Title of Regulation: 6VAC40-50. Regulations for the Approval of Marijuana Field Tests for Detection of Marijuana Plant Material (amending 6VAC40-50-10 through 6VAC40-50-60, 6VAC40-50-80).

Statutory Authority: §§ 9.1-1110 and 19.2-188.1 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 13, 2014.

Effective Date: February 27, 2014.

Agency Contact: Stephanie Merritt, Department Counsel, Department of Forensic Science, 700 North Fifth Street, Richmond, VA 23219, telephone (804) 786-2281, or email stephanie.merritt@dfs.virginia.gov.

Basis: Section 19.2-188.1 of the Code of Virginia requires the department to evaluate and, where applicable, approve field tests for the detection of marijuana, pursuant to regulations adopted in accordance with the Administrative Process Act, for use by law-enforcement officials. Law-enforcement officers may then testify to the results of department-approved field tests at certain misdemeanor trials. The proposed amendments to the Regulations for the Approval of Marijuana Field Tests for Detection of Marijuana Plant Material were adopted by the Forensic Science Board pursuant to §§ 9.1-1101 and 9.1-1110 of the Code of Virginia.

Purpose: The Regulations for the Approval of Marijuana Field Tests for Detection of Marijuana Plant Material (6VAC40-50) assist law enforcement and the criminal justice system by providing information critical to criminal charging decisions and subsequent trials for the misdemeanor possession of marijuana. This process positively impacts judicial economy and, in turn, due process. Ultimately, the ability of law enforcement and the courts to rely on the results of marijuana field tests protects the health, safety, and welfare of the citizens of the Commonwealth.

Unlike the recent proposed amendments to the Regulations for the Approval of Field Tests for the Detection of Drugs (6VAC40-30), the department determined the marijuana field test kit manufacturers need not be required to pay the cost of the street drug preparation for this evaluation process because of the availability of the material, low material costs, relative stability in the field test market, and low rate of disapproval.

Rationale for Using Fast-Track Process: The proposed amendments to 6VAC40-50 are minor and do not alter existing, substantive procedures. In September 2012, the department conducted a periodic review of this regulation and received no public comment. Likewise, the Forensic Science Board discussed and voted to adopt these proposed amendments at its January 2013 public meeting, and no member of the public offered a comment. Therefore, the department does not anticipate these proposed amendments will be controversial.

Substance: In addition to nonsubstantive verbiage changes regarding the "evaluation" process, the proposed amendments clarify the resubmission process by noting that resubmitted requests for approval shall be accompanied by a detailed explanation of all modifications or changes to the test, the test instructions, or the manufacturer's claims since the most recent evaluation. This procedure merely formalizes the current practice in which the department and field test manufacturers discuss issues surrounding the resubmission of a previously disapproved field test.

Issues: The proposed clarification of the existing language and resubmission procedure will inform and, therefore, benefit the public, stakeholders, and kit manufacturers. The public generally benefits from the efficient and neutral field test evaluation process to the extent the proper use of department-approved marijuana field tests assist law-enforcement officials with criminal charging decisions and facilitate the judicial process. To the extent the amendments require additional information from a kit manufacturer seeking to resubmit following a disapproval, which is rare for marijuana field tests, the proposed amendments could minimally impact four out-of-state kit manufacturers. The proposed amendments emphasize the neutrality of the evaluation process and clarify resubmission procedures after disapproval. The department is unaware of any disadvantages to the agency or the Commonwealth. The department is unaware of any disadvantage to the public or the Commonwealth and expects the proposed amendments will generally benefit the Commonwealth and its citizens.

Small Business Impact Report of Findings: This regulatory action serves as the report of findings of the regulatory review pursuant to § 2.2-4007.1 of the Code of Virginia.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Forensic Science Board (Board) proposes to amend language in these regulations in order to improve clarity.

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

Estimated Economic Impact. The Regulations for the Approval of Marijuana Field Tests for Detection of Marijuana Plant Material concern the evaluation/approval of marijuana field test kits submitted by manufacturers. The evaluation/approval of the marijuana field test kits assists law enforcement and the criminal justice system by providing information critical to criminal charging decisions and subsequent trials for the misdemeanor possession of marijuana. This process positively impacts judicial economy and, in turn, due process. Ultimately, the ability of law enforcement and the courts to rely on the results of marijuana field tests protects the health, safety and welfare of the citizens of the Commonwealth.

The Board's proposed language amendments do not change any requirements in practice. Thus, the proposed amendments will have no impact beyond providing a small benefit through a potential reduction in confusion concerning the requirements by readers of the regulations.

Businesses and Entities Affected. The regulations affect the four manufacturers of marijuana field test kits who have or have indicated an interest in submitting field test kits for evaluation/approval. All four firms are located outside of the Commonwealth.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect employment.

Effects on the Use and Value of Private Property. The proposed amendments are unlikely to significantly affect the use and value of private property.

Small Businesses: Costs and Other Effects. The proposed amendments are unlikely to significantly affect small businesses within the Commonwealth.

Small Businesses: Alternative Method that Minimizes Adverse Impact. The proposed amendments are unlikely to significantly affect small businesses in the Commonwealth.

Real Estate Development Costs. The proposed amendments are unlikely to significantly affect real estate development costs.

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 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, 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 an 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 prepared by the Department of Planning and Budget.

Summary:

The proposed amendments change verbiage relating to the Department of Forensic Science's assessment of marijuana field test kits pursuant to § 19.2-188.1 of the Code of Virginia from an "approval" process to an "evaluation" process and clarify the procedure for resubmitting requests for evaluation after disapproval.

Part I
Definitions

6VAC40-50-10. Definitions.

The following words and terms when used in this chapter 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.

"Approval authority" means the Director of the Department of Forensic Science or his designee.

"Department" means the Department of Forensic Science.

"List of approved marijuana field tests" means a list of Duquenois-Levine field tests approved by the department for use by law-enforcement agencies in the Commonwealth and periodically published by the department in the Virginia Register of Regulations in accordance with § 19.2-188.1 B of the Code of Virginia.

"Manufacturer" means any entity that makes or assembles marijuana field tests or marijuana field test kits to be used by any law-enforcement officer or agency in the Commonwealth for the purpose of detecting marijuana plant material.

"Manufacturer's instructions and claims" means those testing procedures, requirements, instructions, precautions and proposed conclusions that are published by the manufacturer and supplied with the marijuana field tests or marijuana field test kits.

"Marijuana" means marijuana as defined in § 18.2-247 of the Code of Virginia.

"Marijuana field test" means any Duquenois-Levine test unit used outside of a chemical laboratory environment to detect the presence of marijuana plant material.

"Marijuana field test kit" means a combination of individual marijuana field test units.

Part II
Process for Approval of Field Tests

6VAC40-50-20. Authority for approval.

Section 19.2-188.1 B of the Code of Virginia provides that the Department of Forensic Science shall approve marijuana field tests for use by law-enforcement officers to enable them to testify to the results obtained in any trial for a violation of § 18.2-250.1 of the Code of Virginia regarding whether or not any plant material, the identity of which is at issue, is marijuana.

6VAC40-50-30. Request for approval evaluation.

A. Any manufacturer who wishes to have submit marijuana field tests or marijuana field test kits approved for evaluation pursuant to this chapter shall submit a written request for approval evaluation to the department director at the following address:

Director Department of Forensic Science 700 North Fifth Street Richmond, VA 23219

B. Materials sufficient for at least 10 marijuana field tests shall be supplied by each manufacturer. The materials shall include all instructions, precautions, color charts, flow charts and the like which are provided with the marijuana field test or marijuana field test kit and that describe the use and interpretation of the tests.

C. The manufacturer shall also include exact specifications as to the chemical composition of all chemicals or reagents used in the marijuana field tests. These shall include the volume or weight of the chemicals and the nature of their packaging. Material safety data sheets for each chemical or reagent shall be sufficient for this purpose.

D. This approval The department's evaluation process may require up to 90 days from the receipt of the written request and all needed materials from the manufacturer.

E. The department will use marijuana plant material to assess those marijuana field tests submitted for approval evaluation. In order to be approved, the marijuana field test must correctly and consistently react in a clearly observable fashion to the naked eye, and perform in accordance with manufacturer's instructions and claims.

6VAC40-50-40. Notice of approval decision.

The department will notify each manufacturer in writing of the approval or disapproval of each test for which approval evaluation was requested. Should any test not be approved, the manufacturer may resubmit their request for approval evaluation of that marijuana field test according to the previously outlined procedures at any time along with a detailed explanation of all alterations or changes to the test or related instructions or claims since the department's disapproval of the previously submitted test.

6VAC40-50-50. Maintenance of approved status.

The department may require that this approval evaluation be done as often as annually for routine purposes. If any modifications are made to an approved marijuana field test by the manufacturer, the department shall be notified in writing of the changes. If unreported modifications are discovered by the department, the department may require that all testing and approval evaluations be repeated for the particular manufacturers' approved marijuana field tests. The department shall notify the manufacturer in writing of this requirement. Any modified marijuana field test must be approved before it can be used in accordance with § 19.2-188.1 B of the Code of Virginia. These changes shall include, but are not limited to, any chemical, procedural or instructional modifications made to the marijuana field test.

6VAC40-50-60. Publication.

Upon completion of such testing evaluations and in concurrence with the approval authority, the department will periodically publish a list of approved marijuana field tests in the General Notices section of the Virginia Register of Regulations. The department will also periodically publish the list on its website. The department may, in addition, provide copies of its approved list to any law-enforcement agency. The department may share any information or data developed from this testing with these agencies.

Part III
Fees

6VAC40-50-80. Fees.

Manufacturers will be charged a fee of $50 for each marijuana field test for which individual approval evaluation is requested. The department will evaluate review the manufacturers' manufacturer's request and notify them the manufacturer in writing of the amount due before testing evaluation begins. Manufacturers who wish to withdraw a request for approval evaluation shall immediately notify the department in writing of the amount due before testing begins. Manufacturers who wish to withdraw a request for approval shall immediately notify the department in writing. The department's assessment of the amount of payment required will be based upon a detailed evaluation review of the manufacturer's request and that amount will be final. Approval will not be granted The evaluation process will not be initiated before full payment is made to the Treasurer of Virginia.