[Federal Register Volume 73, Number 76 (Friday, April 18, 2008)]
[Proposed Rules]
[Pages 21083-21087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8339]
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DEPARTMENT OF JUSTICE
28 CFR Part 28
[OAG 119; AG Order No. 2957-2008]
RIN 1105-AB24
DNA-Sample Collection Under the DNA Fingerprint Act of 2005 and
the Adam Walsh Child Protection and Safety Act of 2006
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice is publishing this proposed rule to
implement amendments made by section 1004 of the DNA Fingerprint Act of
2005 and section 155 of the Adam Walsh Child Protection and Safety Act
of 2006 to section 3 of the DNA Analysis Backlog Elimination Act of
2000. This rule directs agencies of the United States that arrest or
detain individuals, or that supervise individuals facing charges, to
collect DNA samples from individuals who are arrested, facing charges,
or convicted, and from non-United States persons who are detained under
the authority of the United States. Unless otherwise directed by the
Attorney General, the collection of DNA samples may be limited to
individuals from whom an agency collects fingerprints. The Attorney
General also may approve other limitations or exceptions. Agencies
collecting DNA samples are directed to furnish the samples to the
Federal Bureau of Investigation, or to other agencies or entities as
authorized by the Attorney General, for purposes of analysis and entry
into the Combined DNA Index System.
DATES: Written comments must be submitted on or before May 19, 2008.
ADDRESSES: Comments may be mailed to David J. Karp, Senior Counsel,
Office of Legal Policy, Room 4509, Main Justice Building, 950
Pennsylvania Avenue, NW., Washington, DC 20530. To ensure proper
handling, please reference OAG Docket No. 119 on your correspondence.
You may submit comments electronically or view an electronic version of
this proposed rule at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office
of Legal Policy. Telephone: (202) 514-3273.
SUPPLEMENTARY INFORMATION:
Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at http://www.regulations.gov. If you wish to submit a comment, the public
posting will include voluntarily submitted personal identifying
information (such as your name, address, etc.).
If you want to submit personal identifying information (such as
your name, address, etc.) as part of your comment, but do not want it
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You also must
locate all the personal identifying information you do not want posted
online in the first paragraph of your comment and identify what
information you want redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must identify prominently any confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
redacted effectively, all or part of that comment might not be posted
on http://www.regulations.gov.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency's public docket file, but not posted online. If you wish to
inspect the agency's public docket file in person by appointment,
please see the FOR FURTHER INFORMATION CONTACT paragraph.
Background
All 50 States authorize the collection and analysis of DNA samples
from convicted state offenders, and enter resulting DNA profiles into
the Combined DNA Index System (``CODIS''), which the Federal Bureau of
Investigation (``FBI'') has established pursuant to 42 U.S.C. 14132. In
addition to collecting DNA samples from convicted state offenders,
several states authorize the collection of DNA samples from individuals
they arrest.
Until recently, federal DNA-sample collection was more limited. The
DNA Analysis Backlog Elimination Act of 2000 (the ``Act'') authorized
DNA-sample collection by federal agencies only from persons convicted
of certain ``qualifying'' federal, military, and District of Columbia
offenses. Public Law 106-546 (2000). The Act also addressed the
responsibility of the Federal Bureau of Prisons (``BOP'') and federal
probation offices to collect DNA samples from convicted offenders in
their custody or under their 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 to implement these provisions. 66
FR 34363. The rule, in part, specified the qualifying federal offenses
for which DNA samples could be collected and addressed responsibilities
of BOP and the FBI under the Act.
After publication of the interim rule, Congress enacted the USA
PATRIOT Act, Public Law 107-56. Section 503 of the USA PATRIOT Act
added three additional categories of qualifying federal offenses for
purposes of DNA-sample collection: (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.
The Department of Justice published a proposed rule in the Federal
Register on March 11, 2003, to implement this expanded DNA-sample
collection authority. 68 FR 11481. On December 29, 2003, the Department
published a final rule implementing this authority. 68 FR 74855.
After publication of that final rule, the DNA-sample collection
categories again were expanded by Congress pursuant to section 203(b)
of the Justice for All Act of 2004, Public Law 108-405. The Justice for
All Act expanded the definition of qualifying federal offenses to
include any felony, thereby permitting the collection of DNA samples
from all convicted federal felons. The Department published an interim
final rule implementing this reform on January 31, 2005. 70 FR 4763.
More recently, section 1004 of the DNA Fingerprint Act of 2005
(``DNA Fingerprint Act''), Public Law 109-162, broadened the categories
of persons subject to DNA-sample collection to authorize such
collection from ``individuals who are arrested or from non-United
States persons who are detained under the authority of the United
States.'' Before publication of a
[[Page 21084]]
rule implementing this new authority, the DNA-sample collection
provisions were amended further by section 155 of the Adam Walsh Child
Protection and Safety Act of 2006 (``Adam Walsh Act''), Public Law 109-
248. The amendments made by that Act left the statute in its current
form: ``The Attorney General may, as prescribed by the Attorney General
in regulation, collect DNA samples from individuals who are arrested,
facing charges, or convicted or from non-United States persons who are
detained under the authority of the United States.'' 42 U.S.C.
14135a(a)(1)(A). This statute also provides that the Attorney General
may ``direct any other agency of the United States that arrests or
detains individuals or supervises individuals facing charges to carry
out any function and exercise any power of the Attorney General under
this section.'' Id.
Purposes
DNA analysis provides a powerful tool for human identification. DNA
samples collected from individuals or derived from crime scene evidence
are analyzed to produce DNA profiles that are entered into CODIS. These
DNA profiles, which embody information concerning 13 ``core loci,''
amount to ``genetic fingerprints'' that can be used to identify an
individual uniquely, but do not disclose an individual's traits,
disorders, or dispositions. See United States v. Kincade, 379 F.3d 813,
818-19 (9th Cir. 2004) (en banc); Johnson v. Quander, 440 F.3d 489, 498
(DC Cir. 2006). Hence, collection of DNA samples and entry of the
resulting profiles into CODIS allow the government to ``ascertain[] and
record[] the identity of a person.'' Jones v. Murray, 962 F.2d 302, 306
(4th Cir. 1992). The design and legal rules governing the operation of
CODIS reflect the system's function as a tool for law enforcement
identification, and do not allow DNA samples or profiles within the
scope of the system to be used for unauthorized purposes. See 42 U.S.C.
14132, 14133(b)-(c), 14135e.
The practical uses of the DNA profiles (``genetic fingerprints'')
in CODIS are similar in general character to those of actual
fingerprints, but the collection of DNA from individuals in the justice
system offers important information that is not captured by taking
fingerprints alone. Positive biometric identification, whether by means
of fingerprints or by means of DNA profiles, facilitates the solution
of crimes through database searches that match crime scene evidence to
the biometric information that has been collected from individuals.
Solving crimes by this means furthers the fundamental objectives of the
criminal justice system, helping to bring the guilty to justice and
protect the innocent, who might otherwise be wrongly suspected or
accused, through the prompt and certain identification of the actual
perpetrators. DNA analysis offers a critical complement to fingerprint
analysis in the many cases in which perpetrators of crimes leave no
recoverable fingerprints but leave biological residues at the crime
scene. Hence, there is a vast class of crimes that can be solved
through DNA matching that could not be solved in any comparable manner
(or could not be solved at all) if the biometric identification
information collected from individuals were limited to fingerprints.
In addition, as with taking fingerprints, collecting DNA samples at
the time of arrest or at another early stage in the criminal justice
process can prevent and deter subsequent criminal conduct--a benefit
that may be lost if law enforcement agencies wait until conviction to
collect DNA. Indeed, recognition of the added value of early DNA-sample
collection in solving and preventing murders, rapes, and other crimes
was a specific motivation for the enactment of the legislation that
this rule implements. See 151 Cong. Rec. S13756-58 (daily ed. Dec. 16,
2005) (remarks of Sen. Kyl, sponsor of the DNA Identification Act)
(explaining the value of including all arrestees in the DNA database).
Moreover, in relation to aliens who are illegally present in the United
States and detained pending removal, prompt DNA-sample collection could
be essential to the detection and solution of crimes they may have
committed or may commit in the United States. Since in most cases such
aliens are not prosecuted for their immigration offenses, there is
usually no later opportunity to collect a DNA sample premised on a
criminal conviction. Hence, the individual's detention pending removal
constitutes a unique opportunity to obtain this critical biometric
information--and by that means to solve and hold the individual
accountable for any crimes committed in the United States--before the
individual's removal from the United States places him or her beyond
the ready reach of the United States justice system.
As with fingerprints, the collection of DNA samples at or near the
time of arrest also can serve purposes relating directly to the arrest
and ensuing proceedings. For example, analysis and database matching of
a DNA sample collected from an arrestee may show that the arrestee's
DNA matches DNA found in crime scene evidence from a murder, rape, or
other serious crime. Such information helps authorities to assess
whether an individual may be released safely to the public pending
trial and to establish appropriate conditions for his release, or to
ensure proper security measures in the case of his continued detention.
The collection of a DNA sample may also provide an alternative means of
directly ascertaining or verifying an arrestee's identity, where
fingerprint records are unavailable, incomplete, or inconclusive.
Hence, conducted incident to arrest, DNA-sample collection offers a
legitimate means to obtain valuable information regarding the arrestee.
See Anderson v. Virginia, 650 S.E.2d 702, 706 (2006) (upholding a state
statute authorizing DNA-sample collection from arrestees based on ``the
legitimate interest of the government in knowing for an absolute
certainty the identity of the person arrested, in knowing whether he is
wanted elsewhere, and in ensuring his identification in the event he
flees prosecution'' (internal citation omitted)).
In sum, this rule implements new statutory authority that will
further the government's legitimate interest in proper identification
of persons ``lawfully confined to prison'' or ``arrested upon probable
cause.'' Jones, 962 F.2d at 306. By expanding CODIS pursuant to
statutory authority to include persons arrested, facing charges, or
convicted, and non-United States persons detained, this rule enhances
the accuracy and efficacy of the United States criminal justice system.
Practical Implementation
The rule allows DNA samples generally to be collected, along with a
subject's fingerprints, as part of the identification process. As
discussed above, the uses of DNA for law enforcement identification
purposes are similar in general character to the uses of fingerprints,
and these uses will be greatly enhanced as a practical matter if DNA is
collected regularly in addition to fingerprints. Law enforcement
agencies routinely collect fingerprints from individuals whom they
arrest. See Anderson, 650 S.E.2d at 706 (``Fingerprinting an arrested
suspect has long been considered a part of the routine booking
process.''); Kincade, 379 F.3d at 836 n.31 (``[E]veryday `booking'
procedures routinely require even the merely accused to provide
fingerprint identification, regardless of whether investigation of the
crime involves fingerprint evidence.''); Jones, 962 F.2d at 306 (noting
``universal
[[Page 21085]]
approbation of `booking' procedures * * * whether or not the proof of a
particular suspect's crime will involve the use of fingerprint
identification''). In addition, agencies that detain non-United States
persons (i.e., persons who are not U.S. citizens or lawful permanent
residents),\1\ such as the Department of Homeland Security (``DHS''),
often collect fingerprints from such individuals.
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\1\ Defining the scope of ``non-United States persons'' to mean
persons who are not U.S. citizens or lawful permanent residents
follows the common understanding of this term in other provisions of
law. See, e.g., 10 U.S.C. 2241 note, Pub. L. 108-7, div. M, Sec.
111(e)(2)-(3), Feb. 20, 2003, 117 Stat. 536 (defining ``non-United
States person'' as ``any person other than a United States person''
and ``United States person'' in the manner set forth in 50 U.S.C.
1801(i)); 50 U.S.C. 1801(i) (defining ``United States person,'' in
relation to individuals, as ``a citizen of the United States * * *
[or] an alien lawfully admitted for permanent residence'').
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Accordingly, the Attorney General is directing all agencies of the
United States that arrest or detain individuals or supervise
individuals facing charges to collect DNA samples from individuals who
are arrested, facing charges, or convicted, and from non-United States
persons who are detained under the authority of the United States,
pursuant to 42 U.S.C. 14135a(a)(1)(A), if the agency takes fingerprints
from such individuals.
The Department recognizes, however, that there may be some
circumstances in which agencies collect fingerprints but in which the
collection of DNA samples would not be warranted or feasible. For
example, in relation to non-arrestees, DHS will not be required to
collect DNA samples from aliens who are fingerprinted in processing for
lawful admission to the United States, or from aliens from whom DNA-
sample collection is otherwise not feasible because of operational
exigencies or resource limitations. If any agency believes that such
circumstances exist within its sphere of operations, the agency should
bring these circumstances to the attention of the Department, and
exceptions to the DNA-sample collection requirement may be allowed with
the approval of the Attorney General.
The Department also recognizes that some federal agencies
exercising law enforcement authority do not collect fingerprints
routinely from all individuals at a stage comparable to the arrest
phase. For example, military personnel involved in court martial
proceedings may not be fingerprinted because their fingerprints already
are on file. In addition, persons facing federal charges in the
District of Columbia may not be fingerprinted by any federal agency if
they are fingerprinted by the Metropolitan Police Department.
Nonetheless, the collection of DNA samples from such individuals serves
the same purposes, and is warranted to the same degree, as DNA-sample
collection from other federal arrestees and defendants. Therefore, if
directed by the Attorney General, certain agencies will be required to
collect DNA samples from individuals from whom they would not otherwise
collect fingerprints.
Agencies will be authorized to enter into agreements with other
federal agencies, with state and local governments, and with private
entities to carry out the required DNA-sample collection. Agencies that
arrest, detain, or supervise individuals will not be required to
duplicate DNA-sample collection if arrangements have been made to have
the collection done by another authorized agency or entity, but will be
responsible for ensuring that the DNA samples are collected and
submitted for analysis and entry into CODIS. For example, an agency
that arrests and fingerprints an individual and then transfers the
individual to another agency (such as the United States Marshals
Service) for detention cannot transfer responsibility for DNA-sample
collection to the detention agency unless that agency agrees to assume
responsibility for that function.
The Department of Justice understands that agencies will need to
revise their current procedures in order to implement these new DNA-
sample collection requirements. In addition, sample-collection kits
will need to be distributed to the agencies and agency personnel will
need to be trained in the proper collection techniques. Therefore,
although the Attorney General is directing all agencies to implement
DNA-sample collection as soon as feasible, agencies not able to collect
samples from all covered individuals immediately may phase in their
DNA-sample collection activities as resources allow. Agencies must
implement fully their collection programs by December 31, 2008.
However, if sample-collection kits authorized by the Attorney General
have not been made available to an agency in sufficient numbers to
allow collection of DNA samples from all covered individuals, the
Attorney General will grant an exception allowing the agency to limit
its DNA-sample collection program to the extent necessary.
The collection of DNA samples by agencies will be performed in
accordance with procedures and standards established by the Attorney
General.
Under the pre-existing DNA-sample collection program for federal
convicts, BOP and federal probation offices have taken blood samples
for this purpose, utilizing sample-collection kits provided by the FBI.
In earlier stages of the program, these samples generally were obtained
through venipuncture (blood drawn from the arm), but currently the FBI
provides kits that allow a blood sample to be collected by means of a
finger prick. However, the states that collect DNA samples from
arrestees typically do so by swabbing the inside of the person's mouth
(``buccal swab''), and many states use the same method to collect DNA
samples from convicts. Therefore, although even blood tests ``are a
commonplace in these days of periodic physical examinations and
experience with them teaches * * * that for most people the procedure
involves virtually no risk, trauma, or pain,'' Schmerber v. California,
384 U.S. 757, 771 (1966) (footnote omitted), the rule permits and
facilitates the use of buccal swabs to collect DNA samples.
Revisions to Existing Regulations
The proposed rule would revise a section of the existing
regulations, 28 CFR 28.12, to reflect the expansion of DNA-sample
collection to include persons arrested, facing charges, or convicted,
and non-United States persons detained under the authority of the
United States.
Section 28.12, in paragraph (a), is revised to require BOP to
collect DNA samples from all federal (including military) convicts in
its custody, as well as from individuals convicted of qualifying
District of Columbia offenses. The expansion of DNA-sample collection
to include all federal or military convicts in BOP custody, whether or
not they fall within the previously covered categories of persons
convicted of qualifying federal or military offenses, is based on the
Attorney General's authority under 42 U.S.C. 14135a(a)(1)(A). The
requirement for BOP to collect samples from individuals convicted of
qualifying District of Columbia offenses appears in 42 U.S.C.
14135b(a)(1).
A new paragraph (b) will be inserted in section 28.12 to implement
the new authority to collect DNA samples from federal arrestees,
defendants, and detainees. As discussed above, agencies of the United
States that arrest or detain individuals or supervise individuals
facing charges will be required to collect DNA samples if they collect
fingerprints from such individuals, subject to any limitations or
exceptions the Attorney General may approve. This paragraph
[[Page 21086]]
also specifies certain categories of aliens from whom DHS will not be
required to collect DNA samples, even if DHS collects fingerprints. A
new paragraph (c) is added that specifies a time frame for the
implementation of the expanded DNA-sample collection program.
Current paragraph (c) is redesignated as paragraph (d) and is
revised to reflect the expansion of the categories of individuals from
whom DNA samples will be collected and the agencies that conduct DNA-
sample collection. See 42 U.S.C. 14135a(a)(1)(A), 14135a(a)(4)(A). The
current version of that paragraph only refers to the collection of DNA
samples from persons convicted of qualifying offenses by BOP.
A new paragraph (e), replacing current paragraphs (b) and (d),
provides in part that agencies required to collect DNA samples under
the section may enter into agreements with other federal agencies, in
addition to units of state or local governments or private entities, to
carry out DNA-sample collection. The authority to make such
arrangements with state and local governments and with private entities
is explicit in 42 U.S.C. 14135a(a)(4)(B), and the Attorney General is
delegating this authority to other federal agencies pursuant to 42
U.S.C. 14135a(a)(1)(A). The latter provision (42 U.S.C.
14135a(a)(1)(A)) also sufficiently supports allowing such arrangements
between federal agencies, since it authorizes the Attorney General to
delegate DNA-sample collection to any Department of Justice component
and to any other federal agency that arrests or detains individuals or
supervises individuals facing charges.
The new paragraph (e) also identifies three circumstances in which
an agency need not collect a sample. The first is when arrangements
have been made for some other agency or entity to collect the sample
under that paragraph. The second is when CODIS already contains a DNA
profile for the individual, an exception expressly authorized by 42
U.S.C. 14135a(a)(3). The third is when waiver of DNA-sample collection
in favor of collection by another agency is authorized by 42 U.S.C.
14135a(a)(3) or 10 U.S.C. 1565(a)(2), statutes that provide that BOP
and the Department of Defense need not duplicate DNA-sample collection
with respect to military offenders.
Current paragraph (e) is redesignated as paragraph (f) and is
revised to require agencies subject to the rule to carry out DNA-sample
collection utilizing buccal-swab collection kits provided by the
Attorney General or other means authorized by the Attorney General. The
samples then must be sent to the FBI, or to another agency or entity
authorized by the Attorney General, for purposes of analysis and
indexing in CODIS. This paragraph also is amended to require taking of
another sample if the original sample is flawed and hence cannot be
analyzed to derive a DNA profile that satisfies the requirements for
entry into CODIS.
A new paragraph (g) is added to clarify that the authorization of
DNA-sample collection under this rule pursuant to the DNA Analysis
Backlog Elimination Act does not limit DNA-sample collection by an
agency pursuant to any other authority.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act, 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, analysis, and indexing by federal
agencies of DNA samples from certain individuals. See 5 U.S.C. 605(b).
Executive Order 12866--Regulatory Planning and Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, Sec. 1(b) (``The Principles of Regulation'').
The Department of Justice has determined that this rule is a
``significant regulatory action'' under Executive Order 12866, Sec.
3(f), and accordingly this rule has been reviewed by the Office of
Management and Budget.
The cost of buccal swab kits is expected to be similar to the cost
of finger-prick kits, which the FBI has provided in the existing
program for the collection of DNA samples from federal convicts.
Resulting per-sample analysis and storage costs also are expected to be
similar. A finger-prick DNA-sample collection kit costs approximately
$7.50, and it costs the FBI approximately $28.50 to analyze the DNA
sample and $1.50 to store the sample (for a total of $37.50). The
individuals from whom DNA-sample collection is authorized under the
proposed rule, not covered by previous law and practice, generally fall
into two broad categories: (1) Persons arrested for or charged with
(but not yet convicted of) federal crimes; and (2) illegal aliens
arrested or detained by DHS. According to the Department of Justice's
2004 Compendium of Federal Justice Statistics, over 140,000 suspects
were arrested for federal offenses in fiscal year 2004. See Bureau of
Justice Statistics, U.S. Dep't of Justice, Office of Justice Programs,
Compendium of Federal Justice Statistics, 2004, available at http://ojp.usdoj.gov/bjs/abstract/cfjs04.htm, at 1, 13, & 18. According to the
DHS 2006 Yearbook of Immigration Statistics, 1,206,457 aliens were
apprehended. Based on these figures, the Department estimates that on
an annual basis the number of individuals from whom DNA-sample
collection is authorized under this rule will be approximately 1.2
million. The actual number of individuals from whom DNA samples are
collected will be less to the extent that the Attorney General grants
exceptions or the Secretary of Homeland Security exercises his
discretion to limit DNA-sample collection in accordance with proposed
28 CFR 28.12(b), and to the extent that individuals entering the system
through arrest or detention previously have had DNA samples collected
and repetitive collection is not required.
Executive Order 13132--Federalism
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 in section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. See 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
[[Page 21087]]
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, Prisoners, Prisons, Probation
and parole, Records.
For the reasons stated in the preamble, the Department of Justice
proposes to amend 28 CFR 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; Public Law 106-546, 114 Stat. 2726; Public Law 107-
56, 115 Stat. 272; Public Law 108-405, 118 Stat. 2260; Public Law
109-162, 119 Stat. 2960; Pub. L. 109-248, 120 Stat. 587.
2. Section 28.12 is revised to read as follows:
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 Federal offense (including any offense under the Uniform Code
of Military Justice); or
(2) A qualifying District of Columbia offense, as determined under
section 4(d) of Public Law 106-546.
(b) Any agency of the United States that arrests or detains
individuals or supervises individuals facing charges shall collect DNA
samples from individuals who are arrested, facing charges, or
convicted, and from non-United States persons who are detained under
the authority of the United States. For purposes of this paragraph,
``non-United States persons'' means persons who are not United States
citizens and who are not lawfully admitted for permanent residence as
defined in 8 CFR 1.1(p). Unless otherwise directed by the Attorney
General, the collection of DNA samples under this paragraph may be
limited to individuals from whom the agency collects fingerprints and
may be subject to other limitations or exceptions approved by the
Attorney General. The DNA-sample collection requirements for the
Department of Homeland Security in relation to non-arrestees do not
include, except to the extent provided by the Secretary of Homeland
Security, collecting DNA samples from:
(1) Aliens lawfully in, or being processed for lawful admission to,
the United States;
(2) Aliens held at a port of entry during consideration of
admissibility and not subject to further detention or proceedings;
(3) Aliens held in connection with maritime interdiction; or
(4) Other aliens with respect to whom the Secretary of Homeland
Security, in consultation with the Attorney General, determines that
the collection of DNA samples is not feasible because of operational
exigencies or resource limitations.
(c) The DNA-sample collection requirements under this section shall
be implemented by each agency as soon as feasible, and in any event
shall be implemented fully by each agency no later than December 31,
2008.
(d) Each individual described in paragraph (a) or (b) of this
section shall cooperate in the collection of a DNA sample from that
individual. Agencies required to collect DNA samples under this section
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) or (b) who refuses to cooperate in the
collection of the sample.
(e) Agencies required to collect DNA samples under this section may
enter into agreements with other agencies described in paragraph (a) or
(b) of this section, with units of state or local governments, and with
private entities to carry out the collection of DNA samples. An agency
may, but need not, collect a DNA sample from an individual if--
(1) Another agency or entity has collected, or will collect, a DNA
sample from that individual pursuant to an agreement under this
paragraph;
(2) The Combined DNA Index System already contains a DNA analysis
with respect to that individual; or
(3) Waiver of DNA-sample collection in favor of collection by
another agency is authorized by 42 U.S.C. 14135a(a)(3) or 10 U.S.C.
1565(a)(2).
(f) Each agency required to collect DNA samples under this section
shall--
(1) Carry out DNA-sample collection utilizing sample-collection
kits provided or other means authorized by the Attorney General,
including approved methods of blood draws or buccal swabs;
(2) Furnish each DNA sample collected under this section to the
Federal Bureau of Investigation, or to another agency or entity as
authorized by the Attorney General, for purposes of analysis and entry
of the results of the analysis into the Combined DNA Index System; and
(3) Repeat DNA-sample collection from an individual who remains or
becomes again subject to the agency's jurisdiction or control if
informed that a sample collected from the individual does not satisfy
the requirements for analysis or for entry of the results of the
analysis into the Combined DNA Index System.
(g) The authorization of DNA-sample collection by this section
pursuant to Public Law 106-546 does not limit DNA-sample collection by
any agency pursuant to any other authority.
Dated: April 11, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-8339 Filed 4-17-08; 8:45 am]
BILLING CODE 4410-19-P