Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 4763

What Is the Unsafe Condition Presented in 

This AD? 

(d) This AD is the result of rubbing 

between the control wheel shaft and the bush 

in the control column, which may cause wear 

or damage to the control wheel shaft where 

the shaft connects to the control column. 

This damage may lead to the aileron control 

becoming stiff or locking. The actions 

specified in this AD are intended to detect 

and correct damage of the pilot and co-pilot 

control wheels and aileron cable operating 

arm shafts that could result in the aileron 

controls becoming stiff or locking, which 

could lead to loss of control of the airplane.

What Must I Do To Address This Problem? 

(e) To address this problem, you must do 

the following:

Actions Compliance Procedures 

(1) Inspect the pilot and co-pilot control column 

wheel and aileron cable operating arm shafts 

for damage.

Perform the initial inspection within 50 hours 

time-in-service (TIS) after March 4, 2005 

(the effective date of this AD).

Follow Gippsland Aeronautics Pty. Ltd. Service Bulletin SB–GA8–2004–11, Issue 2, 

dated August 25, 2004. 

(2) If no damage is found, continue repetitive 

inspections.

Perform repetitive inspections every 300 

hours TIS until steel operating arm shafts 

are replaced with bronze operating arm 

shafts. Replacement of steel operating arm 

shafts with bronze operating arm shafts is 

terminating action for this AD on the side 

that was replaced. If one steel shaft requires replacement, all of the shafts on that 

side (pilot or co-pilot) must be replaced with 

bronze shafts. If only one side (pilot or copilot) is replaced, repetitive inspections are 

still required for the side that was not replaced.

Follow Gippsland Aeronautics Pty. Ltd. Service Bulletin SB–GA8–2004–11, Issue 2, 

dated August 25, 2004. 

(3) For airplanes where damage is found: 

(i) If damage can be repaired by polishing out 

marks or scratches so that material removed 

does not exceed 0.005 inches, repair the 

shaft. You can not repair by polishing out 

marks or scratches more than one time. 

(ii) If damage can not be repaired by polishing 

out marks or scratches so that that material 

removed does not exceed 0.005 inches or 

you have already repaired the damage by 

polishing out marks or scratches previously, 

the damed steel operating arm shaft must be 

replaced with a bronze operating arm shaft. 

When a shaft (pilot or co-pilot) requires replacement, you must install new bronze 

shafts in all areas of the affected side 

If damage is found, repair or replace operating arm shafts prior to further flight. If airplane is repaired, repetitively inspect every 

300 hours TIS after repair until replacement 

of the operating arm shafts. Replacement of 

the steel operating arm shafts with bronze 

operating arm shafts is terminating action 

for this AD. If only one side (pilot or co-pilot) 

is replaced with bronze shafts, you must 

still repetitively inspect the other side that 

was not replaced.

Follow Gippsland Aeronautics Pty. Ltd. Service Bulletin SB–GA8–2004–11, Issue 2, 

dated August 25, 2004. 

(4) As of the effective date of this AD, do not 

install shafts that are not bronze on any affected Model GA8 airplane.

As of March 4, 2005 (the effective date of this 

AD).

Follow Gippsland Aeronautics Pty. Ltd. Service Bulletin SB–GA8–2004–11, Issue 2, 

dated August 25, 2004. 

May I Request an Alternative Method of 

Compliance? 

(f) You may request a different method of 

compliance or a different compliance time 

for this AD by following the procedures in 14 

CFR 39.19. Unless FAA authorizes otherwise, 

send your request to your principal 

inspector. The principal inspector may add 

comments and will send your request to the 

Manager, Standards Office, Small Airplane 

Directorate, FAA. For information on any 

already approved alternative methods of 

compliance, contact Doug Rudolph, 

Aerospace Engineer, Small Airplane 

Directorate, ACE–112, 901 Locust, Room 301, 

Kansas City, Missouri 64106; telephone: 816–

329–4059; facsimile: 816–329–4090. 

Is There Other Information That Relates to 

This Subject? 

(g) Australian Civil Aviation Safety 

Authority Airworthiness Directive AD/GA8/

2, dated September 17, 2004, and Gippsland 

Aeronautics Pty., Ltd., Service Bulletin SB–

GA8–2004–11, dated August 25, 2004, also 

address the subject of this AD. 

Does This AD Incorporate Any Material by 

Reference? 

(h) You must do the actions required by 

this AD following the instructions in 

Gippsland Aeronautics Pty. Ltd. Service 

Bulletin SB–GA8–2004–11, Issue 2, dated 

August 25, 2004. The Director of the Federal 

Register approved the incorporation by 

reference of this service bulletin in 

accordance with 5 U.S.C. 552(a) and 1 CFR 

part 51. To get a copy of this service 

information, contact Gippsland Aeronautics 

Pty. Ltd., Latrobe Regional Airport, P.O. Box 

881, Morwell, Victoria 3840, Australia; 

telephone: 61 (0) 3 5172 1200; facsimile: 61 

(0) 3 5172 1201. To review copies of this 

service information, go to the National 

Archives and Records Administration 

(NARA). For information on the availability 

of this material at NARA, go to: http://

www.archives.gov/federal_register/

code_of_federal_regulations/

ibr_locations.html or call (202) 741–6030. To 

view the AD docket, go to the Docket 

Management Facility; U.S. Department of 

Transportation, 400 Seventh Street, SW., 

Nassif Building, Room PL–401, Washington, 

DC 20590–001 or on the Internet at http://

dms.dot.gov. The docket number is FAA–

2004–19442.

Issued in Kansas City, Missouri, on January 

20, 2005. 

David A. Downey, 

Acting Manager, Small Airplane Directorate, 

Aircraft Certification Service.

[FR Doc. 05–1511 Filed 1–28–05; 8:45 am] 

BILLING CODE 4910–13–P

DEPARTMENT OF JUSTICE

28 CFR Part 28 

[Docket No. OAG 108; A.G. Order No. 2753–

2005] 

RIN 1105–AB09 

DNA Sample Collection From Federal 

Offenders Under the Justice for All Act 

of 2004

AGENCY: Department of Justice.

4764 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Department of Justice is 

publishing this interim rule to 

implement section 203(b) of Pub. L. 

108–405, the Justice for All Act of 2004. 

The Justice for All Act of 2004 

authorizes the Department of Justice to 

treat offenses in certain specified 

categories as qualifying Federal offenses 

for purposes of DNA sample collection. 

This rule amends regulations to reflect 

new categories of Federal offenses 

subject to DNA sample collection. The 

Justice for All Act amendment added 

‘‘[a]ny felony’’ as a specified offense 

category in 42 U.S.C. 14135a(d)—

thereby permitting the collection of 

DNA samples from all convicted Federal 

felons. This rule includes the new ‘‘any 

felony’’ category and does not change 

the coverage of misdemeanors in certain 

categories already included under prior 

law.

DATES: Effective Date: This interim rule 

is effective January 31, 2005. 

Comment Date: Comments must be 

received by April 1, 2005.

ADDRESSES: Comments may be mailed to 

David J. Karp, Senior Counsel, Office of 

Legal Policy, Room 4509, Main Justice 

Building, 950 Pennsylvania Avenue, 

NW., Washington, DC 20530. To ensure 

proper handling, please reference OAG 

Docket No. 108 on your correspondence. 

You may view an electronic version of 

this interim rule at http://

www.regulations.gov. You may also 

comment via the Internet to the Justice 

Department’s Office of Legal Policy 

(OLP) at olpregs@usdoj.gov or by using 

the http://www.regulations.gov

comment form for this regulation. When 

submitting comments electronically you 

must include OAG Docket No. 108 in 

the subject box.

SUPPLEMENTARY INFORMATION: On 

December 29, 2003, the Department of 

Justice published a final rule to 

implement section 3 and related 

provisions of the DNA Analysis Backlog 

Elimination Act of 2000, as amended by 

the USA PATRIOT Act. 68 FR 74855. 

That rule, in part, specified the Federal 

offenses that will be treated as 

qualifying offenses for purposes of DNA 

sample collection. As provided by law, 

DNA samples are collected from persons 

who have been convicted of these 

offenses. See 42 U.S.C. 14135a. 

Reflecting statutory law (42 U.S.C. 

14135a(d)) as it was at the time, DNA 

sample collection from Federal 

offenders under that rule was confined 

to offenders who had been convicted of 

crimes of violence, or offenses in a 

limited list of other offense categories 

specified in the statute. 

Subsequent to the publication of that 

final rule, Congress enacted Pub. L. 

108–405, the Justice for All Act of 2004. 

Section 203(b) of that Act expands the 

categories of offenses that shall be 

treated for purposes of DNA sample 

collection as qualifying Federal offenses 

to include the following offenses, as 

determined by the Attorney General: (1) 

Any felony; (2) any offense under 

chapter 109A of title 18, United States 

Code; (3) any crime of violence (as 

defined in section 16 of title 18, United 

States Code); and (4) any attempt or 

conspiracy to commit any of the above 

offenses. See 42 U.S.C. 14135a(d). This 

reform brings the authorized scope of 

DNA sample collection for Federal 

offenders more into line with that 

generally authorized for State offenders. 

About 35 States had enacted legislation 

authorizing DNA sample collection from 

all felons by the time of the Justice for 

All Act’s enactment of the 

corresponding reform for federal cases. 

The purpose of this interim rule is to 

revise a section of the existing 

regulations, 28 CFR 28.2, to reflect the 

expansion of the statutory DNA sample 

collection categories. The rule also 

makes a minor conforming change in 28 

CFR 28.1. The new versions of these 

regulations are as follows: 

Section 28.1 

This section notes that section 3 of 

Pub. L. 106–546 (42 U.S.C. 14135a) 

directs the collection, analysis, and 

indexing of DNA samples from each 

individual in the custody of the Bureau 

of Prisons or under the supervision of a 

probation office ‘‘who is, or has been, 

convicted of a qualifying Federal 

offense.’’ These requirements apply both 

to Federal offenders who are currently 

incarcerated or under supervision on 

the basis of qualifying Federal offenses, 

and to Federal offenders who are 

currently incarcerated or under 

supervision on the basis of other Federal 

offenses, but who have been convicted 

at some time in the past of a qualifying 

Federal offense. 

The change from the previous version 

of 28 CFR 28.1 is limited to some 

modification of the wording in the 

second sentence, for accuracy in 

describing the version of 42 U.S.C. 

14135a(d) enacted by the Justice for All 

Act.

Section 28.2(a) 

Section 28.2(a), in substance, defines 

‘‘felony’’ as it is ordinarily understood—

i.e., as referring to offenses for which the 

maximum authorized term of 

imprisonment exceeds one year. See 18 

U.S.C. 3559(a). The definition crossreferences the pertinent statutory 

provision that sets forth this 

understanding, stating in part that 

‘‘felony’’ means ‘‘an offense that would 

be classified as a felony under 18 U.S.C. 

3559(a).’’ 18 U.S.C. 3559(a)(1)–(5) 

provides the following classifications of 

offenses as felonies based on the 

maximum term of imprisonment: (i) Life 

imprisonment (or if the maximum 

penalty is death)—Class A felony; (ii) 

twenty-five years or more—Class B 

felony; (iii) less than twenty-five years 

but ten or more years—Class C felony; 

(iv) less than ten years but five or more 

years—Class D felony; (v) less than five 

years but more than one year—Class E 

felony. 

However, 18 U.S.C. 3559(a) is not 

applied to determine the classification 

of offenses that are specifically 

classified by letter grade as Class A, B, 

C, D, or E felonies. For example, 33 

U.S.C. 1232(b)(2) provides that a person 

who engages in certain proscribed 

conduct ‘‘commits a Class C felony.’’ In 

such cases, the statute on its face 

identifies the offense as a felony—

obviating the need for any further 

inquiry to determine its classification—

and the authorized prison terms are set 

by 18 U.S.C. 3581(b). The definition in 

revised 28 CFR 28.2(a)(1) accordingly 

states that ‘‘felony’’ means an offense 

classifiable as such under 18 U.S.C. 

3559(a) ‘‘or that is specifically classified 

by a letter grade as a felony.’’

In most instances, Federal criminal 

statutes do not include specific letter 

grade classifications. Hence, the status 

of Federal offenses as felonies or nonfelonies usually must be determined 

under the criteria of 18 U.S.C. 3559(a) 

by examining the statutes defining the 

offenses or associated penalty 

provisions. For example, maiming 

within the special maritime and 

territorial jurisdiction under 18 U.S.C. 

114 is a felony, because the defining 

statute authorizes imprisonment in 

excess of one year (specifically, up to 20 

years). In other cases, the relevant 

penalties appear in different statutes 

from those defining the offenses. For 

example, the penalties authorized for 

the explosive offenses defined by 18 

U.S.C. 842 appear in 18 U.S.C. 844. 

Most of these offenses are felonies, as 

provided in section 844(a), but some are 

misdemeanors, as provided in section 

844(b). While the penalties for Federal 

offenses are normally specified in 

Federal statutes, it is occasionally 

necessary to look outside of the United 

States Code to determine whether the 

maximum prison term authorized for a 

Federal offense exceeds one year, and 

hence whether it is a felony. For 

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 4765

example, under 18 U.S.C. 1153, an 

Indian country jurisdictional provision, 

the penalties for most offenses 

prosecutable under that section are 

provided by other Federal statutes 

defining offenses in the special 

maritime and territorial jurisdiction of 

the United States—e.g., murder under 

18 U.S.C. 1111, kidnapping under 18 

U.S.C. 1201(a)(2), and robbery under 18 

U.S.C. 2111. But there are no Federal 

offenses of ‘‘incest’’ or ‘‘burglary’’

defined for the special maritime and 

territorial jurisdiction, so the penalties 

for incest and burglary offenses 

prosecuted under 18 U.S.C. 1153 are 

determined by the laws of the State in 

which the offense was committed, as 

provided in section 1153(b). 

Many statutes define both 

misdemeanor and felony offenses, often 

without structural subdivisions in the 

statute to separate them. The presence 

of non-felony offenses in the same 

statute does not vitiate the status of 

felony offenses defined by such a statute 

under 18 U.S.C. 3559(a) or this rule. For 

example, the unaggravated offense 

under 18 U.S.C. 242 (relating to willful 

deprivation of rights under color of law) 

is a misdemeanor, punishable by not 

more than one year of imprisonment. 

But the same statute authorizes 

lengthier prison terms for case in which 

bodily injury results to a victim or other 

specified aggravating factors are present. 

These aggravated offenses under 18 

U.S.C. 242 are accordingly felonies, 

notwithstanding the misdemeanor 

status of the base offense under the 

statute. 

In applying 18 U.S.C. 3559(a), only 

the statutory maximum term of 

imprisonment is considered. 

Limitations on the length of sentences of 

imprisonment under the Federal 

sentencing guidelines are not relevant to 

the determination whether an offense is 

a felony. 

Section 28.2(b)(1) 

Section 28.2(b)(1) states that 

qualifying Federal offenses for purposes 

of DNA sample collection include any 

felony, as authorized by 42 U.S.C. 

14135a(d)(1). 

Overall, the amended regulation is 

much simpler and shorter than the 

previous version of 28 CFR 28.2, 

because the amendment’s inclusion of 

all felonies as qualifying Federal 

offenses encompasses the vast majority 

of the offenses that were specifically 

listed in the previous rule, as well as 

many others. In the previous version, it 

was necessary to attempt to provide a 

comprehensive listing of ‘‘crimes of 

violence’’ under Federal law. However, 

because the current version of the 

sample-collection statute and the new 

version of 28 CFR 28.2 cover all 

felonies—whether or not they are crimes 

of violence—it only remains necessary 

to list code sections separately in the 

rule if these sections define crimes of 

violence that are not felonies. This 

shorter list of code sections—to ensure 

DNA sample collection from persons 

convicted of misdemeanor crimes of 

violence—appears in paragraph (b)(3) of 

revised 28 CFR 28.2 (discussed below).

Section 28.2(b)(2) 

Section 28.2(b)(2) includes among 

qualifying Federal offenses any offense 

under chapter 109A of title 18 (the 

‘‘sexual abuse’’ chapter of the Federal 

criminal code), as authorized by 42 

U.S.C. 14135a(d)(2). Most of the offenses 

in chapter 109A are independently 

covered as felonies, but some are 

misdemeanors. See 18 U.S.C. 2243(b), 

2244(a)(4), (b). The inclusion of chapter 

109A offenses without qualification 

means that all persons who have been 

convicted of any Federal offense under 

that chapter, whether a felony or a 

misdemeanor, are subject to DNA 

sample collection. 

Section 28.2(b)(3) 

Section 28.2(b)(3) includes offenses 

under 30 code sections which (wholly 

or in part) define misdemeanors, on the 

ground that these misdemeanors are 

‘‘crimes of violence,’’ as authorized by 

42 U.S.C. 14135a(d)(3). The inclusion of 

these misdemeanors in the rule as 

qualifying Federal offenses reflects the 

Attorney General’s determination that 

they are crimes of violence as defined in 

18 U.S.C. 16, and that persons convicted 

of these misdemeanors should be 

subject to DNA sample collection. Many 

felonies are also crimes of violence as 

defined in 18 U.S.C. 16, but there is no 

need to list them individually in the 

revised regulation, because they are 

encompassed in 28 CFR 28.2(a)(1)’s 

inclusion of all felonies (whether 

violent or non-violent) as qualifying 

Federal offenses. 

‘‘Crimes of violence,’’ whether 

felonies or misdemeanors, were already 

included in the statutory DNA sample 

collection categories prior to the Justice 

for All Act amendment of 42 U.S.C. 

14135a(d). Hence, such offenses were 

listed in the previous version of 28 CFR 

28.2. In particular, all of the offenses 

listed in paragraph (b)(3) of the revised 

regulation were already covered as 

qualifying Federal offenses under the 

previous regulation. This rule, therefore, 

does not expand the class of 

misdemeanors that are qualifying 

Federal offenses. 

As noted, the specific listing of code 

sections in paragraph (b)(3) is necessary 

to ensure the consistent collection of 

DNA samples from persons convicted of 

crimes of violence, regardless of the 

penalty grading of such crimes. For 

example, 18 U.S.C. 245, a civil rights 

offense, only authorizes imprisonment 

for ‘‘not more than one year’’ in some 

circumstances, but all offenses defined 

by that section are crimes of violence, 

requiring interference with the exercise 

of certain rights ‘‘by force or threat of 

force.’’ Section 245 is accordingly 

included in the listing of title 18 

sections in paragraph (b)(3)(A), to 

ensure consistent coverage of offenses, 

including misdemeanor offenses, under 

that section for DNA sample collection 

purposes. Likewise, offenses under 18 

U.S.C. 115—relating to violence against 

federal officials or members of their 

families—are usually independently 

covered as felonies, but subsection (b)(1) 

of that section provides that assaults in 

violation of the section shall be 

punished as provided in 18 U.S.C. 111, 

and 18 U.S.C. 111 only provides 

misdemeanor penalties in cases of 

simple assault. So a reference to 18 

U.S.C. 115 in paragraph (b)(3)(A) is 

necessary to cover misdemeanor 

assaults under that section. 

In some instances, the reference in 

paragraph (b)(3) to a code section or 

subsection includes some qualifying 

phrase. For example, the listing of title 

18 provisions in paragraph (b)(3)(A) 

refers to offenses under section ‘‘1153 

involving assault against an individual 

who has not attained the age of 16 

years.’’ Section 1153 is the major crimes 

act for Indian country cases, and most 

offenses prosecutable under that section 

are independently covered as felonies 

under paragraph (b)(1) of this rule. 

However, section 1153 includes ‘‘assault 

against an individual who has not 

attained the age of 16 years,’’ and 

applicable penalty provisions, 

appearing in 18 U.S.C. 113(a)(5), 

authorize only misdemeanor penalties 

for the simple assault form of that 

offense. An express reference in the rule 

is accordingly necessary to make it clear 

that this crime of violence under 18 

U.S.C. 1153—simple assault against a 

child below the age of 16—is a 

qualifying Federal offense. 

A number of the qualifying phrases 

accompanying cited code sections in 

paragraph (b)(3) reflect the fact that 

some code sections effectively define a 

number of offenses—some violent and 

some nonviolent under the definition of 

18 U.S.C. 16—without structural 

subdivisions that can readily be 

referenced in identifying the violent 

offenses. For such provisions, the listing 

4766 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

in the rule identifies the covered crimes 

of violence by including appropriate 

phrases that specify the relevant 

limitations. 

For example, paragraph (b)(3)(B) 

refers to a number of penalty provisions 

in title 16 of the United States Code 

which include authorizations of 

misdemeanor penalties for certain 

violations under regulatory programs. 

The misdemeanor offenses under these 

provisions are not uniformly crimes of 

violence, but they are crimes of violence 

in cases in which the violation occurs 

under a provision that prohibits forcibly 

assaulting or resisting officers who are 

carrying out inspections or other 

specified functions. The formulation of 

paragraph (b)(3)(B) accordingly reflects 

this distinction, e.g., in referring to 

‘‘section 773g [of title 16] if the offense 

involves a violation of section 

773e(a)(3).’’

As a final illustration, 49 U.S.C. 

46506(1) provides that certain offenses 

defined for the special maritime and 

territorial jurisdiction apply as well in 

the special aircraft jurisdiction of the 

United States. Most of these offenses are 

crimes of violence and/or felonies, but 

the referenced offenses include certain 

theft-related offenses under 18 U.S.C. 

661 and 662 that are not crimes of 

violence, and are also not felonies in 

cases where the value of the stolen 

property is below $1,000. Consequently, 

these theft-related offenses under 49 

U.S.C. 46506(1) involving property 

whose value is below $1,000 are outside 

of the statutory DNA sample collection 

categories, and paragraph (b)(3)(I) 

qualifies its reference to offenses under 

49 U.S.C. 46506(1) by excluding 

offenses that ‘‘involve[] only an act that 

would violate section 661 or 662 of title 

18 and would not be a felony if 

committed in the special maritime and 

territorial jurisdiction of the United 

States.’’

Section 28.2(b)(4) 

Section 28.2(b)(4) includes among 

qualifying Federal offenses any attempt 

or conspiracy to commit an offense 

which is otherwise included as a 

qualifying Federal offense, as authorized 

by 42 U.S.C. 14135a(d)(4). In most cases 

such attempt and conspiracy offenses 

are independently covered as felonies 

under 28 CFR 28.2(b)(1), but in some 

instances they will be misdemeanors 

which are not otherwise covered. For 

example, a conspiracy to commit a 

misdemeanor offense under chapter 

109A of title 18, prosecuted under 18 

U.S.C. 371, would itself be a 

misdemeanor pursuant to the second 

paragraph of 18 U.S.C. 371. Likewise, a 

conspiracy to commit a misdemeanor 

crime of violence listed in paragraph 

(b)(3) of this rule, prosecuted under 18 

U.S.C. 371, would itself be a 

misdemeanor. 28 CFR 28.2(d)(4) ensures 

that DNA samples will be collected from 

persons convicted of such attempt or 

conspiracy offenses, regardless of 

whether the offenses are felonies or 

misdemeanors.

Section 28.2(c) 

Section 28.2(c) makes it clear that the 

subsequent repeal or modification of an 

offense does not affect the requirement 

of DNA sample collection from an 

offender convicted of such an offense. 

This point applies both to offenses that 

presently exist or are hereafter enacted 

and constitute qualifying Federal 

offenses under the rule’s criteria, and to 

offenses that were repealed or modified 

prior to the enactment of the statutory 

authorization for DNA sample collection 

from Federal offenders or the issuance 

of this rule, but would have been 

classified as qualifying Federal offenses 

under the criteria of this rule. Paragraph 

(c) mentions by way of illustration the 

old statutes defining offenses involving 

rape or sexual abuse of children—18 

U.S.C. 2031 and 2032—which have been 

repealed and have been effectively 

replaced by offenses now appearing in 

chapter 109A of title 18 of the United 

States Code. These old offenses were 

included in the previous version of 28 

CFR 28.2 because they are crimes of 

violence, and their status as felonies 

provides an additional reason for 

including them in the current rule. 

Notwithstanding their repeal, they 

remain relevant for DNA sample 

collection purposes, because there may 

be Federal offenders who were 

convicted of offenses under 18 U.S.C. 

2031 or 2032 prior to their repeal and 

who remain incarcerated or under 

supervision for those offenses, or who 

are incarcerated or under supervision 

for some other offense but have been 

convicted at some time in the past of an 

offense under 18 U.S.C. 2031 or 2032. 

28 CFR 28.2(c) as revised makes it clear 

that an offense which was or would 

have been a qualifying Federal offense 

at the time of conviction, according to 

the definition of that concept in the 

rule, remains a qualifying Federal 

offense—and a person convicted of such 

an offense accordingly remains subject 

to DNA sample collection—even if the 

provision or provisions defining the 

offense or assigning its penalties have 

subsequently been repealed, 

superseded, or modified. 

Administrative Procedure Act 

The implementation of this rule as an 

interim rule, with provisions for postpromulgation public comments, is based 

on the ‘‘good cause’’ exceptions found at 

5 U.S.C. 553(b)(3)(B) and (d)(3), for 

circumstances in which ‘‘notice and 

public procedure thereon are 

impracticable, unnecessary, or contrary 

to the public interest.’’ 5 U.S.C. 

553(b)(3)(B). This rule implements the 

provisions of section 203(b) of the 

Justice For All Act, amending 42 U.S.C. 

14135a(d), which governs the 

authorized scope of DNA sample 

collection from Federal offenders. The 

prior notice and comment period 

normally required under 5 U.S.C. 553(b) 

and the delayed effective date normally 

required under 5 U.S.C. 553(d) are 

unnecessary because the formulation of 

this rule involves no new significant 

exercises of judgment or discretion. The 

Justice for All Act reform primarily 

authorizes DNA sample collection from 

all Federal offenders convicted of 

felonies. The notion of a ‘‘felony’’ is a 

standard, familiar concept in Federal 

criminal law, and this rule simply refers 

to existing statutory provisions for its 

definition. The Justice for All Act 

provisions also encompass chapter 

109A offenses, crimes of violence (as 

defined in 18 U.S.C. 16), and attempts 

or conspiracies to commit offenses 

which are otherwise covered. However, 

these categories were already covered 

under 42 U.S.C. 14135a(d) and 28 CFR 

28.2 prior to the Justice for All Act’s 

amendment of 42 U.S.C. 14135a(d). 

Moreover, the statutory categories of an 

offense under chapter 109A, and of an 

offense constituting an attempt or 

conspiracy to commit an offense which 

is otherwise covered, require no 

particular interpretation or elaboration. 

The Attorney General may need to make 

judgments in determining which 

particular offenses constitute ‘‘crimes of 

violence’’ as defined in 18 U.S.C. 16—

but these judgments were already made, 

following public notice and the receipt 

of comments, in the version of 28 CFR 

28.2 that was published on December 

29, 2003, and went into effect on 

January 28, 2004. The revised regulation 

does not change these determinations. 

In all instances, the non-felony offenses 

covered as ‘‘crimes of violence’’ in this 

rule were already covered as qualifying 

Federal offenses under the previous 

version of the regulation. The revised 

regulation also includes a paragraph (c) 

which states in so many words that the 

repeal or modification of an offense 

does not affect its status as a qualifying 

Federal offense, but this principle was 

already reflected in the previous version 

of 28 CFR 28.2, which included 

repealed statutes (18 U.S.C. 2031 and 

2032) in its listing of qualifying Federal 

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 4767

offenses. Hence, nothing new of 

substance needed to be determined in 

the formulation of this interim rule. 

Moreover, the collection of DNA 

samples from all Federal felons 

authorized by the Justice for All Act 

amendment furthers important public 

safety interests by facilitating the 

solution and prevention of crimes. 

Issuance by the Attorney General of an 

effective implementing regulation for 42 

U.S.C. 14135a(d), as amended, is needed 

to provide a secure basis for 

commencing DNA sample collection 

pursuant to this broadened statutory 

authorization. See 42 U.S.C. 14135a(d) 

(qualifying Federal offenses for 

purposes of DNA sample collection are 

offenses in specified categories ‘‘as 

determined by the Attorney General’’); 

42 U.S.C. 14135a(e) (section is generally 

to be ‘‘carried out under regulations 

prescribed by the Attorney General’’). 

The absence of such an effective 

regulation could accordingly delay the 

implementation of the current version of 

42 U.S.C. 14135a(d), thereby thwarting 

or delaying the realization of the public 

safety benefits that the Justice for All 

Act amendment was enacted to secure. 

Dangerous offenders who could be 

successfully identified through DNA 

matching could be released from prison 

or reach the end of supervision before 

DNA sample collection could 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 wrongly 

suspected, accused, or convicted of such 

crimes. Therefore, it would be 

impracticable and contrary to the public 

interest 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). 

Countenancing such delay in the 

implementation of the DNA sample 

collection provisions for Federal 

offenders under the Justice for All Act 

would disserve Congress’s objective in 

the Justice for All Act of ensuring the 

prompt identification of the perpetrators 

of rapes, murders, and other serious 

crimes through the use of the DNA 

identification system, and would be 

inappropriate in light of Congress’s 

concerns reflected in the Justice for All 

Act about the harm caused by delay in 

securing and utilizing available DNA 

information for law enforcement 

identification purposes. See H.R. Rep. 

No. 711, 108th Cong., 2d Sess. (2004); 

H.R. Rep. No. 321, 108th Cong., 1st Sess. 

(2003); Cong. Rec. S12293–97 (Oct. 1, 

2003). 

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 will not have a 

significant economic impact on a 

substantial number of small entities for 

the following reason: The regulation 

concerns the collection by Federal 

agencies of DNA samples from certain 

offenders.

Executive Order 12866 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 12866, ‘‘Regulatory Planning and 

Review,’’ section 1(b), Principles of 

Regulation. The Department of Justice 

has determined that this rule is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), and 

accordingly this rule has been reviewed 

by the Office of Management and 

Budget. 

Executive Order 13132 

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 

companies to compete with foreignbased companies in domestic and 

export markets.

List of Subjects in 28 CFR Part 28 

Crime, Information, Law enforcement, 

Prisons, Prisoners, Records, Probation 

and parole.

■ For the reasons stated in the preamble, 

the Department of Justice amends 28 CFR 

Chapter I part 28 as follows:

PART 28—DNA IDENTIFICATION 

SYSTEM

■ 1. The authority citation for part 28 is 

amended to read as follows:

Authority: 28 U.S.C. 509, 510; 42 U.S.C. 

14132, 14135a, 14135b; 10 U.S.C. 1565; Pub. 

L. 106–546, 114 Stat. 2726; Pub. L. 107–56, 

115 Stat. 272; Pub. L. 108–405, 118 Stat. 

2260.

■ 2. Sections 28.1 and 28.2 are revised to 

read as follows:

§ 28.1 Purpose. 

Section 3 of Pub. L. 106–546 directs 

the collection, analysis, and indexing of 

a DNA sample from each individual in 

the custody of the Bureau of Prisons or 

under the supervision of a probation 

office who is, or has been, convicted of 

a qualifying Federal offense. Subsection 

(d) of that section states that the offenses 

that shall be treated as qualifying 

Federal offenses are any felony and 

certain other types of offenses, as 

determined by the Attorney General.

§ 28.2 Determination of offenses. 

(a) Felony means a Federal offense 

that would be classified as a felony 

under 18 U.S.C. 3559(a) or that is 

specifically classified by a letter grade 

as a felony. 

(b) The following offenses shall be 

treated for purposes of section 3 of Pub. 

L. 106–546 as qualifying Federal 

offenses: 

(1) Any felony. 

(2) Any offense under chapter 109A of 

title 18, United States Code, even if not 

a felony. 

(3) Any offense under any of the 

following sections of the United States 

Code, even if not a felony: 

4768 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

(i) In title 18, section 111, 112(b) 

involving intimidation or threat, 113, 

115, 245, 247, 248 unless the offense 

involves only a nonviolent physical 

obstruction and is not a felony, 351, 

594, 1153 involving assault against an 

individual who has not attained the age 

of 16 years, 1361, 1368, the second 

paragraph of 1501, 1509, 1751, 1991, or 

2194 involving force or threat. 

(ii) In title 16, section 773g if the 

offense involves a violation of section 

773e(a)(3), 1859 if the offense involves 

a violation of section 1857(1)(E), 3637(c) 

if the offense involves a violation of 

section 3637(a)(3), or 5010(b) if the 

offense involves a violation of section 

5009(6). 

(iii) In title 26, section 7212. 

(iv) In title 30, section 1463 if the 

offense involves a violation of section 

1461(4). 

(v) In title 40, section 5109 if the 

offense involves a violation or 

attempted violation of section 

5104(e)(2)(F). 

(vi) In title 42, section 2283, 3631, or 

9152(d) if the offense involves a 

violation of section 9151(3). 

(vii) In title 43, section 1063 involving 

force, threat, or intimidation. 

(viii) In title 47, section 606(b). 

(ix) In title 49, section 46506(1) unless 

the offense involves only an act that 

would violate section 661 or 662 of title 

18 and would not be a felony if 

committed in the special maritime and 

territorial jurisdiction of the United 

States. 

(4) Any offense that is an attempt or 

conspiracy to commit any of the 

foregoing offenses, even if not a felony. 

(c) An offense that was or would have 

been a qualifying Federal offense as 

defined in this section at the time of 

conviction, such as an offense under 18 

U.S.C. 2031 or 2032, remains a 

qualifying Federal offense even if the 

provision or provisions defining the 

offense or assigning its penalties have 

subsequently been repealed, 

superseded, or modified.

Dated: January 25, 2005. 

John Ashcroft, 

Attorney General.

[FR Doc. 05–1691 Filed 1–28–05; 8:45 am] 

BILLING CODE 4410–19–P

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 1 and 38 

RIN 2900–AM10 

Relocation of National Cemetery 

Administration Regulations

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: Previously the regulations 

administered by the National Cemetery 

Administration (NCA) of the 

Department of Veterans Affairs (VA) 

were set forth in Part 1 of Title 38 of the 

Code of Federal Regulations. Recently, 

NCA was assigned Part 38 of Title 38 for 

its regulations. Accordingly, we are 

moving the regulations administered by 

NCA and located in Part 1 to new Part 

38. We have made non-substantive 

changes to headings of regulations, but 

we have not made any changes to the 

text other than conforming changes to 

section numbers.

DATES: Effective Date: January 31, 2005.

FOR FURTHER INFORMATION CONTACT:

Karen Barber, Program Analyst, 

Legislative and Regulatory Division 

(41C3), National Cemetery 

Administration (NCA), Department of 

Veterans Affairs, 810 Vermont Avenue, 

NW., Washington, DC 20420; telephone: 

(202) 273–5183 (this is not a toll-free 

number).

SUPPLEMENTARY INFORMATION:

Regulations administered by NCA are 

currently located in Part 1 of Title 38 of 

the Code of Federal Regulations along 

with general provisions that are 

applicable to VA offices and programs 

other than NCA. The current placement 

of NCA regulations in Part 1 with 

regulations that are not particular to 

NCA programs may be confusing to 

users who want to quickly and easily 

reference information about NCA 

benefits. Additionally, as NCA expands 

its body of regulations, users will find 

it increasingly more difficult to 

reference information about NCA 

benefits unless NCA regulations are relocated and consolidated in a separate 

part of Title 38. 

NCA was recently assigned new Part 

38 of Title 38 for its regulations. 

Relocation and consolidation of NCA 

regulations in a separate Part is 

intended to help readers reference 

information about NCA benefits more 

easily. Although certain headings are 

being changed and conforming changes 

to section numbers are being made, the 

amendments made by this notice are 

non-substantive and will not affect 

benefits entitlement or otherwise result 

in new costs. This final rule merely 

moves NCA regulations to a new 

location in the Code of Federal 

Regulations without any substantive 

changes. 

Administrative Procedure Act 

We are publishing this document as a 

final rule without prior notice and 

comment and without a delayed 

effective date. This document contains 

only non-substantive changes. Because 

this document merely restates existing 

regulations without substantive change, 

it is exempt from those procedures 

under 5 U.S.C. 553(b)(3)(A) and (d)(2). 

Additionally, VA has determined that 

there is good cause under 5 U.S.C. 

553(b)(3)(B) and (d)(3) for dispensing 

with those procedures, because a 

comment period and a delayed effective 

date are unnecessary in the absence of 

any substantive change to existing 

regulations. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

requires, at 2 U.S.C. 1532, that agencies 

prepare an assessment of anticipated 

costs and benefits before developing any 

rule that may result in an expenditure 

by State, local, and tribal governments, 

in the aggregate, or by the private sector, 

of $100 million or more in any given 

year. This rule would have no such 

effect on State, local, or tribal 

governments, or the private sector. 

Paperwork Reduction Act 

This document does not contain new 

provisions constituting a collection of 

information under the Paperwork 

Reduction Act (44 U.S.C. 3501–3521). 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this final rule will not have a significant 

economic impact on a substantial 

number of small entities as they are 

defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601–612. Only individual 

VA beneficiaries could be directly 

affected. Therefore, pursuant to 5 U.S.C. 

605(b), this final rule is exempt from the 

initial and final regulatory flexibility 

analyses requirements of sections 603 

and 604. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance program numbers for this 

document are 64.201 and 64.202.

List of Subjects in 38 CFR Parts 1 and 

38 

Administrative practice and 

procedure, Cemeteries, Veterans, 

Claims, Crime, Criminal offenses.

Approved: December 14, 2004. 

Anthony J. Principi, 

Secretary of Veterans Affairs.

■ For the reasons set out in the preamble, 

we are amending 38 CFR Chapter 1 as 

follows:

PART 1—GENERAL PROVISIONS

■ 1. The authority citation for part 1 

continues to read as follows: