DNA-Sample Collection From Immigration Detainees, 13483-13493 [2020-04256]
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AGENCY:
AGENCY:
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28 CFR Part 28
SUMMARY:
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DNA-Sample Collection From
Immigration Detainees
Office of the Attorney General,
Department of Justice.
ACTION: Final rule.
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The Department of Justice is
amending regulations that require DNAsample 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 samplecollection 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 nonUnited 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 DNAsample 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.
SUMMARY:
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
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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
§ 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
§ 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
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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
§ 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
§ 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
§ 28.12(b)(4). However, subsequent
developments have resulted in
fundamental changes in the cost and
ease of DNA-sample collection. DNAsample collection from persons taken
into or held in custody is no longer a
novelty. Rather, pursuant to the
mandate of § 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
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Homeland Security appearing in
paragraph (b)(4) of § 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 DNAsample 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 § 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 (nonarrested) 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
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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 DNAsample 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 crimescene 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
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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.’’).
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13485
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
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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 § 28.12(b)(4),
the rule updates a citation in § 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-dnacollection (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.
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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
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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 DNAsample 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
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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 noncooperation 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-dnacollection111810.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
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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 DNAsample 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 DNAsample 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.
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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
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13487
Criminal Detainees (Oct. 2019), https://
osc.gov/News/Pages/20-01-InitiateDNA-Collection.aspx.
Costs and Benefits
Some comments argued that DNAsample 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-samplecollection 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 DNAsample 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
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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 DNAsample 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 DNAsample 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 DNAsample 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
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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 DNAsample collection requirement for nonU.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
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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 DNAsample 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 DNAsample 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 DNAsample collection may now be feasible
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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 DNAsample 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 nonU.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/filerepository/ndis-operational-proceduresmanual.pdf. The authorized use of
individuals’ DNA profiles in the
database is matching to forensic (crimescene) 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
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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 DNAsample 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 noninjurious 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-thiscase-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 DNAsample 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
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13489
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 quasiadjudicatory 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
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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 DNAsample 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
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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
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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 DNAsample 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
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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 DNAsample 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
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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 DNAsample 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 DNAsample 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 DNAsample collection requirement. The
existing regulation does not limit DNAsample collection to persons whose
underlying offenses exceed some
threshold of seriousness, but rather
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13491
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
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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
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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 decisionmaker 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
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exceptions to the regulation’s DNAsample 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 DNAsample 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
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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.
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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.
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Small Business Regulatory Enforcement
Fairness Act of 1996
DEPARTMENT OF HOMELAND
SECURITY
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 foreignbased enterprises in domestic and
export markets.
Coast Guard
13493
33 CFR Part 105
[Docket No. USCG–2017–0711]
RIN 1625–AC47
TWIC—Reader Requirements; Delay of
Effective Date
Coast Guard, DHS.
Final rule.
AGENCY:
ACTION:
[FR Doc. 2020–04256 Filed 3–6–20; 8:45 am]
The Coast Guard is delaying
the effective date for three categories of
facilities affected by the final rule
entitled, ‘‘Transportation Worker
Identification Credential (TWIC)—
Reader Requirements,’’ published in the
Federal Register on August 23, 2016.
These three categories are: Facilities that
handle certain dangerous cargoes in
bulk, but do not transfer these cargoes
to or from a vessel; facilities that handle
certain dangerous cargoes in bulk, and
do transfer these cargoes to or from a
vessel; and facilities that receive vessels
carrying certain dangerous cargoes in
bulk, but do not, during that vessel-tofacility interface, transfer these bulk
cargoes to or from those vessels. The
Coast Guard is delaying the effective
date for these categories of facilities by
3 years. Specifically, this rule will delay
the implementation of the TWIC Reader
rule for 370 of the 525 affected Risk
Group A facilities by 3 years, while the
remaining 155 facilities (which are all
facilities that receive large passenger
vessels), as well as 1 vessel, will have
to implement the final rule
requirements within 30 days after the
effective date of this rule.
DATES: This final rule is effective May 8,
2020.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket are included under docket
number USCG–2017–0711 and available
at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For
information about this document, call or
email LCDR Kevin McDonald, Coast
Guard CG–FAC–2; telephone 202–372–
1120; email Kevin.J.Mcdonald2@
uscg.mil.
SUPPLEMENTARY INFORMATION:
BILLING CODE 4410–19–P
Table of Contents for Preamble
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
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.
§ 28.12
[Amended]
2. Amend § 28.12:
■ a. In paragraph (b) introductory text,
remove ‘‘1.1(p)’’ and add in its place
‘‘1.2’’.
■ b. In paragraph (b)(2), remove ‘‘;’’ and
add in its place ‘‘; or’’.
■ c. In paragraph (b)(3), remove ‘‘; or’’
and add in its place ’’.’’.
■ d. Remove paragraph (b)(4).
■
Dated: February 26, 2020.
William P. Barr,
Attorney General.
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SUMMARY:
I. Abbreviations
II. Basis and Purpose, and Regulatory History
III. Executive Summary
IV. Discussion of Comments and
Developments
A. Confusion Relating to the Difference
Between ‘‘CDC Facilities’’ and ‘‘Facilities
That Handle CDC in Bulk’’
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Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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