PART 28—DNA IDENTIFICATION SYSTEM Authority: 28 U.S.C. 509, 510; 34 U.S.C. 12592, 40702, 40703; 10 U.S.C. 1565; 18 U.S.C. 3600A; Public Law 106-546, 114 Stat. 2726; Public Law 107-56, 115 Stat. 272; Public Law 108-405, 118 Stat. 2260; Public Law 109-162, 119 Stat. 2960; Public Law 109-248, 120 Stat. 587; Public Law 115-50, 131 Stat. 1001. Source: Order No. 2699-2003, 68 FR 74858, Dec. 29, 2003, unless otherwise noted. Subpart A—Qualifying Federal Offenses for Purposes of DNA Sample Collection § 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. [Order No. 2753-2005, 70 FR 4767, Jan. 31, 2005] § 28.2 Determination of offenses. (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: (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. [Order No. 2753-2005, 70 FR 4767, Jan. 31, 2005] Subpart B—DNA Sample Collection, Analysis, and Indexing § 28.11 Definitions. DNA analysis DNA sample § 28.12 Collection of DNA samples. (a) The Bureau of Prisons shall collect a DNA sample from each individual in the custody of the Bureau of Prisons who is, or has been, convicted of— (1) A Federal offense (including any offense under the Uniform Code of Military Justice); or (2) A qualifying District of Columbia offense, as determined under section 4(d) of Public Law 106-546. (b) Any agency of the United States that arrests or detains individuals or supervises individuals facing charges shall collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States. For purposes of this paragraph, “non-United States persons” means persons who are not United States citizens and who are not lawfully admitted for permanent residence as defined in 8 CFR 1.2. Unless otherwise directed by the Attorney General, the collection of DNA samples under this paragraph may be limited to individuals from whom the agency collects fingerprints and may be subject to other limitations or exceptions approved by the Attorney General. The DNA-sample collection requirements for the Department of Homeland Security in relation to non-arrestees do not include, except to the extent provided by the Secretary of Homeland Security, collecting DNA samples from: (1) Aliens lawfully in, or being processed for lawful admission to, the United States; (2) Aliens held at a port of entry during consideration of admissibility and not subject to further detention or proceedings; or (3) Aliens held in connection with maritime interdiction. (c) The DNA-sample collection requirements under this section shall be implemented by each agency by January 9, 2009. (d) Each individual described in paragraph (a) or (b) of this section shall cooperate in the collection of a DNA sample from that individual. Agencies required to collect DNA samples under this section may use or authorize the use of such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual described in paragraph (a) or (b) of this section who refuses to cooperate in the collection of the sample. (e) Agencies required to collect DNA samples under this section may enter into agreements with other agencies described in paragraph (a) or (b) of this section, with units of state or local governments, and with private entities to carry out the collection of DNA samples. An agency may, but need not, collect a DNA sample from an individual if— (1) Another agency or entity has collected, or will collect, a DNA sample from that individual pursuant to an agreement under this paragraph; (2) The Combined DNA Index System already contains a DNA analysis with respect to that individual; or (3) Waiver of DNA-sample collection in favor of collection by another agency is authorized by 42 U.S.C. 14135a(a)(3) or 10 U.S.C. 1565(a)(2). (f) Each agency required to collect DNA samples under this section shall— (1) Carry out DNA-sample collection utilizing sample-collection kits provided or other means authorized by the Attorney General, including approved methods of blood draws or buccal swabs; (2) Furnish each DNA sample collected under this section to the Federal Bureau of Investigation, or to another agency or entity as authorized by the Attorney General, for purposes of analysis and entry of the results of the analysis into the Combined DNA Index System; and (3) Repeat DNA-sample collection from an individual who remains or becomes again subject to the agency's jurisdiction or control if informed that a sample collected from the individual does not satisfy the requirements for analysis or for entry of the results of the analysis into the Combined DNA Index System. (g) The authorization of DNA-sample collection by this section pursuant to Public Law 106-546 does not limit DNA-sample collection by any agency pursuant to any other authority. [AG Order No. 3023-2008, 73 FR 74942, Dec. 10, 2008; Order No. 4646-2020, 85 FR 13493, Mar. 9, 2020] § 28.13 Analysis and indexing of DNA samples. (a) The Federal Bureau of Investigation shall carry out a DNA analysis on each DNA sample furnished to the Federal Bureau of Investigation pursuant to section 3(b) or 4(b) of Public Law 106-54, and shall include the results in the Combined DNA Index System. (b) The Federal Bureau of Investigation shall include in the Combined DNA Index System the results of each analysis furnished to the Federal Bureau of Investigation pursuant to 10 U.S.C. 1565(b)(2). Subpart C—Preservation of Biological Evidence Source: Order No. 2762-2005, 70 FR 21957, Apr. 28, 2005, unless otherwise noted. § 28.21 Purpose. Section 3600A of title 18 of the United States Code (“section 3600A”) requires the Government to preserve biological evidence that was secured in the investigation or prosecution of a Federal offense, if a defendant is under a sentence of imprisonment for such offense, subject to certain limitations and exceptions. The general purpose of this requirement is to preserve biological evidence for possible DNA testing under 18 U.S.C. 3600. Subsection (e) of section 3600A requires the Attorney General to promulgate regulations to implement and enforce section 3600A, including appropriate disciplinary sanctions to ensure that employees comply with such regulations. § 28.22 The requirement to preserve biological evidence. (a) Applicability in general. (b) Limitation to circumstances in which a defendant is under a sentence of imprisonment for the offense. (1) Inapplicability at the investigative stage. (2) Inapplicability to cases involving only non-incarcerative sentences. (3) Inapplicability following release. (4) Inapplicability following revocation of release. (c) Conditions of preservation. § 28.23 Evidence subject to the preservation requirement. (a) Biological evidence generally. (b) Biological evidence under section 3600A(b)(2). (1) Identified biological material. (2) Material that may derive from a perpetrator of the crime. Example 1. In a murder case in which the victim struggled with the killer, scrapings of skin tissue or blood taken from under the victim's fingernails would constitute biological material in the sense of section 3600A(b)(2), and would be subject to section 3600A's requirement to preserve biological evidence, assuming satisfaction of the statute's other conditions. Such material, which apparently derives from the perpetrator of the crime, could potentially shed light on guilt or innocence through DNA testing under 18 U.S.C. 3600 to determine whether a defendant was the source of this material. Example 2. Biological material in the sense of section 3600A(b)(2) would not include the body of a murder victim who was shot from a distance, the carcasses of cattle in a meat truck secured in an investigation of the truck's hijacking, a quantity of marijuana seized in a drug trafficking investigation, or articles made from wood or from wool or cotton fiber. While such items of evidence constitute organic matter in a broader sense, they are not biological material within the scope of section 3600A(b)(2), because they do not derive from the body of a perpetrator of the crime, and hence could not shed light on a defendant's guilt or innocence through DNA testing under 18 U.S.C. 3600 to determine whether the defendant is the source of the evidence. § 28.24 Exceptions based on the results of judicial proceedings. Subsection (c) of section 3600A makes the biological evidence preservation requirement inapplicable in two circumstances relating to the results of judicial proceedings: (a) Judicial denial of DNA testing. (b) Inclusion of defendant as source. § 28.25 Exceptions based on a defendant's conduct. Subsection (c) of section 3600A makes the biological evidence preservation requirement inapplicable in two circumstances relating to action (or inaction) by the defendant: (a) Waiver by defendant. i.e. (b) Notice to defendant. (2) Effective notice concerning the possible destruction of biological evidence for purposes of section 3600A(c)(3) cannot be given if the case is pending on direct review of the conviction before a court of appeals or the Supreme Court, if time remains for the defendant to file a notice of appeal from the judgment of conviction in the court of appeals, or if time remains for the defendant to file a petition for certiorari to the Supreme Court following the court of appeals' determination of an appeal of the conviction. (3) Once direct review has been completed, or the time for seeking direct review has expired, section 3600A(c)(3) allows notice to the defendant that biological evidence may be destroyed. The biological evidence preservation requirement of section 3600A thereafter does not apply, unless the defendant files a motion under 18 U.S.C. 3600 within 180 days of receipt of the notice. Notice to a defendant that biological evidence may be destroyed may be provided by certified mail, and the Federal Bureau of Prisons shall create a record concerning the delivery of such mail to an inmate. To determine whether a defendant has filed a motion under 18 U.S.C. 3600 within 180 days of receipt of such a notice, the agency providing the notice may obtain confirmation of delivery and the date of delivery by inquiry with the Federal Bureau of Prisons, and may ascertain whether the defendant has filed a motion under 18 U.S.C. 3600 within 180 days of that date by checking the records of the district court which entered the judgment of conviction of the defendant for the offense or asking the United States Attorney's office in that district. § 28.26 Exceptions based on the nature of the evidence. Subsection (c)(4) of section 3600A provides that the section's biological evidence preservation requirement does not apply if “the evidence must be returned to its rightful owner, or is of such a size, bulk, or physical character as to render retention impracticable.” This exception is subject to the condition that the Government must “take[] reasonable measures to remove and preserve portions of the material evidence sufficient to permit future DNA testing.” (a) Evidence not retained beyond the investigative stage. e.g. (b) Evidence not constituting biological material. (c) Preservation of portions sufficient for DNA testing. § 28.27 Non-preemption of other requirements. Section 3600A's requirement to preserve biological evidence applies cumulatively with other evidence retention requirements. It does not preempt or supersede any statute, regulation, court order, or other provision of law that may require evidence, including biological evidence, to be preserved. § 28.28 Sanctions for violations. (a) Disciplinary sanctions. (b) Criminal sanctions. (c) No effect on validity of convictions.