[Federal Register Volume 68, Number 248 (Monday, December 29, 2003)]
[Rules and Regulations]
[Pages 74855-74859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31889]


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DEPARTMENT OF JUSTICE

28 CFR Part 28

[OAG 101; AG Order No. 2699-2003]
RIN 1105-AA78


Regulations Under the DNA Analysis Backlog Elimination Act of 
2000

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice is publishing this final rule to 
implement section 3 and related provisions of the DNA Analysis Backlog 
Elimination Act of 2000, as amended by the USA PATRIOT Act. 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 Federal 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 rule is effective January 28, 2004.

FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office 
of Legal Policy. 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. The DNA Analysis Backlog Elimination Act 
of 2000 (the ``Act''), Public Law 106-546, similarly authorized the 
collection, analysis, and indexing of DNA samples from convicted 
Federal, military, and District of Columbia offenders.
    Section 3 of the Act addresses the offenses that are to be treated 
as qualifying Federal offenses for purposes of DNA sample collection, 
which determines the categories of Federal offenders from whom DNA 
samples are collected. Section 3 also addresses the responsibility of 
the Federal 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. On 
June 28, 2001, the Department of Justice published an interim rule in 
the Federal Register, 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. See 66 FR 34363 (June 28, 2001). The interim 
rule also addressed certain responsibilities of BOP and the FBI under 
other sections of the Act that are closely related to the matters 
addressed in section 3.
    Subsequent to the publication of the interim rule, Congress enacted 
Public Law 107-56, the USA PATRIOT Act. 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 Department of Justice 
published a proposed rule in the Federal Register on March 11, 2003, to 
implement this expanded sample collection authority. See 68 FR 11481 
(March 11, 2003).
    The Department received comments from two individuals concerning 
the interim rule published on June 28, 2001. No comments were received 
concerning the proposed rule published on March 11, 2003. One commenter 
on the interim rule claimed that the rule violated numerous provisions 
of the Constitution. The other commenter asked about the relationship 
of the interim rule to statute of limitations provisions and its 
consistency with the Constitution's prohibition of ex post facto laws. 
The Department of Justice has considered the constitutional question 
and is confident that the interim rule, the proposed rule, this final 
rule, and the statutory provisions that they implement, are consistent 
with the Constitution. See, e.g., United States v. Kimler, 335 F.3d 
1132 (10th Cir. 2003); Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 
1998); Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995); Gilbert v. Peters, 
55 F.3d 237 (7th Cir. 1995); Jones v. Murray, 962 F.2d 302 (4th Cir. 
1992). But see United States v. Kincade, 345 F.3d 1095 (9th Cir. 2003). 
These rules have no effect on the statutory limitation periods for 
commencing the prosecution of crimes.
    The interim rule published on June 28, 2001, added a new part 28 to 
title 28 CFR relating to the DNA identification system. The proposed 
rule published on March 11, 2003, involved a modification of Sec.  28.2 
in the new part 28, to reflect the expanded range of qualifying federal 
offenses authorized by section 503 of the USA PATRIOT Act. This final 
rule integrates the proposed rule's revision of Sec.  28.2 with the 
other regulatory provisions adopted by the interim rule. The list of 
offenses in the final version of Sec.  28.2 is generally the same as in 
the proposed rule, but includes two additional offenses (18 U.S.C. 
2332f and 2339C) that appear in the listing of 18 U.S.C. 
2332b(g)(5)(B), as discussed below. In addition, some citations have 
been updated or added for conformity to the current versions of the 
cited statutes, or to ensure consistent coverage of attempts and 
conspiracies to commit offenses that are otherwise covered. The changes 
affect specifically the citations relating to provisions of 18 U.S.C. 
43, 1512, 1513, and 1594, and also involve substituting citations 
relating to 40 U.S.C. 5104 and 5109 for former citations relating to 40 
U.S.C. 193f and 193h.
    Like the interim rule published on June 28, 2001, this final rule 
sets forth a part 28 of title 28 CFR relating to the DNA identification 
system. Part 28 contains subparts A and B, which 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)(1) of 
section 3 of the Act states that qualifying Federal offenses include 
those in a specified list, as determined by the Attorney General.

[[Page 74856]]

The offense list in subsection (d)(1) was included in the Act as 
originally enacted and is, for the most part, explicit about which code 
sections are covered. Subsection (d)(2) of section 3 of the Act 
identifies additional categories of offenses that are qualifying 
Federal offenses, as determined by the Attorney General, reflecting the 
expansion of the range of covered offenses by section 503 of the USA 
PATRIOT Act.
    Section 28.2 in this final rule provides a comprehensive listing of 
qualifying Federal offenses, reflecting both subsection (d)(1) and 
subsection (d)(2) of section 3 of the Act. The offenses listed in Sec.  
28.2 as revised 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 Original Act and Rule

    Section 3(d)(1) of the Act (42 U.S.C. 14135a(d)(1)) identifies the 
qualifying offenses authorized by the original version of the Act. 
These offenses were specified in the original version of 28 CFR Sec.  
28.2 that was adopted by the interim rule published on June 28, 2001. 
The rationale for the specification of these offenses in the original 
Sec.  28.2 is explained in the preamble to the interim rule. See 66 FR 
34363, 34363-64 (June 28, 2001).
    These offenses from the earlier rule are all carried forward in the 
final version of Sec.  28.2. In some instances, however, offenses in 
the earlier rule are subsumed in broader references in the final rule 
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 original 
Sec.  28.2 listing, only voluntary manslaughter under 18 U.S.C. 1112 
was covered, reflecting a limitation in the original statute. See 42 
U.S.C. 14135a(d)(1)(A). 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 in the final version of Sec.  28.2 
includes 18 U.S.C. 1112 without qualification, reflecting the Attorney 
General's determination that involuntary manslaughter constitutes such 
an offense.
    Likewise, the original listing in Sec.  28.2 included a narrower 
set of offenses under 18 U.S.C. 1153, an Indian country jurisdictional 
provision, based on limited statutory language. See 42 U.S.C. 
14135a(d)(1)(F). Specifically, of the offenses identified in 18 U.S.C. 
1153, the original listing did 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 final version 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 final version 
of 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 U.S.C. 14135a(d)(2)(B)--the listing 
in the final version of Sec.  28.2 includes all offenses under 18 
U.S.C. 844(f) without qualification.
    The offenses listed in the final version of Sec.  28.2 on the basis 
of 18 U.S.C. 2332b(g)(5)(B) are the same as those listed in the version 
of Sec.  28.2 in the proposed rule published on March 11, 2003, with 
two additions: Legislation enacted to implement international 
counterterrorism conventions created two new offenses in the terrorism 
chapter of the criminal code, 18 U.S.C. 2332f and 2339C, and added 
these new offenses to the offense list in 18 U.S.C. 2332b(g)(5)(B). See 
Public Law 107-197, 116 Stat. 721 (June 25, 2002). The final version of 
Sec.  28.2 accordingly includes these offenses.

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 that satisfy this definition and are 
not otherwise included in the offense categories in the DNA sample 
collection statute. The final version 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 listing in the final version of 
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 the final version of 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 the final version of 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

[[Page 74857]]

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 final 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 Act provides that any attempt or conspiracy to commit a 
qualifying Federal offense is a qualifying Federal offense for the 
purpose 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 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 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.
    In addition to enlarging the offense listing in Sec.  28.2 to 
reflect the USA PATRIOT Act amendment, the final rule makes a 
conforming change in Sec.  28.1. Section 28.1 of the original rule 
stated in part that section 3(d) of the Act ``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.'' This 
statement is no longer accurate in light of the USA PATRIOT Act's 
addition of a second offense list in section 3(d)(2) of the Act (42 
U.S.C. 14135a(d)(2)) that covers many offenses outside of title 18. The 
final rule accordingly revises this sentence in Sec.  28.1.

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, 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 provision 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 28.13 
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).

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.

[[Page 74858]]

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, Information, Law enforcement, Prisons, Prisoners, Records, 
Probation and parole.


0
For the reasons stated in the preamble, the Department of Justice 
revises 28 CFR Chapter I 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; Pub. L. 107-56, 115 
Stat. 272.

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


Sec.  28.1  Purpose.

    Section 3 of Public Law 106-546 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 in certain listed code 
sections or categories, 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 any of the following sections of title 18, 
United States Code: 32, 33, 34, 36, 37, 43(b)(3)-(4), 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) , 1513(a) or (b), 
the final subsection of 1513 involving a conspiracy to violate 1513(a) 
or (b), 1581, 1582, 1583, 1584, 1585, 1586, 1587, 1588, 1589, 1590, 
1591, 1592, 1594(a), 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, 
2332f, 2339, 2339A, 2339B, 2339C, 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).

[[Page 74859]]

    (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 5104(e)(1) or 
(2)(F) of title 40 or section 5109 of that title involving a violation 
or attempted violation of section 5104(e)(1) or (2)(F), 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.

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


Sec.  28.11  Definitions.

    DNA analysis means analysis of the deoxyribonucleic acid (DNA) 
identification information in a bodily sample.
    DNA sample means a tissue, fluid, or other bodily sample of an 
individual on which a DNA analysis can be carried out.


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 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 10 U.S.C. 1565(b)(2).

    Dated: December 16, 2003.
John Ashcroft,
Attorney General.
[FR Doc. 03-31889 Filed 12-24-03; 8:45 am]
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