[Federal Register Volume 73, Number 238 (Wednesday, December 10, 2008)]
[Rules and Regulations]
[Pages 74932-74943]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29248]
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DEPARTMENT OF JUSTICE
28 CFR Part 28
RIN 1105-AB09; 1105-AB10; 1105-AB24
[OAG Docket Nos. 108, 109, 119; AG Order No. 3023-2008]
DNA-Sample Collection and Biological Evidence Preservation in the
Federal Jurisdiction
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice by this publication is amending
regulations relating to DNA-sample collection in the federal
jurisdiction. This rule generally directs federal agencies 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, subject to certain limitations and
exceptions.
By this rule, the Department is also finalizing, without change,
two related interim rules concerning the scope of qualifying federal
offenses for purposes of DNA-sample collection and a requirement to
preserve biological evidence in federal criminal cases in which
defendants are under sentences of imprisonment.
DATES: Effective Date: This rule is effective January 9, 2009.
FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office
of Legal Policy, Main Justice Building, 950 Pennsylvania Ave., NW.,
Washington, DC 20530. Telephone: (202) 514-3273.
SUPPLEMENTARY INFORMATION:
This final rule finalizes a proposed rule, DNA-Sample Collection
Under the DNA Fingerprint Act of 2005 and the Adam Walsh Child
Protection and Safety Act of 2006 (OAG 119; RIN 1105-AB24) (published
April 18, 2008, at 73 FR 21083), which was designed to implement
amendments made by section 1004 of the DNA Fingerprint Act of 2005,
Public Law 109-162, and section 155 of the Adam Walsh Child Protection
and Safety Act of 2006, Public Law 109-248, to section 3 of the DNA
Analysis Backlog Elimination Act of 2000, Public Law 106-546. These
regulatory provisions direct 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 (``FBI''), or to other agencies or
entities as authorized by the Attorney General, for purposes of
analysis and entry into the Combined DNA Index System.
The final rule also finalizes two interim rules. The first interim
rule, DNA Sample Collection From Federal Offenders Under the Justice
for All Act of 2004 (OAG 108; RIN 1105-AB09) (published on January 31,
2005, at 70 FR 4763), implemented section 203(b) of the Justice for All
Act of 2004, Public Law 108-405. That statutory provision expanded the
class of offenses constituting qualifying federal offenses for purposes
of DNA-sample collection to include all felonies (as well as certain
misdemeanors), thereby permitting the collection of DNA samples from
all convicted federal felons.
The second interim rule, Preservation of Biological Evidence Under
18 U.S.C. 3600A (OAG 109; RIN 1105-AB10) (published on April 28, 2005
at 70 FR 21951), implemented 18 U.S.C. 3600A. That statute requires the
government to preserve biological evidence in federal criminal cases in
which defendants are under sentences of imprisonment, subject to
certain limitations and exceptions. Subsection (e) of the statute
requires the Attorney General to promulgate regulations to implement
and enforce the statute. The regulations issued for that purpose, which
are finalized by this final rule, explain and interpret the evidence
preservation requirement of 18 U.S.C. 3600A, and include provisions
concerning sanctions for violations of that requirement.
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 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.
This final rule addresses corresponding requirements and practices
in the federal jurisdiction. The DNA Analysis Backlog Elimination Act
of 2000 (the ``Act'') initially 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, Regulations Under the DNA Analysis Backlog Elimination
Act of 2000 (OAG 101I; RIN 1105-AA78), 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 June 2001 interim rule, Congress enacted
the USA PATRIOT Act, Public Law 107-56. Section 503 of that 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, DNA Sampling of
Federal Offenders Under the USA PATRIOT ACT of 2001 (OAG 105; RIN 1105-
AA78) 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, Regulations Under the DNA Analysis Backlog
Elimination Act of 2000 (OAG 101; RIN 1105-AA78), implementing this
authority. 68 FR 74855.
[[Page 74933]]
After publication of the December 2003 final rule, the DNA-sample
collection categories again were expanded by 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, DNA Sample Collection From Federal Offenders Under the Justice
for All Act of 2004 (OAG 108; RIN 1105-AB09), implementing this reform
on January 31, 2005. 70 FR 4763.
The Department is now finalizing without change the January 2005
interim rule implementing section 203(b) of the Justice for All Act.\1\
The regulatory provisions adopted by that interim rule will not have
much practical significance following the publication and effectiveness
of this final rule, because this final rule-- pursuant to subsequently
enacted legislative authority as discussed below--extends the
authorization of DNA-sample collection to substantially all persons
convicted of federal crimes (as well as certain non-convict classes).
Sample collection accordingly will no longer be limited to persons
convicted of offenses in the felony and specified misdemeanor
categories constituting ``qualifying'' federal offenses under the
Justice for All Act provisions. Nevertheless, it is appropriate to
retain the regulatory provisions determining specifically which federal
crimes constitute ``qualifying'' federal offenses, 28 CFR 28.1-.2,
because the statute contemplates such determination by the Attorney
General, and because those provisions continue to define the statutory
minimum for DNA-sample collection from persons convicted of federal
crimes, independent of the exercise of the Attorney General's authority
under later enactments to expand the DNA-sample collection categories
by regulation.
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\1\ The preamble explanation in the interim rule implementing
section 203(b) of the Justice for All Act, at 70 FR 4764-66,
continues to apply to its regulatory provisions as finalized by this
rule. However, the following errata should be noted: (1) the
reference to ``28.2(a)(1)'' in the final sentence of the second full
paragraph in the middle column on 70 FR 4765 should be to
``28.2(b)(1)''; (2) the references to ``(b)(3)(A)'' in the third and
fifth sentences of the first paragraph and the second sentence of
the second paragraph in the right column on 70 FR 4765 should be to
``(b)(3)(i)''; (3) the references to ``(b)(3)(B)'' in the first and
third sentences of the first full paragraph of the left column on 70
FR 4766 should be to ``(b)(3)(ii)''; (4) the reference to
``(b)(3)(I)'' in the third sentence of the second full paragraph of
the left column on 70 FR 4766 should be to ``(b)(3)(ix)''.
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In addition to extending the category of federal convicts subject
to DNA-sample collection to include all felons, the Justice for All Act
of 2004 enacted a post-conviction DNA testing remedy for the federal
jurisdiction, appearing in 18 U.S.C. 3600, and related biological
evidence preservation requirements for federal criminal cases,
appearing in 18 U.S.C. 3600A. Subsection (e) of 18 U.S.C. 3600A directs
the Attorney General to issue regulations to implement and enforce that
section. The Department carried out this statutory requirement by
publishing an interim rule, Preservation of Biological Evidence Under
18 U.S.C. 3600A (OAG 109; RIN 1105-AB10), on April 28, 2005. 70 FR
21951. The regulatory provisions adopted by that interim rule appear in
28 CFR 28.21-.28. This final rule is adopting those regulatory
provisions as final without change. The preamble to the April 2005
interim rule, appearing at 70 FR 21951-56, provides explanation
concerning the regulatory provisions that continues to apply to those
provisions as finalized by this rule.
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 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). The 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. The Department published a
proposed rule, DNA-Sample Collection Under the DNA Fingerprint Act of
2005 and the Adam Walsh Child Protection and Safety Act of 2006 (OAG
119; RIN 1105-AB24) (April 18, 2008, at 73 FR 21083), to implement the
DNA Fingerprint Act and Adam Walsh Act amendments and this rule also
finalizes that April 2008 proposed rule.
Purposes
The purposes of the portions of this rule that finalize pre-
existing interim rules are explained above and in the previously
published preambles to those interim rules. The part of this rule that
is new--expanding DNA-sample collection pursuant to the authority under
42 U.S.C. 14135a(a)(1)(A)--furthers important purposes reflecting the
emergence of DNA identification technology and its uses in the criminal
justice system.
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
(D.C. 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
[[Page 74934]]
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 Fingerprint 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 case he is detained. It may help to
detect violations of pretrial release conditions involving criminal
conduct whose perpetrator can be identified through DNA matching and to
deter such violations. 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 (Va. 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''
(citation and quotation 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 will
enhance 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.'' (citation and quotation
omitted)); Jones, 962 F.2d at 306 (noting ``universal 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),\2\
such as the Department of Homeland Security (``DHS''), often collect
fingerprints from such individuals.
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\2\ 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, Public Law 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 agencies take
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
[[Page 74935]]
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 by January 9, 2009, 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
As set forth in the proposed rule, this final rule revises 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) is 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 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
amended 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 refers only to the collection of DNA
samples by BOP from persons convicted of qualifying offenses.
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
amended 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
[[Page 74936]]
pursuant to the DNA Analysis Backlog Elimination Act does not limit
DNA-sample collection by an agency pursuant to any other authority.
Summary of Comments
The Department received comments from members of the public and
interested organizations concerning the two interim rules and the
proposed rule that are being finalized by this rule. The comments
received on the interim rule concerning biological evidence
preservation, published at 70 FR 21951, will be summarized first.
Following that, the comments received on the interim and proposed rules
concerning the expansion of DNA-sample collection in the federal
jurisdiction, published at 70 FR 4763 and 73 FR 21083, will be
summarized jointly because the number of comments received on the
earlier (interim) rule was relatively small and those comments
generally overlapped in substance with the comments received on the
later proposed rule.
Comments on the Interim Rule, Preservation of Biological Evidence Under
18 U.S.C. 3600A (OAG 109; RIN 1105-AB10)
This interim rule implemented the biological evidence preservation
requirements of 18 U.S.C. 3600A. See 70 FR 21951.
One commenter proposed that this rule should be changed to
stipulate that federal agencies cannot maintain or transfer biological
evidence to other federal agencies unless existing privacy protections
are maintained, and that access to biological material whose
preservation is required by 18 U.S.C. 3600A should be limited to
federal criminal justice agencies for purposes of post-conviction DNA
testing to determine if a convict is actually innocent or
identification of additional perpetrators where there is evidence of
the existence of such persons.
The rule has not been changed on the basis of this comment because
nothing in section 3600A or its implementing rule purports to repeal or
limit any existing privacy protections, because there is no reason to
discern any greater likelihood of misuse of biological evidence
retained pursuant to section 3600A's requirements than of misuse of
biological evidence that would be retained otherwise, because addition
of such restrictions is not necessary to carry out the statutory
directive to implement and enforce section 3600A, and because there is
no apparent legal authority for the Department to prescribe such rules
for federal agencies on a government-wide basis. Moreover, the policies
reflected in the changes proposed by the commenter are too restrictive,
because they could preclude using retained biological evidence for
legitimate purposes, such as to establish guilt in a new trial if the
offender's original conviction is reversed.
Another commenter expressed concern about the rule's provision in
28 CFR 28.22(b)(3) that section 3600A's biological evidence
preservation requirement ceases to apply when a defendant is released
under supervision following imprisonment. However, this limitation of
scope is explicit in the statute, which requires preservation of
biological evidence only in relation to a defendant who is ``under a
sentence of imprisonment.'' 18 U.S.C. 3600A(a); see 70 FR 21952
(explaining in preamble to interim rule that this statutory language
does not cover convicts released under supervision).
The same commenter also expressed concern about 28 CFR 28.23, which
provides that the evidence that must be retained is limited to sexual
assault forensic examination kits and semen, blood, saliva, hair, skin
tissue, or other identified biological material. The specific concern
expressed was that evidence not found to contain biological material
might be found to contain such material on reanalysis at some later
time. However, the requirement as stated in the regulation tracks the
statutory requirement in section 3600A(a). The statute does not require
retention of evidence in which biological material has not been
identified based on the speculative possibility that re-examination at
some future time might identify such material and the rule would not
accurately reflect the statute if it so provided.
Another commenter expressed support for the rule, stating that the
biological evidence preservation requirement would help to prove
without dispute the guilt or innocence of persons convicted of crimes,
and did not propose any changes.
Comments on the Interim Rule, DNA Sample Collection From Federal
Offenders Under the Justice for All Act of 2004 (OAG 108; RIN 1105-
AB09), and on the Proposed Rule, DNA-Sample Collection Under the DNA
Fingerprint Act of 2005 and the Adam Walsh Child Protection and Safety
Act of 2006 (OAG 119; RIN 1105-AB24)
Comments were received on the interim rule (published at 70 FR
4763) implementing the Justice for All Act's expansion of DNA-sample
collection from federal convicts to include all felons, and the
proposed rule (published at 73 FR 21083) expanding DNA-sample
collection in the federal jurisdiction to include certain non-convict
classes, including arrestees and non-U.S. person detainees as
specified. The ensuing discussion summarizes the principal issues that
were raised in comments received from various individuals or
organizations, followed by a summary of comments received from some
particular commenters that merit separate mention or discussion. The
main matters raised in the comments are as follows:
Scope of Sample Collection
Some commenters objected to the scope of DNA-sample collection
under the rule, such as by stating that DNA-sample collection should
not be extended beyond convicts to arrestees, or that DNA-sample
collection should be limited to individuals convicted of or implicated
in particularly serious or violent crimes. Other commenters agreed with
the approach of the rule, noting the public safety benefits of
collecting DNA samples on a broader basis.
The rule has not been changed on the basis of comments in this
category. Extending DNA-sample collection beyond convicts to other
persons implicated in illegal activity is the central reform of the DNA
Fingerprint Act that this rule implements. This extension generally
brings DNA-sample collection into conformity with the practice
regarding fingerprints, which are collected as part of routine booking
procedure in connection with arrests, and it offers critical benefits
that would be lost if DNA-sample collection were authorized only if and
when an arrested person is convicted. The matter is further discussed
above in connection with the purposes and practical implementation of
this rule.
Some of the comments on this point objected to the extension of
DNA-sample collection to arrestees on the ground that it would violate
the presumption of innocence or result in innocent persons being
included in the DNA database. This objection is essentially question-
begging, presupposing that DNA-sample collection from an individual is
not justifiable unless there has been an adjudication establishing the
individual's commission of a criminal offense. That is not the
rationale of DNA-sample collection under this rule and the legislative
enactments it implements. Rather, the rule reflects a judgment that the
implication of individuals in criminal activity to the extent of being
arrested sufficiently supports the taking of certain identification
information from such individuals. The same judgment is made
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without difficulty with respect to other forms of biometric
identification, including fingerprinting and photographing of
arrestees, and the corresponding judgment is sound with respect to DNA
identification information.
Some commenters believed that the rule's expansion of DNA-sample
collection would adversely affect innocent persons in a different way,
by supposedly increasing the risk of spurious matches resulting from an
enlarged DNA database. The premise of this objection is mistaken. The
technical design of the DNA identification system, including the number
and selection of the core loci used in DNA identification, is
sufficiently discriminating to foreclose a significant risk of
coincidental matching of DNA profiles between different individuals
that could result in an innocent person being mistakenly implicated in
a crime he did not commit. Increasing the number of DNA profiles in
CODIS accordingly does not create a risk to the innocent of the sort
that concerns these commenters, just as the increase in the number of
fingerprints in criminal justice databases does not create a
significant risk of innocent persons being implicated in crimes because
of coincidental congruences between their fingerprints and those of
offenders.
Some commenters objected that extending DNA-sample collection to
arrestees would disproportionally impact certain racial or ethnic
groups. However, the rule is race-neutral, providing for the collection
of DNA samples from arrestees on an evenhanded basis, regardless of
their racial or ethnic background. The demographic proportions in the
class of individuals from whom DNA samples are taken upon arrest will
parallel the representation of different demographic groups in the
general class of arrestees, just as the demographic proportions in the
class of individuals from whom fingerprints are taken upon arrest
parallels the representation of different demographic groups in the
general class of arrestees. The resulting proportions in either case
provide no reason to refrain from taking biometric information from
arrestees, whose use for law enforcement identification purposes will
help to protect individuals in all racial, ethnic, and other
demographic groups from criminal victimization.
As noted above, some commenters opined that DNA-sample collection
should be limited to cases involving individuals implicated in
particularly serious or violent crimes. The uses of DNA identification
include solving the most serious crimes, such as rape and murder, but
also legitimately include solving other types of crimes in which the
perpetrators leave identifiable biological residues at the crime scenes
from which DNA can be recovered. Moreover, even if only the objectives
of solving and preventing the most serious crimes were considered, the
scope of sample collection provided in this rule would be justified,
because the efficacy of the DNA identification system in solving such
crimes depends in large measure on casting a broader net in sample
collection. The issue of the scope of predicate offenses was before
Congress during the consideration of the enactments that this rule
implements and the legislative decision was against imposing any such
limitation:
[T]he Committee has made the salutary reforms * * * that expand
the collection and indexing of DNA samples and information generally
applicable, and has not confined the application of these reforms to
cases involving violent felonies or some other limited class of
offenses. The experience with DNA identification over the past
fifteen years has provided overwhelming evidence that the efficacy
of the DNA identification system in solving serious crimes depends
upon casting a broader DNA sample collection net to produce well-
populated DNA databases. For example, the DNA profile which solves a
rape through database matching very frequently was not collected
from the perpetrator based upon his prior conviction for a violent
crime, but rather based upon his commission of some property offense
that was not intrinsically violent. As a result of this experience,
a great majority of the States, as well as the Federal jurisdiction,
have adopted authorizations in recent years to collect DNA samples
from all convicted felons--and in some cases additional misdemeanant
categories as well--without limitation to violent offenses. * * *
The principle is equally applicable to the collection of DNA samples
from non-convicts, such as arrestees. By rejecting any limitation of
the proposed reforms to cases involving violent felonies or other
limited classes, the Committee has soundly maximized their value in
solving rapes, murders, and other serious crimes.
151 Cong. Rec. S13758 (daily ed. Dec. 16, 2005) (remarks of Sen. Kyl,
sponsor of the DNA Fingerprint Act, quoting the Justice Department's
statement of views).
Finally, some commenters objected that the rule would result in the
collection of DNA samples from persons arrested in the course of
demonstrations or protests. However, the rule involves no targeting of
anyone based on expressive activities or other constitutionally
protected conduct. It is a neutral provision for the collection of an
additional type of biometric information from arrestees, regardless of
the context in which they are arrested. Persons arrested for criminal
activities occurring in the context of demonstrations are subject to
the normal incidents of arrest, including fingerprinting and
photographing. There is no reason DNA-sample collection should be
treated differently.
Constitutionality
Some commenters alleged that DNA-sample collection as authorized by
the rule would violate the Fourth Amendment's prohibition of
unreasonable searches and seizures or other constitutional provisions.
Other commenters believed that the rule's requirements are consistent
with the Constitution.
The constitutionality of collecting DNA samples from convicts on a
categorical basis has been considered by numerous federal and state
courts, which have reached the substantially unanimous conclusion that
such collection is constitutional. With respect to the broader
collection of DNA samples from arrestees, defendants, and non-U.S.
person detainees as authorized by this rule, the Department of Justice
has carefully considered the issue and has concluded that the rule
fully comports with constitutional requirements. A number of the
considerations supporting this conclusion are discussed above in the
explanation of the purposes and practical implementation of this rule.
Privacy
Some commenters objected to the rule on the ground that DNA, in
contrast to fingerprints, can potentially be used to derive sensitive
information about individuals, such as information about genetic
disorders, dispositions to medical conditions, and possibly behavioral
predispositions. Some stated that this concern is aggravated by the
retention of the DNA samples themselves (buccal swabs or blood samples)
after the samples have been analyzed to derive the DNA profiles that
are entered into CODIS.
The rule has not been changed on the basis of these comments
because the concerns they raise were recognized, and these concerns
were fully considered and addressed, in the design of the DNA
identification system and the legal and administrative rules governing
the system's operation. As discussed above in connection with the
purposes of this rule, the DNA profiles retained in the system are
sanitized ``genetic fingerprints'' that can be used to identify an
individual uniquely, but do not disclose an individual's traits,
disorders, or dispositions. The rules
[[Page 74938]]
governing the operation of CODIS reflect its function as a tool for law
enforcement identification, and do not allow DNA information within the
scope of the system to be used to derive information concerning
sensitive genetic matters. See 42 U.S.C. 14132(b), 14133(b)-(c),
14135e.
The retention of DNA samples after DNA profiles have been derived
does not compromise these protective measures, because the DNA samples
are maintained in secure storage and are subject to essentially the
same use restrictions and privacy protections as DNA profiles. See 42
U.S.C. 14132(b)(3), 14133(c)(2), 14135e. Moreover, retention of the
samples has neither the purpose nor the effect of jeopardizing the
privacy of individuals from whom the samples have been collected, but
rather serves to protect valid individual and systemic interests. For
example, in cases in which a search against CODIS obtains an apparent
match between an individual's DNA profile in the system and the DNA of
the perpetrator of a crime derived from crime scene evidence, the
original sample taken from the individual is reanalyzed to ensure that
the profile in the system is actually that of the identified individual
before the match information is disclosed to investigators. This
measure, which functions as a backstop protection to ensure that
innocent persons are not mistakenly suspected or accused, could not be
carried out if the DNA samples were destroyed.
Finally, some commenters objected to the retention of the DNA
samples collected under the rule on the view that such retention could
lead to ``familial searching.'' By ``familial searching'' the
commenters apparently mean searches directed at finding DNA profiles in
a database that do not match to the DNA found in crime scene evidence,
but are sufficiently close (``partial matches'') to create a
probability that the perpetrator is a relative of an identifiable
individual in the DNA database. The current design of the DNA
identification system does not encompass searches of this type against
the national DNA index. Occasionally partial matches appear
incidentally as a result of ordinary searches seeking exact matches,
and in such cases the partial match information may be shared with
investigators, for use as an investigative lead.
This rule makes no change in policies or practices relating to
partial matches or searches therefor, nor does the concern raised by
these commenters have any obvious relationship to the matters addressed
in the rule. The question whether or to what extent partial match
information may be sought or used is independent of the question
whether DNA samples are to be collected only from convicts or from
persons in certain non-convict classes as well. It is also independent
of policy decisions regarding the retention or disposal of DNA samples.
The concern raised by these commenters concerning the possibility of
``familial searching'' accordingly provides no logical basis for
changing this rule.
Impact on Aliens
Some commenters objected to the rule insofar as it would result in
the collection of DNA samples from non-U.S. persons arrested or
detained for immigration law violations, and proposed various
limitations to curtail or exclude such sample collection. Other
commenters supported the application of the rule to collect DNA samples
in these circumstances.
One concern raised by commenters critical of the rule was that
collecting DNA samples from non-U.S. persons who are arrested or
detained would result in resentment in immigrant communities. However,
persons who are illegally present in the United States are subject to
arrest or detention and removal from the country. When such persons are
arrested or detained pending removal they are subject to the normal
incidents of being taken into custody, including fingerprinting. The
rule would only add the collection of another type of biometric
information to the process, normally by taking a buccal swab. Some
degree of resentment at the enforcement of the nation's immigration
laws may be an unavoidable consequence of the removal from the United
States of individuals illegally present, with whom others in immigrant
communities may identify based on common origin or background. A minor
addition to the associated booking procedure in connection with
removal, as provided in this rule, should not change the situation
materially. Moreover, even if some additional resentment concerning the
enforcement of the immigration laws were to result, it would not be
sufficient reason to refrain from implementing an advance in law
enforcement identification methods that offers important benefits in
increased safety against criminal victimization to all elements of the
national community, including immigrant communities.
Some comments critical of the rule's reforms suggested a general
exclusion of immigration violations as a basis for DNA-sample
collection under the rule. However, the statute (42 U.S.C.
14135a(a)(1)(A)) permits DNA-sample collection from arrestees with no
restriction, and authorizes DNA-sample collection from non-U.S. persons
more broadly, allowing DNA samples to be collected from such persons on
the basis of detention (even if they are not arrested). Generally
excluding aliens apprehended for immigration violations from DNA-sample
collection would create an arbitrary difference between such persons
and persons arrested for non-immigration federal offenses, and would
virtually nullify the broader statutory authorization to collect DNA
samples from non-U.S. person detainees, since immigration law
violations are the typical reason non-U.S. persons may be detained
(beyond ordinary arrest situations for other sorts of crimes). There is
no justification for such restriction in the statutory text, on the
basis of legislative intent, or on grounds of policy. See generally 151
Cong. Rec. S13757 (daily ed. Dec. 16, 2005) (remarks of Sen. Kyl)
(noting breadth of authorization to collect DNA samples in immigration
contexts under DNA Fingerprint Act).
Some commenters urged more specifically that collection of DNA
samples from non-U.S. persons based on detention should be stringently
limited, such as by limiting such collection to aliens held under final
orders of removal. For the reasons discussed below, the Department has
not made such a change in the final rule.
A ground offered by the commenters in support of such restriction
is that persons who are citizens or lawful permanent residents may be
mistakenly identified as non-U.S. persons and subjected to removal
proceedings. In rare cases, a person born abroad may be able to
establish derivative U.S. citizenship based upon the naturalization of
one or both of the person's parents while he or she was a minor. It is
also true that a small number of lawful permanent resident aliens are
placed in removal proceedings, for example, based on their having
committed certain types of crimes or on their engaging in such conduct
as alien smuggling or immigration fraud. Such aliens retain their
permanent resident status--and hence remain U.S. persons--until the
issuance of a final removal order. 8 CFR 1.1(p).
While the statute limits the authority to collect DNA samples from
detainees (not arrested, facing charges, or convicted) to non-U.S.
persons, it does not prescribe a particular quantum of proof or any
adjudicatory process to establish non-U.S. person status. Even the
proposal of some commenters to limit DNA-sample collection to aliens
[[Page 74939]]
held under final orders of removal could not definitively preclude all
mistakes, given the possibility that some such orders reflect errors of
law or fact. The Department of Homeland Security or any other agency
detaining persons for immigration violations will be able to consider
whether there is any available information tending to indicate that a
detainee is a lawful permanent resident or a U.S. citizen. While lawful
permanent residents who are detained pending removal proceedings are
not subject to DNA-sample collection based on non-U.S. person status
before their permanent resident status is terminated at the conclusion
of the removal proceedings, that is not a reason to defer collection of
DNA samples from the vast majority of detained aliens who are not
permanent resident aliens.
In interpreting the statutory authorization to collect DNA samples
from non-U.S. person detainees, it is most plausibly understood in
parity with the earlier part of the statutory provision, which permits
DNA-sample collection from arrestees. The purpose of the authorization
relating to arrestees is to extend DNA-sample collection beyond persons
whose commission of crimes has been established by the relevant
adjudicatory process (criminal conviction). Rather, the quantum of
information sufficient to warrant an arrest--probable cause that the
individual has committed a crime--is deemed a sufficient basis for the
collection of certain biometric information, including DNA. Similarly,
under the later portion of the statutory provision concerning non-U.S.
person detainees, the quantum of information sufficient to warrant the
detention of an individual based on indicia of the individual's being a
non-U.S. person subject to removal is a sufficient basis for the
collection of such information.
Considering the matter at a practical level, the largest class of
persons who may be affected by the rule are aliens apprehended near the
southwest border who have entered the country illegally. In most cases
such aliens do not dispute their status or the illegality of their
presence in the United States, and accept prompt repatriation following
brief detention without further proceedings. Hence, radically limiting
the application of the statute's DNA-sample collection authorization
for non-U.S. person detainees--for example, limiting it to aliens held
under final orders of removal--would exclude most individuals to whom
it was meant to apply.
A further relevant consideration is that aliens who are apprehended
following illegal entry have likely committed crimes under the
immigration laws for which they could be arrested. See, e.g., 8 U.S.C.
1325(a), 1326. Most accept prompt repatriation and are not prosecuted,
but a substantial number are prosecuted. Whether prosecution will be
pursued is a matter of executive discretion, and the decision about
that may not occur until some time after the alien's apprehension.
Hence, whether an alien in such circumstances is regarded as an
arrestee or a (non-arrested) detainee may be a matter of
characterization, and the aptness of one description or the other may
shift over time, depending on the disposition or decision of
prosecutors concerning the handling of the case. There would be little
sense in an understanding of the statute as limiting DNA-sample
collection from individuals as non-U.S. person detainees to
circumstances in which their non-U.S. person status has, for example,
been finally established through an immigration adjudication, where the
statute would clearly allow DNA-sample collection from the same
individuals under far less stringent requirements as persons arrested
on probable cause for immigration law violations.
Finally, some commenters criticized the rule as requiring the
collection of DNA samples from lawful immigrants seeking admission to
the country. This comment is simply wrong. The rule provides an express
exception to the collection requirement under section 28.12(b)(1) for
``[a]liens lawfully in, or being processed for lawful admission to, the
United States.''
Backlogs
Some commenters expressed the concern that the rule would increase
backlogs of unanalyzed DNA samples. However, the Department of Justice
is fully aware of the increased demand for DNA analysis that will
result, and the Department has requested additional resources for the
FBI Laboratory to increase analysis capacity in order to address the
larger volume of samples that will be collected and will need to be
analyzed. Moreover, even if backlogs are temporarily increased, the
collected samples will be stored until they can be analyzed, and the
DNA profiles ultimately derived thereby will be useful in solving
crimes whenever they become available and are entered into CODIS. The
concern expressed by some of these commenters that having a larger
number of stored samples could hinder criminal investigations is also
not well-founded. The existence of samples in storage does not impair
the operation of CODIS with respect to DNA profiles that have already
been entered into the system. Analysis of DNA samples collected from
individuals can be prioritized in cases in which the circumstances
suggest a particular probability that matches to DNA in crime scene
evidence from other offenses will result, regardless of the number of
stored samples awaiting analysis.
Use of Contractors
Some commenters asserted that the rule contemplates federal
agencies contracting with third parties to collect and store DNA
samples, which they believed would lead to abuse. The reference may be
to section 28.12(e), which states that agencies required to collect DNA
samples under the rule may enter into agreements with other federal
agencies, ``with units of state or local governments, and with private
entities to carry out the collection of DNA samples.'' However, the
quoted language in the rule tracks statutory language that authorizes
such agreements. See 42 U.S.C. 14135a(a)(4)(B) (authorizing agencies to
``enter into agreements with units of State or local government or with
private entities to provide for the collection of [DNA] samples''). For
example, under this language, federal probation offices have been
permitted to contract with medical personnel to carry out DNA-sample
collection, in the form of blood-sample collection, from offenders
under their supervision. The use of contract personnel does not waive
or modify the privacy and security requirements of the DNA
identification system and the authorization for this purpose in the
rule contemplates nothing essentially different from what has
previously been allowed (and continues to be allowed) under the
statutory provisions. There is no basis for some commenters' apparent
perception of this aspect of the rule as a novel measure entailing some
grave risk of abuse.
Likewise, there is no force to an objection raised by some
commenters that the rule does not prohibit outsourcing of DNA samples
collected under the rule to private laboratories for analysis. The
Department of Justice is moving to increase the FBI Laboratory's
capacity for DNA analysis to address the expected increase in DNA
analysis workload resulting from this rule. If there is also use of
private laboratories to carry out some of the required DNA analysis, it
is no cause for concern. Outsourcing of DNA analysis to private
laboratories has widely been used for many years in analyzing DNA
samples collected from individuals, including as
[[Page 74940]]
part of the federal DNA analysis backlog elimination funding program
administered by the Department's National Institute of Justice. Where
private laboratories carry out such analysis, they are subject to the
stringent quality assurance and proficiency requirements and standards
that laboratories deriving DNA profiles for entry into CODIS must meet,
and to the privacy and security requirements associated with CODIS.
Nothing in this rule would modify or weaken these protections, if it
were decided to outsource some DNA samples collected under the rule for
analysis by private laboratories.
Expungement
Some commenters stated that the rule should be modified to provide
for expungement of DNA information in certain circumstances, such as
cases in which an arrestee from whom a DNA sample was collected is
acquitted. The rule has not been modified to incorporate expungement
provisions because expungement is provided for and governed by
statutory provisions appearing in 42 U.S.C. 14132(d). Under the
applicable statutory expungement procedure, the FBI expunges from the
national DNA index the DNA information of a person included in the
index on the basis of conviction for a qualifying federal offense if
the FBI receives a certified copy of a final court order establishing
that the conviction has been overturned. Likewise, the FBI expunges the
DNA information of a person included in the index on the basis of an
arrest under federal authority if it receives a certified copy of a
final court order establishing that the charge has been dismissed or
has resulted in an acquittal or that no charge was filed within the
applicable time period. See 42 U.S.C. 14132(d)(1)(A). By December 31,
2008, the FBI will publish instructions on its Web site describing the
process by which an individual may seek expungement of his or her DNA
records in accordance with 42 U.S.C. 14132(d)(1)(A).
Use of Reasonably Necessary Means
Some commenters objected to the authorization in section 28.12(d)
for agencies to use reasonably necessary means to collect DNA samples
from individuals covered by the rule who refuse to cooperate in the
collection of the sample. This regulatory provision is based on the
statutory authorization to use such reasonable means appearing in 42
U.S.C. 14135a(a)(4)(A). The comments on this point did not provide
persuasive reasons to refrain from paralleling the statutory
authorization in the regulation.
Granting of Exceptions
Some comments criticized the rule as not sufficiently specifying
the circumstances in which the Attorney General will allow exceptions
to the rule's DNA-sample collection requirement. The rule has not been
changed on this point. The preamble discussion in this rule above
adequately explains why some authority to allow exceptions is
necessary, and the types of grounds (such as operational exigencies or
resource constraints) on which exceptions may be permitted.
Comments From Senator Jon Kyl
Senator Jon Kyl, the legislative author of the DNA Fingerprint Act
and the related Adam Walsh Act amendment, submitted comments stating
that the rule properly implements the authority created by these laws.
He stated that he did not recommend any change in the regulations
because they are consistent with the clear meaning and spirit of the
statutory authorization.
Senator Kyl responded in his comments to the privacy concerns
raised by other commenters. This included providing detailed
explanation why it would be practically impossible to divert the
relevant DNA analysis laboratory processes for preparation of CODIS DNA
profiles so as to extract and misuse genetically sensitive information.
Finally, Senator Kyl responded to and rejected a range of comments and
proposed changes in the rule that had been submitted by other
commenters who were critical of the rule.
Comments From the Administrative Office of the United States Courts
Comments were submitted by the Administrative Office of the United
States Courts asking that the Department consider modifying the rule to
specify that covered ``agenc[ies] of the United States'' that will be
required to collect DNA samples include only executive branch agencies.
The rule has not been so changed because the suggested change would be
an incorrect reading of the law. The federal probation offices have
been responsible for collecting DNA samples from convicts under their
supervision, as provided in 42 U.S.C. 14135a(a)(2). Against this
background, it is not plausible that they were meant to play no
corresponding role under the enactment expanding DNA-sample collection
in the federal jurisdiction to certain non-convict classes. The laws
relating to pretrial release in federal cases were amended by the DNA
Fingerprint Act to make it a mandatory condition of pretrial release
that a defendant cooperate in required DNA-sample collection. See 18
U.S.C. 3142(b), (c)(1)(A). This heightens the implausibility of an
assumption that the federal probation and pretrial services offices
were not meant to have any responsibility with respect to DNA-sample
collection, which is a mandatory pretrial release condition. The
expanded DNA-sample collection authorization in 42 U.S.C.
14135a(a)(1)(A) states that the Attorney General may ``authorize and
direct any other agency of the United States that * * * supervises
individuals facing charges'' to carry out the DNA-sample collection
function. There is no plausibility to a reading of this statutory
language as intended to exclude almost all of the federal agencies (the
federal probation and pretrial services offices) that supervise
individuals facing federal charges.
The comments of the Administrative Office of the U.S. Courts also
suggested that the rule be modified to include procedures by which
probation officers will be notified when a DNA sample has been
collected by some other agency, so as to avoid duplicative sample
collection. Other commenters in some instances similarly suggested that
the rule specify procedures or mechanisms to avoid duplicative
collection by multiple agencies. The Department of Justice intends to
establish such mechanisms, but their design and operation can most
readily be worked out in the implementation of this rule in cooperation
with the affected agencies. Consequently, the rule has not been
modified on this point.
Comments From the National Congress of American Indians
Comments received from the National Congress of American Indians
expressed concern about the lack of consultation with tribal officials
regarding the proposed rule. The comments noted that federal
jurisdiction exists to prosecute major crimes committed in Indian
country, and recommended that the applicability of the rule be
contingent on the assent of particular tribes. Various other
restrictions were also recommended similar to those proposed by other
commenters critical of the rule, such as limiting DNA-sample collection
to convicts, and requiring the destruction of DNA samples after the DNA
profiles have been derived and entered into CODIS. The underlying
concern reflected in these comments was that collected samples would be
misused to derive sensitive genetic information and not properly
limited to legitimate law enforcement purposes.
[[Page 74941]]
The Department of Justice is aware of the concerns regarding the
obtaining of sensitive genetic information concerning Native Americans
and misuse of such information. But these concerns are misplaced in
relation to this rule, under which collected DNA samples and resulting
DNA profiles are subject to the stringent privacy protections of CODIS,
reinforced and secured through numerous design elements and governing
laws and rules that limit the use of DNA information to proper law
enforcement identification purposes. These matters are discussed and
documented at length in earlier portions of this preamble and summary.
Hence, limiting the application of the rule in relation to crimes
committed in Indian country or through other restrictions would not
further any purpose of protecting the privacy of Native Americans.
Rather, it would only serve to limit the strength and efficacy of the
DNA identification system in protecting all elements of the American
public, including Native American communities, from rape, murder, and
other crimes.
Comments From the New Hampshire Department of Safety
Comments submitted by the New Hampshire Department of Safety urged
that the rule be modified to create an exception to DNA-sample
collection based on detention for minor, nonviolent offenses, or that
resulting DNA profiles in such cases not be entered into CODIS until
after conviction. The comments stated that members of the New Hampshire
Legislature had advised that there would be a move to prohibit New
Hampshire from participating in CODIS if the rule were not restricted.
The preamble of this rule above explains the basis for the
conclusion that collecting DNA samples from federal arrestees on the
same footing as fingerprints is the approach most conducive to public
safety and is not overly broad. Moreover, this rule affects only DNA-
sample collection in the federal jurisdiction. It imposes nothing on
New Hampshire or other states, which remain free to set their own DNA-
sample collection policies. Withdrawal from CODIS by a state would harm
its own people, denying them the benefits of the nationwide DNA
identification system that has come to play a critical role in
protecting the public from crime.
Comments From a Canadian Member of Parliament
A member of the Canadian Parliament submitted comments expressing
concern about the rule, in relation to possible DNA-sample collection
from Canadians lawfully visiting the United States. The comments appear
to reflect misunderstandings concerning the provisions and intent of
the rule. One limitation of the rule is that it generally equates the
requirements for DNA-sample collection to those for fingerprinting.
Hence, to the extent that Canadian visitors to the United States are
exempt from fingerprinting, they would also be exempt from the DNA-
sample collection requirement prescribed by the rule. More basically,
the rule has an express exemption for aliens lawfully in, or being
processed for lawful admission to, the United States. The rule's
objectives in relation to non-U.S. persons generally concern those
implicated in illegal activity (including immigration violations), and
will not affect lawful Canadian visitors.
Other Comments
Beyond the recurrent and major comments discussed above, no other
comments received on the rule provided any persuasive reason to
reconsider or depart from the rule text as previously proposed. Hence,
the Department of Justice has carefully considered all comments and has
concluded that the rule should be finalized without modification.
Regulatory Certifications
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 of DNA
samples from certain individuals, and the preservation of biological
evidence, by federal agencies. 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. With respect to the expanded collection of DNA
samples from certain individuals under this regulation, 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). When a match occurs, the FBI
reanalyzes a DNA sample to confirm the match. The cost of such an
analysis is approximately $37 per sample. The cost to the FBI to
expunge a DNA record is approximately $100 per sample.
The individuals from whom DNA-sample collection is authorized under
this 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) non-U.S. persons
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. Id. at 91. 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 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.
The Department estimates that more than 61,000 crimes have been
solved or their investigation assisted by the use of DNA collected from
individuals since the inception of CODIS. In addition, there have been
over 13,000 forensic matches of DNA. Forensic matches occur when DNA
evidence from one crime scene is matched to DNA evidence from another
crime scene. As of August 2008, more than 6.2 million offenders and
233,000 forensic profiles are contained in the database.
[[Page 74942]]
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 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.
0
Accordingly, for the reasons stated in the interim rules published at
70 FR 4763 on January 31, 2005, and at 70 FR 21951 on April 28, 2005,
and for the reasons stated in the preamble to this rule, the amendments
set forth in those interim rules are adopted as final without change;
and for the reasons stated in the preamble, part 28 of 28 CFR Chapter I
is further amended to read as follows:
PART 28--DNA IDENTIFICATION SYSTEM
0
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; 18 U.S.C. 3600A; 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; Public Law 109-248, 120
Stat. 587.
0
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 by January 9, 2009.
(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) of this section 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.
[[Page 74943]]
Dated: December 4, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-29248 Filed 12-9-08; 8:45 am]
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