[Federal Register Volume 85, Number 46 (Monday, March 9, 2020)]
[Rules and Regulations]
[Pages 13483-13493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04256]
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DEPARTMENT OF JUSTICE
28 CFR Part 28
[Docket Number OAG-164; AG Order No. 4646-2020]
RIN 1105-AB56
DNA-Sample Collection From Immigration Detainees
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice is amending regulations that require
DNA-sample collection from individuals who are arrested, facing
charges, or convicted, and from non-United States persons who are
detained under the authority of the United States. The amendment
removes a provision authorizing the Secretary of Homeland Security to
exempt from the sample-collection requirement certain aliens from whom
collection of DNA samples is not feasible because of operational
exigencies or resource limitations. This restores the Attorney
General's plenary legal authority to authorize and direct all relevant
Federal agencies, including the Department of Homeland Security, to
collect DNA samples from individuals who are arrested, facing charges,
or convicted, and from non-United States persons who are detained under
the authority of the United States.
DATES: This rule is effective April 8, 2020.
FOR FURTHER INFORMATION CONTACT: David J. Karp, Senior Counsel, Office
of Legal Policy, United States Department of Justice, Washington, DC,
202-514-3273.
SUPPLEMENTARY INFORMATION: This rule finalizes a proposed rule, DNA-
Sample Collection from Immigration Detainees (OAG 164; RIN 1105-AB56)
(published October 22, 2019, at 84 FR 56397), to amend regulations
requiring DNA-sample collection from individuals who are arrested,
facing charges, or convicted, and from non-United States persons who
are detained under the authority of the United States. Specifically,
the rule removes 28 CFR 28.12(b)(4), which authorizes the Secretary of
Homeland Security to exempt certain detained aliens from the DNA-sample
collection requirement. As a result, the rule restores the Attorney
General's plenary authority to authorize and direct all relevant
Federal agencies, including the Department of Homeland Security
(``DHS''), to collect DNA samples from such individuals.
Background and Purpose
The DNA Fingerprint Act of 2005, title X of Public Law 109-162,
authorizes the Attorney General to collect DNA samples from individuals
who are arrested, facing charges, or convicted, and from non-United
States persons who are detained under the authority of the United
States. See 34 U.S.C. 40702(a)(1)(A). The statute further authorizes
the Attorney General to delegate the function of collecting DNA samples
to other agencies, and to direct their discharge of this function,
thereby empowering the Attorney
[[Page 13484]]
General to establish and administer a government-wide sample-collection
program for persons in the covered classes. See id. In 2008, the
Attorney General issued an implementing rule for 34 U.S.C.
40702(a)(1)(A) that amended 28 CFR 28.12. See 73 FR 74932 (Dec. 10,
2008).
The existing rule generally requires DNA-sample collection from
individuals in these categories if they are fingerprinted.
Consequently, Federal agencies now collect DNA samples from persons
they take into custody as a regular identification measure in booking,
on a par with fingerprinting and photographing. The rule requires DNA-
sample collection both for persons arrested on Federal criminal charges
and for non-United States persons in detention for immigration
violations because DNA identification serves similar purposes and is of
similar value in both contexts. See 28 CFR 28.12(b) (``Any agency of
the United States that arrests or detains individuals . . . shall
collect DNA samples from individuals who are arrested, facing charges,
or convicted, and from non-United States persons who are detained under
the authority of the United States.''); 73 FR at 74933-34, 74938-39.
The rule defines ``non-United States persons'' for this purpose to mean
persons who are not U.S. citizens and who are not lawfully admitted for
permanent residence as defined in the relevant regulation (8 CFR
1.1(p), which has since been redesignated 8 CFR 1.2). 28 CFR 28.12(b).
The rule allows exceptions to the sample-collection requirement
with the approval of the Attorney General. 28 CFR 28.12(b) (third
sentence); 73 FR at 74934. As currently formulated, the rule also
recognizes specific exceptions with respect to four categories of
aliens, as provided in paragraphs (1) through (4) of 28 CFR 28.12(b).
The first exception, appearing in Sec. 28.12(b)(1), is for aliens
lawfully in, or being processed for lawful admission to, the United
States. This reflects that the rule's objectives in relation to non-
U.S. persons generally concern those implicated in illegal activity
(including immigration violations) and not lawful visitors from other
countries. See 73 FR at 74941.
The second exception, appearing in Sec. 28.12(b)(2), is for aliens
held at a port of entry during consideration of admissibility and not
subject to further detention or proceedings. The second exception
overlaps with the first and its rationale is similar. Lawful entrants
from other countries may be regarded as detained when, for example,
they are briefly held up at airports during routine processing or taken
aside for secondary inspection. As with the first exception, when such
entrants are not subject to further detention or proceedings,
categorically requiring DNA-sample collection is not necessary to
realize the rule's objectives.
The third exception, appearing in Sec. 28.12(b)(3), is for aliens
held in connection with maritime interdiction, because collecting DNA
samples in maritime interdiction situations may be unnecessary and
practically difficult or impossible.
This rule does not affect these three exceptions because the
considerations supporting them have not changed since the issuance of
the original rule in 2008.
The fourth exception, appearing in Sec. 28.12(b)(4), is for other
aliens, with respect to whom the Secretary of Homeland Security, in
consultation with the Attorney General, determines that the collection
of DNA samples is not feasible because of operational exigencies or
resource limitations. This aspect of the current regulation is at odds
with the treatment of all other Federal agencies, which may adopt
exceptions to DNA-sample collection based on operational exigencies or
resource limitations only with the Attorney General's approval. See 28
CFR 28.12(b). Nevertheless, the rule granted the Secretary of Homeland
Security authority to make exceptions for certain aliens, recognizing
that it might not be feasible to implement the general policy of DNA-
sample collection immediately in relation to the whole class of
immigration detainees, including the hundreds of thousands of illegal
entrants who are taken into custody near the southwest border of the
United States each year.
Then-Secretary of Homeland Security Janet A. Napolitano advised in
a March 22, 2010, letter to then-Attorney General Eric H. Holder, Jr.,
that categorical DNA collection from aliens in this class was not
feasible, on the grounds described in Sec. 28.12(b)(4). However,
subsequent developments have resulted in fundamental changes in the
cost and ease of DNA-sample collection. DNA-sample collection from
persons taken into or held in custody is no longer a novelty. Rather,
pursuant to the mandate of Sec. 28.12(b), it is now carried out as a
routine booking measure, parallel to fingerprinting, by Federal
agencies on a government-wide basis. The established DNA-collection
procedures applied to persons arrested or held on criminal charges can
likewise be applied to persons apprehended for immigration violations.
Accordingly, this rule removes the exemption authority of the
Secretary of Homeland Security appearing in paragraph (b)(4) of Sec.
28.12. The removal of that exemption authority does not preclude
limitations and exceptions to the regulation's requirement to collect
DNA samples, because of operational exigencies, resource limitations,
or other grounds. But all such limitations and exceptions, beyond those
appearing expressly in the regulation's remaining provisions, will
require the approval of the Attorney General.
The Attorney General--exercising his plenary authority under the
DNA Fingerprint Act of 2005 to authorize and direct DNA-sample
collection by Federal agencies, and to permit limitations and
exceptions thereto--will review DHS's capacity to implement DNA-sample
collection from non-U.S. person detainees as required by the
regulation. The Department of Justice will work with DHS to develop and
implement a plan for DHS to phase in that collection over a reasonable
timeframe.
The situation parallels that presented by the initial
implementation of DNA-sample collection by other Federal agencies
pursuant to 28 CFR 28.12. The regulatory requirements were not
understood or applied to impose impossible obligations on the agencies
to immediately collect DNA samples from all persons in their custody
covered by the rule. Rather, the Department of Justice worked with the
various agencies to implement the regulation's requirements in their
operations without unnecessary delay, but in a manner consistent with
the need to adjust policies and procedures, train personnel, establish
necessary relationships with the Federal Bureau of Investigation
(``FBI'') Laboratory regarding DNA-sample collection and analysis, and
take other measures required for implementation.
Many considerations support the decision to repeal the Sec.
28.12(b)(4) exception. As an initial observation, the original
rulemaking recognized that distinguishing the treatment of criminal
arrestees and immigration detainees with respect to DNA identification
is largely artificial, in that most immigration detainees are held on
the basis of conduct that is itself criminal. Aliens who are
apprehended following illegal entry have likely committed crimes under
the immigration laws, such as 8 U.S.C. 1325(a) and 1326, for which they
can be prosecuted. ``Hence, whether an alien in such circumstances is
regarded as an arrestee or a (non-arrested) detainee may be a matter of
characterization, and the aptness of one description or the other may
shift over time, depending on the disposition or
[[Page 13485]]
decision of prosecutors concerning the handling of the case.'' 73 FR at
74939. The practical difference between criminal arrestees and
immigration detainees, for purposes of DNA-sample collection, has been
further eroded through policies favoring increased prosecution for
immigration violations.
The underlying legal and policy considerations support consistent
DNA identification of individuals in the two classes. At the broadest
level, ``[t]he advent of DNA technology is one of the most significant
scientific advancements of our era,'' having an ``unparalleled ability
both to exonerate the wrongly convicted and to identify the guilty.''
Maryland v. King, 569 U.S. 435, 442 (2013) (quotation marks omitted).
DNA analysis ``provides a powerful tool for human identification,''
which ``help[s] to bring the guilty to justice and protect the
innocent, who might otherwise be wrongly suspected or accused.'' 73 FR
at 74933. ``[T]hrough DNA matching,'' it enables ``a vast class of
crimes [to] be solved.'' 73 FR at 74934. The need for consistent
application of DNA identification measures may be particularly
compelling ``in relation to aliens who are illegally present in the
United States and detained pending removal,'' because ``prompt DNA-
sample collection could be essential to the detection and solution of
crimes they may have committed or may commit in the United States . . .
before the individual's removal from the United States places him or
her beyond the ready reach of the United States justice system.'' 73 FR
at 74934.
Regardless of whether individuals are deemed criminal arrestees or
immigration detainees, the use of collected DNA samples is the same and
has similar value. The DNA profiles the government derives from
arrestee or detainee samples amount to sanitized ``genetic
fingerprints''--they can be used to identify an individual uniquely,
but they do not disclose the individual's traits, disorders, or
dispositions. The profiles are searched against the Combined DNA Index
System (CODIS), which includes DNA profiles derived from biological
residues left at crime scenes--for example, the DNA of a rapist secured
in a sexual assault examination kit, or the DNA of a murderer found on
an item he left or touched in committing the crime. A match to CODIS
identifies the arrestee or detainee as the source of the crime-scene
DNA and likely perpetrator of the offense. Equally for criminal
arrestees and immigration detainees, the operation of the DNA
identification system thereby furthers the interests of justice and
public safety without compromising the interest in genetic privacy. See
King, 569 U.S. at 442-46, 461-65; 73 FR at 74933, 74937-38.
For criminal arrestees and immigration detainees, the specific
governmental interests supporting the use of the DNA technology are
implicated in similar, if not identical, ways. One such interest is
simply that of identification--``the need for law enforcement officers
in a safe and accurate way to process and identify the persons . . .
they must take into custody,'' King, 569 U.S. at 449, which includes
connecting the person ``with his or her public persona, as reflected in
records of his or her actions,'' id. at 451. DNA is a ``metric of
identification'' used to connect the individual to his ``CODIS profile
in outstanding cases,'' which is functionally no different from the
corresponding use of fingerprints, except for ``the unparalleled
accuracy DNA provides.'' King, 569 U.S. at 451-52; see 73 FR at 74933-
34, 74936-37.
A second governmental interest is the responsibility ``law
enforcement officers bear . . . for ensuring that the custody of an
arrestee does not create inordinate risks for facility staff, for the
existing detainee population, and for a new detainee.'' King, 569 U.S.
at 452 (quotation marks and citation omitted); see 73 FR at 74934
(noting use of DNA information in ensuring proper security measures for
detainees). For example, a match between the DNA profile of a person in
custody and DNA left by the apparent perpetrator at the site of a
murder is important information that officers and agencies responsible
for the person's custody should have, a consideration that applies
equally whether the detention is premised on a criminal law violation
or an immigration law violation.
Third, DNA identification informs the decision concerning continued
detention or release, in the interest of ensuring that the individual
will appear for future proceedings. In the criminal context this
includes ensuring that an arrestee will appear for trial if released,
and in the immigration context it includes ensuring that a detainee
will appear for future proceedings relating to his immigration status
if released. If DNA matching has shown or will show a connection
between the person in custody and a crime for which he may be held to
account if he has further contact with the justice system, the person's
incentive to flee must be considered in deciding whether to continue
the detention pending further proceedings. See King, 569 U.S. at 452-53
(``A person who . . . knows he has yet to answer for some past crime
may be more inclined to flee.'').
Fourth, DNA identification informs the decision concerning
continued detention or release, and necessary conditions if release is
granted, in the interest of public safety. See King, 569 U.S. at 453
(``an arrestee's past conduct is essential to an assessment of the
danger he poses to the public, and this will inform a . . .
determination whether the individual should be released''); 73 FR at
74934 (DNA information ``helps authorities to assess whether an
individual may be released safely to the public . . . and to establish
appropriate conditions for his release''). The results of DNA
identification have the same significance for this purpose whether the
person has been detained for criminal or immigration law reasons.
Fifth, DNA identification furthers the fundamental objectives of
the criminal justice system, clearing innocent persons who might
otherwise be wrongly suspected or accused by identifying the actual
perpetrator, and helping to bring the guilty to justice. See King, 569
U.S. at 455-56; 73 FR at 74933-34. Here, too, it makes no difference
whether the basis of the detention is suspected criminality or an
immigration violation.
In this connection, consider the case of Raphael Resendez-Ramirez,
the ``Railway Killer,'' who was executed in Texas in 2006. Resendez is
believed to have committed numerous murders in the United States,
including at least seven in the 1997-99 period, as well as additional
murders in Mexico. Resendez was repeatedly taken into custody and
repatriated to Mexico, including eight times between January 5, 1998
and June 1, 1999, and on earlier occasions going back to the 1970s. See
U.S. Department of Justice, Office of the Inspector General, Special
Report on the Raphael Resendez-Ramirez Case (March 20, 2000), https://oig.justice.gov/special/0003 (``Resendez Report'').
Suppose it had been possible on any occasion when Resendez was
apprehended to take a DNA sample from him and match it to DNA evidence
derived from any of his murders. The officers responsible for his
custody would have been put on notice of his dangerousness upon receipt
of the information, and he would have been held in custody for criminal
proceedings rather than being released, thereby saving the lives of the
victims he claimed thereafter.
This rule's removal of the authorized exception to DNA collection
for certain detained aliens appearing in 28 CFR 28.12(b)(4) will help
to ensure that future avoidable tragedies of this nature will in fact
be avoided, and that DNA technology will be consistently utilized
[[Page 13486]]
to further public safety and the interests of justice in relation to
immigration detainees, as has long been the case in relation to
criminal arrestees, defendants, and convicts in the Federal
jurisdiction.
In addition to removing Sec. 28.12(b)(4), the rule updates a
citation in Sec. 28.12(b), replacing ``8 CFR 1.1(p)'' with ``8 CFR
1.2.''
Summary of Comments
The Department of Justice received over 41,000 comments on this
rulemaking, most of which appear to derive from a website that
solicited the submission of 40,000 comments (a number later increased
to 50,000) and provided readers with suggested text. See American Civil
Liberties Union, Forced DNA Collection, https://action.aclu.org/petition/no-forced-dna-collection (last visited Dec. 30, 2019).
Comments were also received from other organizations and individuals.
Having considered all comments, the Department of Justice has concluded
that the amendments to the regulation in this rulemaking should be
promulgated without change. The ensuing discussion summarizes the
principal issues that were raised in the public comments.
Supportive Comments
Some comments supported broadened DNA collection from immigration
detainees as furthering public safety, and some stated that detainees
who are not involved in criminal activities have nothing to fear from
such collection. A comment further stated that the benefits of the
initiative should be maximized by using Rapid DNA technology, which
allows DNA collection and analysis, and immediate CODIS entry and
searching, to be carried out at the booking station.
The Rapid DNA Act of 2017, Public Law 115-50, which provides the
legal basis for use of the Rapid DNA technology in CODIS, is being
implemented by the FBI, currently as a pilot program. See 34 U.S.C.
12591(a)(5), 12592(b)(2)(B), 40702(b); see also King, 569 U.S. at 460
(noting progress toward more rapid DNA analysis). Once the Rapid DNA
technology is ready for general use, the benefits will be realized with
respect to both criminal arrestees and immigration detainees.
Nature of the Rulemaking
Many of the comments criticized this rulemaking as creating a new
requirement of ``forced'' or involuntary DNA collection from migrants,
including children over the age of 13 or even younger. Some of the
comments broadly characterized the class of aliens who would be subject
to this allegedly new requirement, claiming, for example, that it
encompasses all migrants entering the United States at legal ports of
entry and taken into custody, or claiming that it includes lawful
foreign visitors and immigrants as well as persons detained for
immigration violations.
This rulemaking does not contain any new DNA-sample collection
mandate. As discussed above, the existing DNA regulation--which
implements 34 U.S.C. 40702(a)(1)(A), and which has been in effect since
January 9, 2009--has always required DNA-sample collection from non-
U.S. persons detained under Federal authority, in addition to persons
arrested, facing charges, or convicted. See 28 CFR 28.12; 73 FR at
74932. This rulemaking only strikes paragraph (b)(4) in the regulation,
which affects the allocation of authority between the Attorney General
and the Secretary of Homeland Security to allow exceptions to the DNA-
sample collection requirement for certain aliens.
Neither the existing regulation nor the amendment made by this
rulemaking prescribes age criteria for DNA-sample collection. The
regulation generally allows Federal agencies to limit the collection of
DNA samples to persons whom the agency fingerprints. See 28 CFR
28.12(b). If an agency limits fingerprinting to detainees above a
certain age, DNA-sample collection may be correspondingly limited.
Neither the existing regulation nor the amendment made by this
rulemaking require DNA-sample collection from the broad classes of
persons suggested by some commenters. The requirement is generally
limited to individuals who are detained and fingerprinted, and, in
addition, paragraphs (b)(1) and (b)(2) in the regulation generally
exempt lawful foreign visitors and immigrants from the DNA-sample
collection requirement. The classes of persons subject to the
regulation's DNA-sample collection requirement are further discussed
below.
The commenters' reference to DNA-sample collection under the
regulation as being ``forced,'' involuntary, or nonconsensual
establishes no difference from other booking information. It is not
left to the discretion of arrestees and detainees whether fingerprints,
photographs, and biographical information are taken in booking. The
same is true of taking a cheek swab for DNA. There is little substance
to concerns about the use of force in this context because persons
taken into custody generally cooperate in providing the required
booking information--including fingerprints, photographs, and DNA
samples--and because means other than the use of force normally suffice
to secure cooperation in the rare instances involving recalcitrance. In
relation to DNA-sample collection, in particular, 18 U.S.C. 3142(b),
(c)(1)(A), makes cooperation in sample collection a mandatory condition
of pretrial release, and 34 U.S.C. 40702(a)(5) makes refusal to
cooperate in sample collection itself a criminal offense. Moreover, the
Attorney General has issued directions to the U.S. Attorney's Offices,
relating to situations in which an agency brings an individual to court
without having collected a DNA sample because of non-cooperation by the
individual, which further reduce the possibility that ``forced''
collection will be needed in any case. See Memorandum from Attorney
General Eric H. Holder, Jr., DNA Sample Collection from Federal
Arrestees and Detainees, at 2-3 (Nov. 18, 2010) (Attorney General DNA
Memorandum), available at www.justice.gov/sites/default/files/ag/legacy/2010/11/19/ag-memo-dna-collection111810.pdf.
The Role of DHS
Some comments argued that the deletion of paragraph (b)(4) in 28
CFR 28.12 will sacrifice the unique expertise of DHS regarding its
resources and operations in determining the scope of DNA-sample
collection. However, as discussed above, the Attorney General will work
with DHS, as he has done with other Federal agencies, in implementing
the DNA-sample collection requirement of the regulation in a reasonable
time frame and in a manner consistent with DHS's capacities. The
expertise of DHS is fully available to the Attorney General in this
collaboration. Some comments asserted that broader DNA-sample
collection from immigration detainees will overburden DHS's already-
strained resources. It should be understood that DNA-sample collection
involves a modest expansion of booking procedures--taking a cheek swab
for DNA in addition to the traditional biometrics of fingerprints and
photographs. Since the existing regulation took effect in 2009, Federal
agencies have successfully integrated this additional biometric into
their standard booking procedures on a government-wide basis, without
heavy budgetary impact or undue strain on their resources. The
remaining major gap in implementation of the DNA Fingerprint Act of
2005 and the existing regulation is incomplete DNA-sample
[[Page 13487]]
collection by DHS components from non-U.S.-person detainees. The
Attorney General will work with DHS, as he has done with other Federal
agencies that have implemented the regulation's DNA-sample collection
requirement with respect to persons in their custody, to ensure that
any expansion of DNA-sample collection from non-U.S. persons in DHS's
custody will be effected in an orderly manner consistent with DHS's
capacities.
Some comments asserted that the change made by this rulemaking will
immediately require DHS to collect DNA from all persons in its custody
who have previously been exempted pursuant to paragraph (b)(4) of the
existing regulation. This concern is not well founded because the
Attorney General retains the authority to allow exceptions from and
limitations to the DNA-sample collection requirement, see 28 CFR
28.12(b), and the Attorney General will work with DHS in implementing
any expansion of DNA-sample collection in a reasonable time frame and
in a manner consistent with DHS's capacities, as he has done with other
Federal agencies.
Some comments suggested that DHS personnel, and U.S. Customs and
Border Protection (CBP) agents in particular, are incompetent to
collect DNA samples in an effective and safe manner. The comments also
argued that U.S. Border Patrol agents should have made better use of
other identification systems (including fingerprints) in the Resendez
case, which is discussed above to illustrate the potential benefits of
DNA identification measures.
The collection of cheek swabs for DNA from persons in custody,
utilizing sample collection kits provided by the FBI, requires no
extraordinary skills beyond the capacity of Federal agents, including
CBP agents, who book persons in custody. The point is demonstrated by
the numerous agencies throughout the Federal government that have
collected DNA samples from persons in custody as a routine booking
measure for many years. See, e.g., Attorney General DNA Memorandum at
1-2 (noting that the ``principal investigative agencies of the
Department of Justice'' had implemented DNA-sample collection as of
2010); see also U.S. Department of Defense, Instruction No. 5505.14
(Dec. 22, 2015) (reissuing Instruction of May 27, 2010) (directing DNA-
sample collection in criminal investigations). The FBI will provide
training assistance to CBP as needed, as it has done for other Federal
agencies that have implemented DNA-sample collection.
The availability of fingerprint-based identification systems does
not obviate the need for or value of DNA-sample collection. Many crimes
can be solved or prevented through the use of DNA identification that
cannot be solved or prevented through the use of fingerprints alone.
See 73 FR at 74933-34. As discussed above, DNA identification measures,
had they been available, could have saved the lives of victims of
Resendez, who did not leave the fingerprints that ultimately led to his
apprehension until a murder committed in December 1998, but who left
DNA evidence in a number of his other crimes, including a murder and
sexual assault committed in August 1997. See Resendez Report at Chapter
IV.A, App'x E; Resendiz v. State, 112 SW3d 541, 543-44 (Tex. Crim. App.
2003); Holly K. Dunn, Sole Survivor: The Inspiring True Story of Coming
Face to Face with the Infamous Railroad Killer 8, 39-40, 98, 139-46,
174-76 (2017); DNA Tests Reportedly Link Suspect to Railway Killer
Slayings, CNN, July 20, 1999, http://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
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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]
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2. Amend Sec. 28.12:
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a. In paragraph (b) introductory text, remove ``1.1(p)'' and add in its
place ``1.2''.
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b. In paragraph (b)(2), remove ``;'' and add in its place ``; or''.
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c. In paragraph (b)(3), remove ``; or'' and add in its place ''.''.
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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