TITLE 6. CRIMINAL JUSTICE AND CORRECTIONS

FORENSIC SCIENCE BOARD

Fast-Track Regulation

Title of Regulation: 6VAC40-40. Regulations for the Implementation of the Law Permitting DNA Analysis Upon Arrest for All Violent Felonies and Certain Burglaries (amending 6VAC40-40-80, 6VAC40-40-90).

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

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: May 21, 2025.

Effective Date: June 5, 2025.

Agency Contact: Amy Jenkins, Department Counsel, Department of Forensic Science, 700 North Fifth 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 requesting law-enforcement agencies and DNA data bank staff members. The use of the DNA data bank sample tracking system streamlines the process for submitting and receiving DNA samples from arrestees of violent offenses, enhancing public safety by facilitating the search of these samples to potentially connect a violent offender to other crimes that the offender may have committed.

Rationale for Using Fast-Track Rulemaking Process: The amendments reduce the burden on law-enforcement agencies and utilize the department's already existing DNA data bank sample tracking system; therefore, the amendments should not be controversial and are appropriate for the fast-track rulemaking process.

Substance: The amendments (i) eliminate the labeling requirements now replaced by prelog in the DNA data bank sample tracking system and (ii) indicate that the prelog function should be utilized by law-enforcement agencies if available. If unavailable, the original submission form may be utilized.

Issues: The public is not given access to the Department of Forensic Science data bank information. The advantage to the department and law-enforcement agencies is that the amendments allow law-enforcement agencies to prelog samples, reducing the time to hand write the personal identifying information on a submission form. There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget 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. The Forensic Science Board (board) proposes to state that the Department of Forensic Sciences (DFS) DNA data bank sample tracking system should be utilized when available for the submission of DNA buccal samples rather than having law-enforcement officers fill out a preprinted form as part of the buccal sample² kit.

Background. DNA buccal samples are collected during booking by the sheriff's office, police department or regional jail responsible for booking upon arrest.³ The current regulation states that "samples shall be submitted with the following identifying information: the arrestee's name, social security number, date of birth, race and gender; the name of the person collecting the samples; the date and place of collection; information identifying the arresting or accompanying officer; the qualifying offense; and the document control number (DCN)." Traditionally, this has been done by a staff member at the local law-enforcement agency handwriting this information on a form. DFS now has an electronic DNA data bank sample tracking system (DBSATS) that can be used to enter the information. DFS reports that approximately 40% of the submissions it receives are already being made through DBSATS. To improve efficiency, the proposed text is intended to encourage the use of the electronic system with the hope that ultimately 100% of submissions are via DBSATS. According to DFS, in order for local law-enforcement agencies to sign up and get access to DBSATS, a site administrator must execute an access agreement with the DFS data bank staff and maintain a list of authorized users. There is no charge and DFS states that it takes minimal time. DFS also notes that the local law-enforcement agencies should have already signed up to access this system to comply with 6VAC 40-40-50, which states that, "[p]rior to taking the saliva or tissue sample, the DNA data bank sample tracking system shall be queried to determine if there is a DNA sample already in the data bank for the arrestee."

Estimated Benefits and Costs. DFS reports that it receives approximately 2,000 arrestee buccal samples each fiscal year, that DFS data bank analysts earn on average $28.25 per hour, and that receiving the information via DBSATS rather than on a handwritten form saves about 0.03 hours per submission for the DFS data bank analysts. Valuing saved time by the amount earned by analysts for that time, if the proposed text results in all submissions being done by DBSATS (versus the current 40%), then $1,017 in costs would be avoided annually for DFS.⁴ Additionally, handwriting would not need to be interpreted by DFS staff, which may save additional time. The U.S. Bureau of Labor Statistics May 2023⁵ State Occupational Employment and Wage Estimates indicates an hourly mean wage of $23.99 for correctional officers and jailers in Virginia.⁶ DFS estimates that recording the information via DBSATS rather than writing it on the form saves about 0.08 hours per submission for the local law enforcement agency staff. Valuing saved time by the amount earned for that time, if the proposed text results in all submissions being done by DBSATS (versus the current 40%), then $2,303 in costs would be cumulatively avoided annually, which would be distributed across the Commonwealth's local law-enforcement agencies that are not already using the DBSATS system.⁷

Businesses and Other Entities Affected. The proposed amendments affect the 122 sheriff's offices,⁸ 166 police departments,⁹ and 28 regional jails¹⁰ in the Commonwealth, as well as DFS. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.¹¹ An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.¹² As the proposed amendment neither increases net costs nor reduces net benefits, no adverse impact is indicated.

Small Businesses¹³ Affected.¹⁴ The proposed amendments do not adversely affect small businesses.

Localities¹⁵ Affected.¹⁶ The proposed amendments neither disproportionally affect particular localities nor introduce costs for local governments.

Projected Impact on Employment. The proposed amendments are not likely to affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments neither effect the use and value of private property nor real estate development costs.

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¹ Section 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.

² The regulation defines buccal sample as a sample taken by swabbing the cheek inside an arrestee's mouth.

³ See https://law.lis.virginia.gov/admincode/title6/agency40/chapter40/section60/.

⁴ 2,000 x 0.6 x $28.25 x 0.03 = $1,017.

⁵ This is the most recent version published.

⁶ See https://www.bls.gov/oes/current/oes_va.htm.

⁷ 2,000 x 0.6 x $23.99 x 0.08 = $2,303.

⁸ Data source: https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/csllea18st.pdf.

⁹ Ibid.

¹⁰ Data source: https://www.dcjs.virginia.gov/sites/dcjs.virginia.gov/files/publications/research/virginias-peculiar-system-localand-regional-jails.pdf.

¹¹ Pursuant 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.

¹² 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. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

¹³ Pursuant 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."

¹⁴ If 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.

¹⁵ "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.
¹⁶ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency 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 19 (2022), the amendments require law-enforcement officers to utilize the Department of Forensic Science DNA data bank sample tracking system for the submission of DNA buccal samples when available rather than a paper form.

6VAC40-40-80. When buccal sample kits are unavailable.

In circumstances where a buccal sample kit is unavailable, the department may accept samples collected without using the buccal sample collection devices contained in the buccal sample kits. These samples shall be collected through the use of sterile swabs and satisfy the sealing and labeling submitted in compliance with the requirements of 6VAC40-40-90.

6VAC40-40-90. Sealing and labeling samples.

All saliva and tissue samples collected shall be placed in sealed, tamper-resistant containers. Samples shall should be submitted with the following identifying information: the arrestee's name, social security number, date of birth, race and gender; the name of the person collecting the samples; the date and place of collection; information identifying the arresting or accompanying officer; the qualifying offense; and the document control number (DCN) using the prelog function of the DNA data bank sample tracking system. If unavailable, a completed submission form shall be submitted with the sample.

FORMS (6VAC40-40)

DNA Sample Submission Form (eff. 7/2018)

DNA Data Bank Sample Tracking System (eff. 7/2022)