Preservation of Biological Evidence Under 18 U.S.C. 3600A, 21951-21959 [05-8556]

Agencies

• Department of Justice

[Federal Register Volume 70, Number 81 (Thursday, April 28, 2005)]
[Rules and Regulations]
[Pages 21951-21959]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-8556]


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DEPARTMENT OF JUSTICE

28 CFR Part 28

[Docket No. OAG 109; A.G. Order No. 2762-2005]
RIN 1105-AB10


Preservation of Biological Evidence Under 18 U.S.C. 3600A

AGENCY: Department of Justice.

ACTION: Interim rule with request for comments.

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SUMMARY: The Department of Justice is publishing this interim rule to 
implement 18 U.S.C. 3600A. That statute requires the Federal 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. This rule adds a new subpart C to 28 CFR part 28 to effect the 
required implementation and enforcement of 18 U.S.C. 3600A. The new 
provisions added by this rule explain and interpret the evidence 
preservation requirement of 18 U.S.C. 3600A, and include provisions 
concerning sanctions for violations of that requirement.

DATES: Effective Date: This interim rule is effective April 28, 2005.
    Comment Date: Comments must be received by June 27, 2005.

ADDRESSES: Comments may be mailed to David J. Karp, Senior Counsel, 
Office of Legal Policy, Room 4509, Main Justice Building, 950 
Pennsylvania Avenue, NW., Washington, DC 20530. To ensure proper 
handling, please reference OAG Docket No. 109 on your correspondence. 
You may view an electronic version of this interim rule at https://
www.regulations.gov. You may also comment via the Internet to the 
Justice Department's Office of Legal Policy (OLP) at olpregs@usdoj.gov 
or by using the www.regulations.gov comment form for this regulation. 
When submitting comments electronically you must include OAG Docket No. 
109 in the subject box.

SUPPLEMENTARY INFORMATION: Public Law 108-405, the Justice for All Act 
of 2004, was enacted on October 30, 2004. Section 411 of that Act added 
two sections to title 18 of the United States Code. One of these, 18 
U.S.C. 3600 (hereafter, ``section 3600''), is a new postconviction 
remedy by means of which persons convicted and imprisoned for Federal 
offenses may seek DNA testing in support of claims that they are 
actually innocent of the crimes for which they were convicted. The Act 
also added 18 U.S.C. 3600A (hereafter, ``section 3600A''), which 
requires the Government to preserve biological evidence--defined to 
mean ``sexual assault forensic examination kit[s]'' and ``semen, blood, 
saliva, hair, skin tissue, or other identified biological material''--
that was secured in the investigation or prosecution of a Federal 
offense for which a defendant is under a sentence of imprisonment, 
subject to certain limitations and exceptions. The general purpose of 
section 3600A is to preserve biological evidence for possible DNA 
testing under section 3600. If a court orders, pursuant to section 
3600, DNA testing of biological evidence that has been preserved in the 
case, the test results may shed light on the defendant's guilt or 
innocence of the offense by including or excluding the defendant as the 
source of the biological material.
    Subsection (e) of section 3600A directs the Attorney General to 
promulgate within 180 days of the date of enactment (i.e., October 30, 
2004) regulations to implement and enforce section 3600A, including 
appropriate disciplinary sanctions to ensure compliance by employees. 
This interim rule carries out that direction. It adds a new Subpart C, 
entitled ``Preservation of Biological Evidence,'' to 28 CFR Part 28; 
the general subject of 28 CFR Part 28 is ``DNA Identification System.'' 
The new Subpart C comprises Sec. Sec.  28.21 through 28.28.
    The first seven sections of the new Subpart, Sec. Sec.  28.21 
through 28.27, primarily explain and interpret the biological evidence 
preservation requirement of section 3600A. This will ensure that 
Federal agencies clearly understand their obligations under section 
3600A, including both the positive extent of the requirement to 
preserve biological evidence and the limitations on and exceptions to 
that requirement under the statute. The final section of the new 
Subpart, Sec.  28.28, concerns sanctions for violations. The provisions 
of the regulations are as follows:

Section 28.21

    Section 28.21 notes the biological evidence preservation 
requirement of section 3600A, its general purpose to preserve such 
evidence for possible DNA testing under 18 U.S.C. 3600, and the 
requirement of section 3600A(e) to promulgate regulations to implement 
and enforce section 3600A.

Section 28.22

    Section 28.22 provides explanation concerning the applicability, 
duration, and meaning of the biological evidence preservation 
requirement, construing subsection (a) of section 3600A.

Paragraph (a)

    Paragraph (a) in Sec.  28.22 notes that the biological evidence 
preservation requirement applies to evidence retained in cases 
predating the enactment of section 3600A or the promulgation of this 
rule, as well as to evidence secured in pending and future cases. This 
reflects the effective date and applicability provision in section 411 
of the Justice for All Act, which states that the provisions enacted by 
that section (including 18 U.S.C. 3600A) ``shall apply with respect to 
any offense committed, and to any judgment of

[[Page 21952]]

conviction entered, before, on, or after [the] date of enactment.'' 
Public Law 108-405, section 411(c).

Paragraph (b)

    Paragraph (b) in Sec.  28.22 interprets and specifies a number of 
consequences of the language in section 3600A that requires the 
preservation of biological evidence secured in the investigation or 
prosecution of a Federal offense ``if a defendant is under a sentence 
of imprisonment for such offense.'' 18 U.S.C. 3600A(a). The general 
consequence of this limitation is that section 3600A's requirement to 
preserve biological evidence begins to apply when a defendant is 
sentenced to imprisonment for the offense in whose investigation or 
prosecution the evidence was secured, and ceases to apply at the end of 
such imprisonment.
    In some cases the prison terms served by defendants are extended 
because of convictions for additional offenses, beyond those involving 
the biological evidence whose preservation is required by section 
3600A. This does not change the principle that the biological evidence 
preservation period under section 3600A(a) continues until the end of 
imprisonment. For example, consider a case in which a defendant is 
sentenced to 10 years of imprisonment for a rape in violation of 18 
U.S.C. 2241, and the biological evidence is a sexual assault forensic 
examination kit taken from the victim of that rape. Suppose further 
that, before the prison term for the rape is completed, the defendant 
is convicted and sentenced to a consecutive 10 years of imprisonment 
for some other offense--e.g., a commercial fraud--that was separately 
investigated and prosecuted and is unrelated to the rape and the 
biological evidence. The defendant would then not be released on 
completion of the 10 years of incarceration that would have resulted 
from the rape conviction alone, but rather is subject to an aggregate 
prison term of 20 years.
    In such a case, the 10-year prison term the defendant received for 
the rape is merged into the aggregate prison term of 20 years under 18 
U.S.C. 3584, and the defendant is deemed to be under a sentence of 
imprisonment for the rape for purposes of section 3600A's biological 
evidence preservation requirement until he is released following 
imprisonment, though that will not occur until a longer period than 10 
years has elapsed. Regardless of any effect on the duration of 
imprisonment resulting from conviction for multiple offenses, the rule 
is that the biological evidence preservation period under section 
3600A(a) begins when a defendant is sentenced to imprisonment for an 
offense in whose investigation or prosecution the evidence was secured, 
and ends on release of the defendant or defendants following 
imprisonment.
    Subparagraphs (1) and (2) of paragraph (b) notes two specific 
consequences of the ``under a sentence of imprisonment'' limitation of 
section 3600A--inapplicability of the biological evidence preservation 
requirement of section 3600A at the investigative stage of criminal 
cases, preceding the conviction and sentencing to imprisonment of a 
defendant, and inapplicability of the biological evidence preservation 
requirement to cases in which the defendants receive only non-
incarcerative sentences, since in these circumstances no defendant is 
``under a sentence of imprisonment'' for the offense.
    Paragraph (b)(3) of the regulation explains that as a further 
consequence of the ``under a sentence of imprisonment'' language, the 
biological evidence preservation requirement of section 3600A ceases to 
apply once the defendant or defendants are released following 
imprisonment, either unconditionally or under supervision. In other 
words, the biological evidence preservation requirement does not apply 
even if a defendant remains on supervised release or parole following 
his release. The legislative history of section 3600A confirms that the 
``under a sentence of imprisonment'' language in the statute refers to 
circumstances in which a defendant remains incarcerated and that the 
biological evidence retention requirement applies only in such 
circumstances. See H. Rep. No. 711, 108th Cong., 2d Sess. 2 (2004) 
(section 3600A requires preservation of biological evidence ``while the 
defendant remains incarcerated''); id. at 14 (``while a defendant 
remains incarcerated''); H. Rep. No. 321, 108th Cong., 1st Sess. 19 
(2003) (``while the defendant remains incarcerated''); id. at 29 
(``while a defendant remains incarcerated''); 149 Cong. Rec. H10357 
(daily ed. Nov. 5, 2003) (statement of Rep. Sensenbrenner) (``where the 
defendant remains incarcerated''); 149 Cong. Rec. S12296 (daily ed. 
Oct. 1, 2003) (section-by-section analysis inserted in record by Sen. 
Hatch) (``while a defendant remains incarcerated''). Release on parole, 
as well as release on supervised release, terminates the requirement to 
preserve biological evidence under section 3600A(a) in light of the 
clear legislative intent to have that requirement apply only while a 
defendant remains incarcerated, even though a parolee may validly be 
regarded as still in custody under the sentence imposed by the court 
for other purposes.
    Federal agencies will be able to determine whether and when a 
defendant has been released following imprisonment by asking the 
Federal Bureau of Prisons. Several federal law enforcement agencies 
maintain Memorandums of Agreement with the Bureau of Prisons whereby 
they may directly access computer records of federal inmates to 
determine their incarceration status. Absent such a relationship, 
anyone may use the Bureau of Prisons' inmate locator service, which is 
available on its internet site at: https://www.bop.gov/inmate_locator/
index.jsp. As a last resort, Bureau of Prisons staff in the Central 
Office's inmate locator center may be contacted at 202-307-3126.
    In general, the Bureau of Prisons determines an imprisoned 
defendant's release date by applying the prison term specified by the 
court in sentencing, subject to any good conduct credit awarded under 
18 U.S.C. 3624(b) and any credit for prior custody under 18 U.S.C. 
3585(b). See 18 U.S.C. 3585, 3624(a). Subsequent modification of a 
sentence of imprisonment by the court, or reduction of the period of 
custody by the Bureau of Prisons as authorized by provisions relating 
to successful completion of drug treatment or shock incarceration 
programs (18 U.S.C. 3621(e)(2)(B), 4046(c)), are also given effect by 
the Bureau of Prisons in determining the time of release. However, 
subsequent occurrences that do not terminate the Bureau of Prisons' 
custody over a convicted defendant--such as temporary release under 18 
U.S.C. 3622 or placement in a halfway house under 18 U.S.C. 3624(c)--do 
not constitute release following imprisonment in the relevant sense and 
do not terminate the requirement to preserve biological evidence under 
section 3600A, since the defendant remains under a sentence of 
imprisonment for the offense in these circumstances. In contrast to a 
prisoner who is released at the conclusion of imprisonment, either 
unconditionally or under supervision, a prisoner furloughed under 18 
U.S.C. 3622 remains in the custody of the Bureau of Prisons, and a 
prisoner given the benefit of 18 U.S.C. 3624(c) likewise is only 
afforded placement in a different type of confinement near the end of 
his prison term while remaining in the custody of the Bureau of 
Prisons.
    Paragraph (b)(4) of the regulation explains that the ``under a 
sentence of imprisonment for such offense'' language in section 
3600A(a) refers to imprisonment pursuant to the sentence

[[Page 21953]]

imposed upon conviction, and not to imprisonment that occurs later on 
because of the revocation of probation, supervised release, or parole. 
Thus, section 3600A does not require the preservation of biological 
evidence when a probationer, supervised releasee, or parolee is 
imprisoned on revocation of release. Considerations that support this 
understanding of the statute include the following:
    While imprisonment following a revocation of release is legally 
part of the penalty for the offense of conviction, see, e.g., Johnson 
v. United States, 529 U.S. 694, 700-01 (2000); United States v. Huerta-
Moran, 352 F.3d 766, 770 (2d Cir. 2003), it is a distinct question what 
Congress intended in section 3600A(a) in stating that biological 
evidence preservation is required ``if a defendant is under a sentence 
of imprisonment for such offense.'' In ascertaining the legislative 
intent, one relevant consideration is that the statute clearly does not 
require the preservation of biological evidence in a case in which the 
defendant is only sentenced to probation and remains out on probation. 
This limitation is in tension with an assumption that 3600A was meant 
to apply for the benefit of probationers who later violate release 
conditions and are imprisoned following revocation, because there is no 
limitation under the statute on disposing of the evidence prior to the 
time when such a revocation occurs. Hence, the evidence could no longer 
exist by the time the probationer was imprisoned, making any intended 
benefit under the statute illusory. Likewise, section 3600A's 
inapplicability following the release of an initially incarcerated 
convict--see Sec.  28.22(b)(3) in the regulations--would arguably be 
incongruous had Congress intended to benefit supervised releasees or 
parolees who violate release conditions and have their release revoked, 
because there is no inhibition under the statute on destroying the 
evidence prior to such revocation during the period of postrelease 
supervision.
    The legislative history of title IV of the Justice for All Act 
(i.e., the ``Innocence Protection Act'') sheds additional light on the 
legislative intent. The corresponding provision in the version of the 
Innocence Protection Act that the Senate Judiciary Committee reported 
in the 107th Congress used broader language--``subject to 
incarceration''--that could readily have been interpreted to require 
biological evidence preservation for the benefit of persons released on 
probation, supervised release, or parole in light of the possibility of 
later incarceration based on violations of release conditions. See S. 
486, Rep. No. 315, 107th Cong., 2d Sess. (2002) (proposed 28 U.S.C. 
2292(a) in section 101) (evidence that could be subjected to DNA 
testing must be preserved ``for not less than the period of time that 
any person remains subject to incarceration in connection with the 
investigation or prosecution''). Congress rejected this broader 
language in formulating the provisions that were ultimately enacted by 
the Justice for All Act, and instead adopted the narrower language that 
appears in section 3600A. See 18 U.S.C. 3600A(a) (biological evidence 
secured in investigation or prosecution of offense must be preserved 
``if a defendant is under a sentence of imprisonment for such 
offense''). This supports the understanding of section 3600A as not 
intended to provide any benefit for defendants who are released under 
probation, supervised release, or parole.
    The more immediate legislative history of section 3600A provides 
additional support for understanding the statute as concerned only with 
imprisonment pursuant to the original sentence, as opposed to 
imprisonment dependent on later release condition violations. The 
references to section 3600A in the legislative history do not state 
that biological evidence preservation is required whenever a convicted 
defendant is imprisoned, but rather consistently characterize section 
3600A as requiring the preservation of biological evidence while a 
convicted defendant ``remains incarcerated.'' H. Rep. No. 711, 108th 
Cong., 2d Sess. 2, 14 (2004); H. Rep. No. 321, 108th Cong., 1st Sess. 
19, 29 (2003); 149 Cong. Rec. H10357 (daily ed. Nov. 5, 2003) 
(statement of Rep. Sensenbrenner); 149 Cong. Rec. S12296 (daily ed. 
Oct. 1, 2003) (section-by-section analysis inserted in record by Sen. 
Hatch). This language (``remains incarcerated'') most naturally 
suggests an intention to provide a benefit or protection for defendants 
who are initially sentenced to incarceration, which remains applicable 
for as long as the incarceration continues (subject to the statute's 
limitations and exceptions to the preservation requirement). It does 
not suggest an intent to provide any benefit for a probationer who does 
not ``remain[] incarcerated,'' because he is not sentenced to 
incarceration in the first place, and only is imprisoned later on 
because he violates a condition of release. Likewise, it does not 
suggest an intent to provide any benefit to a convict who has completed 
the full term of imprisonment for the offense to which he was sentenced 
by the court; who thereafter does not ``remain[] incarcerated,'' 
because he is released on supervised release; and later is imprisoned 
again because of a release condition violation. Nor does it suggest an 
intent to provide any benefit to a convict eligible for parole (because 
the offense occurred before November 1, 1987) who does not ``remain[] 
incarcerated,'' but rather is released on parole, and later is 
reimprisoned for violating a condition of parole.
    Distinguishing between convicted defendants who are under a 
sentence of imprisonment for the offense to which the biological 
evidence relates, and those who are subsequently imprisoned because 
they violate release conditions, is also intelligible in terms of the 
underlying policies of section 3600A. The general purpose of section 
3600A is to preserve biological evidence for possible post-conviction 
DNA testing. In formulating the statute, however, Congress did not 
create an unqualified requirement to preserve such evidence, but rather 
balanced the strength of defendants' interest in the potential 
availability of post-conviction DNA testing against the costs and 
burdens of requiring that evidence be retained following conviction in 
criminal cases, notwithstanding the fact that the defendants in these 
cases have already been proven guilty beyond a reasonable doubt or have 
pleaded guilty. See 18 U.S.C. 3600A(a) (limiting preservation 
requirement to circumstances in which defendant is under sentence of 
imprisonment for offense in whose investigation or prosecution the 
biological evidence was secured); 18 U.S.C. 3600A(c) (specifying 
several exceptions to the preservation requirement).
    In striking this balance, the strength of defendants' interests is 
defined in part in terms of the severity and likelihood of the 
sanctions to which they are subject. For example, section 3600A is 
expressly inapplicable in relation to convicts whose sanctions include 
only non-incarcerative sentences, such as fines, probation, or payment 
of restitution, because in these circumstances no defendant is ``under 
a sentence of imprisonment.'' 18 U.S.C. 3600A(a). While a defendant 
under a sentence of probation may be confined, see 18 U.S.C. 
3563(b)(9)-(11), (19), and may later be imprisoned if he violates 
release conditions, see 18 U.S.C. 3565, the statute does not treat 
these interests as sufficient to warrant mandating that biological 
evidence be preserved when a defendant is on probation. Likewise, a 
convicted defendant who is released following completion of the term of

[[Page 21954]]

imprisonment to which he was sentenced for the offense is not entitled 
under section 3600A to the continued preservation of biological 
evidence relating to the offense--see section 28.22(b)(3) in the 
regulations--though he may remain under supervision following his 
release because of the conviction; his release may be revoked and he 
may be reimprisoned if he violates release conditions; and his 
conviction may later be relied on for sentencing enhancement if he is 
subsequently convicted for other crimes.
    Section 28.2(b)(4) in the regulations understands section 3600A as 
reflecting a similar legislative judgment in relation to the class of 
convicted defendants whose release is revoked. The interest of this 
class of convicts in the preservation of biological evidence is limited 
by the consideration that the resulting exposure to serious sanctions 
is generally much less than on original sentencing for an offense. On 
revocation of supervised release, for example, the convict is not 
resentenced for the original offense at all, but rather is exposed only 
to relatively limited periods of imprisonment in lieu of supervision as 
provided in 18 U.S.C. 3583(e)(3). As a practical matter, for both 
probation and supervised release violations, the resulting periods of 
imprisonment are normally limited in duration, and usually reflect the 
nature of the release condition violation and the convict's criminal 
history, rather than the character of the offense of conviction. See 
USSG Sec.  7B1.4. The reimprisonment of parolees on revocation of 
parole is provisional in character, bounded by the time remaining from 
the maximum prison term allowed under the original sentence, and 
subject to periodic reconsideration by the U.S. Parole Commission. See 
18 U.S.C. 4208(a), (h), 4210. Moreover, in decisions about reparole 
following revocation, the violation of a release condition that 
resulted in revocation, rather than the original offense of conviction, 
is normally treated as the current offense to which the post-revocation 
imprisonment relates. See 28 CFR 2.21.
    The foregoing considerations support the conclusion that, in the 
context of section 3600A, Congress would have regarded imprisonment on 
revocation of release as a sanction pertaining primarily to the release 
condition violation on which the revocation is premised, rather than 
``a sentence of imprisonment for [the] offense'' of conviction in the 
sense of subsection (a) of section 3600A. Hence, Sec.  28.2(b)(4) in 
the regulations explains that the reference in section 3600A(a) to a 
defendant ``under a sentence of imprisonment for such offense'' refers 
to a defendant who remains incarcerated pursuant to the sentence 
imposed by the court upon the defendant's conviction of the offense, as 
opposed to being incarcerated following some period of release based on 
a later violation of release conditions.
    In addition to constituting the most plausible understanding based 
on the direct indicia of legislative intent, this reading of section 
3600A simplifies and facilitates the implementation and administration 
of the statute's biological evidence preservation requirement. A 
contrary reading of the statute would mean that the applicability of 
the biological evidence preservation requirement could repeatedly come 
and go in the same case--inapplicable when the defendant initially 
receives a non-incarcerative sentence or is released following 
imprisonment, but later applicable, potentially following a lapse of 
years, if the convicted defendant violates a release condition and 
release is revoked. This complication in determining whether the 
biological evidence preservation requirement of section 3600A applies 
is avoided under the reading of the statute adopted in this rule.

Paragraph (c)

    Paragraph (c) of Sec.  28.22 explains that the requirement to 
``preserve'' biological evidence under section 3600A means that such 
evidence cannot be destroyed or thrown away, but does not otherwise 
limit agency discretion concerning the storage or handling of such 
evidence. The statute requires that biological evidence be preserved in 
the circumstances it specifies, but does not purport to regulate agency 
practices relating to the conditions under which evidence is 
maintained. Agencies accordingly have the same discretion in such 
practices as they did prior to the enactment of section 3600A. Also, 
section 3600A requires that ``the Government'' preserve biological 
evidence under specified circumstances, but does not require that this 
function be assigned to any particular agency. There are accordingly no 
resulting restrictions on interagency transfers of biological evidence.

Section 28.23

    Section 28.23 explains what types of evidence constitute 
``biological evidence'' within the scope of section 3600A, construing 
the definition of ``biological evidence'' in subsection (b) of that 
section.
    In approaching this issue, the regulations start from a recognition 
of the fact that practically anything secured in the investigation or 
prosecution of a criminal case will contain, or consist of, some matter 
derived from a living organism. For example, almost any object will at 
least have microorganisms on its surface, and if it has been in contact 
with human beings, it will also contain microscopic biological residues 
from that contact, such as sloughed off skin cells. Other items secured 
in a criminal case will often themselves consist of organic matter in a 
broad sense because the material they are made of is derived from 
living things--for example, paper made from wood pulp, or drugs like 
cocaine or opiates that are derived from plant material.
    Hence, misunderstanding section 3600A as requiring the preservation 
of all evidence that is or contains something of a ``biological'' 
nature would effectively erase the distinction between ``biological 
evidence'' whose preservation is required under the statute and other 
forms of evidence, and would potentially entail the retention of vast 
amounts of evidence having no relationship to the legislative purpose 
underlying the enactment of section 3600A--i.e., preserving biological 
evidence for the purpose of possible DNA testing under 18 U.S.C. 3600. 
Care is accordingly required in reading the textual definition of 
covered ``biological evidence'' in subsection (b) of section 3600A and, 
to the extent that the definition is not fully explicit concerning some 
interpretive issues, in resolving those issues in a manner that 
reflects the legislative intent.
    Section 28.23 in the regulations notes the statutory definition's 
self-explanatory coverage of ``sexual assault forensic examination 
kit[s]'' as biological evidence in subsection (b)(1) of section 3600A, 
and provides the necessary explanation and elaboration of the general 
definition of biological evidence in subsection (b)(2) (``semen, blood, 
saliva, hair, skin tissue, or other identified biological material''). 
Paragraph (b) in the regulation explicates the general definition as 
reflecting two key limitations:
    First, only identified biological material is covered. This follows 
from section 3600A(b)(2), which defines covered biological evidence as 
``identified biological material,'' and lists by way of illustration 
``semen, blood, saliva, hair, [and] skin tissue.'' This limitation is 
significant because the human body is continually sloughing off skin 
cells and, as a result, virtually any physical object or thing that has 
been in contact with or sufficiently near human beings will contain 
microscopic

[[Page 21955]]

biological residues from their bodies. The statutory requirement is not 
to preserve any and all physical things secured in criminal cases 
merely because it is known on theoretical grounds that human organic 
matter is present on their surfaces, but rather applies only to 
biological material that is detected and identified as such.
    Second, biological material within the scope of the definition is 
limited to organic matter that may derive from the body of a 
perpetrator of the crime, and hence might be able to shed light on 
guilt or innocence through DNA testing under 18 U.S.C. 3600 by 
including or excluding the defendant as the source of the DNA in the 
material. This understanding follows from the legislative intent 
indicated by the listing of examples in section 3600A(b)(2)--``semen, 
blood, saliva, hair, skin tissue''--which covers the types of organic 
matter that are most likely to be left in identifiable form by 
perpetrators at crime scenes; from the enactment of section 3600A as a 
companion statute to 18 U.S.C. 3600, which authorizes post-conviction 
DNA testing in support of claims of actual innocence by applicants to 
determine whether they are the source of DNA in specific evidence; and 
from the underlying purpose of section 3600A to preserve evidence for 
possible DNA testing under 18 U.S.C. 3600. See section 3600A(c)(1), 
(3), (5) (requirement to preserve biological evidence does not apply if 
a court has denied a section 3600 motion for DNA testing of the 
evidence, if the defendant does not file a section 3600 motion within 
180 days of notice that the evidence may be destroyed, or if the 
results of DNA testing under section 3600 include the defendant as the 
source of the evidence); 18 U.S.C. 3600(f)(1)-(2), (g)(1) (specifying 
consequences of DNA testing based on whether the test results are 
inconclusive, show that the applicant was the source of the DNA 
evidence, or exclude the applicant as the source of the DNA evidence).

Sections 28.24 Through 28.26

    Sections 28.24, 28.25, and 28.26 concern the exceptions to the 
biological evidence preservation requirement that appear in subsection 
(c) of section 3600A.
    Section 28.24 notes the exceptions in subsection (c)(1) and (5) of 
the statute, which make the biological evidence retention requirement 
inapplicable if a court has denied a motion for DNA testing under 18 
U.S.C. 3600 and no appeal is pending, or if there has been DNA testing 
under 18 U.S.C. 3600 and the results included the defendant as the 
source of the evidence. In such cases, the underlying purpose of 
section 3600A to preserve evidence for possible DNA testing under 18 
U.S.C. 3600 is not served, and the statute accordingly provides that 
the evidence preservation requirement does not apply in these 
circumstances.
    Section 28.25 explains the exceptions in subsection (c)(2)-(3) of 
the statute relating to waiver of DNA testing by the defendant, and to 
situations in which the defendant is given notice that biological 
evidence may be destroyed and does not file a motion for DNA testing 
under 18 U.S.C. 3600 within 180 days. Section 28.25, in paragraph 
(b)(3), also includes specifications concerning the procedures for 
notifying defendants concerning the potential destruction of biological 
evidence and for determining whether or not a motion under 18 U.S.C. 
3600 has been filed within 180 days of such notice. Paragraph (b)(3) 
provides that notice may be provided by certified mail, and that the 
Federal Bureau of Prisons (BOP) is to create a record concerning its 
delivery. Existing BOP procedures already comply with this requirement. 
See Dusenberry v. United States, 534 U.S. 161, 180 (2002) (BOP 
procedures require prisoner to sign log book acknowledging delivery of 
certified mail, and documentation by prison officer if the prisoner 
refuses to sign). The agency providing the notice accordingly can 
obtain confirmation of its delivery to the inmate to which it is 
addressed and the date of the delivery by asking BOP, and paragraph 
(b)(3) in the regulation so provides. The post-conviction DNA testing 
provisions in 18 U.S.C. 3600 require that proceedings under that 
section be conducted in the court in which the applicant was convicted 
of the relevant offense. 18 U.S.C. 3600(a). Paragraph (b)(3) in the 
regulation accordingly provides that an agency may ascertain whether a 
defendant has filed a motion under 18 U.S.C. 3600 within 180 days of 
receiving notice that biological evidence may be destroyed by checking 
court records or checking with the United States Attorney's office in 
the district in which the defendant was convicted.
    Section 28.26 explains and discusses the application of the 
exception in subsection (c)(4) of the statute, which provides that 
biological evidence need not be retained if it must be returned to its 
owner or its retention is impracticable, so long as portions are 
preserved sufficient to permit DNA testing. Paragraphs (a) and (b) of 
Sec.  28.26 identify common situations in which section 3600A(c)(4) 
does not have to be relied on to justify disposing of evidence that 
must be returned to its owner or whose retention is impracticable--and 
does not require the preservation of portions of such evidence if it is 
disposed of--because circumstances exist that make section 3600A 
entirely inapplicable to the evidence. The specific situations 
addressed are those in which the evidence is not retained past the 
investigative stage of a case and those in which the evidence does not 
constitute biological evidence as defined in section 3600A. Paragraph 
(c) of Sec.  28.26 addresses situations in which section 3600A(c)(4) 
does have to be relied on to dispose of evidence that must be returned 
to the owner or whose retention is impracticable, and the requirement 
to preserve portions sufficient for future DNA testing in these 
situations.

Section 28.27

    This section of the regulations notes the specification in 
subsection (d) of section 3600A that section 3600A's biological 
evidence preservation requirement does not preempt or supersede other 
requirements to preserve evidence.

Section 28.28

    The final section of the new Subpart, Sec.  28.28, concerns 
sanctions for violations. At a practical level, the greatest impact of 
the requirement of section 3600A and these regulations to preserve 
biological evidence secured in the investigation or prosecution of 
Federal offenses will be on the Department of Justice, because 
Department of Justice investigative agencies, and particularly the FBI, 
conduct most investigations of Federal offenses in which biological 
evidence may be secured, and because the litigating components of the 
Department of Justice conduct all prosecutions of Federal offenses. 
However, section 3600A requires ``the Government''--not just agencies 
within the Department of Justice--to preserve biological evidence. 
Section 3600A and its implementing rule accordingly are not limited in 
their application to Justice Department components, but potentially 
affect all agencies of the Federal Government that may secure 
biological evidence in the investigation or prosecution of Federal 
offenses, or may become holders or custodians of such evidence after it 
is secured. All such agencies provide disciplinary sanctions for 
violations of statutory or regulatory requirements by their employees, 
and paragraph (a) of Sec.  28.28 provides that employees who violate 
the provisions of section 3600A or this rule shall be subject to the 
disciplinary sanctions authorized by the

[[Page 21956]]

rules or policies of their employing agencies.
    Section 3600A and these regulations will not, however, generally 
affect the Department of Defense and its components, since their 
investigative and prosecutorial jurisdiction relates to offenses under 
the Uniform Code of Military Justice (UCMJ), committed by members of 
the Armed Forces, who would be prosecuted in court martial proceedings. 
These are not investigations or prosecutions for a ``Federal offense'' 
within the meaning of 18 U.S.C. 3600A. Among other considerations, this 
is clear from the formulation of section 3600A's companion statute, 18 
U.S.C. 3600, which requires that an application for post-conviction DNA 
testing be made to the court that entered the judgment of conviction 
for the relevant ``Federal offense.'' See 18 U.S.C. 3600(a). This is 
impossible in relation to UCMJ offenses, which are adjudicated by 
courts martial that are convened to try particular cases, and do not 
exist as permanent courts. Moreover, pre-enactment versions of the 
Innocence Protection Act would have applied the post-conviction DNA 
testing and biological evidence retention provisions to UCMJ offenses, 
dealing with the nonexistence of permanent military trial courts by 
specifying that postconviction DNA testing applications by military 
offenders would be presented to the district court having jurisdiction 
over the place where the court martial was convened. See S. 486, Rep. 
No. 315, 107th Cong., 2d Sess. (2002) (proposed 28 U.S.C. 2291(a), (i), 
2292(a) in section 101). But the enacted statutes substituted 
provisions that include no affirmative mention of UCMJ offenses and 
whose application to UCMJ offenses is literally impossible. Hence, it 
is clear that Congress rejected the application of the new 
postconviction DNA testing and biological evidence preservation 
requirements in contexts that would affect the Department of Defense.
    Paragraph (b) of Sec.  28.28 notes that violations of section 3600A 
are also subject to criminal sanctions in certain circumstances, 
pursuant to subsection (f) of section 3600A.
    Subsection (g) of section 3600A states that ``[n]othing in this 
section shall provide a basis for relief in any Federal habeas corpus 
proceeding.'' The inclusion of this provision in the statute reflects a 
legislative intent that section 3600A's requirements are to be enforced 
through the disciplinary sanctions referenced in subsection (e) of the 
statute and the criminal sanctions authorized by subsection (f) of the 
statute, rather than by enlarging the grounds for overturning criminal 
convictions in postconviction proceedings. Hence, a failure to preserve 
biological evidence as required by section 3600A does not provide any 
basis for a convict to challenge his or her conviction for the offense 
to which the evidence relates. Paragraph (c) of Sec.  28.28 notes the 
means that are available and the means that are unavailable for the 
enforcement of section 3600A.

Administrative Procedure Act

    The implementation of this rule as an interim rule, with provision 
for post-promulgation public comments, is based on the exception found 
at 5 U.S.C. 553(a)(2) for ``matter[s] relating to * * * public 
property,'' and on the ``good cause'' exceptions found at 5 U.S.C. 
553(b)(3)(B).
    The ``public property'' exception found at 5 U.S.C. 553(a)(2) 
applies to ``property held by the United States in trust or as 
guardian,'' as well as to property owned by the Federal Government. 
H.R. Rep. No. 1980, 79th Cong., 2d Sess. 23 (1946); Attorney General's 
Manual on the Administrative Procedure Act 27 (1947). This rule 
concerns the requirement of 18 U.S.C. 3600A that the Government 
preserve biological evidence secured in the investigation or 
prosecution of Federal offenses. Hence, the rule is about the 
Government's management of property in its possession, and it involves 
matters relating to such property ``clearly and directly.'' H.R. Rep. 
No. 1980, 79th Cong, 2d Sess. 23 (1946). ``Biological evidence'' in the 
relevant sense is defined to mean ``sexual assault forensic examination 
kit[s]'' and ``semen, blood, saliva, hair, skin tissue, or other 
identified biological material.'' 18 U.S.C. 3600A(b). Normally, the 
Government exercises exclusive ownership of such property, in that no 
private party claims any right to or interest in its possession; the 
Government retains the property for as long as it is needed for 
evidentiary purposes; and the Government ultimately decides whether and 
when to dispose of the property, subject to legal requirements. 
Occasionally, biological evidence in the relevant sense is embedded in 
some larger object or item that must be returned to its owner--for 
example, blood-stained upholstery in a stolen car that was used in the 
commission of a crime.
    Even in such a case, however, the Government acquires a sufficient 
proprietary interest in the item to function as its guardian while it 
is needed for evidentiary purposes, and to remove and preserve portions 
of it sufficient to permit DNA testing. See 42 U.S.C. 10607(c)(6) 
(Government to ensure that property of victim is maintained in good 
condition and returned when ``it is no longer needed for evidentiary 
purposes''); 18 U.S.C. 3600A(c)(4) (Government to preserve portions 
sufficient to permit DNA testing where evidence must be returned to 
owner). The requirements of 5 U.S.C. 553 accordingly do not apply to 
this rule because it involves ``matter[s] relating to * * * public 
property.'' 5 U.S.C. 553(a)(2).
    There are also features of 18 U.S.C. 3600A that indicate that 
Federal agencies need not implement the evidence preservation 
requirement until the Attorney General issues regulations, see 18 
U.S.C. 3600A(e), and affected Federal agencies will have no 
authoritative guidance concerning the meaning of 18 U.S.C. 3600A's 
provisions until the Attorney General issues such regulations. Hence, 
delay in the issuance of an effective implementing rule could result in 
the loss or destruction of biological evidence that would otherwise be 
preserved pursuant to 18 U.S.C. 3600A. To the extent this occurred, it 
would thwart the objective of 18 U.S.C. 3600A to preserve biological 
evidence for purposes of possible DNA testing under 18 U.S.C. 3600--
testing that might exonerate an innocent defendant who was wrongly 
convicted, or confirm guilt if the defendant was in fact the 
perpetrator. It would accordingly be contrary to the public interest to 
adopt this rule with the prior notice and comment period normally 
required under 5 U.S.C. 553(b) or with the delayed effective date 
normally required under 5 U.S.C. 553(d).
    The Department will carefully consider comments that it receives on 
this interim rule and will issue a final rule in as timely a manner as 
feasible. The Department seeks comment on an appropriate performance 
standard to ensure that biological evidence is preserved in a manner 
that will allow for effective DNA testing.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities for the following 
reason: The regulation concerns the preservation by the Federal 
Government of biological evidence secured in the investigation or 
prosecution of Federal offenses.

[[Page 21957]]

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation. The Department of Justice has 
determined that this rule is a ``significant regulatory action'' under 
Executive Order 12866, section 3(f), and accordingly this rule has been 
reviewed by the Office of Management and Budget.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

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

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, or innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 28

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


0
For the reasons stated in the preamble, the Department of Justice 
amends 28 CFR chapter I, part 28, 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; Pub. L. 106-546, 114 Stat. 2726; 
Pub. L. 107-56, 115 Stat. 272; Pub. L. 108-405, 118 Stat. 2260.


0
2. Part 28 is amended by adding a new Subpart C, as follows:
Subpart C--Preservation of Biological Evidence
Sec.
28.21 Purpose.
28.22 The requirement to preserve biological evidence.
28.23 Evidence subject to the preservation requirement.
28.24 Exceptions based on the results of judicial proceedings.
28.25 Exceptions based on a defendant's conduct.
28.26 Exceptions based on the nature of the evidence.
28.27 Non-preemption of other requirements.
28.28 Sanctions for violations.

Subpart C--Preservation of Biological Evidence


Sec.  28.21  Purpose.

    Section 3600A of title 18 of the United States Code (``section 
3600A'') requires the Government to preserve biological evidence that 
was secured in the investigation or prosecution of a Federal offense, 
if a defendant is under a sentence of imprisonment for such offense, 
subject to certain limitations and exceptions. The general purpose of 
this requirement is to preserve biological evidence for possible DNA 
testing under 18 U.S.C. 3600. Subsection (e) of section 3600A requires 
the Attorney General to promulgate regulations to implement and enforce 
section 3600A, including appropriate disciplinary sanctions to ensure 
that employees comply with such regulations.


Sec.  28.22  The requirement to preserve biological evidence.

    (a) Applicability in general. The requirement of section 3600A to 
preserve biological evidence applies to evidence that has been retained 
in cases in which the offense or conviction occurred prior to the 
enactment of section 3600A or the adoption of this subpart, as well as 
to evidence secured in pending and future cases.
    (b) Limitation to circumstances in which a defendant is under a 
sentence of imprisonment for the offense. The requirement of section 
3600A to preserve biological evidence secured in the investigation or 
prosecution of a Federal offense begins to apply when a defendant is 
convicted and sentenced to imprisonment for the offense, and ceases to 
apply when the defendant or defendants are released following such 
imprisonment. The evidence preservation requirement of section 3600A 
does not apply in the following situations:
    (1) Inapplicability at the investigative stage. The requirement of 
section 3600A to preserve biological evidence does not apply at the 
investigative stage of criminal cases, occurring prior to the 
conviction and sentencing to imprisonment of a defendant. Biological 
evidence may be collected and preserved in the investigation of Federal 
offenses prior to the sentencing of a defendant to imprisonment, 
reflecting sound investigative practice and the need for evidence in 
trial proceedings that may result from the investigation, but section 
3600A does not govern these activities.
    (2) Inapplicability to cases involving only non-incarcerative 
sentences. The requirement of section 3600A to preserve biological 
evidence does not apply in cases in which defendants receive only 
nonincarcerative sentences, such as probation, fines, or payment of 
restitution.
    (3) Inapplicability following release. The requirement of section 
3600A to preserve biological evidence ceases to apply when the 
defendant or defendants are released following imprisonment, either 
unconditionally or under supervision. The requirement does not apply 
during any period following the release of the defendant or defendants 
from imprisonment, even if the defendant or defendants remain on 
supervised release or parole.
    (4) Inapplicability following revocation of release. The 
requirement of section 3600A to preserve biological evidence applies 
during a defendant's imprisonment pursuant to the sentence imposed upon 
conviction of the offense, as opposed to later imprisonment resulting 
from a violation of release conditions. The requirement does not apply 
during any period in which the defendant or defendants are imprisoned 
based on the revocation of probation, supervised release, or parole.
    (c) Conditions of preservation. The requirement of section 3600A to 
preserve biological evidence means that such evidence cannot be 
destroyed or disposed of under the circumstances in which section 3600A 
requires its preservation, but does not limit agency

[[Page 21958]]

discretion concerning the conditions under which biological evidence is 
maintained or the transfer of biological evidence among different 
agencies.


Sec.  28.23  Evidence subject to the preservation requirement.

    (a) Biological evidence generally. The evidence preservation 
requirement of section 3600A applies to ``biological evidence,'' which 
is defined in section 3600A(b). The covered evidence is sexual assault 
forensic examination kits under section 3600A(b)(1) and semen, blood, 
saliva, hair, skin tissue, or other identified biological material 
under section 3600A(b)(2).
    (b) Biological evidence under section 3600A(b)(2). Biological 
evidence within the scope of section 3600A(b)(2) is identified 
biological material that may derive from a perpetrator of the offense, 
and hence might be capable of shedding light on the question of a 
defendant's guilt or innocence through DNA testing to determine whether 
the defendant is the source of the material. In greater detail, 
evidence within the scope of section 3600A(b)(2) encompasses the 
following:
    (1) Identified biological material. Beyond sexual assault forensic 
examination kits, which are specially referenced in section 
3600A(b)(1), section 3600A requires preservation only of evidence that 
is detected and identified as semen, blood, saliva, hair, skin tissue, 
or some other type of biological material. Section 3600A's preservation 
requirement does not apply to an item of evidence merely because it is 
known on theoretical grounds that physical things that have been in 
proximity to human beings almost invariably contain unidentified and 
imperceptible amounts of their organic matter.
    (2) Material that may derive from a perpetrator of the crime. 
Biological evidence within the scope of section 3600A(b)(2) must 
constitute ``biological material.'' In the context of section 3600A, 
this term does not encompass all possible types of organic matter, but 
rather refers to organic matter that may derive from the body of a 
perpetrator of the crime, and hence might be capable of shedding light 
on a defendant's guilt or innocence by including or excluding the 
defendant as the source of its DNA.

    Example 1. In a murder case in which the victim struggled with 
the killer, scrapings of skin tissue or blood taken from under the 
victim's fingernails would constitute biological material in the 
sense of section 3600A(b)(2), and would be subject to section 
3600A's requirement to preserve biological evidence, assuming 
satisfaction of the statute's other conditions. Such material, which 
apparently derives from the perpetrator of the crime, could 
potentially shed light on guilt or innocence through DNA testing 
under 18 U.S.C. 3600 to determine whether a defendant was the source 
of this material.
    Example 2. Biological material in the sense of section 
3600A(b)(2) would not include the body of a murder victim who was 
shot from a distance, the carcasses of cattle in a meat truck 
secured in an investigation of the truck's hijacking, a quantity of 
marijuana seized in a drug trafficking investigation, or articles 
made from wood or from wool or cotton fiber. While such items of 
evidence constitute organic matter in a broader sense, they are not 
biological material within the scope of section 3600A(b)(2), because 
they do not derive from the body of a perpetrator of the crime, and 
hence could not shed light on a defendant's guilt or innocence 
through DNA testing under 18 U.S.C. 3600 to determine whether the 
defendant is the source of the evidence.


Sec.  28.24  Exceptions based on the results of judicial proceedings.

    Subsection (c) of section 3600A makes the biological evidence 
preservation requirement inapplicable in two circumstances relating to 
the results of judicial proceedings:
    (a) Judicial denial of DNA testing. Section 3600A(c)(1) exempts 
situations in which a court has denied a motion for DNA testing under 
18 U.S.C. 3600 and no appeal is pending.
    (b) Inclusion of defendant as source. Section 3600A(c)(5) exempts 
situations in which there has been DNA testing under 18 U.S.C. 3600 and 
the results included the defendant as the source of the evidence.


Sec.  28.25  Exceptions based on a defendant's conduct.

    Subsection (c) of section 3600A makes the biological evidence 
preservation requirement inapplicable in two circumstances relating to 
action (or inaction) by the defendant:
    (a) Waiver by defendant. Section 3600A(c)(2) makes the biological 
evidence preservation requirement inapplicable if the defendant 
knowingly and voluntarily waived DNA testing in a court proceeding 
conducted after the date of enactment, i.e., after October 30, 2004. 
Hence, for example, if a defendant waives DNA testing in the context of 
a plea agreement, in a pretrial colloquy with the court, in the course 
of discovery in pretrial proceedings, or in a postconviction 
proceeding, and the proceeding in which the waiver occurs takes place 
after October 30, 2004, the biological evidence preservation 
requirement of section 3600A does not apply.
    (b) Notice to defendant. (1) Section 3600A(c)(3) makes the 
biological evidence preservation requirement inapplicable if the 
defendant is notified that the biological evidence may be destroyed 
``after a conviction becomes final and the defendant has exhausted all 
opportunities for direct review of the conviction,'' and ``the 
defendant does not file a motion under section 3600 within 180 days of 
receipt of the notice.''
    (2) Effective notice concerning the possible destruction of 
biological evidence for purposes of section 3600A(c)(3) cannot be given 
if the case is pending on direct review of the conviction before a 
court of appeals or the Supreme Court, if time remains for the 
defendant to file a notice of appeal from the judgment of conviction in 
the court of appeals, or if time remains for the defendant to file a 
petition for certiorari to the Supreme Court following the court of 
appeals' determination of an appeal of the conviction.
    (3) Once direct review has been completed, or the time for seeking 
direct review has expired, section 3600A(c)(3) allows notice to the 
defendant that biological evidence may be destroyed. The biological 
evidence preservation requirement of section 3600A thereafter does not 
apply, unless the defendant files a motion under 18 U.S.C. 3600 within 
180 days of receipt of the notice. Notice to a defendant that 
biological evidence may be destroyed may be provided by certified mail, 
and the Federal Bureau of Prisons shall create a record concerning the 
delivery of such mail to an inmate. To determine whether a defendant 
has filed a motion under 18 U.S.C. 3600 within 180 days of receipt of 
such a notice, the agency providing the notice may obtain confirmation 
of delivery and the date of delivery by inquiry with the Federal Bureau 
of Prisons, and may ascertain whether the defendant has filed a motion 
under 18 U.S.C. 3600 within 180 days of that date by checking the 
records of the district court which entered the judgment of conviction 
of the defendant for the offense or asking the United States Attorney's 
office in that district.


Sec.  28.26  Exceptions based on the nature of the evidence.

    Subsection (c)(4) of section 3600A provides that the section's 
biological evidence preservation requirement does not apply if ``the 
evidence must be returned to its rightful owner, or is of such a size, 
bulk, or physical character as to render retention impracticable.'' 
This exception is subject to the condition that the Government must 
``take[] reasonable measures to remove and preserve portions of the 
material

[[Page 21959]]

evidence sufficient to permit future DNA testing.''
    (a) Evidence not retained beyond the investigative stage. Section 
3600A(c)(4) has no application if items of the sort it describes--e.g., 
items that must be returned to the rightful owner, or items that are so 
large that their retention is impracticable--are not kept until the 
time when a defendant is convicted and sentenced to imprisonment. 
Investigative agents may take samples from such items during the 
investigative stage of the case, in accordance with their judgment 
about what is needed for purposes of DNA testing or other evidentiary 
use, or may conclude that the nature of the items does not warrant 
taking such samples, and the items themselves may then be returned to 
the owners or otherwise disposed of prior to the trial, conviction, or 
sentencing of any defendant. In such cases, section 3600A is 
inapplicable, because its evidence preservation requirement does not 
apply at all until a defendant is sentenced to imprisonment, as noted 
in Sec.  28.22(b)(1).
    (b) Evidence not constituting biological material. It is rarely the 
case that a bulky item of the sort described in section 3600A(c)(4), or 
a large part of such an item, constitutes biological evidence as 
defined in section 3600A(b). If such an item is not biological evidence 
in the relevant sense, it is outside the scope of section 3600A. For 
example, the evidence secured in the investigation of a bank robbery 
may include a stolen car that was used in the getaway, and there may be 
some item in the car containing biological material that derives from a 
perpetrator of the crime, such as saliva on a discarded cigarette butt. 
Even if the vehicle is kept until a defendant is sentenced to 
imprisonment, section 3600A's preservation requirement would not apply 
to the vehicle as such, because the vehicle is not biological material. 
It would be sufficient for compliance with section 3600A to preserve 
the particular items in the vehicle that contain identified biological 
material or portions of them that contain the biological material.
    (c) Preservation of portions sufficient for DNA testing. If 
evidence described in section 3600A(c)(4) is not otherwise exempt from 
the preservation requirement of section 3600A, and section 3600A(c)(4) 
is relied on in disposing of such evidence, reasonable measures must be 
taken to preserve portions of the evidence sufficient to permit future 
DNA testing. For example, considering a stolen car used in a bank 
robbery, it may be the case that one of the robbers was shot during the 
getaway and bled all over the interior of the car. In such a case, if 
the car is kept until a defendant is sentenced to imprisonment for the 
crime, there would be extensive biological material in the car that 
would potentially be subject to section 3600A's requirement to preserve 
biological evidence. Moreover, the biological material in question 
could not be fully preserved without retaining the whole car or 
removing and retaining large amounts of matter from the interior of the 
car. Section 3600A(c)(4) would be relevant in such a case, given that 
fully retaining the biological evidence is likely to be impracticable 
or inconsistent with the rightful owner's entitlement to the return of 
the vehicle. In such a case, section 3600A(c)(4) could be relied on, 
and its requirements would be satisfied if samples of the blood were 
preserved sufficient to permit future DNA testing. Preserving such 
samples would dispense with any need under section 3600A to retain the 
vehicle itself or larger portions thereof.


Sec.  28.27  Non-preemption of other requirements.

    Section 3600A's requirement to preserve biological evidence applies 
cumulatively with other evidence retention requirements. It does not 
preempt or supersede any statute, regulation, court order, or other 
provision of law that may require evidence, including biological 
evidence, to be preserved.


Sec.  28.28  Sanctions for violations.

    (a) Disciplinary sanctions. Violations of section 3600A or of this 
subpart by Government employees shall be subject to the disciplinary 
sanctions authorized by the rules or policies of their employing 
agencies for violations of statutory or regulatory requirements.
    (b) Criminal sanctions. Violations of section 3600A may also be 
subject to criminal sanctions as prescribed in subsection (f) of that 
section. Section 3600A(f) makes it a felony offense, punishable by up 
to five years of imprisonment, for anyone to knowingly and 
intentionally destroy, alter, or tamper with biological evidence that 
is required to be preserved under section 3600A with the intent to 
prevent that evidence from being subjected to DNA testing or prevent 
the production or use of that evidence in an official proceeding.
    (c) No effect on validity of convictions. Section 3600A's 
requirements are enforceable through the disciplinary sanctions and 
criminal sanctions described in paragraphs (a) and (b) of this section. 
A failure to preserve biological evidence as required by section 3600A 
does not provide a basis for relief in any postconviction proceeding.

    Dated: April 25, 2005.
Alberto R. Gonzales,
Attorney General.
[FR Doc. 05-8556 Filed 4-26-05; 11:30 am]
BILLING CODE 4410-19-P