Circuit Judge:
Dеfendant-Appellant Undra Demetrius Johnson appeals his conviction under 18 U.S.C. § 2250(a) for failure to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”). He challenges the validity of the Act and the decision of the Attorney General to apply it to persons whose convictions for sex crimes predate its enactment.
I.
As part of a plea agreement, Johnson stipulated to the relevant facts. In 1995, Johnson was convicted in a Mississippi court for gratification of lust, a sex offense. Johnson was sentenced to eight years in prison, four years suspended. Prior to his release in May 1999, Johnson signed an Acknowledgment of Convicted Sex Offender’s Duty to Register under Mississippi law. In 2002 and 2004, Johnson signed two additional Mississippi state forms acknowledging his duty to register. In 2005, Johnson moved from Mississippi to Iowa and signed Iowa’s Sex Offender Registry Notification of Registration Requirement form. 1 In January 2008, Johnson returned to Mississippi and failed to register as a sex offender with the State of Mississippi.
On January 22, 2009, Johnson was indicted on one count of violating 18 U.S.C. § 2250(a) by traveling in interstate commerce and knowingly failing to register and update a registration in accordance with SORNA. Johnson moved to dismiss the indictment on various constitutional grounds, and the district court denied the motion. Johnson then entered a guilty plea pursuant to a plea agreement, reserving the right to raise his constitutional challenges on appeal. Johnson was sentenced to thirty-seven months in prison to be followed by a life term of supervised release. He filed a timely notice of appeal.
II.
On July 27, 2006, President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act of 2006.
2
(a) In general
A sex offender shall register, 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. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.
(b) Initial registration
The sex offender shall initially register—
(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or
(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.
(c) Keeping the registration current
A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.
(d) Initial registration of sex offenders unable to comply with subsection (b) of this section
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section. 4
A separate provision of SORNA created a federal criminal offense for traveling interstate and failing to register as a sex offender.
(a) In general. — Whoever—
(1) is required to register under the Sex Offender Registration and Notification Act; ...
(2) (B) travels in interstate or foreign commerce ...; and
(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both. 5
SORNA further directs each state to substantially implement its requirements or lose ten percent of the state’s funding under the Omnibus Crime Control and Safe Streets Act.
6
SORNA gave local jurisdictions three years to comply and authorized the Attorney General to grant up to two
In contrast to the grace period offered to states, the Attorney General began enforcing SORNA as though it provided immediate penalties for sex offenders who failed to register. Many defendants challenged SORNA’s application to pre-enactment offenders. 8 In response, on February 28, 2007, seven months after SORNA’s enactment, the Attorney General issued an interim regulation stating that SORNA’s requirements “apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 9 The Attorney General noted that he was issuing the rule to foreclose the argument that SORNA did not apply to defendants with convictions before the Act’s enactment, regardless of whether the statute on its face included them or not. The regulation was issued without a notice-and-comment period and without a thirty-day waiting period, both of which are mandated by the Administrative Procedure Act (“APA”). 10 The Attorney General relied upon the good cause exception in the APA to excuse the lack of notice-and-comment and waiting period. 11 He published a justification for good cause at the time the rule was issued:
The immediate effectiveness of this rule is necessary to eliminate any possible uncertainty about the applicability of the Act’s requirements — and related means of enforcement, including criminal liability under 18 U.S.C. 2250 for sex offenders who knowingly 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 register through prosecution and the imposition of criminal 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 registered 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 offenders,” SORNA § 102, because a substantial class of sex offenders could evade the Act’s registration requirements and enforcement mechanisms during the pendency of a proposed rule and delay in the effectiveness of a final rule.It would accordingly be contrary to the public interest to adopt this rule with the prior notice and cоmment period normally required under 5 U.S.C. 558(b) or with the delayed effective date normally required under 5 U.S.C. 553(d). 12
The rule took immediate effect. The Attorney General accepted post-promulgation comments through April 30, 2007, but did not respond to comments in the Federal Register. 13 The regulation published in the Code of Federal Regulations was identical to the interim rule. 14 On May 30, 2007, the Attorney General issued a notice of rulemaking for the full regulatory implementation of SORNA. 15 This proposal included a subsection on the applicability of SORNA to pre-enactment offenders, noting that the Attorney General had addressed this issue in its earlier rule-making. Nevertheless, the Attorney General received public comments on SOR-NA’s retroactivity and responded to those comments in the publication of the final SORNA regulations, which were issued and made effective on July 2, 2008. 16
III.
Johnson puts forth seven challenges to his conviction under SORNA. We review these challenges de novo, 17 but our case law forecloses five of these claims. First, Johnson asserts he never received notice that he was required to register under SORNA, a denial of due process under the Fifth Amendment. Johnson knew of his obligation to register as a sex offender in Mississippi but was not directly notified of the SORNA requirements or increased federal penalties. Johnson further argues both that SORNA exceeds Congress’s authority under the Commerce Clause and that by directing the Attorney General to decide if SORNA applies retroactively, SORNA violates the non-delegation doctrine. In United States v. Whaley, we rejected nearly identical claims. 18 We conclude that Johnson’s prosecution did not violate due process; further, SORNA is valid under both the Commerce Clause and the principles of non-delegation.
Next, Johnson claims that the retroactive application of SORNA violates the Ex Post Facto Clause because it is punitive, non-civil, and exposes him to criminal prosecution for non-compliance. We previously addressed this issue in
United States v. Young
and rejected the appellant’s challenge to SORNA under the ex post facto prohibitions of the Constitution.
19
Applying our holding to Johnson,
We now address two matters of first impression for this court: (1) whether SORNA violates the Tenth Amendment by requiring state officiаls to administer federal law; and (2) whether the regulations issued by the Attorney General violated the Administrative Procedures Act.
IV.
Johnson claims that imposing a federal obligation on sex offenders to register in state-run registries is an unconstitutional federal encroachment on state sovereignty. He argues that SORNA requires local law enforcement to accept registrations through a federally mandated sex offender program, violating Printz v. United States. 22 There, the Court held that “[t]he Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers ... to administer or enforce a federal regulatory program.” 23
Before turning to the merits, we must consider our own jurisdiction over this issue and determine whether Johnson has standing to pursue it. 24 In addressing Tenth Amendment standing, some of our sister courts of appeals have relied on the 1939 decision of Tennessee Electric Power Co. v. Tennessee Valley Authority, in which the Supreme Court denied a private party Tenth Amendment standing. 25 In Tennessee Electric, private utilities asserted that the Tennessee Valley Authority, a corporation created by Congress, acted to impermissibly federally regulate purely local matters of electriсity sales. This claim was predicated on state interests in acting as regulatory authorities, but no states were parties before the Court. Similarly, Johnson’s Tenth Amendment claim is based on the unconstitutionality of SORNA as it affects the State of Mississippi, which is not a party to the case.
Our sister circuits are divided over whether, in spite of
Lujan, Tennessee Electric
prohibits private parties from challenging the constitutionality of a federal statute on Tenth Amendment grounds.
29
Recently, the Supreme Court granted certiorari in a ease with this precise question: “[wjhether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.”
30
While this is a weighty constitutional issue, we need not address it here. Prudential standing principles require that a plaintiff “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or
The Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 36 It is neither a description of a result nor a political guide of governance. It is a force, enforceable in the courts as well as the political arena. In direct terms, relevant here, “Congress cannot compel the States to enact or enforce a federal regulatory program.” 37
Johnson argues that SORNA impermissibly requires states to accept federal sex offender registrations. While SORNA orders sex offenders traveling interstate to register and keep their registration current, SORNA does not require the States to comply with its directives. Instead, the statute allows jurisdictions to decide whether to implement its provisions or lose ten percent of their federal funding otherwise allocated for criminal justice assistance. 38 Of course the Tenth Amendment does not forbid conditioning of federal funding on a state’s implementation of a federal program. 39 It follows that the sex offender registry bargained for here is a valid exercise of Congress’s spending power.
V.
Turning to the regulations issued by the Attorney General and the requirements of
With the three elements of constitutional standing at hand, 42 we note that Johnson’s APA claim is a procedural injury — that the Attorney General did not provide for proper notice and comment. Johnson may assert this claim of procedural error “without meeting all the normal standards for redressability and immediacy.” 43 As the Supreme Court explained, “one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency’s failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered.” 44 “[T]he likelihood and extent of impact are properly addressed in connection with the merits” in a harmless error analysis. 45 Similarly, Johnson meets thе redressability requirement to challenge an APA deficiency by the Attorney General that subjected him to imprisonment; he need not establish that a favorable decision by this court would result in a different rulemaking by the Attorney General.
The primary constitutional standing issue in Johnson’s APA claim is whether his injury was caused by the Attorney General’s action. If the statute on its face applied SORNA’s requirements to pre-enactment convictions, then Johnson would be subject to SORNA regardless of the Attorney General’s rulemaking. Thus, his injury would not be “fairly ... trace[able] to the challenged action” of the Attorney General. 46 However, if Congress delegated to the Attorney General the decision of whether to apply SORNA to pre-enactment offenders, then Johnson’s injury directly stemmed from the Attorney General’s rulemaking process. It follows that Johnson’s standing to contest the rulemaking requires that the statute on its face did not order him to comply with the registration requirements. 47
When SORNA was enacted, Congress elected not to decide for itself whether the Act’s registration requirements— and thus § 2250(a)’s criminal penalties— would apply to persons who had been convicted of qualifying sex offenses before SORNA took effect. Instead, Congress delegated to the Attorney General the authority to decide that question. 52
We agree with the views expressed in Justice Alito’s dissent and with the Fourth, Sixth, Seventh, Ninth, and Eleventh Circuits — SORNA delegated authority to the Attorney General to determine the applicability of SORNA to pre-enactment offenders. The Supreme Court has repeatedly counseled that in statutory interpretation, “courts must presume that a legislature says in a statute what it means and means in a statute what it says.”
53
Further, “[wjhen the statutory language is plain, the sole function of courts — at least where the disposition required by the text is not absurd- — -is to enforce it according to its terms.”
54
Here, § 16913(d) states “[t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders
We recognize that statutory interpretation is a “holistic endeavor,” 56 and other circuits have concluded that in context, subsection (d) does not unambiguously indicate that Congress delegated such wide authority to the Attorney General. 57 The Eighth and Tenth Circuits cite to an unpublished Georgia district court opinion in holding that subsection (d) was ambiguous. 58 That district court found the statute could be read to include past offenders within (and not as a separate group from) the broader classification of “other categories of sex offenders who are unable to сomply with subsection (b).” 59 This reading is not wholly implausible. 60 However, the district court went on to find that the Attorney General did not have authority over offenders who had previously registered in state registries. The court con-eluded that since subsection (b) addressed initial registration, the Attorney General’s authority in subsection (d) must only include those offenders who were unregistered prior to SORNA’s enactment. Offenders with pre-SORNA convictions who had previously registered in state registries would then be required to comply with subsections (a) and (c) regardless of the Attorney General’s rules addressing unregistered offenders. The title of subsection (d) becomes prominent in this view as it provides: “Initial registration of sex offenders unable to comply with subsection (b) of this section.”
We respectfully disagree with this analysis. To conclude that the Attorney General’s authority is limited to unregistered offenders would require the court to disregard the first clause of subsection (d). The subsection gives the Attorney General two powers: (1) to specify the applicability of the subchapter to pre-enactment offenders; and (2) to prescribe registration rules for those offenders who cannot comply with subsection (b). Grammatical cоnstruction matters in statutory interpreta
The subsection’s title does invite confusion to the statutory scheme, but “a title alone is not controlling.” 62 “That the heading of [a section] fails to refer to all the matters which the framers of that section wrote into the text is not an unusual fact. That heading is but a short-hand reference to the general subject matter involved.” 63 The general subject matter of § 16901(d) is sex offenders who cannot comply with SORNA’s requirement that registration be completed before the end of a prison sentence. Pre-enactment offenders may be included in this general subject, but the heading alone does not indicate whether SORNA’s requirements apply to such offenders. Moreover, “headings and titles are not meant to take the place of detailed provisions of the text. Nor are they necеssarily designed to be a reference guide or a synopsis.” 64 For these reasons, the Supreme Court has held that “the heading of a section cannot limit the plain meaning of the text.” 65 As discussed above, the plain meaning of the text supports a reading that Congress delegated the Attorney General to determine whether the requirements would be applied to pre-enactment offenders. The heading of subsection (d) may not be interpreted to limit that plain text delegation.
Read in context of the entire Act, it may seem that § 16913 requires all pre-enactment offenders to register. Specifically, § 16913(a) states that “a sex offender shall register,” and the statutory definition of a sex offender is “an individual who was convicted of a sex offense.”
66
These broad provisions could indicate that all convicted offenders, even those convicted prior to SORNA, “shall register.”
67
However, canons of construction resolve this seeming conflict. “Specific terms prevail over the general in the same or another statute which otherwise might be controlling.”
68
Some courts have been persuaded by policy and legislative intent arguments. While we do not find the plain text of this statute ambiguous, courts are split on the issue, and we consider the congressional intent and policy factors to ensure the completeness of our analysis. The Tenth Circuit, for example, concluded that “it was Congress’s desire to create a comprehensive and uniform registration system among the states to ensure offenders could not evade requirements by simply moving from one state to another.” 70 Yet prior to SORNA, offenders could not evade the requirements of registration simply by moving because each state had its own registry system. Moving from Iowa to Nebraska did not eliminate one’s pre-SORNA registration duties; it made the offender subject to Nebraska registration law rather than Iowa law.
The Sixth Circuit analyzed the House and Senate bills that were combined to create SORNA and concluded, as do we, that Congress intended to delegate to the Attorney General the authority to determine whether SORNA’s registration requirements applied to pre-enactment offenders. 71 Most persuasive in this analysis was Senate Bill 1086, which specifically contemplated whether the registration requirements would apply retroactively to pre-enactment offenders. The parallel provision to § 16913(d) in that bill read:
(8) RETROACTIVE APPLICATION — The Attorney General shall have the authority to—
(A) specify the applicability of the requirements of this title to individuals who are covered individuals based on a conviction or sentencing that occurred prior to the date of enactment or who are, as of the date of enactment of this Act, incarcerated or under a non-incarcerative sentence for some other offense;
(B) specify the applicability of the requirements of this title to all other individuals who are covered individuals based on a conviction or sentencing that occurred prior to the enaсtment date of enactment of this Act ...; and
(C) specify procedures and methods for the registration of individuals to whom the requirements of this title apply pursuant to subparagraph (A) or (B). 72
The specifics of the statute closely parallel the construction of the Senate bill, with section 8B and 8C each comprising one clause of § 16913(d). If the exegesis into legislative history is to be taken, the Senate draft expresses an intent to give the Attorney General authority to determine the applicability of the Act to pre-enactment offenders.
Our colleagues on the Tenth Circuit have asserted that “Congress was likely concerned with old convictions — offenders who had already served their sentences and never before had been required to register.” 73 Congress had good reason to be concerned with this group of individuals, and indeed, the second clause of subsection (d) specifically authorizes the Attorney General “to prescribe rules for the registration” of those persons. But if that is read to be the entirety of the work assigned in subsection (d), there is no reason to include the first clause in the statute. We cannot ignore the plain language of the first clause basеd on a hypothesis of congressional intent or logic.
Finally, many courts have been persuaded by policy arguments that “[tjhere would be no reason for Congress to exempt” sex offenders with pre-SORNA convictions from the registry if the goal was to create a comprehensive database. 74 Yet Congress could have struck for a comprehensive and uniform registration system while relying on the Attorney General to define its specifics. SORNA did not require that the national registry be immediately created. The Act gave states years to comply with its requirements, and only three states to-date have complied. Giving the Attorney General authority to determine the statute’s application to pre-enactment offenders would allow an agency that is an expert in criminal law to negotiate the details of retroactivity and the interactions between the pre-existing state systems.
We find relevant the Supreme Court’s discussion in Carr, describing the background of sex-offender registries.
75
There, the Court noted that “federal sex-offender registration laws have, from their inception, expressly relied on state-level enforcement.”
76
Congress prеserved the collaboration between state and federal resources in SORNA. It is not unreasonable to conclude that Congress intended the Attorney General to consider whether and how SORNA would apply to pre-enactment convictions, particularly given the administrative demands of integrating the state registries into a national program. Even if Congress’s concern was to locate sex offenders who had failed to register under state programs, the broader statutory goal still does not determine how we interpret the individual provision of
With our conclusion that § 16913(d) did not automatically include pre-SORNA offenders, it is evident that Johnson presents a claim of injury resulting from any failure of the Attorney General to comply with thе APA.
VI.
Under the APA, agencies issuing rules must publish notice of proposed rulemaking in the Federal Register 79 and “shall give interested persons an opportunity to participate in the rule making” by allowing submission of comments. 80 In addition, the APA requires that publication of a substantive rule “shall be made not less than 30 days before its effective date.” 81 The APA provides that both of these requirements may be bypassed if “good cause” exists. The exception states that notice is not required “when the agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 82 In executing his authority under § 16913, the Attorney General failed to comply with either the notiee-and-comment procedures or the thirty-day notice provision, relying on the “good cause” exception. 83
The courts of appeals are divided over whether the Attorney General properly complied with the APA. The Fourth and Eleventh Circuits did not find an APA violation, while the Sixth and Ninth Circuits held that the Attorney General lacked good cause.
84
The Supreme Court
We review the Attorney General’s actions using the APA’s standard: agency action may be set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 86 In so doing, we are prohibited from substituting our judgment for that of the agency. 87 Further, it is well established that the “good cause” exception to notice-and-comment should be “read narrowly in order to avoid providing agencies with an ‘escape clause’ from the requirements Congress prescribed.” 88 In making our decision, we must rely only on the “basis articulated by the agency itself’ at the time of the rule-making. 89 “Post hoc explanations ... are simply an inadequate basis for the exercise of substantive review of an administrative decision.” 90
Here, we do not find the Attorney General’s reasons for bypassing the APA’s notice-and-comment and thirty day provisions persuasive. The Attorney General asserted that “[d]elay in the implementation of this rule would impede the effective registration of ... sex offenders and would impair immediate efforts to protect the public.”
91
He argued that delayed implementation would result in more sex offenses by “sex offenders that could have been prevented had local authorities and the community been aware of their presence.”
92
Yet the interim rule did not distribute new information to local authorities. Rather, it authorized the federal government to use SORNA to prosecute sex offenders already in violation of state registration laws. Local authorities could have prosecuted most of these offenders before the rule.
93
Moreover, Congress could have expressly waived the APA procedural requirements in SORNA if it feared those requirements would produce significant harm or excessive delay.
94
Congress balanced the costs and benefits of an immediately effective rule against a more deliberate rulemaking process, and it favored the latter. Without good cause, we must enforce Congress’s choice in favor
This case differs from the circumstances in American Transfer & Storage Co. v. Interstate Commerce Commission, where we found the agency had good cause to bypass APA notice provisions. 95 There, the Commission issued proposed interim rules responding to the Motor Carrier Act, which was “the most comprehensive piece of legislation affecting the surface non-rail transportation industry since 1935.” 96 Once the statute was enacted, the Commission сould not continue operating as it had before. To comply with the new law, the Commission issued interim regulations two days after the statute’s enactment. These new rules allowed the Commission to conduct business in accordance with the law while final rules could be discussed. Six months later, the Commission issued its final rules, with some minor modifications based on post-promulgation comments.
In contrast to American Transfer, SORNA did not disable the Attorney General or the states from continuing existing sex offender registration policies. Moreover, the Commission in American Transfer promptly responded to the new legislation, publishing its interim regulations immediately after the statute was enacted and completing its notice-and-comment process in six months. Here, the Attorney General did not publish these “emergency” regulations until after SORNA had been in effect for seven months. Full notice-and-comment procedures could have been run in the time taken to issue the interim rules. As this court has held, the good cause exception should not be used “to circumvent the notice and comment requirements whenever an agency finds it inconvenient to follow them.” 97
The Attorney General argued that foregoing notice and comment was “nеcessary to eliminate any possible uncertainty about the applicability of the Act’s requirements” to pre-SORNA offenders. 98 However, “desire to provide immediate guidance, without more, does not suffice for good cause.” 99 Moreover, the goal of reducing uncertainty is undercut by the request for post-promulgation comments, which could have resulted in a rule change. “[T]he possibility of an alteration to the interim rule after its promulgation increases rather than eliminates uncertainty.” 100 Traditional notice-and-comment process with promptly promulgated final rules was the clearest path to clarify the Act.
Nor does accepting post-promulgation comments excuse compliance with APA procedures. We have previously found that parties will have a greater opportunity for influencing agency decision making if they participate at an early stage, “when the agency is more likely to give real consideration to alternative ideas.” 101 If we allowed post-promulgation comments to suffice in this case, “we would make the provisions of § 553 virtually unenforceable.” 102
VII.
“In administrative law, as in federal civil and criminal litigation, there is a harmless error rule.” 104 The APA demands that courts reviewing agency decisions under the Act “[take] due account ... of the rule of prejudicial error.” 105 In this circuit, an administrative body’s APA deficiency is not prejudicial “only ‘when [it] is one that clearly had no bearing on the procedure used or the substance of decision reached.’ ” 106 Determining whether an APA deficiency is harmless demands a case-specific inquiry involving “an estimation of the likelihood that the result would have been different, ... and a hesitancy to generalize too broadly about particular kinds of errors when the specific factual circumstances in which the error arises may well make all the difference.” 107 Here, the Attorney General’s regulations failed to comply with two separate APA procedures — ^publishing the rule at least thirty days before the effective date and following notice-and-comment procedures prior to promulgation. We find both errors to be harmless in the particular circumstances of this case.
If the effective date of the interim rule had been in compliance with the APA’s thirty-day notice provision, the rule would have been effective on March 30, 2007. If Johnson engaged in interstate travel and failed to register after that date, his actions would properly violate the rule regardless of whether the Attorney General had good cause to bypass the thirty-day notice. Here, Johnson traveled across state lines in January 2008. He was not indicted until January 22, 2009. Even if the Attorney General lacked good cause to waive § 553(d), Johnson was not prejudiced.
Whether Johnson was prejudiced by the lack of notice-and-comment period dоes not yield so quick an answer. In
United States Steel Corp. v. EPA
we held that to apply harmless error it must be clear that the petitioner was not prejudiced by APA deficiencies.
108
There, the EPA failed to provide notice-and-comment for air-quality regulations limiting Alabama steel plants’ expansion opportunities. The EPA only provided for post-promulgation comments.
U.S. Steel did not, however, preclude inquiry into whether petitioners were prejudiced by an agency’s procedure, nor did it assert that an error affecting procedure could never be harmless. Rather, a court must determine whether it is clear that the lack of notice and comment did not prejudice the petitioner.
The purpose of notice-and-comment rulemaking is to “assure[] fairness and mature consideration of rules having a substantial impact on those regulated.” 109 The process allows the agency to “educate itself before adopting a final order.” 110 In addition, public notice requires the agency to disclose its thinking on matters that will affect regulated parties. 111 These goals, however, may be achieved in cases where the agency’s decision-making process “centered on the identical substantive claims” 112 as those proposed by the party asserting error, even if there were APA deficiencies. It follows that when a party’s claims were considered, even if notice was inadequate, the challenging party may not have been prejudiced. 113
An overreaching harmless error doctrine would allow the agency to inappropriately “avoid the necessity of publishing a notice of a proposed rule and perhaps, most important, [the agency] would not be obliged to set forth a statement of the basis and purpose of the rule, which needs to take account of the major comments — and often is a major focus of judicial review.” 114 These concerns support the limited role of the harmless error doctrine in administrative law. 115 With respect to SORNA, we can be confident that Johnson was not prejudiced by the Attorney General’s failure to provide notice, in part because the interim rule publication addressed counterarguments and set forth the basis and purpose of the rule.
While the Attorney General’s preamble to the interim rule did not articulate good cause for avoiding APA rulemaking procedures, it did thoroughly engage the issues and challenges inherent in the regulation. Public comment is preferred and ordinarily is required to draw out counter-arguments. Here, the Attorney General was able to address objections in the interim rulemaking itself. After the statute was enacted but before the rule was issued, the Attorney General believed he had authority to prosecute pre-enactment offenders for failing to register. While we have disagreed with the Attorney General’s interpretation of SORNA, in the course of those prosecutions, defense counsel for various defendants argued that SORNA should not apply retroactively
116
— the same
Other circumstances present also point to harmless error. For example, unlike the complex regulatory decision of air-quality designations addressed in U.S. Steel, the Attorney General’s interim rule-making here involved a yes or no decision — whether or not to apply SORNA’s registration requirements to pre-enactment offenders. This rulemaking starkly contrasts with the vast mаjority of agency rulemaking, which produces nuanced and detailed regulations that greatly benefit from expert and regulated entity participation. 119 Under those conditions, a finding of harmless error for inadequate notice-and-comment procedures may be rare, but as the Supreme Court has instructed, we should be hesitant to generalize results based on the kind of error. Instead we must focus on the factual circumstances that point to the proper outcome. 120 Given the binary decision made by the Attorney General, harmless error is more fitting under these circumstances than in other agency rulemaking.
Moreover, that the final rulemaking process with full APA comment did not change the Attorney General’s decision cannot be ignored.
121
Although it is not completely clear that the later invitation for comment extended to retroactivity as a free-standing issue, that rulemaking process did include retroactivity as part of its regulatory package. The comments received on retroactivity did not sway the Attorney General. Rather, the position of
Finally, Johnson neither proposes comments he would have made during a comment period nor did he choose to involve himself in the post-promulgation comment period. Johnson does not allege that he participated in the Attorney General’s subsequent rulemaking process that crafted regulations regarding the more detailed provisions of SORNA, in which the Attorney General also considered the retroactivity of SORNA, free of APA error. 122 While Johnson’s participation in these alternate comment forums is not required to find prejudice, his lack of involvement in all stages of administrative decision-making points to the conclusion that Johnson was not practically harmed by the Attorney General’s APA failings. 123 Moreover, Johnson had constructive notice that the Attorney General would apply SORNA to pre-enactment offenders when the Attorney General issued a Federal Register notice for the later rulemaking in May 2007, 124 before Johnson crossed interstate lines and failed to register.
In U.S. Steel, we held that absence of prejudice “must be clear” before applying harmless error. 125 Because the Attorney General’s rulemaking process addressed the same issues raised by Johnson and because Johnson “makes no showing that the outcome of the process would have differed ... had notice been at its meticulous best,” 126 we find it is clear that the Attorney General’s APA violations were harmless error. 127
VIII.
For the reasons stated above, we AFFIRM Johnson’s conviction.
Notes
. In 2007, Johnson was convicted under Iowa state law for failure to register as a sex offender for what appears to be a failure to update his registry.
. Pub.L. No. 199-248, §§ 101-155, 120 Stat.
. 42 U.S.C. § 16901.
. 42 U.S.C. § 16913.
. 18 U.S.C. § 2250(a).
. 42 U.S.C. § 16925(a).
. 42 U.S.C. § 16924.
.
See, e.g., United States v. Madera,
. Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894, 8897 (Feb. 28, 2007); see 28 C.F.R. pt. 72 (2008).
. 5 U.S.C. § 553(b), (c) (stating that notice of proposed rulemaking "shall be published in the Federal Register" and that the agency "shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments”); 5 U.S.C. § 553(d) (requiring that a "substantive rule” be published "not less than 30 days before its effective date”).
. 72 Fed.Reg. at 8896-97; see 5 U.S.C. § 553(b)(B) (creating an exception to the notice and hearing requirements "when the agency for good cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”).
. 72 Fed.Reg. at 8896-97.
. In December 2010, the Attorney General took steps to сonvert the "interim” rule from February 2007 to a "final” rule, which included responding to comments presumably submitted between February and April 2007. The Attorney General noted that these comments "were similar to comments received on the portions of the proposed SORNA Guidelines” from May 2007. See 75 Fed.Reg. 81,849, 81,850 (Dec. 29, 2010).
. Compare 72 Fed.Reg. at 8897, with 28 C.F.R. pt. 72 (2008).
. 72 Fed.Reg. 30,210 (May 30, 2007).
. 73 Fed.Reg. 38,030 (July 2, 2008).
.
See United States v. Luna,
.
.
. Mississippi is one of forty-seven states to have requested and received an extension until July 27, 2011 to substantially implement SORNA. See U.S. Dep’t of Justice, SORNA Extensions Granted (Aug. 2, 2010), http:// www.ojp.usdoj.gov/smart/pdfs/ SORNAJExtensions_Granted.pdf.
.
.
.
Id.
at 935,
.
See, e.g., Steel Co.
v.
Citizens for a Better Env’t,
.
.
See Ass’n of Data Processing Serv. Org., Inc. v. Camp,
.
.
See Lujan,
. The First, Second, Third, Eighth, and Tenth Circuits have held that private parties do not have standing to bring such claims.
See United States v. Shenandoah,
. Petition for Writ of Certiorari at I,
Bond v. United States,
No. 09-1227 (U.S. filed Apr. 9, 2010),
.
Duke Power Co. v. Carolina Envtl. Study Grp., Inc.,
.
Phillips Petroleum Co. v. Shutts,
.
See Nisselson v. Lernout,
.
Kennedy v. Allera,
. Although we address Johnson’s standing to bring this claim, the result remains the same regardless of the Supreme Court's decision in Bond because of our decision on the merits.
. U.S. Const, amend. X.
.
Printz v. United States,
. 42 U.S.C. § 16925(a).
.
See South Dakota v. Dole,
. Petition for Writ of Certiorari at i,
Reynolds v. United States,
No. 10-6549,
.
See, e.g., United States v. Lopez-Velasquez,
.
See Lujan v. Defenders of Wildlife,
.
Id.
at 573 n. 7,
. Id.
.
Save Our Heritage, Inc. v. Fed. Aviation Admin.,
.
Lujan,
504 Ü.S. at 560,
.
See United States v. Hacker,
.
United States v. Valverde,
.
United States v. Young,
.
United States v. Fuller,
. -U.S.-, n. 2,
. Id. at 2246 (Alito, J., dissenting); see also id. at 2246 n. 6 ("The clear nеgative implication of that delegation is that, without such a determination by the Attorney General, the Act would not apply to those with pre-SORNA sex-offense convictions.”).
.
Conn. Nat’l Bank v. Germain,
.
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
. 42 U.S.C. § 16913(d).
.
United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd.,
.
See Hinckley,
.
United States v. Beasley,
No. 07-CR-115-TCB,
. Subsection (b) defines the timeline for when offenders must initially register — either before completing a prison sentence or no later than three business days after being sentenced, if the sentence does not include imprisonment. Obviously, sex offenders who completed prison sentences before SORNA was enacted could not comply with this subsection.
. Other courts have pointed to the potential problems with this claim.
See Cain,
.
See Bloate v. United States,
-U.S. -,
.
I.N.S. v. St. Cyr,
.
Brotherhood of R.R. Trainmen v. Balt. & Ohio R.R. Co.,
.
Brotherhood of R.R. Trainmen,
.
Id.
at 529,
. 42 U.S.C. § 16911.
.
See Fuller,
.
D. Ginsberg & Sons v. Popkin,
.
See, e.g., Russello v. United States,
We also note that SORNA creates a federal crime. Thus, if the statute were ambiguous, the rule of lenity would apply. Accordingly, we would resolve any ambiguity so the statute applies "only to conduct clearly covered.”
United States v. Lanier,
.
Hinckley,
.
United States v. Cain,
. S. 1086, 109th Cong. § 104(a)(8) (2005).
.
Hinckley,
.
Id.; see also Fuller,
.
See Carr,
. Id. at 2238.
.
Carr,
. While some courts reason that Congress must have wanted SORNA to include preenactment offenders, one could just as easily assume Congress was uncertain about the fate of those individuals given courts' presumptions against retroactivity and the statute’s lack of explicit language.
See Bowen v. Georgetown Univ. Hosp.,
. 5 U.S.C. § 553(b).
. 5 U.S.C. § 553(c).
. 5 U.S.C. § 553(d).
. 5 U.S.C. § 553(b); see also S. Doc. No. 248, 79th Cong., 2d Sess. 200 (1946) (noting that exemptions to notice-and-comment require "[a] true and supported or supportable finding of necessity or emergency").
. 72 Fed.Reg. 8894, 8896 (Feb. 28, 2007).
.
Compare United States v. Gould,
.
Carr v. United States,
-U.S. -, n. 2,
. 5 U.S.C. § 706(2)(A);
see United States v. Garner,
.
Garner,
.
Garner,
.
Garner,
.
Garner,
. 72 Fed.Reg. at 8896.
. Id. at 8896-97.
.
See Gould,
.
See Asiana Airlines v. FAA,
.
. Id. at 1286.
.
U.S. Steel Corp. v. EPA,
. 72 Fed.Reg. at 8896.
.
Cain,
.
Gould,
.
U.S. Steel,
.
Id.
at 215;
see also New Jersey v. EPA,
.
United States
v.
Picciotto,
.
Nat'l Ass’n of Home Builders v. Defenders of Wildlife,
. 5 U.S.C. § 706.
.
U.S. Steel Corp. v. EPA,
.
Shinseki v. Sanders,
- U.S. -,
.
.
Pennzoil Co. v. Fed. Energy Regulatory Comm’n,
. Id.
.
See United States v. Dean,
.
Friends of Iwo Jima v. Nat'l Capital Planning Comm’n,
. Id.
.
Sugar Cane Growers Co-Op of Fl. v. Veneman,
.
See U.S. Steel,
.
See, e.g., United States v. Madera, 528
F.3d 852, 854 (11th Cir.2008) (describing the facts of the case and noting that the defendant moved from New York to Florida in June 2006 — prior to the enactment of SORNA, and was arrested for violating SORNA in October 2006 — prior to the issuance of the Attorney General’s interim rule). One month before
. 72 Fed.Reg. 8894, 8896 (Feb. 28, 2007).
. Id. at 8897.
.
See United States v. Dean,
.
Shinseki,
. This court continues to recognize the limitations of post-promulgation comments, as such comments do not ensure affected parties have an opportunity to influence agency decision-making at an early stage.
See U.S. Steel,
. See 73 Fed.Reg. 38,030, 38,036 (July 2, 2008). In response to comments about retro-activity, the Attorney General stated that “no changes have been made in the final guidelines relating to retroactivity based on comments alleging an adverse effect on sex offenders.”
.
See Air Trartsp. Ass’n of Amer. v. Civil Aeronautics Bd.,
.
See
72 Fed.Reg. 30,210, 30,212 (May 30, 2007) (“SORNA's requirements apply to all sex offenders, including those whose convictions predate the enactment of the Act.” (citing 28 C.F.R. pt. 72));
cf. Fed. Crop Ins. Corp. v. Merrill,
.
.
Friends of Iwo Jima,
. In so holding, we recognize that our interpretation of SORNA is a position not previously held by the majority in another circuit.
Cf. Dean,