[Federal Register: October 25, 2002 (Volume 67, Number 207)]
[Notices]
[Page 65598-65603]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25oc02-108]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
[OAG 103F; A.G. Order No. 2623-2002]
RIN 1105-AA81
Guidelines for the Campus Sex Crimes Prevention Act Amendment to
the Jacob Wetterling Crimes Against Children and Sexually Violent
Offender Registration Act
AGENCY: Department of Justice.
ACTION: Final guidelines.
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SUMMARY: The United States Department of Justice is publishing Final
Guidelines to implement an amendment to the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act enacted
by the Campus Sex Crimes Prevention Act.
EFFECTIVE DATE: October 25, 2002.
FOR FURTHER INFORMATION CONTACT: C. Camille Cain, Deputy Director for
Programs, Bureau of Justice Assistance, 810 Seventh Street NW,
Washington, D.C. 20531. Telephone: (202) 514-6278. E-mail:
cainc@ojp.usdoj.gov.
SUPPLEMENTARY INFORMATION: Section 170101 of the Violent Crime Control
and Law Enforcement Act of 1994, Pub. L. 103-322, 108 Stat. 1796, 2038
(codified at 42 U.S.C. 14071) contains the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act (the
``Wetterling Act''). The Wetterling Act sets minimum national standards
for state sex offender registration and community notification
programs, and directs the Attorney General to issue guidelines for such
programs. The current Wetterling Act guidelines were published in the
Federal Register at 64 FR 572 (Jan. 5, 1999), with corrections at 64 FR
3590 (Jan. 22, 1999). States that fail to comply with the Wetterling
Act's requirements (as implemented and explained in the Attorney
General's guidelines) are subject to a mandatory 10% reduction of the
formula grant funding available under the Edward Byrne Memorial State
and Local Law Enforcement Assistance Program (42 U.S.C. 3756), which is
administered by the Bureau of Justice Assistance of the Department of
Justice.
Subsequent to the publication of the current Wetterling Act
guidelines, Congress amended the Wetterling Act in the Campus Sex
Crimes Prevention Act (the ``CSCPA''), Pub. L. 106-386, div. B, Sec.
1601, 114 Stat. 1464, 1537 (2000). The CSCPA provides special
requirements relating to registration and community notification for
sex offenders who are enrolled in or work at institutions of higher
education. The CSCPA amendment to the Wetterling Act takes effect two
years after its enactment date of October 28, 2000.
Supplementary guidelines are necessary to take account of the CSCPA
amendment to the Wetterling Act. On March 8, 2002, the U.S. Department
of Justice published Proposed Guidelines in the Federal Register (67 FR
10758) for that purpose.
Summary of Comments on the Proposed Guidelines
Following the publication of the Proposed Guidelines, the
Department received several comments, all of which were carefully
considered in finalizing the guidelines. A summary of the comments and
responses to them are provided in the following paragraphs.
[[Page 65599]]
A. Availability of Information to the Campus Community
A number of comments noted that the Proposed Guidelines did not
discuss the requirement under the CSCPA that information concerning the
presence of registered sex offenders be made available to campus
communities, and recommended that this requirement be articulated more
clearly in the Final Guidelines. Comments to this effect were received
from Senator Jon Kyl, the sponsor of the CSCPA, and from Daniel S.
Carter, Senior Vice President of Security On Campus, Inc.
This issue was not addressed at length in the Proposed Guidelines
because responsibility for implementation of the CSCPA is divided
between the Attorney General and the Secretary of Education, and this
issue relates to federal education law amendments that are within the
purview of the Secretary of Education.
In part, the CSCPA added a new subsection to the Wetterling Act, 42
U.S.C. 14071(j), which requires states to obtain information concerning
registrants' enrollment or employment at institutions of higher
education, and to provide this information to campus police departments
or other appropriate law enforcement agencies. The Attorney General is
responsible for issuing guidelines relating to the Wetterling Act
amendment of the CSCPA as part of his general responsibility for the
issuance of guidelines under the Wetterling Act. See 42 U.S.C.
14071(a). The detailed discussion in the Proposed Guidelines was
accordingly limited to the portions of the CSCPA that affect the
Wetterling Act. The Proposed Guidelines explained: ``These guidelines
relate solely to the provisions of the CSCPA that amended the
Wetterling Act, and hence affect state eligibility for full Byrne Grant
funding.''
The Proposed Guidelines, however, also noted: ``In addition to
adding subsection (j) to the Wetterling Act, the CSCPA amended federal
education laws to ensure the availability to the campus community of
information concerning the presence of registered sex offenders.'' 67
FR at 10759. The Department of Education is responsible for the
issuance of regulations relating to those laws.
The CSCPA's education law amendments include the addition of a new
provision, section 485(f)(1)(I) of the Higher Education Act of 1965 (20
U.S.C. 1092(f)(1)(I)). This provision requires a statement advising the
campus community where it can obtain the information identifying
registered sex offenders who are enrolled or employed at the
institution of higher education--information that the state is required
to provide to the campus police department or other appropriate law
enforcement agency pursuant to 42 U.S.C. 14071(j):
(I) A statement advising the campus community where law
enforcement agency information provided by a State under section
170101(j) of the Violent Crime Control and Law Enforcement Act of
1994 (42 U.S.C. 14071(j)), concerning registered sex offenders may
be obtained, such as the law enforcement office of the institution,
a local law enforcement agency with jurisdiction for the campus, or
a computer network address.
In addition, the CSCPA added a provision to section 444(b) of the
Family Educational Rights and Privacy Act of 1974 (20 U.S.C.
1232g(b)(7)(A)), which specifies that that Act does not prohibit
educational institutions from disclosing information provided to them
concerning registered sex offenders.
Thus, under the CSCPA's provisions, information identifying the
registered sex offenders at an institution of higher education must be
provided to the campus police department or other appropriate law
enforcement agency, and the campus community must be advised where it
can obtain this information. The net effect of these provisions is that
information identifying the registered sex offenders at an institution
of higher education must be made available to the campus community by
some means, for otherwise it would be impossible to comply with the
requirement that the campus community be advised where this information
can be obtained. The CSCPA affords discretion concerning the specific
means by which this information will be made available to the campus
community, and indicates more specifically by way of illustration that
permissible options would include making the information available at
an appropriate law enforcement office, or making the information
available online. See 20 U.S.C. 1092(f)(1)(I) (quoted above).
In addition to the special provisions of the CSCPA concerning the
availability of sex offender information to campus communities, the
general community notification provision of the Wetterling Act, 42
U.S.C. 14072(e)(2), applies to registered sex offenders who are
enrolled or employed at institutions of higher education just as it
applies to other registered sex offenders. Subsection (e)(2) requires
that relevant information be released concerning registrants as
necessary to protect the public. The Attorney General's guidelines for
the Wetterling Act explain the meaning and application of this
requirement. See 64 FR 572, 581-82.
B. Mandatory or Discretionary Character of the CSCPA's Standards
James Thomas, Executive Director of the Pennsylvania Commission on
Crime and Delinquency, provided comments on behalf of the Commonwealth
of Pennsylvania. In part, the comments suggested that the CSCPA does
not require states to obtain information concerning registered sex
offenders' enrollment or employment at institutions of higher
education, or to provide such information to law enforcement agencies.
Pennsylvania's comments pointed out that 42 U.S.C. 14071(j)(1)(A)
states that persons required to register shall provide notice relating
to their enrollment or employment at institutions of higher education
``as required under State law,'' and that 42 U.S.C. 14071(j)(1)(B)
provides that such persons shall report changes in their enrollment or
employment status ``in the manner provided by State law.'' The comments
interpreted these phrases to mean that the states have discretion under
the CSCPA's standards as to whether they will impose such obligations
on registrants at all. In support of this interpretation, the comments
stated that other federal statutes uniformly use the phrase ``as
required under State law'' in referring to pre-existing state duties--
citing 12 U.S.C. 1813(m)(4); 15 U.S.C. 1612(d); 26 U.S.C.
832(b)(7)(E)--rather than with the intent to impose a new federal
obligation on states. (Only one of the cited statutes uses the exact
phrase ``as required under State law''; the other two use ``as required
by State law.'') The comments also asserted that the phrase ``in the
manner provided by State law'' is not used elsewhere in the United
States Code.
However, the phrase ``in the manner provided by State law'' is used
at an earlier point in the Wetterling Act itself, as part of a
provision requiring change-of-address notice by registrants.
Specifically, 42 U.S.C. 14071(b)(4) provides that a change of address
by a person required to register under the Wetterling Act shall be
reported by the person ``in the manner provided by State law,'' and
that ``State procedures shall ensure'' that the updated address
information is promptly made available to an appropriate law
enforcement agency and entered into the appropriate state records or
data system. This provision does not mean that states have discretion
under the Wetterling Act's standards as to whether or not they will
[[Page 65600]]
require change of address notice by registrants, but only conveys state
discretion as to the manner in which this notice will be effected--for
example, specifying which particular agency or official must be given
the notice. See 64 FR 572, 580 (explanation of 42 U.S.C. 14071(b)(4) in
Attorney General's guidelines).
In parallel fashion, 42 U.S.C. 14071(j)(1)(B) provides that a
change of enrollment or employment status shall be reported by the
person ``in the manner provided by State law,'' and that ``State
procedures shall ensure'' that the updated information is promptly made
available to an appropriate law enforcement agency and entered into the
appropriate state records or data system. The similarity of language
evidences a similarity of legislative intent. Like 42 U.S.C.
14071(b)(4), 42 U.S.C. 14071(j)(1)(B) conveys state discretion
concerning the particular manner in which changes in registration
information will be reported, but does not convey discretion as to
whether or not the reporting of such information will be required at
all.
The other qualifying phrase noted in Pennsylvania's comments
appears in 42 U.S.C. 14071(j)(1)(A), which says that, in addition to
any other requirements of the Wetterling Act, a person who is required
to register shall provide notice ``as required under State law''
concerning enrollment or employment at an institution of higher
education in the state. In effect, the comments suggest that ``as
required under State law'' should be read to mean: ``if required under
State law.''
The phrase ``as required under State law'' does not appear verbatim
elsewhere in the Wetterling Act, but a similar phrase--``as provided by
State law''--appears in 42 U.S.C. 14071(b)(1)(A)(ii)-(iii). Section
14071(b)(1)(A)(ii)-(iii) requires state officials to advise registrants
that if they change address, they must ``report the change of address
as provided by State law.'' This phrase does not mean that registrants
are to be told that they have an obligation to report a change of
address only if the state, in its discretion, chooses to impose such an
obligation by state law. Rather, ``as provided by State law'' in Sec.
14071(b)(1)(A)(ii)-(iii) evidently has the same meaning as ``in the
manner provided by State law'' in Sec. 14071(b)(4), referring to the
specification by state law of the particular manner in which change of
address information is to be reported.
Similarly, the requirement under Sec. 14071(j)(1)(A) that
registrants are to provide notice ``as required under State law'' means
that they are to provide notice in the manner required under state law,
not if required under state law. The parallel usages elsewhere in the
Wetterling Act are more persuasive on this point than the appearance of
``as required under [or by] State law'' in a few statutes (cited in
Pennsylvania's comments) that use that phrase in entirely different
contexts and that have no relationship to the Wetterling Act or its
subject matter.
Beyond the foregoing textual points, the interpretation suggested
in Pennsylvania's comments is clearly inconsistent with the
understanding presented to Congress in its consideration of the CSCPA:
The purpose of [the CSCPA] is to guarantee that, when a
convicted sex offender enrolls or begins employment at a college or
university, members of the campus community will have the
information they need to protect themselves. . . . The Campus Sex
Crimes Prevention Act provides that offenders must register the name
of any higher education institution where they enroll as a student
or commence employment. It also requires that this information be
promptly made available to law enforcement agencies in the
jurisdictions where the institutions of higher education are
located. . . .
In order to ensure that the information is readily accessible to
the campus community, the Campus Sex Crimes Prevention Act requires
colleges and universities to provide the campus community with clear
guidance as to where this information can be found, and clarifies
that federal laws governing the privacy of education records do not
prevent campus security agencies or other administrators from
disclosing such information.
146 Cong. Rec. S10216 (Oct. 11, 2000) (remarks of Senator Kyl).
In contrast, under the interpretation suggested in Pennsylvania's
comments, the CSCPA would not guarantee that information concerning the
presence of registered sex offenders at institutions of higher
education is obtained by or made available to anyone, because the
decision whether to collect such information would be left to the
discretion of individual states.
In addition to the interpretive issues discussed above, the
comments received from Pennsylvania expressed a number of concerns
about the practical impact of the CSCPA amendment to the Wetterling
Act. Specifically, the comments expressed concern that: (1) Requiring
employment and schooling information from registrants will complicate
the registration process and result in fewer offenders registering
properly and providing the required notifications concerning changes;
(2) legislation will be needed to effectively implement the new
requirements; and (3) the new requirements will have a fiscal impact in
a tight budgetary situation, including the expense of modifying the
registration database to add the fields and logic necessary to store
and process the new data, and additional staff for the State Police
Megan's Law section because of increased workload. The comments stated
that Pennsylvania had not had sufficient time to implement the proposed
guidelines and requested an extension of the implementation deadline,
or if that could not be effected, an extension of the effective date of
the reduction of Byrne Grant funding in case of noncompliance.
In response, the Department of Justice notes that the requirement
to obtain information from registrants concerning enrollment or
employment at institutions of higher education, and to make this
information available to appropriate law enforcement agencies, is
integral to the CSCPA amendment to the Wetterling Act and cannot be
changed by the guidelines. States have considerable latitude as to the
particular procedures to be used in carrying out these requirements,
and may adopt procedures consistent with the statute and guidelines
that minimize resulting costs and burdens in the context of their
registration systems. As with other provisions of the Wetterling Act,
the Department provides advice and consultation to states on request
concerning the consistency of measures they are considering to
implement subsection (j) with the statute and the guidelines.
Under the original provisions of the Wetterling Act and most
previous amendments, the legislation allowed states three years to come
into compliance, and authorized the Attorney General to grant an
additional two years to states that were making good faith efforts to
come into compliance. See 64 FR at 572 (explanation of deadlines in
Attorney General's guidelines). However, the CSCPA provides that its
amendment to the Wetterling Act takes effect two years after enactment,
and does not give the Attorney General authority to grant additional
time. The Department is accordingly required to reduce by 10% any
formula Byrne Grant award to a state made after October 27, 2002, if
the state is not in compliance with the requirements of 42 U.S.C.
14071(j) at the time of the award. Since the deadline is statutory and
not subject to extension by the Attorney General, any request for
additional time would need to be addressed to Congress.
[[Page 65601]]
C. Comments From the American Council on Education
David Ward, President of the American Council on Education (ACE),
sent a letter on behalf of the ACE expressing support for the proposed
guidelines for the CSCPA amendment to the Wetterling Act. The letter
advised that the ACE had worked with Senator Kyl and other members of
Congress in developing the CSCPA so that community members at
institutions of higher education could have access to information
regarding registered sex offenders enrolled or employed at a particular
college or university; that the ACE intended to offer more detailed
comments to the Department of Education as it develops guidelines to
ensure the availability of information concerning the presence of
registered sex offenders; and that the proposed guidelines from the
Department of Justice accurately and appropriately represent the
intention of the law and that the ACE does not recommend any changes.
D. Comments From a Kansas Respondent
Tiffany Muller, Sexual Assault Advocacy Coordinator at the Kansas
Coalition Against Sexual and Domestic Violence (hereafter, the ``Kansas
Coalition''), submitted comments reflecting discussion of the CSCPA by
a Sexual Assault Task Group made up of representatives from rape crisis
centers and other interested agencies. The comments stated that the
CSCPA was well received in Kansas, and that it provides a number of
benefits, but that there were concerns about implementation and
effectiveness in light of other current barriers. The specific concerns
and suggestions were as follows:
1. Time for Registration in Interstate Situations
The comments from the Kansas Coalition asked how the duration of
registration, and the related requirement to report attendance at a
university, would be handled in situations involving multiple states
with different registration periods--e.g., a situation in which a
person was initially registered in a state that requires registration
for 10 years, but then attends a university in a neighboring state that
requires registration for 15 years.
One type of situation this question covers is that in which a sex
offender is convicted and initially registered in one state, but then
changes his residence to another state and attends a university in the
new state of residence. Under the standards of the CSCPA amendment to
the Wetterling Act, the offender would be required to notify the new
state of residence concerning his enrollment or employment at
institutions of higher education in that state for however long he is
required to register in that state. See 42 U.S.C. 14071(j) (``a person
who is required to register in a State'' shall provide notice
concerning enrollment or employment at an institution of higher
education in that state).
A second type of situation the question may refer to is one in
which a sex offender continues to reside in the state in which he is
convicted and initially registered, but attends a university in another
state. This situation falls under another provision of the Wetterling
Act, 42 U.S.C. 14071(b)(7)(B), which relates to registration by a state
of non-residents who are in the state for purposes of employment or
school attendance. The state of employment or school attendance must
accept registration information from such non-residents for as long as
they are required to be registered in their states of residence under
the Wetterling Act's standards. See 64 FR 572, 585 (explanation of
subsection (b)(7)(B) in Attorney General's guidelines).
The question may also be seeking more general information about the
Wetterling Act's requirements regarding the duration of registration in
interstate situations. In general, the Wetterling Act's standards
require registration of at least 10 years for offenders in the offense
categories covered by the Act, and lifetime registration for certain
types of offenders. See 42 U.S.C. 14071(b)(6); 64 FR 572, 576, 582-83,
584. These requirements apply regardless of whether the registrant
moves from one state to another. If an offender who is subject only to
the limited (ten-year) registration requirement of the Wetterling Act
changes his state of residence, the new state of residence may give him
credit towards satisfaction of the ten-year requirement based on the
amount of time he was registered in the previous state of residence.
See 64 FR 572, 578, 580. In all circumstances, states are free to
require registration for longer periods than the minimum required under
the Wetterling Act's standards. See 64 FR 572, 575.
2. Breakdown in Communication
The comments from the Kansas Coalition stated that in some cities a
campus police department would have immediate jurisdiction over the
campus, but often would not patrol some student housing, and that
campus police in Kansas often do not share information with local
police departments. The comments suggested that the concerns raised by
this breakdown in communication might be addressed by notifying both
the campus and local law enforcement.
On this point, the Proposed Guidelines, and the Final Guidelines
below, make it clear that states are free to notify both a campus
police department and other law enforcement agencies: ``Regardless of
whether an institution of higher education has its own law enforcement
unit, the Wetterling Act does not limit the discretion of states to
make information concerning registrants enrolled or working at the
institution available to other law enforcement agencies as well.''
3. Use of Pamphlets in Notification
The comments from the Kansas Coalition suggested that schools could
distribute pamphlets to help notify people that information is
available about such matters as crime rates and registered offenders at
institutions of higher education.
This comment relates to the means of carrying out provisions of the
Higher Education Act of 1965, including the CSCPA amendment to that Act
(20 U.S.C. 1092(f)(1)(I)), rather than to the CSCPA amendment to the
Wetterling Act.
4. Standardized Guidelines
The comments from the Kansas Coalition noted a suggestion that
states should have more standardized sex offender registration
guidelines.
On this point, it may be noted that the Wetterling Act, and the
Attorney General's guidelines for the Wetterling Act, provide minimum
national standards for state sex offender registration programs, and
thereby establish a baseline of common features for the state programs.
5. Monitoring of Offenders
The comments from the Kansas Coalition expressed concern that it
would be fairly easy for offenders to be without monitoring--especially
those in a very transient college population--since updates come from
the offenders themselves and states are only required to check in with
registered offenders once a year.
The Wetterling Act's standards require annual address verification
for registrants generally, but quarterly address verification for
certain registrants. States are free to check or verify address
information and other registration information with greater
[[Page 65602]]
frequency than the minimum required by the Wetterling Act. See 42
U.S.C. 14071(b)(3); 64 FR 572, 575, 581, 584.
6. Inaccurate Reporting
The comments from the Kansas Coalition stated that many campuses
are not accurately reporting and continue to cover up incidences of
sexual assault, and that these same campuses may be resistant to
reporting registered offenders to the public.
This comment relates to compliance with provisions of the Higher
Education Act of 1965, including the CSCPA amendment to that Act (20
U.S.C. 1092(f)(1)(I)), rather than to the CSCPA amendment to the
Wetterling Act.
E. Comments From a Tennessee Respondent
Tim Burchett, a state senator in Tennessee, sent a letter stating
that he had recently learned that the U.S. Department of Justice, in a
brief filed with the Supreme Court, had articulated a requirement that
campus sex offender notifications must be made categorically without
regard to any risk assessment. Senator Burchett stated that he had
sponsored the law in Tennessee designed to achieve compliance with the
campus notification requirements of the CSCPA, and that he wanted to
make sure that Tennessee's law will meet this new requirement.
Senator Burchett further stated that Tennessee will make
categorical notifications on campus for all registrants after the
Tennessee law's effective date of October 27, 2002, and that for
convictions prior to that date release of the information is at the
discretion of law enforcement. He asked whether this would meet the
CSCPA's requirements, or whether further amendment of the law would be
needed requiring categorical notifications without regard to conviction
date. He also suggested that it would be very helpful if an explanation
of the categorical notification requirement could be included in the
Final Guidelines, so that states will know exactly what is needed for
compliance.
In three briefs filed with the Supreme Court, the Department of
Justice has noted the CSCPA's requirements relating to the availability
to campus communities of information concerning the presence of
registered sex offenders. See Brief for the United States as Amicus
Curiae Supporting Petitioner, at 2-3, 10, in Connecticut Department of
Public Safety v. Doe, No. 01-1231 (April 2002) (amicus brief supporting
the granting of certiorari); Brief for the United States as Amicus
Curiae Supporting Petitioners, at 2, 6, 22-23, in Godfrey v. Doe, No.
01-729 (June 2002) (amicus brief supporting petitioners on the merits);
Brief for the United States as Amicus Curiae Supporting Petitioners, at
4-5, 27-28, in Connecticut Department of Public Safety v. Doe, No. 01-
1231 (July 2002) (amicus brief supporting petitioners on the merits).
These requirements are categorical in that information must be made
available to a campus community concerning the identities of all
registered sex offenders who are enrolled or employed at the
institution of higher education. As explained above, this follows from
the requirement of 42 U.S.C. 14071(j) that information identifying all
registrants at an institution of higher education must be provided to
the campus police department or other appropriate law enforcement
agency, together with the requirement of 20 U.S.C. 1092(f)(1)(I) that
the campus community must be told where it can obtain this information.
The Wetterling Act's requirements generally apply to registrants
who are convicted at any time after a state's establishment of a
registration system that conforms to these requirements. Hence, a state
must at a minimum apply the requirements of 42 U.S.C. 14071(j) to all
persons registered on the basis of convictions occurring after the
effective date of state legislation that implements the requirements of
42 U.S.C. 14071(j) in the state's registration system. States are also
free to apply the requirements of 42 U.S.C. 14071(j) more broadly to
persons registered on the basis of convictions occurring before the
enactment or effectiveness of such state legislation. See 64 FR 572,
575, 581, 583.
Final Guidelines
The Campus Sex Crimes Prevention Act (CSCPA) provisions appear in
subsection (j) of the Wetterling Act (42 U.S.C. 14071(j)). As provided
in subsection (j), any person required to register under a state sex
offender registration program must notify the state concerning each
institution of higher education (i.e., post-secondary school) in the
state at which the person is a student or works, and of each change in
enrollment or employment status of the person at such an institution.
States can comply with the Wetterling Act's requirements concerning
these registrants, in part, by: (1) Advising registrants concerning
these specific obligations when they are generally advised of their
registration obligations, as discussed in part II.A of the January 5,
1999, Wetterling Act guidelines (64 FR 572, 579), (2) including in the
registration information obtained from each registrant information
concerning any enrollment or employment at an institution of higher
education in the state, and (3) establishing procedures for registrants
to notify the state concerning any subsequent commencement or
termination of enrollment or employment at an institution of higher
education in the state. The failure of a registrant to notify the state
concerning enrollment or employment at an institution of higher
education or the termination of such enrollment or employment would
constitute a failure to register or keep such registration current for
purposes of subsection (d) of the Wetterling Act (42 U.S.C. 14071(d)),
and must be subject to criminal penalties as provided in that
subsection.
Under the requirements of subsection (j) of the Wetterling Act,
state procedures must also ensure that information concerning a
registrant enrolled or working at an institution of higher education is
promptly made available to a law enforcement agency having jurisdiction
where the institution is located, and entered into the appropriate
state records or data system. This requirement applies both to any
information initially obtained from registrants concerning enrollment
or employment at institutions of higher education in the state, and
information concerning subsequent changes in such enrollment or
employment status. As paragraph (3) of subsection (j) makes clear,
subsection (j) does not place any burden on an educational institution
to request information about registrants enrolled or employed at the
institution from the state, and the requirement that the state make the
information available to a law enforcement agency having jurisdiction
where the institution is located is not contingent on a request from
the institution.
Subsection (j)'s requirement to promptly make the information
available to a law enforcement agency having jurisdiction where the
institution is located is supplementary to the requirement under
subsection (b)(2)(A) and (4) of the Wetterling Act (42 U.S.C.
14071(b)(2)(A), (4)) to promptly make information concerning
registrants available to a law enforcement agency having jurisdiction
where the registrant resides. The legislative history of the CSCPA
explains subsection (j)'s requirement as follows:
Once information about an offender's enrollment * * * or
employment * * * [at] * * * an institution of higher education has
been provided to a state's sex offender registration program, that
information should
[[Page 65603]]
be shared with that school's law enforcement unit as soon as
possible.
The reason for this is simple. An institution's law enforcement
unit will have the most direct responsibility for protecting that
school's community and daily contact with those that should be
informed about the presence of the convicted offender.
If an institution does not have a campus police department, or
other form of state recognized law enforcement agency, the sex
offender information could then be shared with a local law
enforcement agency having primary jurisdiction for the campus.
146 Cong. Rec. S10216 (Oct. 11, 2000) (remarks of Senator Kyl).
Thus, if an institution of higher education has a campus police
department or other form of state recognized law enforcement agency,
state procedures must ensure that information concerning the enrollment
or employment of registrants at that institution (and subsequent
changes in registrants' enrollment or employment status) is promptly
made available to the campus police department or law enforcement
agency. If there is no such department or agency at the institution,
then state procedures must ensure that this information is promptly
made available to some other law enforcement agency having jurisdiction
where the institution is located. Regardless of whether an institution
of higher education has its own law enforcement unit, the Wetterling
Act does not limit the discretion of states to make information
concerning registrants enrolled or working at the institution available
to other law enforcement agencies as well.
The language of subsection (j) refers specifically to any
registrant who ``is employed, carries on a vocation, or is a student''
at an institution of higher education in the state. These terms have
defined meanings set forth in subsection (a)(3)(F)-(G) of the
Wetterling Act (42 U.S.C. 14071(a)(3)(F)-(G)). In light of these
definitions, the registrants to whom the requirements of subsection (j)
apply are those who: (1) are enrolled in any institution of higher
education in the state on a full-time or part-time basis, or (2) have
any sort of full-time or part-time employment at an institution of
higher education in the state, with or without compensation, for more
than 14 days, or for an aggregate period exceeding thirty days in a
calendar year.
The CSCPA provisions in subsection (j) of the Wetterling Act are
supplementary to, and do not limit or supersede, the provisions in
subsection (b)(7)(B) of the Wetterling Act that require states to
accept registration information from offenders who reside outside a
state but come into the state in order to work or attend school.
Subsection (b)(7)(B) applies only to non-resident workers and students,
but it is not limited in scope to those who work at or attend
institutions of higher education (as opposed to other places of
employment or schools). The requirements under subsection (b)(7)(B) are
explained in part V.B.2 of the January 5, 1999, Wetterling Act
guidelines (64 FR 572, 585).
The CSCPA's effective date for its amendment to the Wetterling Act
is two years after enactment. Hence, following October 27, 2002, Byrne
Formula Grant awards to states that are not in compliance with
subsection (j) of the Wetterling Act will be subject to a mandatory 10%
reduction. If a state's funding is reduced because of a failure to
comply with the CSCPA amendment to the Wetterling Act or other
Wetterling Act requirements by an applicable deadline, the state may
regain eligibility for full funding thereafter by establishing
compliance with all applicable requirements of the Wetterling Act.
States are encouraged to submit information concerning existing and
proposed sex offender registration provisions relating to compliance
with the CSCPA amendment as soon as possible.
After the reviewing authority has determined that a state is in
compliance with the Wetterling Act, the state has a continuing
obligation to maintain its system's consistency with the Wetterling
Act's standards, and will be required as part of the Byrne Formula
Grant application process in subsequent program years to certify that
the state remains in compliance with the Wetterling Act.
These guidelines relate solely to the provisions of the CSCPA that
amended the Wetterling Act, and hence affect state eligibility for full
Byrne Grant funding. In addition to adding subsection (j) to the
Wetterling Act, the CSCPA amended federal education laws to ensure the
availability to the campus community of information concerning the
presence of registered sex offenders. The Department of Education is
responsible for the issuance of regulations relating to those laws.
As noted above, the general guidelines for the Wetterling Act were
published on January 5, 1999, and appear at 64 FR 572, with corrections
at 64 FR 3590 (Jan. 22, 1999). The new CSCPA provisions in subsection
(j), which these supplementary guidelines address, are only one part of
the Wetterling Act. States must comply with all of the Wetterling Act's
requirements in order to maintain eligibility for full Byrne Grant
funding.
Dated: October 22, 2002.
Larry D. Thompson,
Acting Attorney General.
[FR Doc. 02-27257 Filed 10-24-02; 8:45 am]
BILLING CODE 4410-19-P