[Federal Register Volume 68, Number 47 (Tuesday, March 11, 2003)]
[Proposed Rules]
[Pages 11481-11483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5861]


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DEPARTMENT OF JUSTICE

28 CFR Part 28

[OAG 105; A.G. Order No. 2664-2003]
RIN 1105-AA78


DNA Sampling of Federal Offenders Under the USA PATRIOT ACT of 
2001

AGENCY: Department of Justice.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Department of Justice is publishing this proposed rule to 
implement section 503 of Public Law 107-56, the Uniting and 
Strengthening America by Providing Appropriate Tools Required to 
Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. This 
rule amends the list of federal offenses that will be treated as 
qualifying offenses for purposes of collecting DNA samples from federal 
offenders.

DATES: Written comments must be submitted on or before April 10, 2003.

ADDRESSES: Send comments to David J. Karp, Senior Counsel, Office of 
Legal Policy, Room 7232, Main Justice Building, 950 Pennsylvania Avenue 
NW., Washington, DC 20530.

FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office 
of Legal Policy. Telephone: (202) 514-3273.

SUPPLEMENTARY INFORMATION: On June 28, 2001, the Department of Justice 
published an interim rule to implement section 3 and related provisions 
of Public Law 106-546, the DNA Analysis Backlog Elimination Act of 
2000. 66 FR 34363 (June 28, 2001). That rule, in part, specified the 
federal offenses that are treated as ``qualifying Federal offenses'' 
for purposes of collecting DNA samples from federal offenders. 
Individuals convicted of one of the specified qualifying federal 
offenses must have samples of their DNA collected and the resulting 
information entered into the Combined DNA Index System which the 
Federal Bureau of Investigation has established pursuant to 42 U.S.C. 
14132.
    Subsequent to the publication of that interim rule, Congress 
enacted Public Law 107-56, the Uniting and Strengthening America by 
Providing Appropriate Tools Required to Intercept and Obstruct 
Terrorism (USA PATRIOT ACT) Act of 2001. Section 503 of the USA PATRIOT 
ACT provided that three additional categories of offenses shall be 
treated for purposes of DNA sample collection as qualifying federal 
offenses, as determined by the Attorney General: (1) Any offense listed 
in section 2332b(g)(5)(B) of title 18, United States Code; (2) any 
crime of violence (as defined in section 16 of title 18, United States 
Code); and (3) any attempt or conspiracy to commit any of the above 
offenses. See 42 U.S.C. 14135a(d)(2). The purpose of this proposed rule 
is to revise a section of the existing regulations, 28 CFR 28.2, to 
reflect the addition of these three new categories.
    The offenses listed in the proposed revision of Sec.  28.2 are 
generally grouped by title of the United States Code for convenience in 
readability and application. The derivation of the listing is as 
follows:

Offenses in the Current Rule

    Section 3(d)(1) of the DNA Analysis Backlog Elimination Act of 2000 
(42 U.S.C. 14135a(d)(1)) identifies the qualifying offenses that are 
reflected in the current Sec.  28.2. These offenses are all carried 
forward in the proposed revision of Sec.  28.2. In some instances, 
however, the offenses in the current rule will be subsumed in broader 
references in the revised listing that reflect the new categories added 
by section 503 of the USA PATRIOT ACT. See 42 U.S.C. 14135a(d)(2). In 
particular, under the current listing, only voluntary manslaughter 
under 18 U.S.C. 1112 is covered. See 42 U.S.C. 14135a(d)(1)(A); 28 CFR 
28.2(b). In accordance with section 503 of the USA PATRIOT ACT, 
however, the expanded offense categories now include crimes of violence 
as defined in 18 U.S.C. 16. See 42 U.S.C. 14135a(d)(2)(B). The revised 
listing includes 18 U.S.C. 1112 without qualification, reflecting the 
Attorney General's determination that involuntary manslaughter 
constitutes such an offense.
    Likewise, the current listing includes a more limited set of 
offenses under 18 U.S.C. 1153, an Indian country jurisdictional 
provision. See 42 U.S.C. 14135a(d)(1)(F); 28 CFR 28.2(d). Specifically, 
of the offenses identified in 18 U.S.C. 1153, the current listing does 
not include ``assault with intent to commit murder, assault with a 
dangerous weapon, assault resulting in serious bodily injury (as 
defined in section 1365 of this title), an assault against an 
individual who has not attained the age of 16 years,'' or ``a felony 
under section 661 of this title.'' 18 U.S.C. 1153. However, the 
previously excluded assaultive crimes are crimes of violence as defined 
in 18 U.S.C. 16. The revised listing encompasses a broader range of 
offenses under 18 U.S.C. 1153, excluding only felonies under section 
661 of title 18, which defines nonviolent larceny offenses.

Offenses Listed in 18 U.S.C. 2332b(g)(5)(B)

    Section 503 of the USA PATRIOT ACT added offenses listed in 18 
U.S.C. 2332b(g)(5)(B)--a statutory list of crimes that are often 
committed by terrorists--as qualifying offenses for purposes of DNA 
sample collection. The proposed revision of 28 CFR 28.2 incorporates 
all of these offenses.
    In some instances, offenses listed explicitly in 18 U.S.C. 
2332b(g)(5)(B) are subsumed in broader references in the proposed 
revision to 28 CFR 28.2. For example, 18 U.S.C. 2332b(g)(5)(B) includes 
offenses under section ``844(f)(2) or (3)'' of title 18. Since the 
offense defined by section 844(f)(1) of title 18 is a crime of 
violence--and hence includable on the basis of 42

[[Page 11482]]

U.S.C. 14135a(d)(2)(B)--the listing in the proposed revision of Sec.  
28.2 includes all offenses under 18 U.S.C. 844(f) without 
qualification.

Crimes of Violence

    Section 503 of the USA PATRIOT ACT also added offenses that are 
crimes of violence under the definition of 18 U.S.C. 16. According to 
that provision, a crime of violence is ``(a) an offense that has as an 
element the use, attempted use, or threatened use of physical force 
against the person or property of another, or (b) any other offense 
that is a felony and that, by its nature, involves a substantial risk 
that physical force against the person or property of another may be 
used in the course of committing the offense.''
    Some offenses that satisfy this definition are independently 
covered by the original offense categories in 42 U.S.C. 14135a(d)(1) or 
the listing of offenses in 18 U.S.C. 2332b(g)(5)(B). However, there are 
a large number of federal crimes which satisfy this definition and are 
not otherwise included in the offense categories in the DNA sample 
collection statute. The proposed revision of Sec.  28.2 includes an 
extensive listing of such provisions.
    Many crimes of violence are defined or referenced in discrete 
sections, subsections, or paragraphs of the United States Code. The 
listing in proposed Sec.  28.2 identifies such offenses by referring to 
the appropriate sections, subsections, or paragraphs.
    In some instances, however, sections of the United States Code 
effectively define a number of offenses--some violent and some 
nonviolent under the definition of 18 U.S.C. 16--without structural 
subdivisions that can readily be referenced in identifying the violent 
offenses. For such provisions, the proposed listing in revised Sec.  
28.2 identifies the covered crimes of violence by including appropriate 
phrases that specify the relevant limitations.
    For example, 18 U.S.C. 241 generally prohibits conspiracies to 
violate federally protected rights. The basic offense under the section 
is punishable by imprisonment for up to 10 years. The section also 
includes aggravated offenses, punishable by imprisonment for any term 
of years or for life, for cases in which ``death results'' or that 
involve ``kidnapping or an attempt to kidnap, aggravated sexual abuse 
or an attempt to commit aggravated sexual abuse, or an attempt to 
kill.'' The aggravated offenses under 18 U.S.C. 241 are crimes of 
violence under the definition of 18 U.S.C. 16. Consequently, the 
listing in proposed Sec.  28.2 refers to offenses under section 241 
``involving an offense punishable by imprisonment for any term of years 
or for life.'' Similarly, the subsequent section of the code, 18 U.S.C. 
242, generally prohibits willful deprivations of federally protected 
rights under color of law, and the basic offense it defines is graded 
as a misdemeanor. The section also includes aggravated offenses, 
punishable at the felony level, that constitute crimes of violence. The 
listing in proposed Sec.  28.2 accordingly covers offenses under 
section 242 ``if a felony.''
    Other types of qualifying phrases are also used, as appropriate, in 
relation to sections that set forth alternative grounds of liability 
that effectively define both violent and nonviolent offenses under 18 
U.S.C. 16. For example, 18 U.S.C. 874 prohibits securing kickbacks from 
public works employees ``by force [or] intimidation,'' or alternatively 
by ``threat of procuring dismissal from employment, or by any other 
manner whatsoever.'' The listing in proposed Sec.  28.2 accordingly 
refers to offenses under section 874 ``involving force or 
intimidation.''
    In addition to crimes of violence that are currently included in 
the United States Code, the listing in the proposed rule includes two 
sections defining offenses involving rape or sexual abuse of children 
that have been repealed, 18 U.S.C. 2031 and 2032. Notwithstanding the 
repeal of these provisions, offenders who were convicted under them may 
currently be in custody or under supervision. The inclusion of these 
sections in the rule ensures that DNA samples will be collected from 
these offenders.

Attempts and Conspiracies

    The amendment in section 503 of the USA PATRIOT ACT also provides 
that any attempt or conspiracy to commit a qualifying federal offense 
is a qualifying federal offense for purposes of DNA sample collection. 
See 42 U.S.C. 14135a(d)(1)(G) and (2)(C). In part, this is implemented 
through the inclusion in proposed Sec.  28.2(a)-(h) of various specific 
provisions that encompass liability for attempts or conspiracies. 
However, there are also cross-cutting attempt and conspiracy provisions 
in the United States Code, including 18 U.S.C. 371 and 844(n) and 21 
U.S.C. 846, which apply to categories of offenses that include both 
offenses that are qualifying federal offenses for DNA sample collection 
purposes and offenses that are not. Paragraph (i) in proposed Sec.  
28.2 makes it clear that any attempt or conspiracy under these 
provisions is a qualifying federal offense, if the object of the 
attempt or conspiracy includes an offense that is a qualifying federal 
offense.

Regulatory Procedures

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 
reason: The regulation concerns the collection 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

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

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

[[Page 11483]]

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 the 
United States-based companies to compete with foreign-based companies 
in domestic and export markets.

List of Subjects in 28 CFR Part 28

    Crime, Information, Law enforcement, Prisons, Prisoners, Records, 
Probation and parole.
    For the reasons stated in the preamble, the Department of Justice 
proposes to amend 28 CFR chapter I by amending part 28 as follows:

PART 28--DNA IDENTIFICATION SYSTEM

    1. The authority citation for part 28 is revised to read as 
follows:

    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; Pub. L. 107-56, 115 
Stat. 272.

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

    2. Revise Sec.  28.2 to read as follows:


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 any of the following sections of title 18, 
United States Code: 32, 33, 34, 36, 37, 43(b), 81, 111, 112(a), 112(b) 
involving intimidation or threat, 113, 114, 115, 116, 175, 175b, 229, 
231, 241 involving an offense punishable by imprisonment for any term 
of years or for life, 242 if a felony, 245, 247, 248 unless the offense 
involves only a nonviolent physical obstruction, 351, 372, 373, 593 
involving force, threat, or intimidation, 594, 610 involving 
intimidation or threat, 751 if a felony, 752 if a felony, 753, 757, 
758, 831, 842(d), (i), (m), (n), or (p), 844(d), (e), (f), (h), (i), 
(m), or (o), 871, 874 involving force or intimidation, 875 unless 
involving only a threat to injure reputation or to accuse a person of a 
crime, 876 unless involving only a threat to injure reputation or to 
accuse a person of a crime, 877 unless involving only a threat to 
injure reputation or to accuse a person of a crime, 878, 879, 892, 894, 
922(a)(4), (7), or (8), 922(b)(4), 922(b)(5) involving sale or delivery 
of armor-piercing ammunition, 922(d), (g), (o), or (p), 924(c), (h), 
(j), (k), or (o), 929, 930(b) or (c), 956, 970(a), 1030(a)(1), 
1030(a)(5)(A)(i) resulting in damage as defined in 1030(a)(5)(b)(ii) 
through (v), 1091, 1111, 1112, 1113, 1114, 1116, 1117, 1118, 1119, 
1120, 1121, 1153 unless involving only a felony under section 661, 
1201, 1203, 1204, 1361, 1362, 1363, 1364, 1365(a), (d), or (e), 1366, 
1368, 1470, the second paragraph of 1501, 1503 involving threat or 
force, 1505 involving threat or force, 1509, 1512(a) , 1512(b) 
involving threat or force, 1513, 1581, 1582, 1583, 1584, 1585, 1586, 
1587, 1588, 1589, 1590, 1591, 1592, 1651, 1652, 1653, 1655, 1659, 1661, 
1751, 1791 involving a weapon, 1792, 1859, 1864 if a felony, 1951, 
1952(a)(2), 1958, 1959, 1962 (b) or (c) involving a pattern of 
racketeering activity that includes any act or threat of murder, 
kidnapping, arson, robbery, or extortion or any act that otherwise 
constitutes a crime of violence under this rule, 1991, 1992, 1993, 2031 
notwithstanding the repeal of that provision, 2032 notwithstanding the 
repeal of that provision, 2101, 2111, 2112, 2113, 2114, 2115, 2116, 
2117, 2118, 2119, 2152 involving injury or destruction of property 
described in that section, 2153 involving injury or destruction of 
property described in that section or an attempt or conspiracy to do 
so, 2155, 2191, 2192, 2193, 2194 involving force or threat, 2231, 
2232(a) or (b), 2233, 2241, 2242, 2243, 2244, 2245, 2251, 2251A, 2252, 
2252A, 2260(a), 2260(c) involving a conspiracy or attempt to violate 
2260(a), 2261, 2261A, 2262, 2272, 2273, 2274, 2275, 2276, 2280, 2281, 
2332, 2332a, 2332b, 2339, 2339A, 2339B, 2340A, 2381 involving levying 
war against the United States, 2383, 2384, 2385, 2389, 2390, 2421, 
2422, 2423, 2425, or 2441(c)(4).
    (b) Any offense under any of the following sections of title 8, 
United States Code: 1324(a)(1)(B)(iv) or 1328.
    (c) Any offense under any of the following sections of title 16, 
United States Code: 773g if the offense is a felony or involves a 
violation of 773e(a)(3), 1859 if the offense is a felony or involves a 
violation of 1857(1)(E), 2438 involving a violation of 2435(4), (5), or 
(6), 3637(c) if the offense is a felony or involves a violation of 
3637(a)(3), or 5010(b) if the offense is a felony or involves a 
violation of 5009(6).
    (d) Any offense under any of the following sections of title 21, 
United States Code: 461(c), 675, 841(d), 848(e), 858, or 1041(b).
    (e) Any offense under any of the following sections of title 26, 
United States Code: 5861, 7212(a) involving force or threat, or 
7212(b).
    (f) Any offense under any of the following sections of title 42, 
United States Code: 1973gg-10(1), 2000e-13, 2283, 2284, 3631, or 
9152(d) if the offense is a felony or involves a violation of 9151(3).
    (g) Any offense under any of the following sections of title 49, 
United States Code: 46502, 46503, 46504, 46505, 46506(1) unless 
involving only an act that would violate section 661 or 662 of title 18 
if committed in the special maritime and territorial jurisdiction of 
the United States, 46507 involving false information or a threat 
relating to the foregoing offenses, 60123(b), or 80501.
    (h) Any offense under any of the following sections of the United 
States Code: section 2146(b) of title 7, section 1463 of title 30 if 
the offense is a felony or involves a violation of section 1461(4) of 
that title, section 1232(b)(2) of title 33, section 193f(a) or (b)(6) 
of title 40 or section 193h of that title involving a violation or 
attempted violation of section 193f(a) or (b)(6), section 1063 of title 
43 involving force, threat, or intimidation, or section 606(b) of title 
47.
    (i) Any offense that is an attempt or conspiracy to commit any of 
the foregoing offenses, including any such attempt or conspiracy under 
section 371 of title 18, section 844(n) of title 18, or section 846 of 
title 21 of the United States Code.

    Dated: March 6, 2003.
John Ashcroft,
Attorney General.
[FR Doc. 03-5861 Filed 3-10-03; 8:45 am]
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