Title of Regulation: 6VAC40-60. DNA Data Bank Regulations (adding 6VAC40-60-10 through 6VAC40-60-60).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 20, 2012.

Agency Contact: Stephanie Merritt, Department Counsel, Department of Forensic Science, 700 North Fifth Street, Richmond, VA 23219, telephone (804) 786-6848, FAX (804) 786-6857, or email stephanie.merritt@dfs.virginia.gov.

Basis: Section 9.1-1110 of the Code of Virginia authorizes the Board of Forensic Science to adopt regulations pursuant to the Administrative Process Act (§ 2.2-4000 et seq.) for the administration of § 19.2-310.5 of the Code of Virginia. Section 19.2-310.5 of the Code of Virginia authorizes the Department of Forensic Science to adopt regulations governing (i) the methods of obtaining information from the data bank in accordance with § 19.2-310.5 and (ii) procedures for verification of the identity and authority of the requestor.

Purpose: The proposed regulation will establish the methods for obtaining information from the Virginia DNA data bank and procedures for verifying the identity and authority of persons requesting information from the Virginia DNA data bank pursuant to the requirements of § 19.2-310.5 of the Code of Virginia. In fulfilling this statutory mandate, the proposal also achieves the important goal of fully informing stakeholders, meaning law-enforcement agencies tasked with, among other things, protecting the health, safety, or welfare of the public, of processes related to the Virginia DNA data bank. The proposed regulation does not have any known environmental benefit.

Substance: The proposed regulation details the process by which a law-enforcement officer may:

1. Inquire whether or not an individuals DNA profile is in the DNA data bank;

2. Obtain information relating to specific Virginia forensic laboratory examinations involving the analysis and comparison of two or more DNA samples; and

3. Request DNA data bank information relating to out-of-state forensic laboratory examination.

Additionally, the proposal directs that the provision of data bank information to the Department of Corrections and the Department of Juvenile Justice shall be by a secure electronic exchange of data and directs the Department of Forensic Science to maintain a list of employee positions requiring regular data bank access on its website.

Issues: The proposed regulation poses no known disadvantages to the public or the Commonwealth. In fulfilling the statutory mandate, the proposal also provides the advantage of fully informing stakeholders, meaning law-enforcement agencies tasked with, among other things, protecting the health, safety, or welfare of the public, of processes related to the Virginia DNA data bank. By informing law-enforcement agencies of these processes, the regulation benefits the public and the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to a legislative mandate in § 19.2-310.5, the Forensic Science Board (Board) proposes to promulgate new regulations that will govern access to DNA databases.

Result of Analysis. Benefits likely outweigh costs for implementing these proposed changes.

Estimated Economic Impact. Currently, the Department of Forensic Science (DFS) does not have regulations that govern access to DNA databases but does have policies that are equivalent in their requirements. Pursuant to a legislative mandate, the Board now proposes to promulgate new regulations that allow police departments, the Department of Corrections (DOC), the Department of Juvenile Justice (DJJ), attorneys for the United States Department of Justice and the Office of the Chief Medical Examiner to gain access to information in the State or federal DNA databases in connection with the submission of physical evidence for forensic laboratory examination. The proposed regulations specify how law enforcement officers may submit a request for information (by mail, fax or in person) as well as mandating that information provided to DOC and DJJ be transmitted through a secure electronic exchange. The proposed regulations also specify that information requested about out-of-state forensic examinations will be governed by the Combined DNA Index System (CODIS) manual and clarifies that the rules by which criminal defendants and their lawyers may access information in DNA databanks are in § 9.1-1104 of the Code of Virginia.

Because these regulations do not vary in any substantive way from policies already in place, no affected entity is likely to incur any costs on account of this proposed regulatory action. Interested individuals will, however, benefit from these rules being promulgated into regulations that are readily available and that will not change except through an act of the General Assembly or through a Board action that is open to the public and governed by the Administrative Process Act.

Businesses and Entities Affected. DFS reports that there are currently approximately 600 law enforcement and state agencies that may submit evidence for DNA analysis.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This proposed regulatory action is unlikely to have any effect on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. No small business is likely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business is likely to incur any costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the Board he economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to Economic Impact Analysis: The Department of Forensic Science concurs with the economic impact analysis.

Summary:

Pursuant to § 19.2-310.5 of the Code of Virginia, the proposed regulation establishes the methods for obtaining information from the Virginia DNA data bank and procedures for verifying the identity and authority of persons requesting information from the Virginia DNA data bank.

The proposed regulations (i) allow police departments, the Department of Corrections (DOC), the Department of Juvenile Justice (DJJ), attorneys for the Commonwealth or the United States Department of Justice, and the Office of the Chief Medical Examiner to gain access to information in the Virginia or federal DNA databases in connection with the submission of physical evidence for forensic laboratory examination; (ii) specify how law-enforcement officers may submit a request for information; (iii) mandate that information provided to DOC and DJJ be transmitted through a secure electronic exchange; (iv) specify that information requested about out-of-state forensic examinations will be governed by the Combined DNA Index System (CODIS) manual; and (v) clarify that the rules by which criminal defendants and their lawyers may access information in DNA databanks are found in § 9.1-1104 of the Code of Virginia.

CHAPTER 60
DNA DATA BANK REGULATIONS

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.

"RFLE" means Request for Laboratory Examination, an official form provided by the department.

"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 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. 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.

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, 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 identity of the requestor shall be verified by department personnel by inspection of the requestor's identification card and badge number. 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.

6VAC40-60-30. Request for DNA data bank 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 the department's Request for Laboratory Examination (RFLE) form. The RFLE and any related physical evidence shall be submitted pursuant to the procedures established in the department's Evidence Handling & Laboratory Capabilities Guide, which is available online at the department's website.

B. A request from an accused or his 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.

6VAC40-60-40. Requests for DNA data bank information relating to out-of-state forensic laboratory examination.

Requests for DNA data bank information relating to out-of-state forensic laboratory examinations shall be submitted pursuant to the procedures established in the CODIS Operating Policies and Procedures Manual, which is available online at the department's website.

6VAC40-60-50. Provision of DNA data bank information to the Virginia Department of Corrections and the Department of Juvenile Justice.

Any information from the DNA data bank provided to a duly authorized representative of the Department of Corrections pursuant to § 19.2-310.2 of the Code of Virginia or to the Department of Juvenile Justice pursuant to § 16.1-299.1 of the Code of Virginia shall be by a secure electronic exchange of data.

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.

FORMS (6VAC40-60)

Virginia Department of Forensic Science Request for Laboratory Examination, 100-F100 (eff. 8/08).

DOCUMENTS INCORPORATED BY REFERENCE (6VAC40-60)

CODIS Operating Policies and Procedures Manual, 210-D100, Revision 2, July 27, 2009, Biology Program Manager, Virginia Department of Forensic Science.

Evidence Handling & Laboratory Capabilities Guide, February 2010 edition, Forensic Training Section, Virginia Department of Forensic Science.