[Federal Register Volume 70, Number 19 (Monday, January 31, 2005)]
[Rules and Regulations]
[Pages 4763-4768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1691]


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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.

[[Page 4764]]


ACTION: Interim rule with request for comments.

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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 <a href="/cdn-cgi/l/email-protection#b4dbd8c4c6d1d3c7f4c1c7d0dbde9ad3dbc2"><span class="__cf_email__" data-cfemail="caa5a6bab8afadb98abfb9aea5a0e4ada5bc">[email protected]</span></a> 
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 cross-references 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 non-felonies 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

[[Page 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

[[Page 4766]]

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 post-promulgation 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

[[Page 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 foreign-based companies in domestic and 
export markets.

List of Subjects in 28 CFR Part 28

    Crime, Information, Law enforcement, Prisons, Prisoners, Records, 
Probation and parole.

0
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

0
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.


0
2. Sections 28.1 and 28.2 are revised to read as follows:


Sec.  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.


Sec.  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:

[[Page 4768]]

    (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


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