[Federal Register: April 22, 2003 (Volume 68, Number 77)]
[Rules and Regulations] 
[Page 19741-19742]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 19741]]



28 CFR Part 812

RIN 3225-AA04

Collection and Use of DNA Information

AGENCY: Court Services and Offender Supervision Agency for the District 
of Columbia.

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.

(telephone: (202) 220-5359; e-mail: roy.nanovic@csosa.gov).

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 
U.S.C. 553(d).
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 
Budget (OMB).

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 
Federalism Assessment.

Regulatory Flexibility Act

The Director of CSOSA, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule

[[Page 19742]]

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 

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.,


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]