FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10063
Plaintiff-Appellant, D.C. No.
v. 2:08-cr-00187-
MARK ANTHONY VALVERDE, LKK-1
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted
September 23, 2010—San Francisco, California
Filed December 27, 2010
Before: Mary M. Schroeder, Stephen Reinhardt and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Reinhardt
20591
UNITED STATES v. VALVERDE 20595
COUNSEL
Laurel D. White, Assistant U.S. Attorney, for the plain-
tiff-appellant.
Rachelle Barbour, Sacramento, California, and David Miles
Porter, Assistant Federal Public Defender for the defen-
dant-appellee.
OPINION
REINHARDT, Circuit Judge:
The Government appeals a decision of the district court dis-
missing the indictment of Mark Anthony Valverde
(“Valverde”) under the Sex Offender Registration and Notifi-
cation Act (“SORNA”), 42 U.S.C. § 16901 et seq., on the
ground that the registration and penalty provisions of the stat-
ute under which Valverde was charged, 42 U.S.C. § 16913;
18 U.S.C. § 2250(a)(2)(B), are invalid exercises of congres-
sional power under the Commerce Clause. U.S. Const. art. I,
§ 8, cl. 3. We stayed this matter pending a decision on that
issue in United States v. George, ___ F.3d ___, No. 08-30339,
2010 WL 4291497 (9th Cir. 2010). Valverde contends in
addition that no valid statute or properly promulgated rule
made SORNA’s registration requirements applicable to him
as of the time that he is charged with failing to register, spe-
cifically in January 2008.
We lift the stay issued pending the panel’s decision in
George and reject Valverde’s Commerce Clause argument in
light of that decision. We AFFIRM, however, the district
court’s dismissal of the indictment. We do so on the separate
ground that the Attorney General’s interim regulation of Feb-
ruary 28, 2007 — applying SORNA’s registration require-
ments retroactively to sex offenders, such as Valverde, who
20596 UNITED STATES v. VALVERDE
were convicted before the statute’s enactment — did not com-
ply with the notice and comment procedures of the Adminis-
trative Procedure Act (“APA”), and did not qualify for the
“good cause” exemption under 5 U.S.C. § 553(d)(3). As a
result, the retroactivity provision did not become effective
until August 1, 2008 —30 days after its publication in the
final SMART guidelines along with the Attorney General’s
response to related public comments.
I. BACKGROUND
A. Factual Background
In 2002, Valverde pled guilty in California Superior Court
to eleven counts of sexual abuse of a minor under 16 and one
count of child pornography. He was sentenced to twelve years
in prison. Prior to his release, Valverde signed a form notify-
ing him that under California law he was required to register
as a sex offender within five days of his release from prison,
and that if he moved to another state, he was required to regis-
ter there within ten days. Valverde was released in California
in January 2008 with an instruction to report to a parole offi-
cer the next day. He did not report, however, and was appre-
hended later that month at his grandmother’s house in
Missouri, having registered as a sex-offender in neither Cali-
fornia nor Missouri. Valverde’s offenses under California law
are not at issue in this case.
B. Procedural Background
In April 2008, defendant was indicted under SORNA, 42
U.S.C. § 16913, for having traveled, between January 6, 2008
and January 23, 2008, in interstate and foreign commerce and
thereafter having knowingly failed to register as a sex
offender as required by 18 U.S.C. § 2250. In February 2009,
the district court dismissed the indictment, holding that nei-
ther 42 U.S.C. § 16913, which establishes the requirement
that sex offenders register, nor 18 U.S.C. § 2250, which
UNITED STATES v. VALVERDE 20597
imposes criminal penalties for the failure to register, are valid
exercises of congressional authority to regulate interstate
commerce. The district court reasoned that these registration
and penalty provisions of SORNA did not fall under any of
the three categories of activity that Congress may regulate
pursuant to its commerce power, as set forth by the Supreme
Court in United States v. Lopez, 514 U.S. 555 (1995), and
United States v. Morrison, 529 U.S. 598 (2000). The district
court did not rule on Valverde’s separate legal contention that
no valid statute or properly promulgated rule made SORNA’s
registration requirements retroactively applicable to him as of
the date that he is charged with failing to register under 42
U.S.C. § 16913.
II. ANALYSIS
A. Commerce Clause
[1] On September 29, 2010, this court held that the
SORNA provisions that the district court in Valverde declared
invalid under the Commerce Clause were legitimate exercises
of Congress’s commerce power. United States v. George, ___
F.3d ___, No. 08-30339, 2010 WL 4291497, at *3 (9th Cir.
2010) (reasoning that SORNA’s registration requirements
“are reasonably aimed at regulating persons or things in inter-
state commerce and the use of the channels of interstate com-
merce.” (citation and quotation marks omitted)). That holding
controls here. We therefore hold that the district court erred
in dismissing Valverde’s indictment on the ground that 42
U.S.C. § 16913 and 18 U.S.C. § 2250 were an invalid exer-
cises of congressional authority under the Commerce Clause.
[2] The remaining question at issue is when SORNA
became effective retroactively to sex offenders convicted
before the statute’s enactment.1 Having considered Valverde’s
1
The defendant in George did not raise, and neither party in that case
briefed or argued the question of when SORNA’s registration require-
20598 UNITED STATES v. VALVERDE
argument that SORNA’s retroactivity provision did not
become valid until the APA’s notice and comment require-
ments were satisfied, as well as having reviewed the Govern-
ment’s brief on that question, and having heard oral argument
on that point from both parties, we now hold that the effective
date of the retroactivity provision is the date on which that
provision fulfilled the requirements of the APA.
B. Standard of Review
We need not decide the standard of review in order to
determine the date on which the Attorney General’s interim
rule, 28 C.F.R. § 72.3 (2007), became effective in light of the
notice and comment procedures of the APA. 5 U.S.C.
§ 553(b)(B), (d)(3). Valverde contends that we should apply
a de novo standard of review, as we did in Reno-Sparks
Indian Colony v. E.P.A., 336 F.3d 899 (9th Cir. 2003). In that
case, we considered the validity of rules issued by the Envi-
ronmental Protection Agency that failed to comply with the
Administrative Procedure Act’s required notice and comment
procedures. The Government argues that we should apply an
“arbitrary, capricious, or abuse of discretion” standard, 5
U.S.C. § 706(2)(A), in reviewing the agency’s — here, the
Attorney General’s — determination as to the effective date
of its regulation. Because we would, under either standard,
affirm the dismissal of the indictment on the ground that no
validly promulgated regulation had applied SORNA retroac-
tively to Valverde at the time of his failure to register, we
need not determine whether a de novo or an abuse of discre-
tion standard of review applies here.
C. Retroactive Application of SORNA to Valverde
[3] SORNA, which became effective on July 27, 2006,
requires an individual convicted of a sex offense to “register,
ments became applicable to pre-enactment sex offenders. Rather, both par-
ties assumed that the effective date was at the latest the date on which the
interim regulation was promulgated. Accordingly, the George court, in a
footnote, made that same assumption for purposes of its discussion regard-
ing the Commerce Clause.
UNITED STATES v. VALVERDE 20599
and keep the registration current, in each jurisdiction where
the offender resides, where the offender is an employee, and
where the offender is a student.” 42 U.S.C. § 16913(a). The
statute does not specify whether its registration requirements
apply retroactively to a sex offender who, like Valverde, was
convicted before the statute’s effective date. 42 U.S.C.
§ 16913(b). Congress instead delegated to the Attorney Gen-
eral the “authority to specify the applicability of the require-
ments of [SORNA’s registration requirements] to sex
offenders convicted before [the statute’s] enactment [on July
27, 2006] or its implementation in a particular jurisdiction”
and the authority “to prescribe rules for the registration of any
such sex offenders and for other categories of sex offenders
who are unable to comply with” the Act’s registration require-
ments. 42 U.S.C. § 16913(d).
[4] Pursuant to this delegation of authority, on February
28, 2007, seven months after the statute’s enactment, U.S.
Attorney General Alberto Gonzales issued an interim rule
applying SORNA to “all sex offenders, including sex offend-
ers convicted of the offense for which registration is required
prior to the enactment of [SORNA].” 28 C.F.R. § 72.3. In
issuing the interim rule, the Attorney General declined to
comply with the procedural requirements of the APA. 5
U.S.C. § 551 et seq. Under the APA, rulemaking is generally
required to comply with a three-step process: (1) notice of a
proposed rule must be given by publication in the Federal
Register, 5 U.S.C. § 553(b); (2) following publication of the
proposed rule, 30 days must be provided for public comment;
(3) notice of a final rule must be given by publication in the
Federal Register, normally accompanied by a response to con-
cerns raised in the public comments, “not less than 30 days
before [the rule’s] effective date . . . .” 5 U.S.C. § 553(d)(3).
The APA permits an Agency to promulgate valid regulations
without complying with these procedures, however, if it “for
good cause finds (and incorporates the finding and a brief
statement of reasons therefor in the rules issued) that notice
20600 UNITED STATES v. VALVERDE
and comment procedure thereon are impracticable, unneces-
sary, or contrary to the public interest.” 5 U.S.C. § 553(b)(B).
The Attorney General relied upon the good cause exception
in seeking to make the February 28, 2007 interim rule apply-
ing SORNA retroactively effective immediately and to render
inapplicable the requirements for advance publication, public
comment, and Agency response. 72 Fed. Reg. at 8895. In a
statement accompanying the interim rule, the Attorney Gen-
eral did not state that notice and comment was “impractica-
ble” or “unnecessary,” but solely that it was “contrary to the
public interest.”
The immediate effectiveness of this rule is necessary
to eliminate any possible uncertainty about the appli-
cability of the Act’s requirements — and related
means of enforcement, including criminal liability
under 18 U.S.C. § 2250 for sex offenders who know-
ingly fail to register as required — to sex offenders
whose predicate convictions predate the enactment
of SORNA. Delay in the implementation of this rule
would impede the effective registration of such sex
offenders and would impair immediate efforts to
protect the public from sex offenders who fail to reg-
ister through prosecution and the imposition of crim-
inal sanctions. The resulting practical dangers
include the commission of additional sexual assaults
and child sexual abuse or exploitation offenses by
sex offenders that could have been prevented had
local authorities and the community been aware of
their presence, in addition to greater difficulty in
apprehending perpetrators who have not been regis-
tered and tracked as provided by SORNA. This
would thwart the legislative objective of ‘protect[-
ing] the public from sex offenders and offenders
against children’ by establishing ‘a comprehensive
national system for the registration of those offend-
ers,’ SORNA § 102, because a substantial class of
UNITED STATES v. VALVERDE 20601
sex offenders could evade the Act’s mechanisms
during the pendency of a proposed rule and delay in
the effectiveness of a final rule.
72 Fed. Reg. at 8896-97. In issuing the interim rule, the Attor-
ney General requested post-promulgation comments, but did
not subsequently publish a response to any comments he may
have received or publish the interim regulation in final form.
Three months later, the Attorney General solicited comments
when on May 30, 2007 he issued preliminary guidelines cal-
led Sentencing Monitoring, Apprehending, Registering, and
Tracking (“SMART”), which proposed to apply SORNA’s
requirements retroactively. 72 Fed. Reg. 30,210. This time,
the Attorney General responded to the comments about the
retroactivity determination when he published the final
SMART guidelines on July 2, 2008. 73 Fed. Reg. 38030,
38063.
[5] The parties do not dispute that Valverde was a sex
offender by reason of his conviction under California law.
Nor do they dispute that after Valverde’s release, he know-
ingly traveled from California to Missouri, where he know-
ingly failed to register as a sex offender. Because SORNA did
not specify whether it applied to individuals convicted of a
sex offense before the statute’s July 2006 enactment, but
instead delegated that determination to the Attorney General,
Valverde, having been convicted in 2002, was not subject to
prosecution under SORNA until the Attorney General, pursu-
ant to his delegated rulemaking authority under 42 U.S.C.
§ 16913(d), determined, in compliance with the APA, that
SORNA’s registration requirements applied retroactively to
him and others convicted before the statute’s enactment. See
United States v. Juvenile Male, 590 F.3d 924, 929 (9th Cir.
2010) (“Congress delegated to the Attorney General the deci-
sion whether SORNA should apply retroactively to sex
offenders who were convicted before the statute’s effective
date.”). The issue is therefore whether there was a validly pro-
mulgated regulation that applied SORNA’s registration
20602 UNITED STATES v. VALVERDE
requirements retroactively to Valverde during the January
2008 period covered by his indictment for failure to register
and for traveling in interstate commerce.
III.
There are three instruments that might have been employed
to make SORNA effective retroactively to offenders con-
victed before its enactment: (1) the interim rule issued on Feb-
ruary 28, 2007; (2) the proposed SMART guidelines issued on
May 30, 2007; and (3) the final SMART guidelines issued on
July 2, 2008. The final SMART guidelines complied with the
APA’s procedural requirements; they were not yet in effect,
however, at the time of the act charged in Valverde’s indict-
ment — his failure to register in January 2008. The Govern-
ment does not contend that the May 30, 2007 preliminary
SMART guidelines carried the force of law, and rightly so:
they neither met the APA’s notice and comment require-
ments, nor did the Attorney General seek to bypass those
requirements by invoking the good cause exception with
respect to these proposed guidelines.
This leaves only the February 28, 2007 interim rule.
Valverde asserts that although his failure to register occurred
after the publication of the interim rule, the issuance of that
rule failed to comply with notice and comment procedure,
notwithstanding the Attorney General’s request for post-
promulgation comments. See Paulsen v. Daniels, 413 F.3d
999, 1005 (9th Cir. 2005) (“It is antithetical to the structure
and purpose of the APA for an agency to implement a rule
first, and then seek comment later.”). Valverde also contends
that the Attorney General lacked the necessary “good cause”
to bypass the notice and comment requirements under the
APA. 5 U.S.C. § 553(b)(B), (d)(3).
The circuits are divided as to the validity of the Attorney
General’s February 28, 2007 interim rule. The Fourth, Sev-
enth and Eleventh Circuits have ruled that the interim regula-
UNITED STATES v. VALVERDE 20603
tion was valid, and the Sixth Circuit has ruled that it was not.
Compare United States v. Dean, 604 F.3d 1275 (11th Cir.
2010); United States v. Gould, 568 F.3d 459 (4th Cir. 2009);
and United States v. Dixon, 551 F.3d 578 (7th Cir. 2008) with
United States v. Utesch, 596 F.3d 302 (6th Cir. 2010).2
Whether the Attorney General, in promulgating the February
28, 2007 interim rule, had good cause to waive the APA’s
procedural requirements, is a question of first impression in
this Circuit.
[6] Our “inquiry into whether the [Agency] properly
invoked ‘good cause’ proceeds case-by-case, sensitive to the
totality of the factors at play.” Alcaraz v. Block, 746 F.2d 593,
612 (9th Cir. 1984). The Agency must overcome a high bar
if it seeks to invoke the good cause exception to bypass the
notice and comment requirement. See Jifry v. FAA, 370 F.3d
1174, 1179 (D.C. Cir. 2004) (holding that the good cause
exception should be “narrowly construed and only reluctantly
countenanced”). This court has recognized that a failure to
comply with the APA’s notice and comment procedures may
be excused only in those narrow circumstances in which
“delay would do real harm.” Buschmann v. Schweiker, 676
F.2d 352, 357 (9th Cir. 1982) (quotation and citation omitted).
As we have explained, “[t]he good cause exception is essen-
tially an emergency procedure.” Id. “Emergencies, though not
the only situations constituting good cause,” we have noted,
“are the most common.” Natural Res. Def. Council, Inc. v.
Evans, 316 F.3d 904, 911 (9th Cir. 2003) (citations and quota-
tion marks omitted).
We considered the good cause provision in Hawaii Heli-
copter Operators Ass’n v. FAA, 51 F.3d 212 (1995), in which
2
The Fourth Circuit found the interim regulation valid over a strong and
persuasive dissent by Judge Michael, and the Eleventh Circuit did so with
a concurrence by Judge Wilson that supports the principal argument
against “good cause.” See Gould, 568 F.3d at 475-82 (Michael, J., dissent-
ing) and Dean, 604 F.3d at 1282-87 (Wilson, J., concurring).
20604 UNITED STATES v. VALVERDE
we held that the FAA had good cause to bypass notice and
comment when it issued a regulation establishing special
operating rules and procedures for airplane and helicopter tour
operators in Hawaii. See id. at 214. In the three years prior to
the issuance of the air safety regulation, Hawaii had experi-
enced 20 air tour accidents resulting in 24 fatalities, including
seven helicopter accidents involving four fatalities in the nine
immediately preceding months. See id. We found it persua-
sive that the imminent threat to public safety posed by the
increasing number of air tour accidents provided sufficient
“basis for taking emergency action without waiting for public
participation.” Id.
IV.
[7] In the present case, the Attorney General’s statement
accompanying the interim rule provided no rational justifica-
tion for why complying with the normal requirements of the
APA would have resulted in a sufficient risk of harm to jus-
tify the issuance of the February 28, 2007 retroactivity deter-
mination on an emergency basis. The Attorney General
asserts that in promulgating the interim rule applying SORNA
retroactively, compliance with notice and comment was “con-
trary to the public interest” under 72 Fed. Reg. at 8896. He
offered two reasons: delay would (1) undermine assurance
about the scope of SORNA’s applicability, and (2) threaten
public safety. Id. First, the “immediate effectiveness of th[e]
[interim] rule is necessary,” the Attorney General said, in
order “to eliminate any possible uncertainty about the applica-
bility of the Act’s [registration] requirements [and penalty
provisions] . . . to sex offenders whose predicate convictions
predate the enactment of SORNA.” Id. Second, by “imped[-
ing] the effective registration of [ ] sex offenders [to whom
coverage was extended under the interim rule][,]” delay in
extending SORNA retroactively would “impair immediate
efforts to protect the public from sex offenders who fail to
register through prosecution and the imposition of criminal
sanctions.” Id.
UNITED STATES v. VALVERDE 20605
The Fourth, Seventh, and Eleventh Circuits held that the
above two justifications relating to the provision of clarifying
guidance and the promotion of public safety were sufficient
to invoke the good cause exception by showing that compli-
ance with the notice and comment requirement would have
been contrary to the public interest. See Gould, 568 F.3d at
470 (“Delaying implementation of the regulation to accom-
modate notice and comment” would compromise “a need for
legal certainty about SORNA’s ‘retroactive’ application to
sex offenders convicted before SORNA and a concern for
public safety that these offenders be registered in accordance
with SORNA as quickly as possible”); Dean, 604 F.3d at
1280-81 (concluding that the “public safety argument
advanced by the Attorney General is good cause for bypass-
ing the notice and comment period” because “the retroactive
rule reduced the risk of additional sexual assaults and sexual
abuse by sex offenders by allowing federal authorities to
apprehend and prosecute them” and because “[t]he retroactive
application of SORNA . . . removes a barrier to timely appre-
hension of sex offenders”); see also Dixon, 551 F.3d at 78 at
585 (assuming without argument that SORNA “was made
applicable to . . . persons convicted of sex offenses before the
Act went into effect . . . by the regulation issued by the Attor-
ney General on February 28, 2007”).
We strongly disagree with the conclusion reached by the
courts that hold that compliance with the APA’s notice and
comment procedures would have controverted the public
interest in this case. Like the Sixth Circuit and the dissenting
judge in the Fourth Circuit, we find no plausible support for
that conclusion in the Attorney General’s statement accompa-
nying the issuance of the interim rule that sought to apply
SORNA retroactively to pre-enactment offenders. See Utesch,
596 F.3d at 309-10 (citing United States v. Cain, 583 F.3d
408, 421-23 (6th Cir. 2009); Gould, 568 F.3d at 481 (Michael,
J., dissenting); see also Dean, 604 F.3d at 1287 (Wilson, J.,
concurring) (finding that “the Attorney General failed to show
good cause to avoid notice and comment”).
20606 UNITED STATES v. VALVERDE
a.
[8] An interest in “eliminat[ing] any possible uncertainty”
about the application of SORNA is not a reasonable justifica-
tion for bypassing notice and comment. If “good cause” could
be satisfied by an Agency’s assertion that “normal procedures
were not followed because of the need to provide immediate
guidance and information[,] . . . then an exception to the
notice requirement would be created that would swallow the
rule.” Zhang v. Slattery, 55 F.3d 732, 746 (2d Cir. 1995); see
also Cain, 583 F.3d at 421 (“A desire to provide immediate
guidance, without more, does not suffice for good cause.”).
There is little if any merit in the Attorney General’s conten-
tion that it would have frustrated needed guidance about
SORNA’s retroactive applicability to have waited for notice
and comment before issuing a final version of the interim
rule. The Attorney General had already let seven months go
by after SORNA’s enactment before he issued the interim rule
on February 28, 2007, and he gave no explanation for why
immediate clarification was necessary. He cited no crisis of
confusion about whether SORNA applied to pre-enactment
offenders and no reason whatsoever to support an urgent need
for guidance concerning the reach of the Act’s registration
requirements. That Congress, in delegating the authority to
the Attorney General to determine SORNA’s retroactive
applicability, declined to eliminate the requisite compliance
with the APA’s procedures suggests that it did not find a need
for immediate determinations by the Attorney General suffi-
cient reason to circumvent public participation in the rulemak-
ing process. See Dean, 604 F.3d at 1287 (Wilson, J.,
concurring) (“Congress’s allocation of three years, plus exten-
sions, to the states to comply with SORNA means Congress
did not perceive an emergency.”); cf. Levesque v. Block, 723
F.2d 175, 185 (1st Cir. 1983) (“[I]f Congress was troubled by
th[e] prospect [of a delay in rulemaking], it could have man-
dated immediate implementation.”). The Attorney General’s
request for post-promulgation comments in issuing the
interim rule casts further doubt upon the authenticity and effi-
UNITED STATES v. VALVERDE 20607
cacy of the asserted need to clear up potential uncertainty
about whether SORNA applied retroactively.
[9] To the extent that the interim rule may have served an
interest in providing clarification about SORNA’s retroactive
application to those states deciding whether to implement the
Act, such guidance would not have been sufficient reason to
invoke the good cause exception. Whereas states were
afforded up to five years to implement SORNA, 42 U.S.C.
§ 16924(a), (b), our court has enforced the APA’s procedural
requirements under the Clean Air Act in circumstances in
which states were given less than one year to draft implemen-
tation plans following the EPA’s promulgation of a list of
areas that failed to meet national air quality standards. See W.
Oil & Gas. Ass’n v. EPA, 633 F.2d 803, 811 (9th Cir.1980).
As Judge Michael observed in his dissent in United States v.
Gould, “in spite of the Attorney General’s hurried rulemak-
ing, no state thus far has elected to implement SORNA, and
the Attorney General recently granted a blanket one-year
extension to all jurisdictions to allow substantial implementa-
tion of the Act.” Gould, 568 F.3d at 480 (Michael, J., dissent-
ing) (citation omitted). Nor could the immediate effectiveness
of the interim rule be said to serve the interest of clarifying
the Act’s applicability to pre-SORNA sex offenders like
Valverde, who received no notice whatsoever that their failure
to register would subject them to substantial new penalties of
federal prosecution and a prison term of up to ten years. Cf.
Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996)
(“the purpose of the thirty-day waiting period is to give
affected parties a reasonable time to adjust their behavior
before the final rule takes effect”). The Attorney General’s
interest in eliminating uncertainty does not justify his having
sought to forego notice and comment.
b.
The Attorney General also asserted a public safety justifica-
tion for why compliance with the APA’s notice and comment
20608 UNITED STATES v. VALVERDE
requirement would have been contrary to the public interest.
In offering this public safety justification, the Attorney Gen-
eral did little more than restate the general dangers of child
sexual assault, abuse, and exploitation that Congress had
sought to prevent when it enacted SORNA on July 27, 2006.
He gave no reason why the Act’s requirements should be
made retroactively applicable on an emergency basis when
Congress had declined to do so. He pointed to no changes in
the regulatory regime; no increase in the incidence of sex
offenses; no reports of underprosecution or underenforcement
against pre-enactment offenders; no facts to support the
asserted “greater difficulty in apprehending perpetrators who
have not been registered and tracked as provided by
SORNA,” 72 Fed. Reg. at 8896-97, that were not already
before Congress when it delegated rulemaking authority to the
Attorney General in accordance with the APA’s procedural
requirements.
[10] We agree with the Sixth Circuit that “[t]he conclusory
speculative harms the Attorney General cites are not sufficient
to upset th[e] balance” of costs and benefits that Congress
considered in declining to make SORNA retroactive immedi-
ately and instead delegating the retroactivity determination to
the Attorney General pursuant to the APA’s procedural
requirements. Cain, 583 F.3d at 421. As Judge Michael
explained in his dissent, the interim rule
did not have the immediate effect of compelling any
additional sex offenders to register; nor did it pro-
vide any additional registration information either to
states or to the federal government. The announce-
ment of the rule merely allowed the federal govern-
ment to prosecute under SORNA sex offenders who
were currently violating state registration laws and
thus were already subject to prosecution under exist-
ing state laws.
Gould, 568 F.3d at 478 (Michael, J., dissenting). In addition
to concurrent registration requirements under existing state
UNITED STATES v. VALVERDE 20609
laws, the federal government already had authority under
Megan’s Law, 42 U.S.C. § 14071 et seq., to prosecute virtu-
ally any offender subject to prosecution for interstate travel
under SORNA. Compare 42 U.S.C. § 14072(g), (i) (Megan’s
Law) (providing for federal criminal prosecution of any per-
son who knowingly fails to register under a state’s sexual
offender registration program and who changes address to
another state) with 18 U.S.C. § 2250(a) (SORNA) (providing
for prosecution of any sex offender who knowingly fails to
register or update a registration as required by SORNA and
“travels in interstate or foreign commerce, or enters or leaves,
or resides in, Indian country”).
[11] Judge Wilson of the Eleventh Circuit, echoing the rea-
soning of the Sixth Circuit and Judge Michael of the Fourth
Circuit, observed that “[t]he issue is not whether sex offenders
should register, but rather whether the addition of one more
layer of federal protection atop a substantial quilt of existing
state and federal laws merited emergency treatment.” See
Dean, 604 F.3d at 1283 (Wilson, J., concurring). Judge Wil-
son convincingly reasoned that “the existence of stringent
state and federal criminal sanctions on the books at the time
the [interim] regulation was promulgated obviated the case for
an emergency.” Id. (footnote omitted).3 The Attorney General
3
Judge Wilson concluded that although the Attorney General did not
have good cause to promulgate the interim rule on an emergency basis,
this failure to satisfy the notice and comment requirement amounted to
harmless error. Dean, 604 F.3d at 1288-89 (Wilson, J., concurring). He
reasoned that the defendant in Dean was not prejudiced by the invalidity
of the interim rule under the APA because (1) he “didn’t show what com-
ment he might have made on the interim rule,” id. at 1289, and (2) he did
not provide “a reason he could have offered that might have persuaded the
Attorney General not to extend SORNA to cover pre-enactment convic-
tions.” Id. at 1288. The Government in the instant case did not raise an
argument that the absence of good cause for seeking to avoid notice and
comment could be excused by harmless error, and we do not consider that
proposition here. We agree, however, with the Sixth Circuit, which
expressly held that “the interim regulation’s procedural deficiencies were
not harmless,” id. at 313, because, in relevant part, “[t]he fact that the
Attorney General eventually made SORNA retroactive through legitimate
means cannot sustain prosecution of an individual based on conduct com-
mitted long before the final guidelines’ enactment.” Id. at 312.
20610 UNITED STATES v. VALVERDE
provided no reason why, in view of the existing statutory
regime that already imposed registration requirements on pre-
SORNA sex offenders, it was necessary for the interim rule
to be made effective immediately, without providing any
opportunity for notice and comment. It is difficult to see what
substantial public safety interest was served by overriding
Congress’s willingness to allow the Attorney General to issue
rules regarding retroactivity in the normal course, including
the notice and comment waiting period provided by the APA.
V.
[12] Having failed to identify any “rational connection
between the facts found and the choice made” to promulgate
the interim rule on an emergency basis, Natural Res. Def.
Council, Inc. v. U.S. E.P.A., 966 F.2d 1292, 1297 (9th Cir.
1992) (quoting Sierra Pacific Indus. v. Lyng, 866 F.2d 1099,
1105 (9th Cir. 1989) (citing Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))), we
conclude that the Attorney General committed a clear error of
judgment in failing to consider the factors relevant for seeking
to bypass the APA’s notice and comment requirement. See
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S.
402, 416 (1971). Because neither the asserted interest in clari-
fying SORNA’s applicability nor the asserted need to protect
public safety plausibly constituted good cause for bypassing
the APA’s procedural requirements, we hold that the interim
rule failed to comply with the APA’s notice and comment
procedures. Accordingly, SORNA did not become effective
against pre-enactment offenders like Valverde until August 1,
2008, thirty days after publication of the final SMART guide-
lines along with the Attorney General’s response to com-
ments. As there was no properly promulgated regulation
rendering SORNA’s registration requirements applicable to
Valverde in January 2008, we affirm the district court’s dis-
missal of his indictment.
AFFIRMED.