[Federal Register: April 22, 2003 (Volume 68, Number 77)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
COURT SERVICES AND OFFENDER SUPERVISION AGENCY FOR THE DISTRICT OF
28 CFR Part 812
Collection and Use of DNA Information
AGENCY: Court Services and Offender Supervision Agency for the District
ACTION: Final rule.
SUMMARY: The Court Services and Offender Supervision Agency for the
District of Columbia (``CSOSA'') is finalizing its interim rule which
implemented section 4 of the DNA Analysis Backlog Elimination Act of
2000, in conjunction with District of Columbia laws enacted pursuant to
that Act which specify qualifying District of Columbia offenses for
purposes of DNA sample collection. The interim regulations set forth
the responsibilities of CSOSA for collecting DNA samples from
individuals under its supervision who have been convicted of specific
offenses identified by District of Columbia statute. The regulations
specify that DNA samples are to be collected, handled, preserved, and
submitted to the Federal Bureau of Investigation (``FBI'') in
accordance with FBI guidelines for inclusion in the Combined DNA Index
System (``CODIS''), a national database of DNA profiles from convicted
offenders, unsolved crime scenes, and missing persons. The regulations
also specify that CSOSA will cooperate with the Federal Bureau of
Prisons to ensure that unnecessary samples will not be collected;
establish a standard for what constitutes an individual's refusal to
cooperate in the collection of a DNA sample; and define what steps
CSOSA deems to be reasonably necessary to take when an individual
refuses to cooperate. The regulations identify in an appendix the
offenses which qualify for DNA collection, as they appear in the
District of Columbia public laws, in the District of Columbia Code
(1981 ed.), and in the District of Columbia Official Code (2001 ed.).
EFFECTIVE DATE: April 22, 2003.
ADDRESSES: Office of the General Counsel, CSOSA, Room 1253, 633 Indiana
Avenue, NW., Washington, DC 20004.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Records Manager
(telephone: (202) 220-5359; e-mail: email@example.com).
SUPPLEMENTARY INFORMATION: CSOSA is finalizing its interim regulations
on the collection and use of DNA information (28 CFR part 812) which
were published in the Federal Register on August 21, 2002 (67 FR
Matters of Regulatory Procedure
Administrative Procedure Act
The implementation of these regulations as interim regulations,
with provision for post-promulgation public comments, is based on the
``good cause'' exceptions found at 5 U.S.C. 553(b)(3)(B) and (d)(3).
The rule implements section 4 of Public Law 106-546 (42 U.S.C. 14135b),
which requires the Director of CSOSA to ``collect a DNA sample from
each individual under the supervision of the Agency who is on
supervised release, parole, or probation who is, or has been, convicted
of a qualifying District of Columbia offense'' and requires collection
of DNA samples to commence not later than 180 days after the effective
date of the Act. Given that section 4(d) authorizes the government of
the District of Columbia to ``determine those offenses under the
District of Columbia Code that shall be treated * * * as qualifying
District of Columbia offenses,'' Congress must have been aware that it
would not be feasible within a 180-day time period to enact the
required District of Columbia legislation, publish a proposed
regulation for notice and comment, as well as a subsequent final rule,
and for the period of the final rule's delayed effective date to have
run. Public Law 106-546, in conjunction with the District of Columbia
legislation, is explicit and comprehensive concerning the types of
offenses that will be treated as qualifying District of Columbia
offenses and concerning the responsibilities of CSOSA in collecting DNA
samples. In light of the short statutory time frame for the
implementation of this law and the fact that the formulation of
implementing regulations involves the exercise of relatively little
discretion, it is impracticable and unnecessary to adopt this rule with
the prior notice and comment period normally required under 5 U.S.C.
553(b) or with the delayed effective date normally required under 5
Moreover, the collection, analysis, and indexing of DNA samples as
required by Public Law 106-546 furthers important public safety
interests by facilitating the solution and prevention of crime, see
H.R. Rep. No. 900, 106th Cong., 2d Sess. 8-11 (2000) (House Judiciary
Committee Report). Delay in the full implementation of the law--
including the absence of a specification of what constitutes a refusal
to cooperate in DNA sample collection and what measures are to be taken
in response to such a refusal, as set forth in these regulations--would
thwart or delay the realization of these public safety benefits.
Dangerous offenders who might be successfully identified through DNA
matching may reach the end of supervision before DNA sample collection
can be carried out, thereby remaining at large to engage in further
crimes against the public. Furthermore, delay in collecting, analyzing,
and indexing DNA samples, and hence in the identification of offenders,
may foreclose prosecution due to the running of statutes of
limitations. Failure to identify, or delay in identifying, offenders as
the perpetrators of crimes through DNA matching also increases the risk
that innocent persons may be wrongfully suspected, accused, or
convicted of such crimes. Therefore, it would be contrary to the public
interest to adopt these regulations with the prior notice and comment
period normally required under 5 U.S.C. 553(b) or with the delayed
effective date normally required under 5 U.S.C. 553(d).
Accordingly, CSOSA issued interim regulations to allow for public
comment during the implementation of its procedures for DNA collection
and use. CSOSA did not receive any public comment on the interim
regulations. CSOSA is therefore adopting the interim regulations as
final. In adopting the interim regulations as final, CSOSA is making
two editorial amendments to correct typographical errors.
Executive Order 12866
This rule has been determined to be significant under Executive
Order 12866 and has been reviewed by the Office of Management and
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with Executive Order 13132, the
Director of CSOSA has determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
Regulatory Flexibility Act
The Director of CSOSA, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule
and by approving it certifies that this rule will not have a
significant economic impact upon a substantial number of small
entities. This rule pertains to agency management, and its economic
impact is limited to the agency's appropriated funds.
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
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, the Director of CSOSA has
determined that no actions are 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 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Plain Language Instructions
If you have suggestions on how to improve the clarity of these
regulations, write, e-mail, or call the Records Manager (Roy Nanovic)
at the address or telephone number given above in the ADDRESSES and FOR
FURTHER INFORMATION CONTACT captions.
List of Subjects in 28 CFR Part 812
Probation and parole.
Accordingly, CSOSA adopts the interim rule published at 67 FR 54098
which added part 812 to chapter VIII, title 28 of the Code of Federal
Regulations as a final rule with the following editorial amendments.
Paul A. Quander, Jr.,
PART 812--COLLECTION AND USE OF DNA INFORMATION
1. The authority citation for part 812 continues to read as follows:
Authority: 5 U.S.C. 301; Pub. L. 106-546 (114 Stat. 2726).
Sec. 812.4 [Amended]
2. In paragraph (b)(3) of Sec. 812.4, remove the word ``provided'' and
insert the word ``provide'' in its place.
Appendix A to Part 812 [Amended]
3. In item (9) of Table 1 of Appendix A to part 812, remove the word
``act'' and insert the word ``Act'' in its place.
[FR Doc. 03-9931 Filed 4-21-03; 8:45 am]
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