Title of Regulation: 6VAC40-60. DNA Data Bank Regulations (adding 6VAC40-60-10 through 6VAC40-60-80).

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

Public Hearing Information: No public hearings are scheduled.

Public Comments: Public comments may be submitted until 5 p.m. on January 23, 2009.

Agency Contact: Michele M. Gowdy, Department Counsel, Department of Forensic Science, 700 North Fifth Street, Richmond, VA 23219, telephone (804) 786-6848, FAX (804) 786-6857, or email michele.gowdy@dfs.virginia.gov.

Basis: Section 19.2-310.5 of the Code of Virginia states that the Department of Forensic Science "shall adopt regulations governing (i) the methods of obtaining information from the data bank in accordance with this section and (ii) procedures for verification of the identity and authority of the requestor." (See Chapter 868 of the 2005 Acts of Assembly).

Purpose: The new regulations establish the process for the Department of Forensic Science to allow law enforcement to obtain information from the data bank and the procedures for verifying the requestor’s identity and authority as outlined in § 19.2-310.5 of the Code of Virginia. These regulations fulfill the General Assembly’s mandate, and help promote the health, safety and general welfare of the public.

Substance: The new regulations establish the procedures for law enforcement to obtain information from the DNA data bank, as well as the process by which the Department of Forensic Science shall publish lists periodically of the department employees who have access to the data bank in addition to the level of access each employee has.

Issues: These regulations will provide the public with delineated guidelines on access to the DNA data bank. The advantage to the public and the Commonwealth is that the DNA data bank provides published lists of department employees who have access to the data bank and their level of access. This provides a level of security that is necessary and exists currently, but is not in a published forum. There are no disadvantages to the public or the Commonwealth.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Department of Forensic Science (DFS) proposes to promulgate new regulations to establish procedures for law enforcement officers to obtain information from Virginia’s DNA data bank.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. As required by Code of Virginia § 19.2-310.5, DFS proposes to promulgate current department policies for accessing DNA data bank information into regulation. These policies allow federal, state and local law enforcement officers to request information from the DNA data bank "in furtherance of an official criminal investigation of any criminal offence". DFS requires law enforcement entities to submit requests for information in writing to the data bank supervisor. DFS staff are required to verify the identity of individuals requesting information and signify on the bottom the written request that they have done this. DFS policies, and these regulations, also mandate security measures for the DNA data bank. Computers that house DNA information must be password protected and DNA samples must be stored in a locked room. Access to both computers and physic samples is limited to DFS staff "whose access is a necessary function of their jobs."

These proposed regulations will benefit DFS staff and law enforcement officers by formalizing and clarifying the rules under which DNA data may be accessed. These proposed regulations will likely also benefit the public as interested individuals will be able to access these rules more easily. Affected entities are unlikely to incur any extra costs on account of these proposed regulations since these rules were already enforced by DFS.

Businesses and Entities Affected. These regulations will affect all law enforcement entities who access the DNA data bank as well as all individuals whose DNA is in the data bank. DFS reports that they process approximately 200-300 requests for DNA data bank information each year.

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

Projected Impact on Employment. This regulatory action will likely have no impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no affect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

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

Legal Mandate. 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 Administrative Process Act and Executive Order Number 36 (06). 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 the Department of Planning and Budget's Economic Impact Analysis: The Department of Forensic Science agrees with the estimated economic impact stated in the economic impact analysis 6VAC40-60, DNA Data Bank Regulations.

Summary:

The proposed regulations establish the procedures for law enforcement to obtain information from the DNA data bank and further establish who at the Department of Forensic Science has access to the DNA data bank. The regulations also detail the level of access for each Department of Forensic Science employee.

CHAPTER 60
DNA DATA BANK REGULATIONS

6VAC40-60-10. Definitions.

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

"Agency" means any federal, state or local government law-enforcement organization in the Commonwealth.

"Department" means the Department of Forensic Science.

"DNA" means deoxyribonucleic acid.

"DNA analysis" means analysis conducted on blood, saliva or tissue samples to obtain a genetic profile of identification characteristics.

"DNA data bank" means the Department of Forensic Science database of DNA profiles and/or the corresponding identifying information.

"DNA profile" means the results of forensic DNA analysis of a bodily substance.

"Sample" means a biological sample taken for DNA analysis.

"Subject" means the individual from whom the profile is obtained.

6VAC40-60-20. Persons authorized to obtain information regarding whether or not an individual's DNA profile is in the DNA data bank.

Any written request for any information from the DNA data bank shall come from a federal, state or local law-enforcement officer whose request is made in furtherance of an official criminal investigation of any criminal offense.

6VAC40-60-30. Person(s) to whom a request for information from the DNA data bank may be addressed.

The written request must be addressed to the DNA data bank supervisor at the Department of Forensic Science and be signed by the requestor.

6VAC40-60-40. Contents of a request for information from the DNA data bank.

Any written request for information from the DNA data bank must contain the most complete identifying information available for the subject: full name, social security number, date of birth, race, sex, state identification number. The request must specify that the information is being obtained in the course of an official investigation of any criminal offense.

6VAC40-60-50. Form of the request.

A. All requests must be in writing and addressed to the DNA data bank supervisor. Requests should be on official letterhead and signed by the requesting official.

B. Any request made in person will be reduced to writing and verified by department personnel.

1. If the request is made in person, it must be reduced to writing on a plain piece of white paper and signed by the requesting official.

2. The plain white piece of paper must include the requestor's agency name and address.

3. The identity of the requestor must be verified by department personnel with verification of the requestor's identification card and badge number.

4. Once verification is made, the plain white piece of paper must also be signed by the same department employee on the bottom of the paper with the language "Identification verified by viewing requestor's identification card - badge #" written near the signature and signed by department personnel.

6VAC40-60-60. Where to make request.

Requests may be made:

1. Via facsimile: (804) 786-9985.

2. Via United States mail: 700 North Fifth Street, Richmond, VA 23219.

3. In person at: 700 North Fifth Street, Richmond, VA 23219.

6VAC40-60-70. Security of the DNA data bank.

Access to the DNA data bank computers and samples is restricted. The computers are password protected and the samples are stored physically in a locked room within the Virginia Department of Forensic Science central laboratory. Access is limited to those individuals within the department whose access is a necessary function of their jobs.

6VAC40-60-80. Publishing employee access levels to the DNA data bank.

The Department of Forensic Science shall periodically publish in the Virginia Register of Regulations a list of positions that have access to the DNA data bank as a necessary function of their jobs. The list shall also include the level of access that the position will have. Such list shall be published forthwith after any addition or deletion of any position to or from the approved list.