<pre>[Federal Register Volume 84, Number 204 (Tuesday, October 22, 2019)] [Proposed Rules] [Pages 56397-56401] From the Federal Register Online via the Government Publishing Office [<a href=”http://www.gpo.gov”>www.gpo.gov</a>] [FR Doc No: 2019-22877]
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DEPARTMENT OF JUSTICE
28 CFR Part 28
[Docket Number OAG-164; AG Order No. 4537-2019] RIN 1105-AB56DNA-Sample Collection From Immigration Detainees
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice is proposing to amend 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
would strike 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 will restore 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: Written and electronic comments must be sent or submitted on or
before November 12, 2019. Comments received by mail will be considered
timely if they are postmarked on or before the last day of the comment
period. The electronic Federal Docket Management System will accept
electronic comments until Midnight Eastern Time at the end of that day.
ADDRESSES: Comments may be mailed to Regulations Docket Clerk, Office
of Legal Policy, Department of Justice, 950 Pennsylvania Avenue NW,
Room 4234, Washington, DC 20530. To ensure proper handling, please
reference Docket No. OAG-164 on your correspondence. You may submit
comments electronically or view an electronic version of this proposed
rule at <a href=”http://www.regulations.gov”>http://www.regulations.gov</a>.
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: Posting of Public Comments. Please note that
all comments received are considered part of the public record and made
available for public inspection online at <a href=”http://www.regulations.gov”>http://www.regulations.gov</a>.
Such information includes personal identifying information (such as
your name, address, etc.) voluntarily submitted by the commenter.
You are not required to submit personal identifying information in
order to comment on this rule. Nevertheless, if you still want to
submit personal identifying information (such as your name, address,
etc.) as part of your comment, but do not want it to be posted online,
you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the
first paragraph of your comment. You also must locate all the personal
identifying information you do not want posted online in the first
paragraph of your comment and identify what information you want
redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
<a href=”http://www.regulations.gov”>http://www.regulations.gov</a>.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency’s public docket file, but not posted online. If you wish to
inspect the agency’s public docket file in person by appointment,
please see the FOR FURTHER INFORMATION CONTACT paragraph.
Background and Purpose
This proposed rule removes 28 CFR 28.12(b)(4), a provision that
authorizes the Secretary of Homeland Security to exempt certain
detained aliens from DNA-sample collection.
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 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 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)-(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 proposed 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 proposed 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 will 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
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 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), <a href=”https://oig.justice.gov/special/0003″>https://oig.justice.gov/special/0003</a>.
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 proposed 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 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 proposed rule
updates a citation in Sec. 28.12(b), replacing “8 CFR 1.1(p)” with
“8 CFR 1.2.”
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 proposed 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 proposed 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 proposed 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) over the past 12 months, 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 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 for U.S. Customs & Border Protection 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 three-
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 proposed to
be 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 the introductory text of paragraph (b) by removing “1.1(p)” and
adding in its place “1.2”;
0
b. At the end of paragraph (b)(2) by removing the semicolon and adding
in its place “; or”;
0
c. At the end of paragraph (b)(3) by removing “; or” and adding in
its place a period; and
0
d. By removing paragraph (b)(4).
Dated: October 15, 2019.
William P. Barr,
Attorney General.
[FR Doc. 2019-22877 Filed 10-21-19; 8:45 am]
BILLING CODE 4410-19-P
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