[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

[[Page 74937]]

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]
BILLING CODE 4410-19-P