DNA-Sample Collection From Immigration Detainees, 13483-13493 [2020-04256]

Agencies

• Department of Justice

[Federal Register Volume 85, Number 46 (Monday, March 9, 2020)]
[Rules and Regulations]
[Pages 13483-13493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04256]


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DEPARTMENT OF JUSTICE

28 CFR Part 28

[Docket Number OAG-164; AG Order No. 4646-2020]
RIN 1105-AB56


DNA-Sample Collection From Immigration Detainees

AGENCY: Office of the Attorney General, Department of Justice.

ACTION: Final rule.

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SUMMARY: The Department of Justice is amending regulations that require 
DNA-sample collection 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. The amendment 
removes a provision authorizing the Secretary of Homeland Security to 
exempt from the sample-collection requirement certain aliens from whom 
collection of DNA samples is not feasible because of operational 
exigencies or resource limitations. This restores the Attorney 
General's plenary legal authority to authorize and direct all relevant 
Federal agencies, including the Department of Homeland Security, 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.

DATES: This rule is effective April 8, 2020.

FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office 
of Legal Policy, United States Department of Justice, Washington, DC, 
202-514-3273.

SUPPLEMENTARY INFORMATION: This rule finalizes a proposed rule, DNA-
Sample Collection from Immigration Detainees (OAG 164; RIN 1105-AB56) 
(published October 22, 2019, at 84 FR 56397), to amend regulations 
requiring DNA-sample collection 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. Specifically, 
the rule removes 28 CFR 28.12(b)(4), which authorizes the Secretary of 
Homeland Security to exempt certain detained aliens from the DNA-sample 
collection requirement. As a result, the rule restores the Attorney 
General's plenary authority to authorize and direct all relevant 
Federal agencies, including the Department of Homeland Security 
(``DHS''), to collect DNA samples from such individuals.

Background and Purpose

    The DNA Fingerprint Act of 2005, title X of Public Law 109-162, 
authorizes the Attorney General 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. See 34 U.S.C. 40702(a)(1)(A). The statute further authorizes 
the Attorney General to delegate the function of collecting DNA samples 
to other agencies, and to direct their discharge of this function, 
thereby empowering the Attorney

[[Page 13484]]

General to establish and administer a government-wide sample-collection 
program for persons in the covered classes. See id. In 2008, the 
Attorney General issued an implementing rule for 34 U.S.C. 
40702(a)(1)(A) that amended 28 CFR 28.12. See 73 FR 74932 (Dec. 10, 
2008).
    The existing rule generally requires DNA-sample collection from 
individuals in these categories if they are fingerprinted. 
Consequently, Federal agencies now collect DNA samples from persons 
they take into custody as a regular identification measure in booking, 
on a par with fingerprinting and photographing. The rule requires DNA-
sample collection both for persons arrested on Federal criminal charges 
and for non-United States persons in detention for immigration 
violations because DNA identification serves similar purposes and is of 
similar value in both contexts. See 28 CFR 28.12(b) (``Any agency of 
the United States that arrests or detains individuals . . . 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.''); 73 FR at 74933-34, 74938-39. 
The rule defines ``non-United States persons'' for this purpose to mean 
persons who are not U.S. citizens and who are not lawfully admitted for 
permanent residence as defined in the relevant regulation (8 CFR 
1.1(p), which has since been redesignated 8 CFR 1.2). 28 CFR 28.12(b).
    The rule allows exceptions to the sample-collection requirement 
with the approval of the Attorney General. 28 CFR 28.12(b) (third 
sentence); 73 FR at 74934. As currently formulated, the rule also 
recognizes specific exceptions with respect to four categories of 
aliens, as provided in paragraphs (1) through (4) of 28 CFR 28.12(b).
    The first exception, appearing in Sec.  28.12(b)(1), is for aliens 
lawfully in, or being processed for lawful admission to, the United 
States. This reflects that the rule's objectives in relation to non-
U.S. persons generally concern those implicated in illegal activity 
(including immigration violations) and not lawful visitors from other 
countries. See 73 FR at 74941.
    The second exception, appearing in Sec.  28.12(b)(2), is for aliens 
held at a port of entry during consideration of admissibility and not 
subject to further detention or proceedings. The second exception 
overlaps with the first and its rationale is similar. Lawful entrants 
from other countries may be regarded as detained when, for example, 
they are briefly held up at airports during routine processing or taken 
aside for secondary inspection. As with the first exception, when such 
entrants are not subject to further detention or proceedings, 
categorically requiring DNA-sample collection is not necessary to 
realize the rule's objectives.
    The third exception, appearing in Sec.  28.12(b)(3), is for aliens 
held in connection with maritime interdiction, because collecting DNA 
samples in maritime interdiction situations may be unnecessary and 
practically difficult or impossible.
    This rule does not affect these three exceptions because the 
considerations supporting them have not changed since the issuance of 
the original rule in 2008.
    The fourth exception, appearing in Sec.  28.12(b)(4), is for 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. This aspect of the current regulation is at odds 
with the treatment of all other Federal agencies, which may adopt 
exceptions to DNA-sample collection based on operational exigencies or 
resource limitations only with the Attorney General's approval. See 28 
CFR 28.12(b). Nevertheless, the rule granted the Secretary of Homeland 
Security authority to make exceptions for certain aliens, recognizing 
that it might not be feasible to implement the general policy of DNA-
sample collection immediately in relation to the whole class of 
immigration detainees, including the hundreds of thousands of illegal 
entrants who are taken into custody near the southwest border of the 
United States each year.
    Then-Secretary of Homeland Security Janet A. Napolitano advised in 
a March 22, 2010, letter to then-Attorney General Eric H. Holder, Jr., 
that categorical DNA collection from aliens in this class was not 
feasible, on the grounds described in Sec.  28.12(b)(4). However, 
subsequent developments have resulted in fundamental changes in the 
cost and ease of DNA-sample collection. DNA-sample collection from 
persons taken into or held in custody is no longer a novelty. Rather, 
pursuant to the mandate of Sec.  28.12(b), it is now carried out as a 
routine booking measure, parallel to fingerprinting, by Federal 
agencies on a government-wide basis. The established DNA-collection 
procedures applied to persons arrested or held on criminal charges can 
likewise be applied to persons apprehended for immigration violations.
    Accordingly, this rule removes the exemption authority of the 
Secretary of Homeland Security appearing in paragraph (b)(4) of Sec.  
28.12. The removal of that exemption authority does not preclude 
limitations and exceptions to the regulation's requirement to collect 
DNA samples, because of operational exigencies, resource limitations, 
or other grounds. But all such limitations and exceptions, beyond those 
appearing expressly in the regulation's remaining provisions, will 
require the approval of the Attorney General.
    The Attorney General--exercising his plenary authority under the 
DNA Fingerprint Act of 2005 to authorize and direct DNA-sample 
collection by Federal agencies, and to permit limitations and 
exceptions thereto--will review DHS's capacity to implement DNA-sample 
collection from non-U.S. person detainees as required by the 
regulation. The Department of Justice will work with DHS to develop and 
implement a plan for DHS to phase in that collection over a reasonable 
timeframe.
    The situation parallels that presented by the initial 
implementation of DNA-sample collection by other Federal agencies 
pursuant to 28 CFR 28.12. The regulatory requirements were not 
understood or applied to impose impossible obligations on the agencies 
to immediately collect DNA samples from all persons in their custody 
covered by the rule. Rather, the Department of Justice worked with the 
various agencies to implement the regulation's requirements in their 
operations without unnecessary delay, but in a manner consistent with 
the need to adjust policies and procedures, train personnel, establish 
necessary relationships with the Federal Bureau of Investigation 
(``FBI'') Laboratory regarding DNA-sample collection and analysis, and 
take other measures required for implementation.
    Many considerations support the decision to repeal the Sec.  
28.12(b)(4) exception. As an initial observation, the original 
rulemaking recognized that distinguishing the treatment of criminal 
arrestees and immigration detainees with respect to DNA identification 
is largely artificial, in that most immigration detainees are held on 
the basis of conduct that is itself criminal. Aliens who are 
apprehended following illegal entry have likely committed crimes under 
the immigration laws, such as 8 U.S.C. 1325(a) and 1326, for which they 
can be prosecuted. ``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

[[Page 13485]]

decision of prosecutors concerning the handling of the case.'' 73 FR at 
74939. The practical difference between criminal arrestees and 
immigration detainees, for purposes of DNA-sample collection, has been 
further eroded through policies favoring increased prosecution for 
immigration violations.
    The underlying legal and policy considerations support consistent 
DNA identification of individuals in the two classes. At the broadest 
level, ``[t]he advent of DNA technology is one of the most significant 
scientific advancements of our era,'' having an ``unparalleled ability 
both to exonerate the wrongly convicted and to identify the guilty.'' 
Maryland v. King, 569 U.S. 435, 442 (2013) (quotation marks omitted). 
DNA analysis ``provides a powerful tool for human identification,'' 
which ``help[s] to bring the guilty to justice and protect the 
innocent, who might otherwise be wrongly suspected or accused.'' 73 FR 
at 74933. ``[T]hrough DNA matching,'' it enables ``a vast class of 
crimes [to] be solved.'' 73 FR at 74934. The need for consistent 
application of DNA identification measures may be particularly 
compelling ``in relation to aliens who are illegally present in the 
United States and detained pending removal,'' because ``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 . . . 
before the individual's removal from the United States places him or 
her beyond the ready reach of the United States justice system.'' 73 FR 
at 74934.
    Regardless of whether individuals are deemed criminal arrestees or 
immigration detainees, the use of collected DNA samples is the same and 
has similar value. The DNA profiles the government derives from 
arrestee or detainee samples amount to sanitized ``genetic 
fingerprints''--they can be used to identify an individual uniquely, 
but they do not disclose the individual's traits, disorders, or 
dispositions. The profiles are searched against the Combined DNA Index 
System (CODIS), which includes DNA profiles derived from biological 
residues left at crime scenes--for example, the DNA of a rapist secured 
in a sexual assault examination kit, or the DNA of a murderer found on 
an item he left or touched in committing the crime. A match to CODIS 
identifies the arrestee or detainee as the source of the crime-scene 
DNA and likely perpetrator of the offense. Equally for criminal 
arrestees and immigration detainees, the operation of the DNA 
identification system thereby furthers the interests of justice and 
public safety without compromising the interest in genetic privacy. See 
King, 569 U.S. at 442-46, 461-65; 73 FR at 74933, 74937-38.
    For criminal arrestees and immigration detainees, the specific 
governmental interests supporting the use of the DNA technology are 
implicated in similar, if not identical, ways. One such interest is 
simply that of identification--``the need for law enforcement officers 
in a safe and accurate way to process and identify the persons . . . 
they must take into custody,'' King, 569 U.S. at 449, which includes 
connecting the person ``with his or her public persona, as reflected in 
records of his or her actions,'' id. at 451. DNA is a ``metric of 
identification'' used to connect the individual to his ``CODIS profile 
in outstanding cases,'' which is functionally no different from the 
corresponding use of fingerprints, except for ``the unparalleled 
accuracy DNA provides.'' King, 569 U.S. at 451-52; see 73 FR at 74933-
34, 74936-37.
    A second governmental interest is the responsibility ``law 
enforcement officers bear . . . for ensuring that the custody of an 
arrestee does not create inordinate risks for facility staff, for the 
existing detainee population, and for a new detainee.'' King, 569 U.S. 
at 452 (quotation marks and citation omitted); see 73 FR at 74934 
(noting use of DNA information in ensuring proper security measures for 
detainees). For example, a match between the DNA profile of a person in 
custody and DNA left by the apparent perpetrator at the site of a 
murder is important information that officers and agencies responsible 
for the person's custody should have, a consideration that applies 
equally whether the detention is premised on a criminal law violation 
or an immigration law violation.
    Third, DNA identification informs the decision concerning continued 
detention or release, in the interest of ensuring that the individual 
will appear for future proceedings. In the criminal context this 
includes ensuring that an arrestee will appear for trial if released, 
and in the immigration context it includes ensuring that a detainee 
will appear for future proceedings relating to his immigration status 
if released. If DNA matching has shown or will show a connection 
between the person in custody and a crime for which he may be held to 
account if he has further contact with the justice system, the person's 
incentive to flee must be considered in deciding whether to continue 
the detention pending further proceedings. See King, 569 U.S. at 452-53 
(``A person who . . . knows he has yet to answer for some past crime 
may be more inclined to flee.'').
    Fourth, DNA identification informs the decision concerning 
continued detention or release, and necessary conditions if release is 
granted, in the interest of public safety. See King, 569 U.S. at 453 
(``an arrestee's past conduct is essential to an assessment of the 
danger he poses to the public, and this will inform a . . . 
determination whether the individual should be released''); 73 FR at 
74934 (DNA information ``helps authorities to assess whether an 
individual may be released safely to the public . . . and to establish 
appropriate conditions for his release''). The results of DNA 
identification have the same significance for this purpose whether the 
person has been detained for criminal or immigration law reasons.
    Fifth, DNA identification furthers the fundamental objectives of 
the criminal justice system, clearing innocent persons who might 
otherwise be wrongly suspected or accused by identifying the actual 
perpetrator, and helping to bring the guilty to justice. See King, 569 
U.S. at 455-56; 73 FR at 74933-34. Here, too, it makes no difference 
whether the basis of the detention is suspected criminality or an 
immigration violation.
    In this connection, consider the case of Raphael Resendez-Ramirez, 
the ``Railway Killer,'' who was executed in Texas in 2006. Resendez is 
believed to have committed numerous murders in the United States, 
including at least seven in the 1997-99 period, as well as additional 
murders in Mexico. Resendez was repeatedly taken into custody and 
repatriated to Mexico, including eight times between January 5, 1998 
and June 1, 1999, and on earlier occasions going back to the 1970s. See 
U.S. Department of Justice, Office of the Inspector General, Special 
Report on the Raphael Resendez-Ramirez Case (March 20, 2000), https://oig.justice.gov/special/0003 (``Resendez Report'').
    Suppose it had been possible on any occasion when Resendez was 
apprehended to take a DNA sample from him and match it to DNA evidence 
derived from any of his murders. The officers responsible for his 
custody would have been put on notice of his dangerousness upon receipt 
of the information, and he would have been held in custody for criminal 
proceedings rather than being released, thereby saving the lives of the 
victims he claimed thereafter.
    This rule's removal of the authorized exception to DNA collection 
for certain detained aliens appearing in 28 CFR 28.12(b)(4) will help 
to ensure that future avoidable tragedies of this nature will in fact 
be avoided, and that DNA technology will be consistently utilized

[[Page 13486]]

to further public safety and the interests of justice in relation to 
immigration detainees, as has long been the case in relation to 
criminal arrestees, defendants, and convicts in the Federal 
jurisdiction.
    In addition to removing Sec.  28.12(b)(4), the rule updates a 
citation in Sec.  28.12(b), replacing ``8 CFR 1.1(p)'' with ``8 CFR 
1.2.''

Summary of Comments

    The Department of Justice received over 41,000 comments on this 
rulemaking, most of which appear to derive from a website that 
solicited the submission of 40,000 comments (a number later increased 
to 50,000) and provided readers with suggested text. See American Civil 
Liberties Union, Forced DNA Collection, https://action.aclu.org/petition/no-forced-dna-collection (last visited Dec. 30, 2019). 
Comments were also received from other organizations and individuals. 
Having considered all comments, the Department of Justice has concluded 
that the amendments to the regulation in this rulemaking should be 
promulgated without change. The ensuing discussion summarizes the 
principal issues that were raised in the public comments.

Supportive Comments

    Some comments supported broadened DNA collection from immigration 
detainees as furthering public safety, and some stated that detainees 
who are not involved in criminal activities have nothing to fear from 
such collection. A comment further stated that the benefits of the 
initiative should be maximized by using Rapid DNA technology, which 
allows DNA collection and analysis, and immediate CODIS entry and 
searching, to be carried out at the booking station.
    The Rapid DNA Act of 2017, Public Law 115-50, which provides the 
legal basis for use of the Rapid DNA technology in CODIS, is being 
implemented by the FBI, currently as a pilot program. See 34 U.S.C. 
12591(a)(5), 12592(b)(2)(B), 40702(b); see also King, 569 U.S. at 460 
(noting progress toward more rapid DNA analysis). Once the Rapid DNA 
technology is ready for general use, the benefits will be realized with 
respect to both criminal arrestees and immigration detainees.

Nature of the Rulemaking

    Many of the comments criticized this rulemaking as creating a new 
requirement of ``forced'' or involuntary DNA collection from migrants, 
including children over the age of 13 or even younger. Some of the 
comments broadly characterized the class of aliens who would be subject 
to this allegedly new requirement, claiming, for example, that it 
encompasses all migrants entering the United States at legal ports of 
entry and taken into custody, or claiming that it includes lawful 
foreign visitors and immigrants as well as persons detained for 
immigration violations.
    This rulemaking does not contain any new DNA-sample collection 
mandate. As discussed above, the existing DNA regulation--which 
implements 34 U.S.C. 40702(a)(1)(A), and which has been in effect since 
January 9, 2009--has always required DNA-sample collection from non-
U.S. persons detained under Federal authority, in addition to persons 
arrested, facing charges, or convicted. See 28 CFR 28.12; 73 FR at 
74932. This rulemaking only strikes paragraph (b)(4) in the regulation, 
which affects the allocation of authority between the Attorney General 
and the Secretary of Homeland Security to allow exceptions to the DNA-
sample collection requirement for certain aliens.
    Neither the existing regulation nor the amendment made by this 
rulemaking prescribes age criteria for DNA-sample collection. The 
regulation generally allows Federal agencies to limit the collection of 
DNA samples to persons whom the agency fingerprints. See 28 CFR 
28.12(b). If an agency limits fingerprinting to detainees above a 
certain age, DNA-sample collection may be correspondingly limited.
    Neither the existing regulation nor the amendment made by this 
rulemaking require DNA-sample collection from the broad classes of 
persons suggested by some commenters. The requirement is generally 
limited to individuals who are detained and fingerprinted, and, in 
addition, paragraphs (b)(1) and (b)(2) in the regulation generally 
exempt lawful foreign visitors and immigrants from the DNA-sample 
collection requirement. The classes of persons subject to the 
regulation's DNA-sample collection requirement are further discussed 
below.
    The commenters' reference to DNA-sample collection under the 
regulation as being ``forced,'' involuntary, or nonconsensual 
establishes no difference from other booking information. It is not 
left to the discretion of arrestees and detainees whether fingerprints, 
photographs, and biographical information are taken in booking. The 
same is true of taking a cheek swab for DNA. There is little substance 
to concerns about the use of force in this context because persons 
taken into custody generally cooperate in providing the required 
booking information--including fingerprints, photographs, and DNA 
samples--and because means other than the use of force normally suffice 
to secure cooperation in the rare instances involving recalcitrance. In 
relation to DNA-sample collection, in particular, 18 U.S.C. 3142(b), 
(c)(1)(A), makes cooperation in sample collection a mandatory condition 
of pretrial release, and 34 U.S.C. 40702(a)(5) makes refusal to 
cooperate in sample collection itself a criminal offense. Moreover, the 
Attorney General has issued directions to the U.S. Attorney's Offices, 
relating to situations in which an agency brings an individual to court 
without having collected a DNA sample because of non-cooperation by the 
individual, which further reduce the possibility that ``forced'' 
collection will be needed in any case. See Memorandum from Attorney 
General Eric H. Holder, Jr., DNA Sample Collection from Federal 
Arrestees and Detainees, at 2-3 (Nov. 18, 2010) (Attorney General DNA 
Memorandum), available at www.justice.gov/sites/default/files/ag/legacy/2010/11/19/ag-memo-dna-collection111810.pdf.

The Role of DHS

    Some comments argued that the deletion of paragraph (b)(4) in 28 
CFR 28.12 will sacrifice the unique expertise of DHS regarding its 
resources and operations in determining the scope of DNA-sample 
collection. However, as discussed above, the Attorney General will work 
with DHS, as he has done with other Federal agencies, in implementing 
the DNA-sample collection requirement of the regulation in a reasonable 
time frame and in a manner consistent with DHS's capacities. The 
expertise of DHS is fully available to the Attorney General in this 
collaboration. Some comments asserted that broader DNA-sample 
collection from immigration detainees will overburden DHS's already-
strained resources. It should be understood that DNA-sample collection 
involves a modest expansion of booking procedures--taking a cheek swab 
for DNA in addition to the traditional biometrics of fingerprints and 
photographs. Since the existing regulation took effect in 2009, Federal 
agencies have successfully integrated this additional biometric into 
their standard booking procedures on a government-wide basis, without 
heavy budgetary impact or undue strain on their resources. The 
remaining major gap in implementation of the DNA Fingerprint Act of 
2005 and the existing regulation is incomplete DNA-sample

[[Page 13487]]

collection by DHS components from non-U.S.-person detainees. The 
Attorney General will work with DHS, as he has done with other Federal 
agencies that have implemented the regulation's DNA-sample collection 
requirement with respect to persons in their custody, to ensure that 
any expansion of DNA-sample collection from non-U.S. persons in DHS's 
custody will be effected in an orderly manner consistent with DHS's 
capacities.
    Some comments asserted that the change made by this rulemaking will 
immediately require DHS to collect DNA from all persons in its custody 
who have previously been exempted pursuant to paragraph (b)(4) of the 
existing regulation. This concern is not well founded because the 
Attorney General retains the authority to allow exceptions from and 
limitations to the DNA-sample collection requirement, see 28 CFR 
28.12(b), and the Attorney General will work with DHS in implementing 
any expansion of DNA-sample collection in a reasonable time frame and 
in a manner consistent with DHS's capacities, as he has done with other 
Federal agencies.
    Some comments suggested that DHS personnel, and U.S. Customs and 
Border Protection (CBP) agents in particular, are incompetent to 
collect DNA samples in an effective and safe manner. The comments also 
argued that U.S. Border Patrol agents should have made better use of 
other identification systems (including fingerprints) in the Resendez 
case, which is discussed above to illustrate the potential benefits of 
DNA identification measures.
    The collection of cheek swabs for DNA from persons in custody, 
utilizing sample collection kits provided by the FBI, requires no 
extraordinary skills beyond the capacity of Federal agents, including 
CBP agents, who book persons in custody. The point is demonstrated by 
the numerous agencies throughout the Federal government that have 
collected DNA samples from persons in custody as a routine booking 
measure for many years. See, e.g., Attorney General DNA Memorandum at 
1-2 (noting that the ``principal investigative agencies of the 
Department of Justice'' had implemented DNA-sample collection as of 
2010); see also U.S. Department of Defense, Instruction No. 5505.14 
(Dec. 22, 2015) (reissuing Instruction of May 27, 2010) (directing DNA-
sample collection in criminal investigations). The FBI will provide 
training assistance to CBP as needed, as it has done for other Federal 
agencies that have implemented DNA-sample collection.
    The availability of fingerprint-based identification systems does 
not obviate the need for or value of DNA-sample collection. Many crimes 
can be solved or prevented through the use of DNA identification that 
cannot be solved or prevented through the use of fingerprints alone. 
See 73 FR at 74933-34. As discussed above, DNA identification measures, 
had they been available, could have saved the lives of victims of 
Resendez, who did not leave the fingerprints that ultimately led to his 
apprehension until a murder committed in December 1998, but who left 
DNA evidence in a number of his other crimes, including a murder and 
sexual assault committed in August 1997. See Resendez Report at Chapter 
IV.A, App'x E; Resendiz v. State, 112 SW3d 541, 543-44 (Tex. Crim. App. 
2003); Holly K. Dunn, Sole Survivor: The Inspiring True Story of Coming 
Face to Face with the Infamous Railroad Killer 8, 39-40, 98, 139-46, 
174-76 (2017); DNA Tests Reportedly Link Suspect to Railway Killer 
Slayings, CNN, July 20, 1999, https://www.cnn.com/US/9907/20/railway.killings/.
    Some comments objected that CBP line agents will be vested with 
discretion regarding DNA-sample collection. The regulation and this 
rulemaking create no such discretion. To the extent that agents 
exercise discretion or judgment in deciding who to detain on 
immigration grounds, that affects who will have booking information 
taken incident to detention--a point that applies equally to all types 
of booking information, including fingerprints and photographs as well 
as DNA. This is not a reason to refrain from the lawful collection of 
fingerprints and photographs, and it is not a reason to refrain from 
the lawful collection of DNA samples.
    Another comment asserted that the proposed rule was deficient 
because it did not take into account a letter of August 21, 2019, from 
U.S. Special Counsel Henry J. Kerner to the President. However, that 
letter contained nothing that calls into question the basis for the 
amendment made by this rulemaking. Rather, it criticized DHS for 
failing to implement DNA-sample collection as authorized by the DNA 
Fingerprint Act of 2005. When this rulemaking was undertaken, the 
Special Counsel released a public statement of support, stating that 
the rule ``will bring more expeditious justice for victims and will 
help get criminals off the streets.'' U.S. Office of Special Counsel, 
Special Counsel Applauds Rule To Initiate DNA Collection from 
Undocumented Criminal Detainees (Oct. 2019), https://osc.gov/News/Pages/20-01-Initiate-DNA-Collection.aspx.

Costs and Benefits

    Some comments argued that DNA-sample collection from immigration 
detainees will have adverse consequences because it will deter 
migration to the United States, and some comments argued that it will 
not realize expected benefits because it will not deter migration to 
the United States. The comments on both sides misconceive the nature 
and purposes of the DNA identification system. The DNA-sample-
collection requirement of 28 CFR 28.12 for non-U.S.-person detainees 
was not adopted as a deterrent to immigration. As discussed above, it 
serves governmental interests paralleling those served by DNA-sample 
collection from arrestees, including identification of persons in 
custody, facilitating safe and secure custody, informing decisions 
concerning detention and release pending further proceedings, clearing 
the innocent, and bringing the guilty to justice. As with 
fingerprinting and photographing of detainees, there is no deterrent 
purpose, or likely deterrent effect, with respect to persons lawfully 
entering or remaining in the United States. Paragraphs (b)(1) and 
(b)(2) of the regulation, which this rulemaking does not change, 
generally exclude lawful foreign visitors and immigrants from the DNA-
sample-collection requirement.
    Some comments argued that there is no benefit to DNA sample 
collection from non-U.S.-person detainees because they are subject to 
fingerprinting and other (non-DNA) identification measures. The 
objection is specious because ``DNA analysis offers a critical 
complement to fingerprint analysis in the many cases in which 
perpetrators of crimes leave no recoverable fingerprints but leave 
biological residues at the crime scene.'' 73 FR at 74933-34. 
Consequently, ``there is a vast class of crimes that can be solved 
through DNA matching that could not be solved . . . if the biometric 
identification information collected from individuals were limited to 
fingerprints.'' Id. at 74934.
    Some comments asserted that DNA-sample collection from immigration 
detainees is unjustified because crime rates among immigrants 
generally, or among illegal immigrants in particular, are lower than 
those for citizens. Whatever may be assumed about the crime rate of 
persons subject to the regulation's DNA-sample collection requirement, 
it does not follow that DNA-sample collection from this class

[[Page 13488]]

is unjustified. The regulation does not attempt to divide arrestees and 
detainees into subclasses, and limit DNA collection to subclasses found 
to have a statistical probability of criminality above some threshold. 
Rather, paralleling the policy for fingerprinting and photographing, 
the regulation categorically requires DNA-sample collection from 
persons in the covered classes, which maximizes its value in promoting 
public safety and the other governmental interests supporting DNA-
sample collection.
    Some comments objected to the fiscal costs of expanded DNA-sample 
collection from immigration detainees, expressing concern that the 
detainees would bear the cost of DNA-sample collection, and pointing to 
cost estimates for certain potential expenditures in this rulemaking 
and other costs involved in the operation of the DNA identification 
system.
    Arrestees and detainees subject to the regulation do not bear the 
cost of DNA-sample collection. As with the collection of other forms of 
booking information, including fingerprints and photographs, the cost 
is borne by the Federal government.
    As discussed above, this rulemaking does not require DHS to expand 
DNA-sample collection. It reallocates authority from the Secretary of 
Homeland Security to the Attorney General with respect to adopting 
exceptions for certain aliens from the DNA-sample collection 
requirement. As such, it does not impose any costs. Future 
implementation decisions to collect DNA samples more broadly from non-
U.S.-person detainees would entail certain costs, but that is equally 
true whether those decisions are made under the existing regulation or 
under the regulation as amended by this rulemaking.
    A regulatory certification in this rulemaking, appearing below, 
discusses hypothetically costs that could result from future 
implementation decisions, including detailing projected costs on the 
assumption that collection of about 748,000 additional samples annually 
would be phased in over a 3-year period. The projected costs for DHS on 
this assumption, based on additional work hours, would be about $5.1 
million in that 3-year period. Actual costs will depend on future 
implementation decisions and, as noted above, the Attorney General 
would work with DHS to phase in any expanded DNA-sample collection in a 
reasonable timeframe and in a manner consistent with DHS's capacities. 
The regulatory certification also projects FBI costs for providing 
additional DNA-sample collection kits on the same assumptions, which 
would include $4,024,240 to collect 748,000 samples in a year. The 
comments note additional costs that would be borne by the FBI, rather 
than DHS, including postage to send the collected DNA samples to the 
FBI for analysis, the costs of storing and analyzing the samples, and 
the costs of operating the DNA database. The Department of Justice is 
cognizant of these potential costs and the FBI is prepared to expand 
its operations as needed for these purposes.
    Some comments argued that DNA sample collection from immigration 
detainees will have little or no benefit because initial entrants to 
the United States cannot have previously committed crimes within the 
United States, so there could not be crime-scene DNA evidence that 
would match to their DNA profiles. However, the DNA-sample collection 
requirement for non-U.S.-person detainees is not limited to initial 
entrants. It includes as well immigration detainees who have previously 
been in the United States or who have had a continuing presence in the 
United States for some time. Nor is there any consistent means of 
determining reliably at the time an immigration detainee is booked that 
he has not been in the United States before and hence could not have 
committed a crime here in the past. Regardless of whether an 
immigration detainee, at the time he is booked, has previously 
committed a crime in the United States, the benefits of DNA-sample 
collection include the creation of a permanent DNA record that may 
match to DNA evidence from a later crime, if the detainee remains in or 
later reenters the United States and commits such a crime. The function 
of CODIS in this regard with respect to immigration detainees is the 
same as its function with respect to criminal arrestees, who may not 
have committed a crime solvable through DNA matching when initially 
booked but who may commit such crimes in the future. It also parallels 
the use of fingerprints, which may solve subsequent crimes through 
database matching to crime-scene evidence, regardless of whether there 
is an immediate hit upon the fingerprints' initial entry into the 
system.
    Some comments asserted that funds expended for DNA-sample 
collection from immigration detainees would more productively be 
applied to other uses, such as analysis of backlogged rape kits, 
providing better services or amenities for immigration detainees, or 
eliminating the poverty that causes crime. Analysis of the 
perpetrator's DNA in a rape kit will not solve the crime unless the 
perpetrator's DNA profile has been entered into CODIS. The effective 
operation of CODIS requires that the DNA database be well populated on 
both ends-- DNA profiles of arrestees and detainees, and DNA profiles 
from crime-scene evidence. The Attorney General has committed to 
implementing any expansion of DNA-sample collection from immigration 
detainees in a manner consistent with DHS's capacities, which will 
ensure that there will be no diversion of funds necessary for the 
custody and care of immigration detainees. Diversion of the funding 
needed for the collection and use of biometric information from 
arrestees and detainees, such as fingerprints and DNA information, 
would not go far towards eliminating poverty or other social ills, but 
it would impair public safety and the effective operation of the 
justice system by depriving it of important information needed for 
these purposes.
    Some comments asserted that DNA-sample collection from immigration 
detainees will stigmatize and vilify migrants and treat them as threats 
and criminals. There is no such purpose or effect. DNA-sample 
collection, like fingerprinting and photographing, is simply a 
biometric information collection measure serving legitimate law 
enforcement identification purposes. Nor is there any reason to believe 
that taking a cheek swab for DNA is stigmatizing in a way that taking 
other biometric information is not. See King, 569 U.S. at 464 (``a swab 
of this nature does not increase the indignity already attendant to 
normal incidents of arrest'').
    A comment asserted that issuance of this final rule must be delayed 
pending the preparation of a federalism assessment, because expanding 
DNA collection from immigration detainees may indirectly affect some 
States' interaction with CODIS. However, this rulemaking only adjusts 
the allocation of authority within the Executive Branch of the Federal 
government regarding the exemption of certain aliens from the DNA-
sample collection requirement. The Executive Order 13132 regulatory 
certification below accurately states that this rulemaking 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.
    A comment suggested striking paragraph (b)(3) of 28 CFR 28.12, 
relating to maritime interdiction situations, on the ground that DNA-
sample collection may now be feasible

[[Page 13489]]

in such situations using Rapid DNA technology. The recommendation is 
not addressed in the present rulemaking because the Rapid DNA 
technology is not yet ready for general use and because the comment did 
not persuasively establish that paragraph (b)(3) should be stricken, 
even if the Rapid DNA technology becomes widely available. 
Notwithstanding paragraph (b)(3), the Secretary of Homeland Security 
has authority to direct DNA-sample collection in maritime interdiction 
situations, should he deem that to be warranted. See 28 CFR 28.12(b).

Rights and Interests

    Some comments asserted that collection of DNA samples from non-
U.S.-person detainees in conformity with the regulation will adversely 
affect certain rights or interests of such persons. We address the 
comments according to the particular right or interest they allege that 
this rulemaking implicates.
    Privacy: Comments relating to privacy rights often stated that DNA-
sample collection will harm detainees by disclosing sensitive genetic 
information, through the storage of DNA information in insecure 
databases or in some other manner. The comments asserted that this will 
result in discrimination, immigration enforcement actions, and violence 
against the detainees and their relatives. These concerns are not well 
founded because the DNA information obtained from detainees is subject 
to the privacy and use restrictions of CODIS. The DNA samples are kept 
in secure storage by the FBI. See 73 FR at 74938. The DNA profiles are 
kept separately in a secure FBI database. Even if it were possible to 
gain unauthorized access to the DNA profile database, that database 
contains ``[n]o personally identifiable information relating to the 
donor, such as name, date of birth, social security number, or criminal 
history record number'' that would enable linking included DNA profiles 
to individuals. See FBI Laboratory, National DNA Index System (NDIS) 
Operational Procedures Manual, sec. 3.1.3 (Apr. 8, 2019), available at 
https://www.fbi.gov/file-repository/ndis-operational-procedures-manual.pdf. The authorized use of individuals' DNA profiles in the 
database is matching to forensic (crime-scene) DNA profiles. The 
information is not used, and cannot be used, to discriminate against 
any person or class, to target individuals for immigration enforcement 
action for reasons other than CODIS matches implicating them in 
criminal activity, or to target individuals for violence. Some 
comments' projection of adverse effects on relatives of detainees may 
reflect misunderstandings of the nature of, and the policies regarding, 
``familial searching'' and partial matches, a matter that was explained 
in the rulemaking for the existing regulation. See 73 FR at 74938.
    Fourth Amendment: Some comments argued that categorically 
collecting DNA samples from immigration detainees violates the 
constitutional prohibition of unreasonable searches and seizures. As 
discussed above, however, DNA-sample collection from immigration 
detainees is, like fingerprinting, a reasonable search under the Fourth 
Amendment. This is so because the governmental interests served by such 
collection parallel those adequate to support DNA-sample collection 
from arrestees, and because the privacy protections and other 
safeguards of CODIS are equally applicable. The method of collection 
for DNA samples--a cheek swab--is a non-injurious and minor imposition. 
See King, 569 U.S. at 461, 463-64. The Supreme Court's Fourth Amendment 
analysis in King is not a good-for-this-case-only analysis, limited to 
DNA identification programs that track the specific characteristics of 
the Maryland system at issue in that case. Rather, as courts have 
recognized, King provides a more generally applicable analysis. See, 
e.g., Haskell v. Brown, 317 F.Supp.3d 1095, 1103-11 (N.D. Cal. 2018) 
(rejecting argument that King does not apply with respect to arrestee 
in California because of differences between California law and 
Maryland law); People v. Buza, 413 P.3d 1132, 1139-45 (Cal. 2018) 
(same); State v. Lancaster, 373 P.3d 655, 660-61 (Colo. App. 2015) 
(rejecting argument that King does not apply with respect to arrestee 
in Colorado because of differences between Colorado law and Maryland 
law). King's analysis likewise confirms the consistency of DNA-sample 
collection from non-U.S.-person detainees with the Fourth Amendment, as 
authorized by the statute and regulation, for the reasons discussed 
above.
    Fifth Amendment: Some comments argued that DNA-sample collection 
from non-U.S.-person detainees in conformity with the regulation is 
inconsistent with the constitutional right against compelled self-
incrimination. This objection is not well-founded because, like 
fingerprinting, photographing, and other ``act[s] of exhibiting . . . 
physical characteristics,'' DNA-sample collection is non-testimonial in 
character. United States v. Hubbell, 530 U.S. 27, 34-35 (2000); see 
Pennsylvania v. Muniz, 496 U.S. 582, 591-92 (1990); Holt v. United 
States, 218 U.S. 245, 252-53 (1910); see also Kammerling v. Lappin, 553 
F.3d 669, 686 (D.C. Cir. 2008) (``a DNA sample is not a testimonial 
communication subject to the protections of the Fifth Amendment''); 
Wilson v. Collins, 517 F.3d 421, 431 (6th Cir. 2008) (same); United 
States v. Reynard, 473 F.3d 1008, 1021 (9th Cir. 2007) (same); United 
States v. Hook, 471 F.3d 766, 773-74 (7th Cir. 2006) (same); Boling v. 
Romer, 101 F.3d 1336, 1340 (10th Cir. 1996) (same).
    Due Process: Commenters who raised due process objections appeared 
to believe that a DNA sample cannot be collected from an arrestee or 
detainee without an adjudicatory or quasi-adjudicatory process, or some 
quantum of suspicion, regarding the individual's involvement in 
criminal activity. However, the DNA Fingerprint Act of 2005 and its 
implementing regulation provide for the collection of DNA samples from 
persons in the relevant classes on a categorical basis, not dependent 
on an individualized assessment of dangerousness or propensity for 
crime. Since questions of individual criminal propensity are ``not 
material to the . . . statutory scheme'' as implemented by the 
regulation, there is no valid due process objection to the system's 
operation. Connecticut Dep't of Public Safety v. Doe, 538 U.S. 1, 7-8 
(2003).
    Presumption of Innocence: The presumption of innocence is the 
principle that a person cannot be convicted for a crime except upon 
proof through evidence presented at trial. See, e.g., Bell v. Wolfish, 
441 U.S. 520, 533 (1979). DNA-sample collection does not conflict with 
this principle because it does not relate to the trial process and does 
not convict or punish anyone for anything. Nor does it presuppose or 
imply that a person from whom DNA is collected is a criminal. Rather, 
like fingerprinting and photographing, it is a biometric identification 
measure that is justified when the standards for arrest or detention 
are satisfied. See 73 FR at 74936-37, 74938-39.
    Equal Protection: Some comments asserted that DNA-sample collection 
from immigration detainees in conformity with the regulation 
constitutes invidious discrimination based on national origin or 
alienage, or that it is objectionable because racial and ethnic 
minorities are overrepresented in DNA databases and collecting DNA 
samples from immigration detainees will aggravate the disproportion. 
However, the regulation neutrally requires DNA-sample collection from 
non-U.S.-person detainees without regard to national

[[Page 13490]]

origin, race, or other demographic characteristics. Regarding alienage, 
aliens are necessarily treated differently from citizens in some 
respects, because aliens do not have the unqualified right of citizens 
to enter and remain in the United States. Hence, aliens may be detained 
for reasons relating to their eligibility to enter or stay in the 
country, and identification information, such as fingerprints and 
photographs, may lawfully be taken incident to the detention. The point 
applies equally to DNA-sample collection. The ethnic and racial 
proportions in the DNA databases parallel the representation of 
demographic groups among the persons from whom DNA samples are 
collected, just as the ethnic and racial proportions in the fingerprint 
databases parallel the representation of demographic groups among the 
persons from whom fingerprints are collected. ``The resulting 
proportions in either case provide no reason to refrain from taking 
biometric information'' from individuals in any demographic group. 73 
FR at 74937. Rather, consistent with Congress's purposes in the DNA 
Fingerprint Act of 2005, and the purposes of its implementing 
regulation, a uniform policy of DNA-sample collection provides valuable 
information ``whose use for law enforcement identification purposes 
will help to protect individuals in all racial, ethnic, and other 
demographic groups from criminal victimization.'' Id.
    Cruel and Unusual Punishment: Another comment asserted that DNA-
sample collection is cruel and unusual punishment. However, DNA-sample 
collection from arrestees and detainees as required by the regulation 
is not cruel and unusual punishment under the Eighth Amendment because 
it is not punishment at all. It is a non-punitive biometric 
identification measure, like fingerprinting and photographing. As noted 
above, taking a cheek swab for DNA is a non-injurious and minor 
imposition. See King, 569 U.S. at 461, 463-64.
    Prolonged Detention: Some comments asserted that DNA-sample 
collection from immigration detainees will result in their being 
quarantined while in custody, because they will not be housed with the 
general detainee population until CODIS searches of their DNA profiles 
are carried out, and that DNA-sample collection from immigration 
detainees will prolong their detention, because they will not be 
released until CODIS searches of their DNA profiles are carried out. No 
such policies or practices have been adopted by the Federal agencies 
that have for many years collected DNA samples from persons in their 
custody, however, and none are expected with respect to immigration 
detainees from whom DNA samples may be collected by DHS.
    Effect on Innocent Persons: Some comments argued that DNA-sample 
collection will wrongly implicate innocent persons in crimes because, 
for example, a person's DNA left at the scene of a crime he did not 
commit may be mistaken for DNA from the perpetrator. But fingerprint 
identification may likewise implicate an innocent person in a crime 
committed by another because he left fingerprints at the scene of the 
crime. The possibility of such mishaps does not warrant eschewing the 
use of either fingerprints or DNA, but rather is outweighed by the 
great value of biometric identification information, including 
fingerprints and DNA, in bringing the guilty to justice and in clearing 
the innocent by identifying the actual perpetrator. Moreover, both 
fingerprint and DNA matches are not taken as conclusive evidence of 
guilt. Rather, they are used as investigative leads, and the need 
remains to establish guilt by proof beyond a reasonable doubt. There 
were also comments opposing expanded DNA collection on the view that 
enlarging the DNA database will impair its operation and increase the 
likelihood of false matches. However, the DNA database maintained by 
the FBI is constantly expanding through the flow of additional profiles 
from DNA samples collected by Federal, State, and local agencies. The 
design of the DNA identification system is sufficiently discriminating 
that an increase in the number of profiles ``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.'' 73 FR at 74937.
    Effects on Citizens: Some comments argued that DNA samples should 
not be collected from immigration detainees because citizens may be 
detained on the mistaken assumption that they are aliens without lawful 
immigration status. In such a case, the citizen may be subjected to the 
normal booking procedure, including fingerprinting and photographing. 
The possibility of such mishaps does not warrant eschewing the 
fingerprinting and photographing of immigration detainees, however, and 
the same point applies to collecting DNA samples. See 73 FR at 74938-
39.
    Medical Privacy and Ethics: Some comments asserted that DNA-sample 
collection in conformity with 28 CFR 28.12 violates medical privacy 
laws and medical ethics standards requiring informed consent. These 
comments are not well-founded because collection of DNA information 
from arrestees and detainees and its use in CODIS are not measures of 
medical diagnosis or treatment. They are law enforcement identification 
measures, comparable to fingerprints and photographs taken in booking, 
whose collection is not contingent on whether the person from whom they 
are collected wishes to provide them. The legal standards and design of 
CODIS provide other adequate assurances against compromises of genetic 
privacy, as discussed above.

International Law and Experience

    Some comments argued that DNA samples should not be collected from 
immigration detainees based on international law and experience in 
other countries. We address the comments according to the particular 
concerns they express.
    Refugee Convention: Some comments asserted that DNA-sample 
collection from immigration detainees would violate an international 
convention's strictures against punishing or denying admission to 
refugees. The claim of treaty violations is groundless because DNA-
sample collection, like fingerprinting and photographing, does not 
punish anyone for anything and does not prevent anyone from lawfully 
entering the United States.
    Foreign Misuse of DNA: Some comments objected to DNA-sample 
collection based on misuse of biometric information databases, 
including DNA information, in other countries. However, misuse of 
biometric information databases by foreign governments is irrelevant to 
the United States' collection and use of DNA information in conformity 
with the legal standards and design of CODIS, which adequately protect 
against misuse of such information.
    S. and Marper v. United Kingdom: Some comments argued against DNA-
sample collection based on the decision of the European Court of Human 
Rights in S. and Marper v. United Kingdom, 48 Eur. Ct. H.R. 50 (2008). 
The decision in Marper overruled well-reasoned United Kingdom precedent 
upholding the retention of fingerprint and DNA records and required the 
United Kingdom to adopt more restrictive policies regarding the 
retention of such records. Marper is irrelevant to the subject of this 
rulemaking because it concerned the retention of fingerprint and DNA 
information, not the question whether and from whom fingerprint and DNA 
information can be collected in the first place. It is also not germane 
to the

[[Page 13491]]

interpretation of U.S. law, but rather is contrary to the laws of the 
United States, which impose no comparable restrictions on the retention 
of criminal history records, including fingerprint and DNA records.
    Decriminalizing Immigration Violations: Some comments argued 
against DNA-sample collection from immigration detainees based on a 
recommendation under United Nations auspices to decriminalize 
immigration violations. This recommendation is irrelevant to the 
subject of this rulemaking because DNA-sample collection from 
immigration detainees does not criminalize any immigration violation. 
Also, 28 CFR 28.12(b) generally requires DNA-sample collection from 
non-U.S.-person detainees, regardless of whether the immigration 
violations for which they are detained are crimes or only civil 
violations.
    Interpol Requests: Some comments objected that foreign governments 
may seek DNA information, through Interpol requests, for oppressive 
purposes. One could say just as well that foreign governments may seek 
through Interpol other types of information, such as fingerprints and 
photographs, for oppressive purposes. The United States does not comply 
with such requests if it believes that they are made for oppressive or 
improper purposes. The possibility of such requests does not imply that 
DNA samples should not be collected from immigration detainees or 
others, just as it does not imply that fingerprints and photographs 
should not be collected from immigration detainees or others.

Affected Classes

    Some comments objected that this rulemaking is not sufficiently 
clear about what persons are subject to DNA-sample collection. Some 
even claimed that it is unclear whether lawful permanent resident 
aliens are included in the DNA-sample collection requirement for non-
U.S.-person detainees, though the regulation explicitly says that they 
are not. See 28 CFR 28.12(b). These comments are not well founded 
because the existing regulation, 28 CFR 28.12, identifies the classes 
subject to DNA-sample collection. The only change made by this 
rulemaking is an adjustment in the allocation of authority between the 
Attorney General and the Secretary of Homeland Security to adopt 
exceptions from the DNA-sample collection requirement with respect to 
certain aliens.
    Some comments objected to the potential collection of DNA samples 
from asylum-seekers, some of whom will ultimately be found eligible for 
admission to the United States, and asked why such persons are not 
categorically excluded from the DNA-sample collection requirement by 
paragraph (b)(1) of the regulation, which exempts ``[a]liens lawfully 
in, or being processed for lawful admission to, the United States.'' 28 
CFR 28.12(b)(1). Paragraphs (b)(1) and (b)(2) generally exclude lawful 
foreign visitors and immigrants from the DNA-sample collection 
requirement. They do not exclude detained aliens whose legal 
eligibility to enter or stay in the United States remains to be 
determined in future proceedings. Such aliens fully implicate the 
governmental interests supporting DNA-sample collection, including 
identification of persons in custody, the interest in safe and secure 
custody for detained persons, and informing decisions concerning 
release or detention pending further proceedings. See King, 569 U.S. at 
450-56.
    Some commenters claimed that DNA-sample collection from immigration 
detainees would lead to mass surveillance or surveillance of the whole 
population. Collection of DNA samples from immigration detainees would 
not lead to collection of DNA samples from the whole population, just 
as collection of fingerprints from such persons has not led to the 
collection of fingerprints from the whole population. Collecting DNA 
samples from persons within the scope of the rule would serve 
governmental interests going beyond those applicable to the general 
population, including identification of persons in custody, the 
interest in safe and secure custody for detained persons, and informing 
decisions concerning release or detention pending further proceedings. 
The use of DNA information collected from arrestees and detainees that 
is entered into CODIS is matching to forensic (crime-scene) DNA 
profiles. The information is not used, and cannot be used, for 
``surveillance.''
    Some comments objected that DNA samples will be collected from 
individuals whose underlying offenses are too minor to warrant DNA-
sample collection, or whose detention is based on civil immigration 
violations, such as visa overstays, rather than any criminal activity. 
Again, this rulemaking only reallocates authority within the Executive 
Branch to recognize exemptions from the existing DNA-sample collection 
requirement. The existing regulation does not limit DNA-sample 
collection to persons whose underlying offenses exceed some threshold 
of seriousness, but rather parallels the categorical approach of 
fingerprinting all arrestees and detainees in the affected classes, 
which maximizes its value in solving crimes and furthering the other 
governmental interests supporting DNA-sample collection. See 73 FR at 
74937. There is also no valid objection based on the fact that 
detainees may be held on the basis of civil immigration violations 
rather than suspected criminal activity. As discussed above, the 
governmental interests supporting DNA-sample collection from such 
persons parallel those supporting DNA-sample collection from criminal 
arrestees, and they equally enjoy the protection of the legal standards 
and design of CODIS in safeguarding their privacy and precluding misuse 
of the information.

Proposed Changes in the DNA Identification System

    Some of the commenters complained that this rulemaking is unclear 
about matters of DNA identification procedure, such as storage of, 
access to, and retention, disposal, and expungement of DNA samples and 
profiles. In some instances, the comments proposed specific measures, 
such as disposing of DNA samples once a profile has been derived, and 
disposing of DNA profiles if there is not an immediate hit in CODIS.
    The matters these comments raise are fully and adequately addressed 
in the existing legal standards and design of CODIS, which are beyond 
the scope of this rulemaking and are not changed in any manner by this 
rulemaking. The specific new measures proposed in the comments are not 
well founded and would undermine the system. For example, there are 
legitimate reasons for retaining DNA samples after the profiles have 
been derived. See 73 FR at 74938. Likewise, the functions of CODIS are 
not limited to determining, when an arrestee or detainee's profile is 
initially searched against CODIS, whether he is the source of DNA found 
at the scene of a past crime. CODIS's functions, parallel to those of 
the fingerprint databases, also include creating a permanent DNA record 
for the individual, to which a match may result if he later commits a 
murder, rape, or other crime and DNA from that offense is searched 
against CODIS. The latter critical function would be lost if DNA 
profiles were expunged whenever there is not a hit upon their initial 
entry into CODIS.
    Some comments criticized DHS's use of DNA testing to confirm or 
rule out family relationships in other contexts, where such 
relationships may bear on individuals' eligibility to enter or remain 
in the United States. The

[[Page 13492]]

referenced uses of DNA testing by DHS have nothing to do with 28 CFR 
28.12 and this rulemaking, which concern a different type of analysis 
and use of DNA information that is unrelated to ascertaining family 
relationships, i.e., the use of DNA information in CODIS for law 
enforcement identification purposes. Consequently, these comments' 
criticisms of unrelated uses of DNA testing for different purposes are 
irrelevant to this rulemaking.

The Comment Period

    Some comments criticized the 20-day period provided for public 
comment in this rulemaking, stating that it provided inadequate notice 
and opportunity for comment, and inadequate time for consultation and 
planning with DHS.
    A 20-day comment period was deemed adequate because the change 
effected by this rulemaking is limited. The rulemaking affects only the 
allocation of authority within the Executive Branch of the Federal 
government regarding the exemption of certain aliens from the 
regulation's DNA-sample collection requirement. Specifically, by 
removing paragraph (b)(4) of 28 CFR 28.12, the rulemaking vests fully 
in the Attorney General authority that was previously shared between 
the Attorney General and the Secretary of Homeland Security. As 
discussed above, this does not create any new DNA-sample collection 
requirement. That requirement has been present in the existing rule 
since it took effect on January 9, 2009, including the requirement to 
collect DNA samples from non-U.S. persons detained under Federal 
authority. See 28 CFR 28.12(b). Public comments were solicited and 
received when the existing regulation was issued. See 73 FR at 74936-
41.
    The volume and substance of the comments received on the current 
rulemaking confirm that the 20-day comment period was adequate. The 
comments received do not indicate that interested members of the public 
lacked sufficient notice or an adequate opportunity to express their 
views regarding this rulemaking. Nor do the comments indicate that 
commenters could have provided significant additional input or 
information affecting this rulemaking had the comment period been 
longer.
    Some commenters mistakenly believed that the 20-day comment period 
was unlawful, on the view that 5 U.S.C. 553(c)-(d) requires a public 
comment period of at least 30 days. The cited statutory provision, 
however, requires that the effectiveness of a rule be delayed for 30 
days after its publication, a requirement that is complied with in this 
final rule. The provision does not concern the duration of public 
comment periods.
    The objection concerning inadequate time for consultation and 
planning with DHS misunderstands the collaboration between the 
Department of Justice and DHS. That collaboration is ongoing and will 
continue after the issuance of this final rule, just as the Department 
of Justice continued to work with other Federal agencies on 
implementation of the existing regulation after it took effect on 
January 9, 2009.

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 would not have a significant economic 
impact on a substantial number of small entities because it concerns 
Federal agencies' collection of DNA samples from certain aliens.

Executive Orders 12866, 13563, and 13771--Regulatory Planning and 
Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation, and Executive Order 13563, ``Improving 
Regulation and Regulatory Review.'' The Department of Justice has 
determined that this rule is a ``significant regulatory action'' under 
Executive Order 12866, section 3(f).
    This rule strikes paragraph (b)(4) of 28 CFR 28.12, which 
authorizes the Secretary of Homeland Security to exempt certain aliens 
from DNA-sample collection based on operational exigencies or resource 
limitations. Following the change, the decision regarding limitations 
and exceptions to DNA-sample collection from persons in the affected 
class will be fully vested in the Attorney General.
    This rulemaking is not subject to the requirements of Executive 
Order 13771 because any future costs of DNA-sample collection following 
this change in decision-making authority will be the same as the costs 
of DNA-sample collection pursuant to the existing regulation, subject 
to whatever limitations or exceptions the decision-maker chooses to 
allow. In other words, while future implementation decisions under 28 
CFR 28.12 to collect DNA more broadly may entail costs, these costs 
could equally be realized under the current text of the regulation and 
do not result from this rulemaking's change in the regulation. Fully 
vesting the authority regarding limitations and exceptions to the 
regulation's DNA-sample collection requirement in the Attorney General 
does not determine whether or to what extent limitations or exceptions 
will be adopted, and does not dictate any time frame for implementation 
of DNA-sample collection with respect to aliens in the affected class. 
The Attorney General will work with DHS, as he has done with other 
Federal agencies that have heretofore implemented DNA collection from 
persons in their custody, to ensure that any expansion of DNA-sample 
collection from such aliens will be effected in an orderly manner 
consistent with DHS's capacities.
    For example, if DNA-sample collection were implemented in full with 
respect to aliens in the category implicated by 28 CFR 28.12(b)(4), 
pursuant either to the Secretary of Homeland Security's direction under 
the current text of the regulation, or the Attorney General's direction 
following the amendment of the regulation by this rulemaking, there 
would be the same implementation costs. The Department of Justice 
assumes in analyzing these costs that any such expansion of DNA-sample 
collection would be phased in over the first three years and that DHS 
would utilize the Electronic Data Capture Project (EDCP). EDCP is a 
project designed to improve efficiencies by reducing the number of 
duplicate DNA samples collected by Federal agencies and by eliminating 
the manual collection of biographical data and inked fingerprints at 
the time of booking, by utilizing the information already 
electronically collected at the time of booking. This capability is 
estimated to reduce the time of DNA collection from approximately 15 
minutes to less than 5 minutes. To obtain the EDCP technology, 
integrate it into their booking software, and create a training program 
for their staff, DHS would incur a total one-time cost of $500,000.
    Approximately 743,000 people fell into the category implicated by 
28 CFR 28.12(b)(4) in a recent 12-month period, which is equivalent to 
approximately 755,000 samples, once repeated samples (due to rejection 
of initial samples) are considered. DHS submitted nearly 7,000 samples 
in FY2018. Therefore, assuming the population subject to DNA-sample 
collection under the rule remains at this level, DHS would be expected 
to submit an additional 748,000 samples annually.
    Utilizing EDCP, DHS would require approximately 20,778 additional 
work hours in the first year, 41,556 hours in the second year, and 
62,333 hours in the third year to collect the additional samples. Using 
average compensation

[[Page 13493]]

for CBP employees stationed along the southern border, the total cost 
to DHS with the EDCP software would be about $5.1 million in the first 
three years. If future implementation decisions or changes in the 
volume of apprehensions ultimately resulted in annual submission of a 
number of additional DNA samples less than or greater than 748,000, 
required work hours and resulting costs would be reduced or increased 
correspondingly.
    The FBI would also need to provide additional DNA-sample collection 
kits, at a per-kit cost of $5.38, in sufficient numbers to collect 
samples at the volumes described above. For example, assuming a 3-year 
phase-in period with an additional third of the eligible population 
added in each successive year, the additional sample-collection kit 
costs to the FBI would be $1,341,413 to collect 249,333 samples in the 
first year, $2,682,827 to collect 498,667 samples in the second year, 
and $4,024,240 to collect 748,000 samples in the third year. The FBI 
will provide to DHS, without charge, the same services that it provides 
to other Federal agencies that collect DNA samples, including 
assistance with regard to training, DNA-sample collection kits, postage 
to return the collected samples, analysis of samples, inclusion in 
CODIS, and handling resulting matches.

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 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 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

List of Subjects in 28 CFR Part 28

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

    Accordingly, for the reasons stated in the preamble, part 28 of 
chapter I of title 28 of the Code of Federal Regulations is amended 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; 34 U.S.C. 12592, 40702, 40703; 
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; Public Law 115-50, 131 Stat. 1001.


Sec.  28.12  [Amended]

0
2. Amend Sec.  28.12:
0
a. In paragraph (b) introductory text, remove ``1.1(p)'' and add in its 
place ``1.2''.
0
b. In paragraph (b)(2), remove ``;'' and add in its place ``; or''.
0
c. In paragraph (b)(3), remove ``; or'' and add in its place ''.''.
0
d. Remove paragraph (b)(4).

    Dated: February 26, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-04256 Filed 3-6-20; 8:45 am]
 BILLING CODE 4410-19-P