[Federal Register Volume 66, Number 125 (Thursday, June 28, 2001)]
[Rules and Regulations]
[Pages 34363-34366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16171]



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DEPARTMENT OF JUSTICE

28 CFR Part 28

[OAG 101I; A.G. Order No. 2464-2001]
RIN 1105-AA78


Regulations Under the DNA Analysis Backlog Elimination Act of 
2000

AGENCY: Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The Department of Justice is publishing this interim rule to 
implement section 3 and related provisions of the DNA Analysis Backlog 
Elimination Act of 2000. The rule specifies the federal offenses that 
will be treated as qualifying offenses for purposes of collecting DNA 
samples from federal offenders, sets forth the responsibilities of the 
Bureau of Prisons for collecting DNA samples from individuals in its 
custody, and sets forth related responsibilities of the Federal Bureau 
of Investigation for analyzing and indexing DNA samples.

DATES: Effective Date: This interim rule is effective June 28, 2001.
    Comment Date: Written comments must be submitted on or before 
August 27, 2001.

ADDRESSES: Send comments to David J. Karp, Senior Counsel, Office of 
Legal Policy, Room 4503, Main Justice Building, 950 Pennsylvania Avenue 
NW., Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office 
of Legal Policy, Room 4503, Main Justice Building, 950 Pennsylvania 
Avenue NW., Washington, DC 20530. Telephone: (202) 514-3273.

SUPPLEMENTARY INFORMATION: All 50 states authorize the collection and 
analysis of DNA samples from convicted state offenders, and entry of 
resulting information into the Combined DNA Index System (``CODIS''), 
which the Federal Bureau of Investigation (``FBI'') has established 
pursuant to 42 U.S.C. 14132. Until recently, however, there was no 
statutory authorization to collect DNA samples from convicted federal, 
military, and District of Columbia offenders. Congress acted to fill 
this gap in the DNA identification system through provisions of Public 
Law 106-546, the DNA Analysis Backlog Elimination Act of 2000 (the 
``Act'').
    Section 3 of the Act addresses the categories of federal offenders 
from whom DNA samples will be collected, the responsibility of the 
Bureau of Prisons (``BOP'') and federal probation offices to collect 
DNA samples from offenders in their custody or supervision, and the 
responsibility of the FBI to analyze and index DNA samples. This 
interim rule is issued pursuant to subsection (e) of section 3, which 
provides that, with the exception of the activities of the probation 
offices, the section shall be carried out under regulations prescribed 
by the Attorney General. The rule also addresses certain 
responsibilities of BOP and the FBI under other sections of the Act 
that are closely related to the matters addressed in section 3.
    The rule adds a new part 28 to title 28 CFR relating to the DNA 
identification system. The new part contains subparts A and B, that 
relate respectively to the federal offenses for which DNA samples will 
be collected, and the responsibilities of BOP and the FBI in 
collecting, analyzing, and indexing DNA samples:

Subpart A--Qualifying Federal Offenses for Purposes of DNA Sample 
Collection

    Subpart A of the rule specifies qualifying federal offenses for 
purposes of DNA sample collection. Section 3 of the Act, in part, 
requires BOP and probation offices to collect DNA samples from 
individuals in their custody or supervision who are, or have been, 
convicted of a ``qualifying Federal offense.'' Subsection (d) of 
section 3 of the Act states that qualifying federal offenses are those 
in a specified list ``as determined by the Attorney General.'' Since 
the statutory list is, for the most part, explicit about which code 
sections are covered, there is relatively little for the Attorney 
General to determine in the regulation. The specifications about 
covered federal offenses in section 3(d) of the Act, and their 
interpretation in subpart A of the new part 28 added by this rule, are 
as follows:
    Paragraph (1)(A) of subsection (d) states that qualifying federal 
offenses include several offenses that involve or are related to 
homicide, identified by descriptive terms and code section citations--
18 U.S.C. 1111, 1112, 1113, 1114, 1116, 1118, 1119, 1120, and 1121. The 
regulation accordingly lists offenses under these provisions as 
qualifying federal offenses. However, only offenses of voluntary 
manslaughter are covered under 18 U.S.C. 1112, because the statutory 
reference to ``voluntary manslaughter'' in connection with this section 
indicates a clear legislative intent not to include involuntary 
manslaughter.
    Paragraph (1)(B) of subsection (d) states that qualifying federal 
offenses include most of the offenses in the sex offense chapters of 
the federal criminal code--18 U.S.C. 2241, 2242, 2243, 2244, 2245, 
2251, 2251A, 2252, 2421, 2422, 2423, and 2425. The regulation 
accordingly lists offenses under these provisions as qualifying federal 
offenses.
    Paragraph (1)(C) of subsection (d) provides that qualifying federal 
offenses include the offenses under the peonage and slavery chapter of 
the criminal code (chapter 77). The regulation accordingly states that 
offenses under that chapter are qualifying federal offenses.
    Paragraph (1)(D) of subsection (d) includes offenses under the 
federal criminal code that amount to kidnapping as defined in 18 U.S.C. 
3559(c)(2)(E). The federal criminal code offenses that correspond most 
closely to this definition are the general kidnapping offense (defined 
in 18 U.S.C. 1201), and the hostage-taking offense defined in 18 U.S.C. 
1203, which is essentially a form of kidnapping in which the purpose is 
to coerce a third party or governmental organization. The regulation 
accordingly lists offenses under these provisions as qualifying federal 
offenses.
    Paragraph (1)(E) of subsection (d) includes as qualifying federal 
offenses several offenses under the robbery and burglary chapter of the 
criminal code (chapter 103)--18 U.S.C. 2111, 2112, 2113, 2114, 2116, 
2118, and 2119. The regulation accordingly lists offenses under these 
provisions as qualifying federal offenses.
    Paragraph (1)(F) of subsection (d) includes as qualifying federal 
offenses several types of offenses under the major crimes act for 
Indian country (18 U.S.C. 1153). This is the provision under which the 
federal government has jurisdiction to prosecute most serious crimes 
committed in Indian country. The specific offense types referenced in 
paragraph (1)(F) are murder, manslaughter, kidnapping, maiming, 
felonies under the sexual abuse chapter of the criminal code (chapter 
109A), incest, arson, burglary, and robbery. Where federal law provides 
a general definition for such an offense in areas subject to exclusive 
federal jurisdiction, the case is charged under the pertinent federal 
law provision, with jurisdiction premised on 18 U.S.C. 1153. This is 
true, in particular, of murder (18 U.S.C. 1111), manslaughter (18 
U.S.C. 1112), kidnapping (18 U.S.C. 1201(a)(2)), maiming (18 U.S.C. 
114), felony sexual abuse (various offenses under title 109A of title 
18), arson (18 U.S.C. 81), and robbery (18 U.S.C. 2111). Where federal 
law provides no such definition, the case is charged under the law of 
the state where the offense occurred, with jurisdiction premised on 18 
U.S.C. 1153.

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This is true, in particular, of incest and burglary. The regulation 
accordingly includes the specified offenses as qualifying federal 
offenses, where jurisdiction is based on 18 U.S.C. 1153.
    Paragraph (1)(G) of subsection (d) includes as qualifying federal 
offenses attempts and conspiracies to commit offenses that are 
otherwise covered. Many of the particular offense provisions that are 
listed in the regulation encompass attempted offenses--for example, 18 
U.S.C. 1113, 1201(d), and 2241-43. Since there is no general attempt 
provision in the federal criminal code, there are no additional attempt 
offenses that could be listed in the regulation. Some of the particular 
offense provisions that are listed in the regulation also explicitly 
encompass conspiracies, such as 18 U.S.C. 1117 and 1201(c). In 
addition, however, there is a general conspiracy provision in the 
federal criminal code, 18 U.S.C. 371. The regulation accordingly 
includes offenses under 18 U.S.C. 371 as qualifying federal offenses 
where an object of the conspiracy was the commission of a qualifying 
federal offense.

Subpart B--DNA Sample Collection, Analysis, and Indexing

    Section 28.11 in the rule provides definitions for ``DNA sample'' 
and ``DNA analysis'' that are taken verbatim from section 3(c) of the 
Act.
    Section 28.12, in paragraph (a), directs BOP to collect a DNA 
sample from each individual in its custody who is, or has been, 
convicted of a qualifying federal offense, a qualifying military 
offense, or a qualifying District of Columbia offense. The requirement 
that BOP collect DNA samples from individuals convicted of qualifying 
federal offenses and qualifying military offenses appears in section 
3(a)(1) of the Act. The requirement to collect samples from individuals 
convicted of qualifying District of Columbia offenses appears in 
section 4, rather than section 3, of the Act (specifically, section 
4(a)(1)). It is included in this regulation for logical completeness in 
describing BOP's DNA sample collection responsibilities under the Act.
    Section 28.12, in paragraph (b), qualifies paragraph (a)'s 
requirement by affording BOP discretion about taking a DNA sample from 
an individual who is already in CODIS, or from whom a DNA sample has 
been collected pursuant to the provisions for collection of DNA samples 
from military offenders by the Department of Defense. This 
discretionary authority, which BOP could utilize to avoid duplicative 
sample collection, tracks sections 3(a)(3) and 4(a)(3) of the Act.
    Section 28.12, in paragraph (c), provides in part that individuals 
described in paragraph (a) shall cooperate in the collection of DNA 
samples by BOP. This obligation on inmates is correlative to BOP's 
legal duty to collect DNA samples from them, and arises directly from 
sections 3(a)(5) and 4(a)(5) of the Act, which prescribe criminal 
penalties for individuals who fail to cooperate in DNA sample 
collection authorized by the Act.
    Section 28.12, in paragraph (c), further provides that BOP may use 
or authorize the use of such means as are reasonably necessary to 
detain, restrain, and collect a DNA sample from an individual described 
in paragraph (a) who refuses to cooperate in the collection of the 
sample. This is taken directly from sections 3(a)(4) and 4(a)(4) of the 
Act. While inmates will normally cooperate voluntarily in DNA sample 
collection, or be persuaded to do so by the prospect of disciplinary 
action if they refuse to cooperate, taking a sample involuntarily from 
a recalcitrant individual may occasionally be necessary. The 
involuntary taking of a blood sample may in some instances be required 
under existing procedures for other purposes, such as medical 
evaluation, see 28 CFR 549.13(a)(3), or compliance with a court order 
to take such a sample for evidentiary purposes. Existing regulations 
regarding the use of force where necessary to enforce institutional 
regulations or for other purposes will continue to apply in relation to 
inmates who refuse to cooperate in the collection of a DNA sample. See 
28 CFR part 552, subpart C.
    Section 28.12, in paragraph (d)--tracking sections 3(a)(4)(B) and 
4(a)(4)(B) of the Act--states that BOP may enter into agreements with 
units of State or local government or with private entities to provide 
for the collection of DNA samples. This makes it clear, for example, 
that BOP can arrange to have DNA samples collected from inmates in 
contract facilities by contract facility personnel.
    Section 28.12, in paragraph (e), directs BOP to furnish each DNA 
sample to the FBI (for purposes of analysis and indexing in CODIS). 
This is explicitly required by sections 3(b) and 4(b) of the Act.
    Section 28.13 directs the FBI to carry out a DNA analysis on each 
DNA sample furnished to it pursuant to section 3(b) or 4(b) of the Act, 
and to include the results in CODIS. The cited statutory provisions 
explicitly require the FBI to carry out these functions. Section 28.5 
further provides that the FBI must include in CODIS the results of 
analyses furnished by the Department of Defense, which is required by 
10 U.S.C. 1565(b)(2). The FBI is not required to analyze the samples 
collected by the Department of Defense, because the Department of 
Defense is responsible for carrying out that function, as provided in 
10 U.S.C. 1565(b)(1).

Good Cause Exception

    The implementation of this rule as an interim rule, with provisions 
for post-promulgation public comments, is based on the ``good cause'' 
exceptions found at 5 U.S.C. 553(b)(3)(B) and (d)(3). The rule 
implements section 3 of Public Law 106-546, which requires that the 
Attorney General determine qualifying federal offenses for purposes of 
DNA sample collection not later than 120 days after enactment, that the 
collection of DNA samples from covered offenders commence not later 
than 180 days after enactment, and that the requirements of the section 
generally be carried out under regulations prescribed by the Attorney 
General. Given that section 3 requires that an initial determination of 
qualifying federal offenses be made within 120 days, Congress must have 
been aware that it would not be feasible within that time period to 
publish a proposed rule for notice and comment, as well as a subsequent 
final rule, and for the period of the final rule's delayed effective 
date to have run. Public Law 106-546 is explicit and comprehensive 
concerning the types of offenses that will be treated as qualifying 
federal offenses and concerning the powers and responsibilities of the 
Bureau of Prisons and other agencies in collecting, analyzing, and 
indexing DNA samples. In light of the short statutory time frame for 
the implementation of this law and the fact that the formulation of 
implementing regulations requires no significant exercises of 
discretion, it is impracticable and unnecessary to adopt this rule with 
the prior notice and comment period normally required under 5 U.S.C. 
553(b) or with the delayed effective date normally required under 5 
U.S.C. 553(d).
    Moreover, the collection, analysis, and indexing of DNA samples as 
required by Public Law 106-546 furthers important public safety 
interests by facilitating the solution and prevention of crimes, see 
H.R. Rep. No. 900, 106th Cong., 2d Sess. 8-11 (2000) (House Judiciary 
Committee report), and delay in the law's implementation would thwart 
or delay the realization of these public safety benefits. Dangerous 
offenders who might be successfully identified through DNA matching may

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be released from prison or reach the end of supervision before DNA 
sample collection can be carried out, thereby remaining at large to 
engage in further crimes against the public. Furthermore, delay in 
collecting, analyzing, and indexing DNA samples, and hence in the 
identification of offenders, may foreclose prosecution due to the 
running of statutes of limitations. Failure to identify, or delay in 
identifying, offenders as the perpetrators of crimes through DNA 
matching also increases the risk that innocent persons may be 
wrongfully suspected, accused, or convicted of such crimes. Therefore, 
it would be contrary to the public interest to adopt this rule with the 
prior notice and comment period normally required under 5 U.S.C. 553(b) 
or with the delayed effective date normally required under 5 U.S.C. 
553(d).

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: The regulation concerns the collection, analysis, and indexing 
by federal agencies of DNA samples from certain offenders.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation. The Department of Justice has 
determined that this rule is a ``significant regulatory action'' under 
Executive Order 12866, section 3(f), and accordingly this rule has been 
reviewed by the Office of Management and Budget.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, or innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 28

    Crime, Law enforcement, Prisons, Prisoners, Probation and parole.

    For the reasons stated in the preamble, the Department of Justice 
amends 28 CFR Chapter I by adding part 28, to read as follows:

PART 28--DNA IDENTIFICATION SYSTEM

Subpart A--Qualifying Federal Offenses for Purposes of DNA Sample 
Collection
Sec.
28.1  Purpose.
28.2  Determination of offenses.
Subpart B--DNA Sample Collection, Analysis, and Indexing
28.11  Definitions.
28.12  Collection of DNA samples.
28.13  Analysis and indexing of DNA samples.

    Authority: 28 U.S.C. 509, 510; 42 U.S.C. 14132, 14135a, 14135b; 
10 U.S.C. 1565; Pub. L. 106-546, 114 Stat. 2726.

Subpart A--Qualifying Federal Offenses for Purposes of DNA Sample 
Collection


Sec. 28.1  Purpose.

    Section 3 of Public Law 106-546 (114 Stat. 2726) directs the 
collection, analysis, and indexing of a DNA sample from each individual 
in the custody of the Bureau of Prisons or under the supervision of a 
probation office who is, or has been, convicted of a qualifying Federal 
offense. Subsection (d) of that section states that the offenses that 
shall be treated as qualifying Federal offenses are offenses under 
title 18, United States Code, contained in a list of descriptive terms 
and code sections, as determined by the Attorney General.


Sec. 28.2  Determination of offenses.

    The following offenses shall be treated for purposes of section 3 
of Public Law 106-546 as qualifying Federal offenses:
    (a) Any offense under section 1111, 1113, 1114, 1116, 1117, 1118, 
1119, 1120, 1121, 2241, 2242, 2243, 2244, 2245, 2251, 2251A, 2252, 
2421, 2422, 2423, 2425, 1201, 1203, 2111, 2112, 2113, 2114, 2116, 2118, 
or 2119 of title 18, United States Code.
    (b) Any offense of voluntary manslaughter under section 1112 of 
title 18, United States Code.
    (c) Any offense under chapter 77 of title 18, United States Code.
    (d) Any offense of murder, manslaughter, kidnapping, maiming, 
incest, arson, burglary, or robbery, and any felony under chapter 109A 
of title 18, United States Code, where jurisdiction was based on 
section 1153 of title 18, United States Code.
    (e) Any offense under section 371 of title 18, United States Code, 
in which an object of the conspiracy was the commission of an offense 
described in paragraph (a), (b), (c), or (d) of this section.

Subpart B--DNA Sample Collection, Analysis, and Indexing


Sec. 28.11  Definitions.

    The following definitions apply to this part:
    DNA sample means a tissue, fluid, or other bodily sample of an 
individual on which a DNA analysis can be carried out.
    DNA analysis means analysis of the deoxyribonucleic acid (DNA) 
identification information in a bodily sample.


Sec. 28.12  Collection of DNA samples.

    (a) The Bureau of Prisons shall collect a DNA sample from each 
individual in the custody of the Bureau of Prisons who is, or has been, 
convicted of--
    (1) A qualifying Federal offense as described in Sec. 28.2;
    (2) A qualifying military offense, as determined under 10 U.S.C. 
1565; or (3) A qualifying District of Columbia offense, as determined 
under section 4(d) of Public Law 106-546.
    (b) Notwithstanding paragraph (a) of this section, the Bureau of 
Prisons may, but need not, collect a DNA sample from an individual 
described in

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paragraph (a) of this section if the Combined DNA Index System contains 
a DNA analysis with respect to that individual, or if a DNA sample has 
been collected from that individual under 10 U.S.C. 1565.
    (c) Each individual described in paragraph (a) of this section 
shall cooperate in the collection of a DNA sample from that individual 
by the Bureau of Prisons. The Bureau of Prisons may use or authorize 
the use of such means as are reasonably necessary to detain, restrain, 
and collect a DNA sample from an individual described in paragraph (a) 
of this section who refuses to cooperate in the collection of the 
sample.
    (d) The Bureau of Prisons may enter into agreements with units of 
State or local government or with private entities to provide for the 
collection of samples under this section.
    (e) The Bureau of Prisons shall furnish each DNA sample collected 
under this section to the Federal Bureau of Investigation.


Sec. 28.13  Analysis and indexing of DNA samples.

    (a) The Federal Bureau of Investigation shall carry out a DNA 
analysis on each DNA sample furnished to the Federal Bureau of 
Investigation pursuant to section 3(b) or 4(b) of Public Law 106-54, 
and shall include the results in the Combined DNA Index System.
    (b) The Federal Bureau of Investigation shall include in the 
Combined DNA Index System the results of each analysis furnished to the 
Federal Bureau of Investigation pursuant to section 1565(b)(2) of title 
10, United States Code.

    Dated: June 21, 2001.
John Ashcroft,
Attorney General.
[FR Doc. 01-16171 Filed 6-27-01; 8:45 am]
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