Tuesday, April 12, 2011

SMART Office: International Guidelines Passed with the Kid's Act

International Travel

Part II.A of these supplemental guidelines exercises ‘‘[t]he authority under 42 U.S.C. 16914(a)(7) to expand the range of required registration information * * * to provide that registrants must be required to inform their residence jurisdictions of intended travel outside of the United States at least 21 days in advance of such travel.’’ Some commenters objected to this requirement on the ground that it would prevent sex offenders from engaging in legitimate international travel, because it may be necessary for sex offenders to travel abroad for business, familial, or other reasons without being able to anticipate the need three weeks in advance. However, these supplemental guidelines recognize that there may be circumstances in which requiring 21 days advance notice would be unnecessary or inappropriate, and expressly allow jurisdictions to adopt policies accommodating such situations subject to approval by the SMART Office.

Some commenters claimed that there is no authority for the Attorney General to adopt notice requirements concerning sex offenders leaving the United States, or concerning domestic travel by sex offenders, because 42 U.S.C. 16928 only directs the Attorney General to establish a system for informing relevant jurisdictions about persons entering the United States who are required to register under SORNA. These commenters apparently did not understand the legal basis for the Attorney General’s adoption of additional requirements relating to reporting of travel or intended travel by sex offenders. Such requirements are adequately supported by 42 U.S.C. 16914(a)(7), which provides general authority for the Attorney General to expand the information sex offenders are required to provide for inclusion in sex offender registries. The reporting requirement relating to intended international travel adopted in these supplemental guidelines is expressly premised on § 16914(a)(7), as are preexisting reporting requirements adopted in the SORNA Guidelines relating to international and domestic travel that go beyond those expressly stated in SORNA itself, see 73 FR at 38056.

Some comments expressed concern or frustration that jurisdictions have been presented with a moving target in their SORNA implementation efforts, a concern apparently felt with particular force in relation to the new reporting requirement regarding international travel. Relatively little time remains until the end of the compliance periods allowed under 42 U.S.C. 16924, which can create a difficult situation for jurisdictions attempting to carry out new requirements.

These comments are well taken. Congress in SORNA has authorized the Attorney General to augment or modify SORNA’s express requirements in certain areas, including authority to expand the range of required registration information and authority to create discretionary or mandatory exceptions to disclosure of such information. See 42 U.S.C. 16914(a)(7), (b)(8), 16918(b)(4), (c)(4), 16921(b). These authorities could be exercised by the Attorney General at any time during the periods afforded for SORNA implementation under 42 U.S.C. 16924 or thereafter. Given the inclusion in SORNA of these express authorities to augment or modify certain SORNA requirements, SORNA is reasonably read so as not to require that jurisdictions be regarded as falling short of substantial implementation based on new requirements without time afforded to correct the deficiency. Accordingly, the SMART Office will take account of the novelty of requirements and the time that has been available to carry them out in determining whether jurisdictions have substantially implemented SORNA, and will afford jurisdictions a reasonable amount of time to implement new requirements, which may extend beyond the implementation deadlines otherwise applicable under SORNA. Cf. Chicago & Alton R.R. Co. v. Tranbarger, 238 U.S. 67, 73–74 (1915) (statute may be construed to allow a reasonable amount of time to take an action where the normal statutory time limit for taking such actions cannot sensibly be applied).

The comments received included a concern that the new requirement relating to international travel reporting will unduly burden jurisdictions. This concern appears to reflect an exaggerated impression of the nature of the requirement and its impact on jurisdictions. Under pre-existing requirements of SORNA and the SORNA Guidelines, jurisdictions are required to obtain a range of information from sex offenders and to make that information available to other registration jurisdictions and appropriate Federal agencies, including information regarding domestic and international travel by sex offenders. See 42 U.S.C. 16913(c), 16919(b), 16921; 73 FR at 38055–56, 38065–67. The requirement under these supplemental guidelines to obtain information concerning international travel by sex offenders more consistently does not differ fundamentally in character from these pre-existing requirements and the mechanisms utilized in carrying out the pre-existing requirements can be extended and adapted to encompass this additional information. To the extent the concern about a resulting burden on jurisdictions reflects the novelty of this requirement and the apprehension that inadequate time will be afforded to implement it, the information in the preceding paragraph about how implementation of new requirements will be treated is responsive to the concern.

While the comments received did not provide persuasive reasons to abrogate or restrict the international travel reporting requirements as set forth in Part II.A of the proposed supplemental guidelines, in one respect the provisions regarding this requirement are modified in the final supplemental guidelines. The proposed supplemental guidelines noted that, as the international tracking system continues to develop, the SMART Office may issue additional directions to jurisdictions to notify certain agencies concerning international travel by sex offenders. Additional direction may also be needed concerning the specific information sex offenders should be required to provide in notifying their residence jurisdictions about intended international travel. This is so because obtaining the bare information that a registrant will be going somewhere outside of the United States at some time three weeks or more in the future may not be sufficient to achieve the objectives of the international tracking system—objectives that include reliably tracking sex offenders as they leave and return to the United States, and notifying as appropriate U.S. or foreign authorities in foreign countries to which sex offenders travel. See 73 FR at 38066–67. More specific information may be needed to realize these objectives, such as information concerning expected itinerary, departure and return dates, and means and purpose of travel.

The final supplemental guidelines accordingly state that the SMART Office may issue additional directions concerning the information to be required in international travel notifications by sex offenders. To the extent that the SMART Office’s exercise of the authority to flesh out the international tracking system results in new, more specific requirements relating to international travel reporting, the novelty of these requirements will be taken into account, as with other new requirements under SORNA as discussed above. The amount of time that has been available to carry out such requirements will be considered by the SMART Office in assessing substantial implementation and jurisdictions will be afforded a reasonable amount of time to carry them out.

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