assault);

(8) 134-C4 (Assault with intent to commit rape);

(9) 134-C6 (Assault with intent to commit sodomy);

(10) 134-R1 (Indecent act with a minor);

(11) 134-R3 (Indecent language to a minor);

(12) 134-S1 (Kidnaping of a minor (by a person not a parent));

(13) 134-Z (Pornography involving a minor);

(14) 134-Z (Conduct prejudicial to good order and discipline

(involving any sexually violent offense or a criminal offense of a

sexual nature against a minor or kidnaping of a minor));

(15) 134-Y2 (Assimilative crime conviction (of a sexually violent

offense or a criminal offense of a sexual nature against a minor or

kidnaping of a minor)).

(16) 080-A (Attempt (to commit any offense listed in paragraphs

(b)(1)--(15) of this section));

(17) 081-A (Conspiracy (to commit any offense listed in paragraphs

(b)(1)--(15) of this section));

(18) 082-A (Solicitation (to commit any offense listed in

paragraphs (b)(1)--(15) of this section)).

(c) The following District of Columbia Code offenses:

(1) Sec. 22-501 (Assault) if it includes assault with the intent to

commit first degree sexual abuse, second degree sexual abuse, or child

sexual abuse;

(2) Sec. 22-2012 (Sexual performances using minors--prohibited

acts);

(3) Sec. 22-2013 (Sexual performances using minors--penalties);

(4) Sec. 22-2101 (Kidnaping) where the victim is a minor;

(5) Sec. 22-2401 (Murder in the first degree) if it includes murder

while committing or attempting to commit first degree sexual abuse;

(6) Sec. 22-2704 (Abducting or enticing child from his or her home

for purposes of prostitution; harboring such child);

(7) Sec. 22-4102 (First degree sexual abuse);

(8) Sec. 22-4103 (Second degree sexual abuse);

(9) Sec. 22-4104 (Third degree sexual abuse);

(10) Sec. 22-4105 (Fourth degree sexual abuse);

(11) Sec. 22-4106 (Misdemeanor sexual abuse);

(12) Sec. 22-4108 (First degree child sexual abuse);

(13) Sec. 22-4109 (Second degree child sexual abuse);

(14) Sec. 22-4110 (Enticing a child);

(15) Sec. 22-4113 (First degree sexual abuse of a ward);

(16) Sec. 22-4114 (Second degree sexual abuse of a ward);

(17) Sec. 22-4115 (First degree sexual abuse of a patient or

client);

(18) Sec. 22-4116 (Second degree sexual abuse of a patient or

client);

(19) Sec. 22-4118 (Attempts to commit sexual offenses);

(20) Sec. 22-4120 (Aggravating circumstances).

(21) Sec. 22-103 (Attempts to commit crime) if it includes an

attempt to commit any offense listed in paragraphs (c)(1)-(20) of this

section.

[FR Doc. 98-33260 Filed 12-15-98; 8:45 am]

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