TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS

FORENSIC SCIENCE BOARD

Fast-Track Regulation

Title of Regulation: 6VAC40-60. DNA Data Bank Regulations (amending 6VAC40-60-10, 6VAC40-60-20, 6VAC40-60-30, 6VAC40-60-60).

Statutory Authority: §§ 9.1-1110 and 19.2-310.5 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: April 24, 2024.

Effective Date: May 9, 2024.

Agency Contact: Amy Jenkins, Department Counsel, Department of Forensic Science, 700 North 5th Street, Richmond, VA 23219, telephone (804) 786-6848, FAX (804) 786-6857, or email amy.jenkins@dfs.virginia.gov.

Basis: The Forensic Science Board has the authority to promulgate DNA Data Bank regulations under §§ 9.1-1110 and 19.2-310.5 of the Code of Virginia.

Purpose: This regulatory action reduces the burden on law-enforcement agencies and others who request information from the DNA Data Bank while still protecting the security of Data Bank information, making requests more secure and more efficient by converting to the use of web forms for the requesting process.

Rationale for Using Fast-Track Rulemaking Process: This action reduces the burden on law-enforcement agencies and takes advantage of technological advances that permit an easier process with the appropriate procedural safeguards for requesting DNA Data Bank information. The action should not be controversial.

Substance: The amendments (i) remove the definition of "subject"; (ii) remove the requirements that a requesting law-enforcement agency submit a written request on official letterhead to confirm whether an individual's DNA profile is in the DNA Data Bank and instead require the use of a web form for these requests; (iii) remove provisions that have remained unenforced by the Department of Forensic Science, thus updating provisions to reflect current department policy for a law-enforcement agency or a prosecutor to receive or request a copy of the Certificates of Analysis for DNA examinations; and (iv) make available a list of employee positions that require regular access to the Data Bank and samples as a regular function of the position, rather than posting the list on the department's website.

Issues: The public is not given access to the DNA Data Bank information. The advantages to the department and the law-enforcement agencies requesting such information are that the action reduces the burden of both making such a request and responding to such a request, improving security and efficiency. There are no disadvantages.

Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. In response to Governor Youngkin's Executive Order No. 19 (2022),² the Forensic Science Board (board) proposes to (i) facilitate DNA Data Bank information requests from law-enforcement agencies through a secure online form rather than a written request on the official letterhead of the requesting law-enforcement agency; (ii) allow the Department of Forensic Science (DFS) to make available a list of employee positions that require regular access to the Data Bank as a regular function of their job upon request, rather than posting a list on the website; and (iii) repeal duplicative language setting out the procedures to receive or request a copy of the Certificates of Analysis for DNA examinations.

Background. Under the current regulation, law-enforcement agencies are required to submit a written request on the official letterhead of their agency in order to inquire from DFS whether a DNA sample is in the DNA Data Bank. The public is not given access to the DNA Data Bank information. In response to Executive Order 19 (2022), which encouraged the review of regulations with the focus on streamlining and reducing regulatory requirements and burdens, the board proposes to facilitate the DNA data bank requests from law-enforcement agencies through a secure online form rather than a written request on the requesting agency's official letterhead. In addition, the board proposes to amend the requirement to make available a list of DFS employee positions that require regular access to the Data Bank as a regular function of their job on its website. Instead of making the list available online, the board proposes to provide the list upon request. Finally, the board proposes to delete language setting out the procedures to receive or request a copy of the Certificates of Analysis for DNA examinations because these procedures either duplicate processes already in place for requesting the results of analyses under DFS's current procedures or under § 9.1-1104 of the Code of Virginia.

Estimated Benefits and Costs. DFS estimates that handling DNA Data Bank check requests from law-enforcement agencies through a secure online form would entail approximately $5,000 in one-time information technology costs to upgrade its website. This cost would be offset by ongoing savings in staff time as the process would be more efficient. These savings include $246 per year in wages for DFS Data Bank analysts in responding to requests, $86 per year in wages of Virginia State Police based on five such requests, and $378 per year in wages of local law-enforcement agencies based on 20 such requests. Moreover, the proposed online platform would likely improve the speed of the requested checks as it would eliminate the time that would have been lost in the regular mail. The proposed switch from maintaining an online list of DFS employees with regular access to DNA Data Bank to providing the list upon request would eliminate the need for DFS to change its website any time the list is updated. As a number of website changes would not be necessary under the proposed changes, a small administrative savings is expected. As the list would be made available upon request, there does not seem to be a discernible cost or loss of access to the list. Finally, the repeal of duplicative information regarding the procedures to receive or request a copy of the Certificates of Analysis for DNA examinations would reduce the amount of regulatory text and make the regulation more readable.

Businesses and Other Entities Affected. The proposed changes primarily affect law-enforcement agencies that can request a DNA Data Bank check. Based on historical data, the Virginia State Police is expected to make five such requests and the local law-enforcement agencies are expected to make 20 such requests per year.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.³ An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. As noted, the proposal would repeal regulatory text that has no application currently or in the future. Thus, no adverse impact is indicated.

Small Businesses⁴ Affected.⁵ The proposed amendments do not appear to adversely affect small businesses.

Localities⁶ Affected.⁷ The proposed changes apply to all local law-enforcement agencies throughout the Commonwealth and are expected to provide some savings in terms of staff time when making a request for a DNA Data Bank check. Thus, the proposal would neither introduce costs nor have a disproportionate impact on localities.

Projected Impact on Employment. The proposed changes are estimated to increase efficiency of DFS and law enforcement staff involved in about 25 DNA Data Bank check requests by 18.75 hours per year. Since the efficiency gains are rather small, it is unlikely that the proposed changes would have an impact on total employment.

Effects on the Use and Value of Private Property. No effects on the use and value of private property nor the real estate development costs are expected because the proposed changes mainly pertain to governmental entities.

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¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/eo/EO-19-Development-and-Review-of-State-Agency-Regulations.pdf

³Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

⁴Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

⁵If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁶"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁷Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The Forensic Science Board concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

In response to Executive Order No. 19 (2022), the amendments (i) facilitate DNA Data Bank information requests from law-enforcement agencies through a secure web form rather than a written request on the official letterhead of the requesting law-enforcement agency; (ii) allow the Department of Forensic Science (DFS) to make available upon request a list of employee positions that require regular access to the Data Bank as a regular function of the employee's job rather than posting the list on the DFS website; and (iii) repeal duplicative language setting out the procedures to receive or request a copy of the Certificates of Analysis for DNA examinations.

6VAC40-60-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"CODIS" means the Combined DNA Index System.

"Department" means the Virginia Department of Forensic Science.

"DNA" means deoxyribonucleic acid.

"DNA data bank" means the Virginia State DNA Index System (SDIS) maintained by the department, which is a database of DNA profiles associated with the corresponding personally identifying information.

"DNA profile" means the results of DNA analysis of a sample of human biological evidence.

"Law-enforcement agency" means any federal, state, or local government law-enforcement organization.

"Subject" means the individual from whom a sample of human biological evidence has been obtained.

6VAC40-60-20. Request for information from a law-enforcement officer regarding whether an individual's DNA profile is in the DNA data bank.

A. A request for information regarding whether an individual's DNA profile is in the DNA data bank shall be in writing, addressed submitted to the department's DNA data bank administrator, and signed by the requesting law-enforcement officer. 1. The request shall contain as much of the following information as is available to the requestor at the time of the request: the individual's full name, known aliases, assigned or claimed social security number, date of birth, race, gender, and state identification number. 2. Such requests shall be submitted via the online form available on the department's website. The request requesting law-enforcement officer shall state confirm that the information is being obtained in furtherance of an official investigation of a specified criminal offense that occurred within the jurisdiction of the requesting law-enforcement agency.

B. The written request shall be on the official letterhead of the requesting officer's law-enforcement agency and sent to the department's central laboratory at 700 North Fifth Street, Richmond, Virginia 23219, via United States mail or commercial mail delivery service, electronic transmission, or by facsimile.

C. In the alternative, the request may be made in person at the department's central laboratory at 700 North Fifth Street, Richmond, Virginia 23219. If not presented on the official letterhead of the requesting officer's law-enforcement agency, the requesting officer shall reduce the request to writing consistent with subsection A of this section and certify his authority to request such information. Thereupon, the B. The identity of the requestor shall be verified by department personnel by inspection of the requestor's identification card and badge number identifying information. Department personnel shall (i) affirm in writing, below the signature of the requesting officer, that the officer's identification was verified; (ii) record the officer's badge number; and (iii) sign and date such verification maintain a record of the request and the verification of the requestor's identity pursuant to the department's record retention guidelines.

6VAC40-60-30. Request for DNA data bank analysis information relating to specific Virginia forensic laboratory examinations involving the analysis and comparison of two or more samples.

A. A duly authorized member of a law-enforcement agency or private police department designated as a criminal justice agency by the Department of Criminal Justice Services as defined in § 9.1-101 of the Code of Virginia, attorneys for the Commonwealth, attorneys for the United States Department of Justice, or a duly authorized member of the Office of the Chief Medical Examiner may obtain information from the DNA data bank in connection with the submission of physical evidence for forensic laboratory examination. A request for such laboratory examination shall be submitted in writing on a form supplied by the department.

B. A request from an accused or his an accused individual's attorney shall be governed by the provisions of § 9.1-1104 of the Code of Virginia.

C. A request for information from the DNA data bank concerning the results of an analysis and comparison of the identification characteristics of human biological evidence shall be in writing, addressed to the department's DNA data bank administrator, and signed by the requestor.

1. The request shall contain as much of the following information as is available to the requestor at the time of the request: the subject's full name, known aliases, assigned or claimed social security number, date of birth, race, gender, and state identification number.

2. The request shall state that the information is being obtained in furtherance of an official investigation of a specified criminal offense that occurred within the jurisdiction of the requesting law-enforcement agency.

3. The written request shall be on the official letterhead of the requestor's agency and sent to the department's central laboratory at 700 North Fifth Street, Richmond, Virginia 23219, via United States mail or commercial mail delivery service, or by facsimile.

4. In the alternative, the request may be made in person at the department's central laboratory at 700 North Fifth Street, Richmond, Virginia 23219. If not presented on the official letterhead of the requestor's agency, the requestor shall reduce the request to writing consistent with subsection A of this section and certify his authority to request such information. Thereupon, the identity of the requestor shall be verified by department personnel by inspection of the requestor's agency identification card. Department personnel shall (i) affirm in writing, below the signature of the requestor, that the requestor's identification was verified; (ii) record the requestor's agency identification number if applicable; and (iii) sign and date such verification.

6VAC40-60-60. Department employee access to the DNA data bank.

The department shall maintain a list of employee positions that require regular access to the DNA data bank and samples submitted as a necessary function of the job. This list shall be available online at the department's website upon request.

FORMS (6VAC40-60)

DNA Data Bank, DNA Request Form for Law-Enforcement Agency, DFS (filed 3/2024)