Regulations Under the Pam Lychner Sexual Offender Tracking and Identification Act of 1996, as Amended

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 25

[A.G. Order No. 2206-99]

RIN 1105-AA56

Regulations Under the Pam Lychner Sexual Offender Tracking and

Identification Act of 1996, as Amended

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

ACTION: Proposed rule.

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SUMMARY: The United States Department of Justice is publishing proposed

regulations to implement the Pam Lychner Sexual Offender Tracking and

Identification Act of 1996, as amended. The proposed regulations

describe the operation of the National Sex Offender Registry and set

forth notification requirements to be followed by registered sex

offenders who move to another state.

DATES: Submit comments on or before April 19, 1999.

ADDRESSES: Send comments to the Unit Chief, Office of Crimes Against

Children, Federal Bureau of Investigation, 935 Pennsylvania Avenue,

N.W., Room 4127, Washington, DC 20535.

FOR FURTHER INFORMATION CONTACT: Venetia Sims, Criminal Justice

Information Systems Division, Federal Bureau of Investigation, 1000

Custer Hollow Road, Clarksburg, West Virginia, 26306.

SUPPLEMENTARY INFORMATION: The proposed regulations address two topics:

(1) The operation of the National Sex Offender Registry (``NSOR'')

established by the Federal Bureau of Investigation (``FBI'') in

accordance with Pam Lychner Sexual Offender Tracking and Identification

Act of 1996, Pub. L. 104-236, 110 Stat. 3093, as amended (the ``Pam

Lychner Act'' or the ``Act''); and (2) the action required of

registered sex offenders who move to another state. With respect to the

NSOR, the regulations describe how the interim and permanent registries

will operate and what action can be taken by states to notify the FBI

and update the NSOR if a convicted sex offender fails to comply with

his or her state registration obligations. With respect to offenders

who move interstate, the regulations notify such offenders that they

should contact the local FBI office in their new state of residence so

that the FBI can take the steps necessary to ensure that the new state

of residence has also been

[[Page 7563]]

informed of the move and that the offender is included in the NSOR.

In a recent amendment, the Pam Lychner Act was modified so that

states have additional time to establish ``minimally sufficient'' sex

offender registration programs. As a result, the proposed regulations

do not address FBI registration of sex offenders in states that do not

have minimally sufficient programs.

The proposed regulations also do not address the Pam Lychner Act's

amendments to prior legislation, the Jacob Wetterling Crimes Against

Children and Sexually Violent Offender Registration Act, Pub. L. 103-

322, Sec. 170101, 108 Stat. 1796, 2038 (codified at 42 U.S.C. 14071)

(the ``Jacob Wetterling Act''), which sets standards for state sex

offender registration programs. On January 5, 1999, the Department

published guidelines for the Jacob Wetterling Act (see 64 FR 572), that

take those amendments into account.

Statutory Authority

The proposed regulations fulfill a statutory directive to the

Attorney General in section 9 of the Pam Lychner Act to issue

regulations to carry out the Act and the amendments made by the Act.

The Pam Lychner Act amended subtitle A of title XVII of the Violent

Crime Control and Law Enforcement Act of 1994 to add a new section,

codified at 42 U.S.C. 14072. Since its enactment, the Pam Lychner Act

has itself been amended, by section 115 of the General Provisions of

Title I of the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. 105-

119, 111 Stat. 2440 (the ``CJSA''). These proposed regulations relate

to the amended provisions of the Pam Lychner Act that are now in

effect.

Executive Order 12866

The proposed regulations have been drafted and reviewed in

accordance with Executive Order 12866. The Department of Justice has

determined that the proposed regulations do not constitute a

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

12866, Regulatory Planning and Review, and accordingly the proposed

regulations have not been reviewed by the Office of Management and

Budget.

Executive Order 12612

The proposed regulations will not have substantial direct effect on

states, on the relationship between the national government and the

states, or on distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that these rules do not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Regulatory Flexibility Act

The Attorney General, in accordance with the Regulatory Flexibility

Act, 5 U.S.C. 605(b), has reviewed these proposed regulations and by

approving them certifies that the regulations will not have a

significant economic impact on a substantial number of small entities

for the following reasons. The proposed regulations primarily address

the operation of the NSOR established by the FBI. Recent amendments to

the Jacob Wetterling Act in section 115 of the CJSA condition the

receipt of certain federal funds on a state's participation in the

NSOR. In order to impose the least financial burden on participating

states, the FBI allows them to provide data for the NSOR in three ways:

(1) By making a computer entry on the existing Interstate

Identification Index (``III''); (2) by submitting a computer tape to

the FBI; or (3) by submitting a written form containing all the

necessary registration information. In addition, in order to facilitate

broad participation in the NSOR, the FBI permits--but does not

require--authorized local government agencies to enter, delete, and

modify information in the registry using the III, as long as the state

has implemented the necessary programming changes. This option allows

those small government entities that provide data to the NSOR to do so

in the most cost-effective manner possible.

Unfunded Mandates Reform Act of 1995

As noted, recent amendments in the CJSA to the Jacob Wetterling Act

make state participation in the NSOR a condition of receipt of certain

federal funds. As a result, these regulations do not impose a ``federal

mandate'' within the meaning of the Unfunded Mandates Reform Act of

1995. Moreover, these regulations 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 will not

significantly or uniquely affect small governments. Therefore, no

actions were deemed necessary under the provisions of the Unfunded

Mandate Reform Act.

Small Business Regulatory Enforcement Fairness Act of 1996

These regulations do not qualify as a major role as defined by the

Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.

804. The regulations 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.

Amendments to the Pam Lychner Act

Under the Pam Lychner Act, the FBI is required to register sex

offenders who reside in states that have not established ``minimally

sufficient'' sex offender registration systems. The CJSA amended the

criteria that state registration programs must satisfy in order to

qualify as minimally sufficient and extended the time period for states

to establish such programs. As assessment of minimal sufficiency to

determine in which states the FBI must directly register sex offenders

will be made by the extended date for establishing a minimally

sufficient program provided under the CJSA, October 3, 1999.

Amendments to the Jacob Wetterling Act

The Pam Lychner's Act amendments to the Jacob Wetterling Act, which

set standards for state sex offender registration programs, are not

addressed in these regulations. The Department of Justice has published

guidelines under the Jacob Wetterling Act, see 64 FR 572, that take

account of the Pam Lychner Act's changes and subsequent amendments.

List of Subjects in Part 25

Crime, Law enforcement.

Proposed Regulations

For the reasons stated in the preamble, the Department of Justice

proposes to amend 28 CFR by adding part 25, subpart B, to read as

follows:

PART 25--DEPARTMENT OF JUSTICE INFORMATION SYSTEMS

Subpart B--The National Sex Offender Registry

Sec.

25.200 The interim sex offender registry.

25.201 The permanent sex offender registry.

25.202 Release of information from the National Sex Offender

Registry.

25.203 Non-compliant offenders.

25.204 Notice of an offender's move to another state.

[[Page 7564]]

Subpart B--The National Sex Offender Registry

Authority: 42 U.S.C. 14072; Pub. L. 104-236, 110 State. 3093;

Pub. L. 105-119, sec. 115, 111 Stat. 2440, 2461.

Sec. 25.200 The interim sex offender registry.

(a) The Pam Lychner Act, 42 U.S.C. 14072(b), requires the Attorney

General to establish a national database at the FBI to track the

whereabouts and movement of:

(1) Each person who has been convicted of a criminal offense

against a victim who is a minor, as defined in 42 U.S.C.

14071(a)(3)(A);

(2) Each person who has been convicted of a sexually violent

offense, as defined in 42 U.S.C. 14071(a)(3)(B); and

(3) Each person who is a sexually violent predator, as defined in

42 U.S.C. 14071(a)(3)(C).

(b) In accordance with section 2 of the Pam Lychner Act, the

Federal Bureau of Investigation (``FBI'') has established an interim

National Sex Offender Registry (the ``Interim Registry'') in the

Fingerprint Identification Records System (``FIRS'').

(c) The Interim Registry functions as a ``pointer'' system,

indicating on an individual's FBI Identification Record the fact that

the individual is a registered sex offender and the name and location

of the state agency that maintains the offender's registration

information.

(d) States may participate in the Interim Registry by submitting

the following information to the FBI pertaining to individuals who are

registered in state sex offender registries: the name under which the

person is registered; the registering agency's name and location; the

date of registration; and the date registration expires. A notice

indicating that an individual is a registered sex offender and listing

the information described in this paragraph will be included on the

individual's FBI Identification Record. In order to obtain more

detailed information regarding a particular offender, an inquiring

agency must contact the registering agency indicated on the FBI

Identification Record.

Sec. 25.201 The permanent sex offender registry.

(a) The FBI is in the process of modifying and improving its

National Crime Information Center (``NCIC'') to establish a new crime

information system that will be known as ``NCIC 2000.'' NCIC 2000,

which is expected to go online in mid-1999, will include a Convicted

Sexual Offender Registry File that will serve as the permanent National

Sex Offender Registry (the ``Permanent Registry'').

(b) In the Permanent Registry, sex offender registration

information will be entered directly, via the NCIC Convicted Sexual

Offender Registry File by federal, state, and local law enforcement

agencies, and will include such information as the offender's name,

address, and details regarding the conviction resulting in

registration. This detailed information will be available to authorized

agencies via the NCIC. The sex offender registration information will

also be automatically posted to the individual's FBI Identification

Record.

Sec. 25.202 Release of information from the National Sex Offender

Registry.

(a) The Pam Lychner Act, 42 U.S.C. 14072(j), requires the FBI to

release the information contained in the National Sex Offender Registry

to:

(1) Federal, state, and local criminal justice agencies for law

enforcement purposes and community notification; and

(2) Federal, state, and local governmental agencies responsible for

conducting employment-related background checks under the National

Child Protection Act, 42 U.S.C. 5119a.

(b) Both the Interim and Permanent Registries are available for

these purposes.

Sec. 25.203 Non-compliant offenders.

(a) The Pam Lychner Act, 42 U.S.C. 14072(g)(5), provides for state

notification to the FBI if a state cannot verify the address of or

locate a person required to register with the state's registration

program. The Act further provides that once the FBI receives such a

notification, the FBI shall classify the offender as being in violation

of the requirements of the National Sex Offender Registry and add a

Wanted Person record to the NCIC Wanted Person File, provided that an

arrest warrant meeting the requirements for entry into that File is

issued in connection with the violation.

(b) The purpose of the requirement that states notify the FBI of

non-compliant offenders is to permit the FBI to indicate on the

national system that a sex offender is not complying with his or her

registration obligations. States can comply with the notice requirement

by obtaining an arrest warrant for non-compliant offenders and entering

records for such offenders into the Wanted Person File, as described in

paragraph (c) of this section. Upon entry of a wanted person record on

the Wanted Person File, that fact will automatically be indicated on

the offender's FBI Identification Record and will be accessible on a

search of the National Sex Offender Registry.

(c) Under existing FBI procedures, state and local law enforcement

authorities add records of fugitives to the NCIC Wanted Person File

upon issuance of a state or local arrest warrant. The FBI will continue

to follow those same procedures with respect to registered sex

offenders. Accordingly, if an offender fails to comply with a state

registration program requirement, state or local authorities should, if

appropriate, seek an arrest warrant for that offender and then add a

record for the offender to the NCIC Wanted Person File.

Sec. 25.204 Notice of an offender's move to another state.

The Pam Lychner Act, 42 U.S.C. 14072(g), requires an offender who

moves to a different state to notify both the FBI and the new state of

residence so that his or her registration information may be included

in the appropriate state and federal databases. No later than 10 days

after the offender establishes a new residence, the offender should

contact the local FBI office in his or her new state of residence. Once

notified by an offender that he or she has moved to another state, the

FBI will take the steps necessary to ensure that the offender's new

state of residence has also been notified.

Dated: February 9, 1999.

Janet Reno,

Attorney General.

[FR Doc. 99-3613 Filed 2-12-99; 8:45 am]

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