CJS-29-13-00025-P NYS Accreditation, and Y-STRs and Other Testing

7/17/13 N.Y. St. Reg. CJS-29-13-00025-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 29

July 17, 2013

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CJS-29-13-00025-P

NYS Accreditation, and Y-STRs and Other Testing

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of sections 6190.1, 6190.3, 6190.4, 6190.5, 6190.6 and 6192.3 of Title 9 NYCRR.

Statutory authority:

Executive Law, sections 837(13), 995-b(1), (9) and (12)

Subject:

NYS Accreditation, and Y-STRs and other testing.

Purpose:

Require labs to use mock cases and notify the Division after change in management, and clarify the use and timing of Y-STRs etc.

Text of proposed rule:

1. Paragraph (1) of subdivision (a) of section 6190.1 of Title 9 NYCRR is amended to read as follows:

(1) The term forensic laboratory shall have the same meaning as set forth in Executive Law (EL) section 995(1) [.] and shall include a forensic DNA laboratory which shall have the same meaning as set forth in EL section 995(2).

2. Paragraph (2) of subdivision (a) of section 6190.1 of Title 9 NYCRR is repealed and paragraphs (3) – (11) are renumbered to be paragraphs (2) – (10).

3. Three new paragraphs (11), (12) and (13) are added to subdivision (a) of section 6190.1 of Title 9 NYCRR to read as follows:

(11) The terms disciplines, sub-disciplines, or categories of testing refer to the type of forensic examination being conducted by the forensic laboratory.

(12) The term scope of accreditation refers to the disciplines, sub-disciplines, or categories of testing for which the forensic laboratory has been granted accreditation.

Note: ASCLD/LAB offers accreditation in disciplines, sub-disciplines (ASCLD/LAB – Legacy), and categories of testing (ASCLD/LAB – International). ABFT offers accreditation only in the discipline of forensic toxicology.

(13) The term mock cases means simulated cases instead of actual or real cases.

4. Section 6190.3 of Title 9 NYCRR is amended to read as follows:

a) [Except as provided below in subdivision (c) of this section, the] The commission has determined that all forensic laboratories must meet the following standards to receive NYS accreditation in disciplines other than forensic DNA testing: (1) the laboratory must be accredited by ASCLD/LAB; or (2) if the laboratory is performing only toxicology analysis, it must be accredited by either ASCLD/LAB or ABFT.

(b) [Except as provided below in subdivision (c) of this section, the] The commission has further determined, upon the binding recommendation of the DNA subcommittee, that any forensic laboratory performing forensic DNA testing must be accredited by ASCLD/LAB to include forensic DNA testing, and must comply with all conditions of the FBI’s Quality Assurance Standards [for Forensic DNA Testing Laboratories].

[(c) A forensic laboratory that has not satisfied the requirements of subdivision (a) or (b) of this section may apply to the commission for provisional NYS accreditation. Such provisional accreditation shall be granted for an interim period (1) to any forensic laboratory that has submitted an application which has been accepted by ASCLD/LAB and is awaiting ASCLD/LAB accreditation; or (2) to any forensic laboratory performing only toxicology analysis that has submitted an application which has been accepted by ASCLD/LAB or ABFT and is awaiting such accreditation; or (3) to any forensic DNA laboratory that has submitted an application which has been accepted by ASCLD/LAB and is awaiting ASCLD/LAB accreditation and that complies with all conditions of the Quality Assurance Standards for Forensic DNA Testing Laboratories.

(d) Notwithstanding the provisions of this Part, a forensic laboratory that has not satisfied the requirements of subdivision (a) or (b) of this section may request that it be permitted to perform forensic testing on evidence in a criminal investigation or proceeding or for purposes of identification to the extent necessary to satisfy ASCLD/LAB or ABFT accreditation requirements. A forensic laboratory requesting to perform such testing must demonstrate to the satisfaction of the commission (and in any instance involving DNA testing upon the binding recommendation of the DNA subcommittee) through the use of an external audit by an inspector approved by the commission (and in any instance involving DNA testing upon the binding recommendation of the DNA subcommittee) that all aspects of preparation for ASCLD/LAB or ABFT accreditation other than that requiring such testing have been completed.]

(c) Once a forensic laboratory has been accredited by ASCLD/LAB or ABFT using mock cases, the commission may receive and review the results of the mock cases.

5. Subdivisions (a) and (b) of section 6190.4 of Title 9 NYCRR are amended to read as follows:

(a) A forensic laboratory seeking NYS accreditation must [file a formal application with] apply to the division in a form prescribed by the division. [An application] A forensic laboratory seeking accreditation shall [include] provide the following supporting documentation, access thereto or authorization for ASCLD/LAB or ABFT, as appropriate, to release:

(1) documentation or accreditation by ASCLD/LAB or ABFT, if obtained;

(2) all documentation submitted to ASCLD/LAB or ABFT, as part of such accreditation application process, the continuing compliance requirements, if any, and any other related matters; and

(3) all documentation received by the laboratory from ASCLD/LAB or ABFT, which may include, but not be limited to any of the following, if appropriate: information pertaining to the application process; the accreditation inspection; the summation conference; the final inspection report; and disciplinary actions or proceedings.

(b) Upon receipt of such materials, the division shall conduct an initial review to ensure that all necessary documents have been submitted. Thereafter, the division shall forward [that application and supporting] the documents to the DNA subcommittee for its review and binding recommendation regarding NYS accreditation to perform DNA testing. The DNA subcommittee shall forward its binding recommendation to the commission, which shall make a final determination as to whether NYS accreditation in forensic DNA testing should be granted. For a forensic laboratory seeking accreditation in disciplines other than DNA testing, the division shall forward the [application and supporting] documentation directly to the commission for its determination.

6. Subdivision (a) of section 6190.5 of Title 9 NYCRR is amended to read as follows:

a) A forensic laboratory that is accredited [to perform DNA testing] will retain its NYS accreditation for the same period as its ASCLD/LAB or ABFT accreditation, unless such NYS accreditation is revoked pursuant to section 6190.6 of this Part. To retain NYS accredited status, such laboratory shall continue to meet the standards under which it was accredited and shall participate in any proficiency testing mandated by the commission or, with respect to forensic DNA laboratories, the DNA subcommittee. Such laboratory must submit to the division a copy of any documentation submitted to ASCLD/LAB or ABFT or received from it as part of the continuing compliance requirements, including any notification of disciplinary action taken by ASCLD/LAB or ABFT against such laboratory. Such documentation shall be reviewed by the commission, or with respect to forensic DNA laboratories, the DNA subcommittee, and appropriate action may be taken against such laboratory, if necessary.

7. Subdivision (b) of section 6190.5 of Title 9 NYCRR is repealed and a new subdivision (b) is added to read as follows:

(b) A forensic laboratory that has received NYS accreditation shall notify the division, in writing, no later than three business days after any significant change in the management or management structure of such laboratory.

8. Subdivision (a) of section 6190.6 of Title 9 NYCRR is amended to read as follows:

(a) In accordance with Executive Law, section 995-b(3)(e), the commission (and with respect to forensic DNA laboratories, upon the binding recommendation of the DNA subcommittee to the commission) may revoke, suspend or otherwise limit the NYS accreditation of a forensic laboratory, if the commission, or where appropriate, the DNA subcommittee determines that [the] a forensic laboratory or one or more persons in its employ:

(1) is guilty of misrepresentation in obtaining a forensic laboratory NYS accreditation;

(2) rendered a report on laboratory work actually performed in another forensic laboratory without disclosing the fact that the examination or procedure was performed by such other forensic laboratory;

(3) showed unacceptable error or errors in the performance of forensic laboratory examination procedures;

(4) failed to file any report required to be submitted pursuant to EL article 49-B or violated in a material respect any provision of that article;

(5) violated in a material respect any provision of this Part, including the continuing compliance requirements of ASCLD/LAB or ABFT; [or]

(6) failed to participate in or to meet the standards of any proficiency test required by the DNA subcommittee and/or the commission[.]; or

(7) failed to notify the division, in writing, of any significant change in the management or management structure of such laboratory within the time period provided for in subdivision (b) of section 6190.5 of this Part. A forensic laboratory found to be in violation of this paragraph shall be subject to a warning for the first violation.

9. Paragraphs (1), (2) and (3) of subdivision (b) of section 6190.6 of Title 9 NYCRR are renumbered (2), (3) and (4) and a new paragraph (1) is added to read as follows:

(b) A forensic [DNA] laboratory found to be in violation of the provisions of subdivision (a) of this section shall be subject to the following sanctions:

(1) Notice of Violation: On its own initiative or, with respect to forensic DNA laboratories, at the request of the chair of the DNA subcommittee, the commission, by its chair, shall serve written notice of the alleged violation, which notice shall be mailed by certified mail to the holder of the NYS accreditation at the address of such holder. Within five days of receipt of such notice, a NYS accredited laboratory must file a written answer to the charges with the commission and, where appropriate, the DNA subcommittee.

10. Subdivision (c) of section 6190.6 of Title 9 NYCRR is amended to read as follows:

(c) No forensic laboratory NYS accreditation shall be revoked, suspended, or otherwise limited without a hearing. On its own initiative or, with respect to forensic DNA laboratories, at the request of the chair of the DNA subcommittee, the chair of the commission shall serve written notice of the alleged violation, together with written notice of the time and place of the hearing, which notice shall be mailed by certified mail to the holder of the NYS accreditation at the address of such holder at least 21 days prior to the date fixed for such hearing. A NYS accredited laboratory may file a written answer to the charges with the commission and, where appropriate, the DNA subcommittee, not less than five days prior to the hearing. The hearing shall be conducted by the commission or where appropriate, the DNA subcommittee. The laboratory director shall be allowed to appear in person and present relevant testimony. If the DNA subcommittee conducts such hearing, it shall make a binding recommendation to the commission with respect to the appropriate sanction, if any.

11. Subdivisions (e) and (f) of section 6192.3 of Title 9 NYCRR are renumbered subdivision (f) and (g) and a new subdivision (e) is added to read as follows:

(e) In the event of a potential indirect association, laboratories should use Y-STR and/or mtDNA testing to help determine if the indirect association should be pursued further.

12. Paragraph (4) of newly renumbered subdivision (g) of section 6192.3 of Title 9 NYCRR is amended to read as follows:

(4) Upon receiving a completed application from the local participating CODIS laboratory and confirmation from the databank that the appropriate statistical threshold has been met, the division will release the name of the offender and supporting statistical data to the submitting laboratory. If the appropriate statistical threshold value is not supported by the available data, then [testing of] additional [loci of the offender sample] testing may be required [and may include Y-STR and/or mtDNA analysis]. If the subsequent testing does not meet the appropriate threshold, the databank will notify the division and the offender's name will not be released.

Text of proposed rule and any required statements and analyses may be obtained from:

Natasha M. Harvin, Esq., NYS Division of Criminal Justice Services, Alfred E. Smith Office Building, South Swan Street, Albany, NY 12210, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority:

Executive Law §§ 837(13) and 995-b(1), (9) and (12). Executive Law § 837(13) authorizes the Division of Criminal Justice Services (Division) to adopt, amend or rescind regulations “as may be necessary or convenient to the performance of the functions, powers and duties of the [D]ivision.” Executive Law § 995-b(1) requires the development of minimum standards and a program of accreditation for all forensic laboratories in New York State. Thus, the Legislature clearly intended that accreditation standards be established. In addition, Executive Law § 995-b(9) and Executive Law § 995-b(12), respectively, require the promulgation of: (1) a policy for the establishment and operation of the State DNA Databank; and (2) standards for a determination of a match between the DNA records contained in the State DNA Identification Index and a DNA record of a person submitted for comparison.

2. Legislative objectives:

Executive Law § 995-b requires forensic laboratories to obtain New York State (NYS) accreditation. Part 6190 of Title 9 of the New York Codes, Rules and Regulations (NYCRR) requires a forensic laboratory to be accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) or the American Board of Forensic Toxicology, Inc. (ABFT) in order to obtain NYS accreditation.

Since its inception, the policy for the establishment and operation of a DNA Identification Index required pursuant to Executive Law § 995-b(9) has been promulgated by the Division in 9 NYCRR Part 6192. Section 6192.3 establishes a partial match policy which provides guidance to forensic laboratories in the event of an inadvertent match between a casework evidence DNA profile and an offender DNA profile. The proposed regulations amends 9 NYCRR 6192.3 to clarify and provide guidance on the use and timing of Y-STRs and other testing relating to cases of indirect associations.

3. Needs and benefits:

The DNA Subcommittee of the Commission on Forensic Science (Commission) reviewed the proposed regulations and made a binding recommendation to endorse the regulations to the Commission on March 15, 2013. The Commission formally endorsed the regulations on April 10, 2013.

A forensic laboratory seeking NYS accreditation must apply with the Division in a format prescribed by the Division. In addition, to retain NYS accredited status, such laboratory must continue to meet the standards under which it was accredited. The proposed revisions will ensure that the Division is aware of any changes or modifications to the information filed with the application for accreditation.

Under existing regulations, a forensic laboratory that has not been accredited by ASCLD/LAB, or a laboratory that is performing only toxicology analysis and has not been accredited by either ASCLD/LAB or ABFT, may apply to the Commission for provisional NYS accreditation which would allow the laboratory to perform casework without being first accredited by ASCLD/LAB or ABFT. Such provisional accreditation is granted for an interim period: (1) to any forensic laboratory that has submitted an application which has been accepted by ASCLD/LAB and is awaiting ASCLD/LAB accreditation; or (2) to any forensic laboratory performing only toxicology analysis that has submitted an application which has been accepted by ASCLD/LAB or ABFT and is awaiting such accreditation; or (3) to any forensic DNA laboratory that has submitted an application which has been accepted by ASCLD/LAB and is awaiting ASCLD/LAB accreditation and that complies with all conditions of the Federal Bureau of Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.

The New York Crime Laboratory Advisory Committee (NYCLAC) is comprised of representatives of the public forensic laboratories in New York that are subject to the Commission’s accreditation requirements. NYCLAC requested the removal of provisional accreditation. ASCLD/LAB and ABFT offer a one year accreditation program that will allow laboratories required to achieve accreditation prior to providing services in criminal cases an opportunity to apply for accreditation using mock or simulated criminal evidence or casework in lieu of actual evidence. Since ASCLD/LAB and ABFT will allow the use of mock cases and accredit a laboratory for one year, and then assess a laboratory’s processing of actual cases, there is no longer a need for provisional accreditation pending final action on a laboratory’s application.

The current regulations also address the rare case where a routine search of the DNA Databank results in an inadvertent near hit that could greatly limit the pool of potential suspects. The proposed regulations will merely clarify and provide guidance on the use and timing of Y-STRs and other testing relating to cases of indirect associations to further exclude potential suspects. Therefore, there are no costs or new mandates associated with this aspect of the proposal. In addition, the amendments will have no adverse impact on small businesses or local governments, or on jobs or employment opportunities, and there will be no adverse reporting, recordkeeping and other compliance requirements on rural areas. The DNA Subcommittee discussed encouraging DNA laboratories to use Y-STR testing at two meetings. After discussing the proposed amendments, the Subcommittee unanimously recommended that the changes be approved as they relate to DNA laboratories. The Commission also discussed the changes at length. Through a majority vote, the Commission recommended that the amendments be approved. The Commission members that dissented expressed concern about the existing partial match policy. The Commission took action only after the matter was acted upon by the DNA Subcommittee and thoroughly debated by its members.

4. Costs:

a. Costs to the regulated parties for the implementation of and continuing compliance with the rule:

The applicant laboratory must arrange for and obtain a sufficient number of mock casework, as determined by ASCLD/LAB or ABFT, to be reviewed and assessed. The laboratory also must pay any application and other applicable program fees as established by ASCLD/LAB, examples of which are indicated below.

The application fee structure:

• One thousand dollars ($1,000) for laboratories having ten (10) or less proficiency tested personnel (including vacancies), at the time of the application.

• Two thousand dollars ($2,000) for laboratories having between eleven (11) and twenty-five (25) proficiency tested personnel (including vacancies), at the time of the application.

• Three thousand dollars ($3,000) for laboratories having between twenty-six (26) and fifty (50) proficiency tested personnel (including vacancies), at the time of the application.

• Four thousand dollars ($4,000) for laboratories having greater than fifty (50) proficiency tested personnel (including vacancies), at the time of the application.

Optional Pre-Assessment Visit Fee:

Generally, the fee for this service will be about $2,000, but the actual amount may vary slightly if the visit takes longer than three days (including travels days).

Annual Fee:

All accredited laboratories pay an annual fee to support the administrative and compliance monitoring operations of ASCLD/LAB. The annual fee is based on a “share cost” approved by the ASCLD/LAB Delegate Assembly. The current share cost is $154 per proficiency tested position, with a minimum annual fee of $1,000. The maximum annual fee for a single lab or system is $35,000.

Surveillance Visit Fee:

The fee for this service is $2,000 per laboratory, except that in laboratory systems the fee will vary based upon the surveillance schedule agreed to between ASCLD/LAB and the customer’s primary representative.

With regard to ABFT accreditation, a non-refundable fee of $500 is required for the initial application. There are also additional costs for the on-site inspection, which is currently $4,000, and the mid-cycle review, which is $500. The fees for the reaccreditation application and onsite inspection are the same as the fees for the initial application and inspection.

b. Costs to the agency, the state and local governments for the implementation and continuation of the rule: None. Regulatory oversight will be accomplished using existing resources.

c. The information, including the source(s) of such information and the methodology upon which the cost analysis is based: The cost analysis is based on the current fee structure used by ASCLD/LAB and ABFT.

5. Local government mandates:

New forensic laboratories must use mock cases to be accredited and all other forensic laboratories must use mock cases to expand their scope of accreditation. Also, forensic laboratories that receive NYS accreditation must notify the Division, in writing, no later than three business days after any significant change in the management or management structure of such laboratory.

6. Paperwork:

Within nine months of the date that the one year accreditation is granted, the forensic laboratory must apply for a full-term accreditation. Forensic laboratories that receive NYS accreditation must notify the Division, in writing, no later than three business days after any significant change in the management or management structure of such laboratory.

7. Duplication:

The Federal Bureau of Investigation's Quality Assurance Standards for Forensic DNA Testing Laboratories describes the quality assurance requirements that laboratories must follow to ensure the quality and integrity of the data generated by the laboratory. A laboratory is required to comply with these Standards and the accreditation requirements of federal law, which requires DNA laboratories to be accredited by a nationally recognized accreditation board.

8. Alternatives:

No alternatives were considered.

A forensic laboratory seeking NYS accreditation must apply with the Division in a format prescribed by the Division. In addition, to retain NYS accredited status, such laboratory must continue to meet the standards under which it was accredited. The proposed revisions will ensure that the Division is aware of any changes or modifications to the information filed with the application for accreditation.

NYCLAC is comprised of laboratory directors from all of the public forensic laboratories in New York that are subject to the Commission’s accreditation requirements. NYCLAC requested the removal of provisional accreditation. ASCLD/LAB and ABFT offer a one year accreditation program that will allow laboratories required to achieve accreditation prior to providing services in criminal cases an opportunity to apply for accreditation using mock or simulated criminal evidence or casework in lieu of actual evidence. Since ASCLD/LAB and ABFT will allow the use of mock cases and accredit a laboratory for one year, and then assess a laboratory’s processing of actual cases, there is no longer a need for provisional accreditation pending final action on a laboratory’s application.

9. Federal standards:

The Federal Bureau of Investigation's Quality Assurance Standards for Forensic DNA Testing Laboratories describes the quality assurance requirements that laboratories must follow to ensure the quality and integrity of the data generated by the laboratory. A laboratory is required to comply with these Standards and the accreditation requirements of federal law, which requires DNA laboratories to be accredited by a nationally recognized accreditation board.

10. Compliance schedule:

Regulated parties are expected to immediately achieve compliance with the proposed rule.

Regulatory Flexibility Analysis

1. Effect of rule: The proposed rule applies to American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) and American Board of Forensic Toxicology, Inc. (ABFT) accredited laboratories. There are currently 22 State or municipal laboratories. The proposed rule does not apply to small businesses.

2. Compliance requirements: The proposed rule requires new forensic laboratories to use mock cases in order to be accredited and all other forensic laboratories to use mock cases to expand their scope of accreditation. The proposed rule also requires forensic laboratories that receive New York State (NYS) accreditation to notify the Division of Criminal Justice Services (Division), in writing, no later than three business days after any significant change in the management or management structure of such laboratory.

3. Professional services: No professional services not already being utilized by a laboratory will be needed to comply with the proposed rule.

4. Compliance costs: The applicant laboratory must arrange for and obtain a sufficient number of mock cases, as determined by ASCLD/LAB or ABFT, to be reviewed and assessed. The laboratory also must pay any application and other applicable program fees as established by ASCLD/LAB, examples of which are indicated below.

The application fee structure:

• One thousand dollars ($1,000) for laboratories having ten (10) or less proficiency tested personnel (including vacancies), at the time of the application.

• Two thousand dollars ($2,000) for laboratories having between eleven (11) and twenty-five (25) proficiency tested personnel (including vacancies), at the time of the application.

• Three thousand dollars ($3,000) for laboratories having between twenty-six (26) and fifty (50) proficiency tested personnel (including vacancies), at the time of the application.

• Four thousand dollars ($4,000) for laboratories having greater than fifty (50) proficiency tested personnel (including vacancies), at the time of the application.

Optional Pre-Assessment Visit Fee:

Generally, the fee for this service will be about $2,000, but the actual amount may vary slightly if the visit takes longer than three days (including travels days).

Annual Fee:

All accredited laboratories pay an annual fee to support the administrative and compliance monitoring operations of ASCLD/LAB. The annual fee is based on a “share cost” approved by the ASCLD/LAB Delegate Assembly. The current share cost is $154 per proficiency tested position, with a minimum annual fee of $1,000. The maximum annual fee for a single lab or system is $35,000.

Surveillance Visit Fee:

The fee for this service is $2,000 per laboratory, except that in laboratory systems the fee will vary based upon the surveillance schedule agreed to between ASCLD/LAB and the customer’s primary representative.

With regard to ABFT accreditation, a non-refundable fee of $500 is required for the initial application. There are also additional costs for the on-site inspection, which is currently $4,000, and the mid-cycle review, which is $500. The fees for the reaccreditation application and onsite inspection are the same as the fees for the initial application and inspection.

5. Economic and technological feasibility: No economic or technological impediments to compliance have been identified.

6. Minimizing adverse impact: No alternatives were considered.

A forensic laboratory seeking NYS accreditation must apply with the Division in a format prescribed by the Division. In addition, to retain NYS accredited status, such laboratory must continue to meet the standards under which it was accredited. The proposed revisions will ensure that the Division is aware of any changes or modifications to the information filed with the application for accreditation.

The New York Crime Laboratory Advisory Committee (NYCLAC) is comprised of laboratory directors from all of the public forensic laboratories in New York that are subject to the Commission on Forensic Science’s (Commission) accreditation requirements. NYCLAC requested the removal of provisional accreditation. ASCLD/LAB and ABFT offer a one year accreditation program that will allow laboratories required to achieve accreditation prior to providing services in criminal cases an opportunity to apply for accreditation using mock or simulated criminal evidence or casework in lieu of actual evidence. Since ASCLD/LAB and ABFT will allow the use of mock cases and accredit a laboratory for one year, and then assess a laboratory’s processing of actual cases, there is no longer a need for provisional accreditation pending final action on a laboratory’s application.

7. Small business and local government participation: NYCLAC is comprised of laboratory directors from all of the public forensic laboratories in New York that are subject to the Commission’s accreditation requirements. NYCLAC requested the removal of provisional accreditation.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas: The proposed rule applies to American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) and American Board of Forensic Toxicology, Inc. (ABFT) accredited laboratories. There are currently 22 State, county and municipal laboratories, an undetermined number of which may be located in a rural area.

2. Reporting, recordkeeping and other compliance requirements and professional services: No professional services will be needed to comply with the proposed rule.

3. Costs: The applicant laboratory must arrange for and obtain a sufficient number of mock cases, as determined by ASCLD/LAB or ABFT, to be reviewed and assessed. The laboratory also must pay any application and other applicable program fees as established by ASCLD/LAB or ABFT, examples of which are indicated below.

The application fee structure:

• One thousand dollars ($1,000) for laboratories having ten (10) or less proficiency tested personnel (including vacancies), at the time of the application.

• Two thousand dollars ($2,000) for laboratories having between eleven (11) and twenty-five (25) proficiency tested personnel (including vacancies), at the time of the application.

• Three thousand dollars ($3,000) for laboratories having between twenty-six (26) and fifty (50) proficiency tested personnel (including vacancies), at the time of the application.

• Four thousand dollars ($4,000) for laboratories having greater than fifty (50) proficiency tested personnel including vacancies), at the time of the application.

Optional Pre-Assessment Visit Fee:

Generally, the fee for this service will be about $2,000, but the actual amount may vary slightly if the visit takes longer than three days (including travels days).

Annual Fee:

All accredited laboratories pay an annual fee to support the administrative and compliance monitoring operations of ASCLD/LAB. The annual fee is based on a “share cost” approved by the ASCLD/LAB Delegate Assembly. The current share cost is $154 per proficiency tested position, with a minimum annual fee of $1,000. The maximum annual fee for a single lab or system is $35,000.

Surveillance Visit Fee:

The fee for this service is $2,000 per laboratory, except that in laboratory systems the fee will vary based upon the surveillance schedule agreed to between ASCLD/LAB and the customer’s primary representative.

With regard to ABFT accreditation, a non-refundable fee of $500 is required for the initial application. There are also additional costs for the on-site inspection, which is currently $4,000, and the mid-cycle review, which is $500. The fees for the reaccreditation application and onsite inspection are the same as the fees for the initial application and inspection.

4. Minimizing adverse impact: No alternatives were considered.

A forensic laboratory seeking New York State (NYS) accreditation must apply with the Division of Criminal Justice Services (Division) in a format prescribed by the Division. In addition, to retain NYS accredited status, such laboratory must continue to meet the standards under which it was accredited. The proposed revisions will ensure that the Division is aware of any changes or modifications to the information filed with the application for accreditation.

The New York Crime Laboratory Advisory Committee (NYCLAC) is comprised of laboratory directors from all of the public forensic laboratories in New York that are subject to the Commission on Forensic Science’s (Commission) accreditation requirements. NYCLAC requested the removal of provisional accreditation. ASCLD/LAB and ABFT offer a one year accreditation program that will allow laboratories required to achieve accreditation prior to providing services in criminal cases an opportunity to apply for accreditation using mock or simulated criminal evidence or casework in lieu of actual evidence. Since ASCLD/LAB and ABFT will allow the use of mock cases and accredit a laboratory for one year, and then assess a laboratory’s processing of actual cases, there is no longer a need for provisional accreditation pending final action on a laboratory’s application.

5. Rural area participation: NYCLAC is comprised of laboratory directors from all of the public forensic laboratories in New York that are subject to the Commission’s accreditation requirements. NYCLAC requested the removal of provisional accreditation.

Job Impact Statement

The proposed rule requires new forensic laboratories to use mock cases to be accredited and all other forensic laboratories to use mock cases to expand their scope of accreditation. The New York Crime Laboratory Advisory Committee (NYCLAC) is comprised of laboratory directors from all of the public forensic laboratories in New York that are subject to the Commission on Forensic Science’s accreditation requirements. NYCLAC requested the removal of provisional accreditation. The American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) and the American Board of Forensic Toxicology, Inc. (ABFT) offer a one year accreditation program that will allow laboratories required to achieve accreditation prior to providing services in criminal cases an opportunity to apply for accreditation using mock or simulated criminal evidence or casework in lieu of actual evidence. Since ASCLD/LAB and ABFT will allow the use of mock cases and accredit a laboratory for one year, and then assess a laboratory’s processing of actual cases, there is no longer a need for provisional accreditation pending final action on a laboratory’s application.

The proposed rule also requires forensic laboratories that receive New York State (NYS) accreditation to notify the Division of Criminal Justice Services (Division), in writing, no later than three business days after any significant change in the management or management structure of such laboratory. A forensic laboratory seeking NYS accreditation must apply with the Division in a format prescribed by the Division. In addition, to retain NYS accredited status, such laboratory must continue to meet the standards under which it was accredited. The proposed revisions will ensure that the Division is aware of any changes or modifications to the information filed with the application for accreditation.

As such, it is apparent from the nature and purpose of the proposal that it will have no impact on jobs and employment opportunities.