CJS-29-10-00013-P Partial Match Policy for the DNA Databank

7/21/10 N.Y. St. Reg. CJS-29-10-00013-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 29

July 21, 2010

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CJS-29-10-00013-P

Partial Match Policy for the DNA Databank

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

Proposed Action:

Amendment of Part 6192 of Title 9 NYCRR.

Statutory authority:

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

Subject:

Partial match policy for the DNA Databank.

Purpose:

To provide guidance in the event of an inadvertent match between a casework evidence DNA profile and an offender DNA profile.

Text of proposed rule:

Section 6192.1 of Title 9 NYCRR is amended to read as follows:

Section 6192.1. Definitions

(a) The term allele refers to one of the [possible] alternate forms of the DNA [residing] at a particular genetic locus.

(b) The phrase casework evidence DNA profile refers to [that] a DNA profile [of undetermined origin or the putative perpetrator generated by the testing of physical evidence] that is derived from biological evidence originating from and associated with the commission of a crime.

(c) The term CODIS refers to the Federal Combined DNA Index System.

(d) The term commission refers to the Commission on Forensic Science established pursuant to Executive Law[,] section 995-a.

(e) The term commissioner refers to the commissioner of the New York State Division of Criminal Justice Services, or his or her designee.

(f) The phrase convicted offender DNA profile refers to that DNA profile generated by testing of a [DNA] biological sample collected from a designated offender as defined in Executive Law[,] section 995(7).

(g) The phrase convicted offender index refers to the electronic database containing DNA profiles generated from designated offenders as defined in Executive Law[,] section 995(7) and stored in CODIS[ the State DNA Index System (SDIS)].

(h) The term division refers to the NYS Division of Criminal Justice Services.

(i) The term DNA means deoxyribonucleic acid.

(j) The phrase DNA databank refers to the computerized State DNA Identification Index [as defined in] authorized pursuant to Executive Law[,] section [995(6)] 995-c, and known as the State DNA Index System (SDIS).

(k) The phrase DNA profile refers to [the list of alleles carried by a particular individual at a specified set of genetic loci] a set of DNA identification characteristics which may permit the DNA of one person to be distinguished from that of another person. For STR DNA profiles it refers to the list of alleles carries by a particular individual at a specific set of genetic loci.

(l) The [term] phrase DNA profile of a missing person refers to the results of a forensic analysis of the DNA of a person reported missing or whose whereabouts are unknown.

(m) The term DNA subcommittee refers to the subcommittee on forensic DNA laboratories and forensic DNA testing established pursuant to Executive Law[,] section 995-b(13).

(n) The term FBI refers to the Federal Bureau of Investigation.

(o) The [term] phrase forensic DNA laboratory shall have the same meaning as set forth in Executive Law[,] section 995(2).

(p) The term forensic DNA testing shall have the same meaning as set forth in Executive Law[,] section 995(2), shall mean any test that employs techniques to examine DNA derived from the human body for the purpose of providing information to resolve issues of identification.

(q) The phrase forensic DNA index refers to the electronic database in CODIS containing DNA profiles generated from casework evidence by [one of the] forensic DNA laboratories[, stored in the SDIS].

(r) The phrase forensic DNA profile refers to a DNA profile that is derived from biological evidence originating from and associated with the commission of a crime.

(s) The phrase indirect association refers to the determination during the CODIS candidate match confirmation process that a forensic index DNA profile is similar to a DNA profile in the convicted offender index or subject index and a comparison reveals that the offender or subject may be a relative of the source of the forensic index profile.

(t) The term LDIS refers to that level of the CODIS program in which a public DNA laboratory maintains its DNA records for searching and uploading to higher level indices such as SDIS and NDIS.

(u) The term loci refers to [a group of genes or other DNA elements occupying] specific chromosomal locations of genes or other DNA elements such as STRs [on one or more of the chromosomes of a particular species].

(v) The term mitochondrial DNA testing or mtDNA testing refers to analysis of genetic polymorphisms that occur in the DNA of mitochondria.

(w) [(s)] The term NDIS refers to the National DNA Index System[, and is comprised of uploaded casework evidence DNA profiles, convicted offender DNA profiles, DNA profiles from relatives of individuals reported missing and from the missing persons, and anonymous DNA profiles contributed to a population database from across the United States].

(x) [(t)] The [term] phrase NDIS DNA Data Acceptance Standards refers to the document [prepared by the FBI] specifying the requirements for DNA data to be accepted for searching and storage [at the national level,] in CODIS. It is authored [which was created] by the FBI, Laboratory Division, 2501 Investigation Parkway, Quantico, Va. 22135 on January 11, 2000 and revised May 4, 2005. This document may be viewed at the Division of Criminal Justice Services, Four Tower Place, Albany, NY 12203, and the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231.

(y) [(u)] The term STR refers to Short Tandem Repeat; [and] STR analysis is a form of testing which provides DNA profiles for loci which contain simple DNA unit repeats. STR loci on the Y-chromosome are referred to as Y-STRs.

(z) [(w) ] The phrase subject DNA profile refers to that DNA profile generated by [testing] analysis of a [DNA] biological sample collected from a subject convicted of a crime whose [DNA] specimen was collected: pursuant to a plea agreement; as a condition for participation in a temporary release, Comprehensive Alcohol and Substance Abuse Treatment (CASAT) or shock incarceration program; as a condition of release on parole, post-release supervision, presumptive release, or conditional release on a definite or indeterminate sentence; or as a condition of probation or interim probation supervision.

(aa) [(x)] The phrase subject index refers to the electronic database containing DNA profiles generated from subjects convicted of a crime whose DNA specimen was collected: pursuant to a plea agreement; as a condition for participation in a temporary release, CASAT, or shock incarceration program; as a condition of release on parole, post-release supervision, presumptive release, or conditional release on a definite or indeterminate sentence; or as a condition of probation or interim probation supervision.

(bb) The phrase unidentified human remains index refers to the electronic database in CODIS containing DNA profiles generated from human remains of unknown origin.

Subdivisions (c) and (d) of section 6192.3 of Title 9 NYCRR are amended and new subdivisions (e) and (f) are added to section 6192.3 of Title 9 NYCRR to read as follows:

(c) For purposes of searches of the DNA databank, a minimum of four loci shall be provided by a laboratory requesting a [casework] forensic DNA profile search against the DNA databank. Generally, all available loci associated with a [casework evidence] forensic DNA profile shall be searched in the DNA databank. Notwithstanding this requirement, the laboratory may, at its discretion, request that a [casework] search be performed using fewer loci if there is an investigative need and sufficient scientific reasons which support using fewer than four loci in a particular case. The scientific reasons shall include, but not be limited to, the apparent presence of mixtures, sample degradation or limited sample availability. The basis of the scientific reason(s) must be summarized on the search request form whenever fewer than four loci are provided with a [casework] search request.

(d) [Forensic] DNA profiles that may be added to the DNA databank by forensic DNA laboratories [shall only add to the DNA databank] include casework evidence DNA profiles, [NYS] convicted offender DNA profiles, subject DNA profiles, [or] DNA profiles of missing persons, [or] relatives of individuals reported missing, unidentified humans or human remains.

(e) Upon notification by the NDIS Custodian that all applicable NDIS requirements have been satisfied, the division may release the name of an offender whose DNA profile has been indirectly associated through a national CODIS search with a DNA profile in another state's forensic index. Testing of additional loci of the offender sample may be required and may include Y-STR and/or mtDNA analysis.

(f) The division may release the name of an offender whose DNA profile has been indirectly associated through a State CODIS search with a forensic DNA profile when it has been determined that the information may lead to the identification of an individual related to the offender. For associations obtained from a State CODIS search, the following conditions must be met:

(1) The laboratory submitting the crime scene DNA profile to the CODIS program shall complete an application to the division requesting the name of the offender and, as part of the application, confirm that:

(i) an LDIS search has been performed using the profile in the Forensic Index;

(ii) the forensic DNA profile derives from a single source and contains at least ten of the CODIS core loci;

(iii) the submitting agency and the appropriate prosecutor have committed to pursue further investigation of the case if the name is released. Such entities also agree to provide follow-up information to the division regarding the outcome of the case, which the division will provide to the DNA Subcommittee at six month intervals; and

(iv) the submitting laboratory has confirmed that release of the name will be followed by a report to the investigating agency.

(2) The report from the submitting laboratory to the investigating agency shall indicate that:

(i) the match is indirect;

(ii) the information provided is an investigative lead;

(iii) the available data suggests that the source of the evidentiary DNA pattern is potentially a relative of the convicted offender but is not conclusive evidence of the same.

(3) The division will provide the match information to the State DNA databank which, in turn, will calculate and report whether the appropriate statistical threshold approved by the DNA Subcommittee has been met.

(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 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 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.

Section 6192.1 of Title 9 NYCRR is amended to read as follows:

6192.9 Unauthorized attempts to penetrate the databank. As noted in Executive Law[,] section 995-b(9)(vi), "Operational programs shall be used to detect and store for the output of the division or its designee all unauthorized attempts to penetrate the DNA databank." The division shall certify to the DNA subcommittee and commission that the DNA databank hardware and software architecture has been appropriately designed, implemented and safeguarded to eliminate the realistic chance that such unauthorized attempts to penetrate the DNA databank could go undetected. This certification shall be made based on conformance of the DNA databank with all applicable information security rules, regulations, and policies [appropriate portions of Technology Policy 97-1]. The division shall maintain this certification in a file with the written Information System Plans from participant laboratories (see section 6192.5 of this Part). A current certification must be on file at the division at all times.

Subdivision (c) of section 6192.10 of Title 9 NYCRR is amended to read as follows:

(c) a memorandum of understanding has been executed between the appropriate New York State agencies and the [federal CODIS program administrator] FBI.

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

Natasha Harvin, Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, [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 sections 837(13), 995-b(9) and (12).

2. Legislative objectives: The Commission on Forensic Science is established pursuant to Executive Law § 995-a. Although it is technically an independent entity, the Commission has no staff or budget and relies on the Division of Criminal Justice Services for the staff, administrative assistance, and other resources necessary to carry out its powers and duties. Pursuant to Executive Law § 995-b(9), the Commission must promulgate a policy for the establishment and operation of a DNA identification index. The DNA identification index became operational in 1996. 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 of Criminal Justice Services in 9 NYCRR Part 6192. The proposed rule amends 9 NYCRR Part 6192 to codify 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.

3. Needs and benefits: Currently, when a crime scene DNA sample is submitted to a New York State forensic laboratory, laboratory officials report only if the sample matches a particular individual in the state's DNA Databank. Current regulations do not permit them to inform police of "near matches" that occur inadvertently and may indicate that the perpetrator is a close blood relative of the individual whose DNA is on file. The Commission has taken an important step to address the serious and valid concerns expressed by forensic scientists, who feared that they are currently placed in an untenable ethical bind: right now, they have no authority to share information, discovered inadvertently, that may provide vital evidence in a criminal investigation. District Attorney and law enforcement agencies also expressed dismay at this policy. The Commission's majority believed that it was not reasonable to ask our laboratories to withhold information that they know may be the key to stopping a serial rapist or murderer, or exonerating an innocent individual.

The Commission took action only after the matter was thoroughly debated by its members and researched by the DNA Subcommittee, which elicited technical information from top scientists, such as: Dr. George Carmody, who chaired the FBI's Scientific Working Group on DNA Analysis Methods; human geneticist Professor Ranajit Chakraborty, a renowned human geneticist; Dr. Mecki Prinz, lab director for the New York City Office of the Chief Medical Examiner; and Dr. Barry Duceman, the DNA laboratory director for the New York State Police.

The amended regulations will 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 new regulations will not permit what is often called "familial searching," or singling out particular families and actively searching their DNA profiles, as is currently permitted in a small number of states, including California and Colorado.

The proposed rule amends Part 6192 to codify a partial match policy in the event of an inadvertent match between a casework evidence DNA profile and an offender DNA profile. The policy describes the events that need to transpire for release of the offender's name. There are two parts to this: first is the process of releasing the offender's name in the event of a partial match with the national DNA database (known as the Combined DNA Identification System or CODIS). The second part is the process of a partial match obtained from a New York State CODIS search. The partial match policy is based on recommendations made by, among others, the Scientific Working Group on DNA Analysis Methods (SWGDAM) Ad Hoc Committee on Partial Matches in October 2009. The proposed rule will help ensure that laboratories provide relevant information to law enforcement while protecting the confidentiality of information in the DNA identification index. The amended regulations are designed to ensure that the new policy is applied fairly and in accordance with accepted scientific procedures and constitutional safeguards.

The DNA Subcommittee of the Commission on Forensic Science reviewed the partial match policy and made a recommendation to adopt the policy to the Commission pursuant to Executive Law section 995-b(13) on November 13, 2009. The Commission on Forensic Science formally adopted the policy on December 11, 2009.

4. Costs:

a. Costs to regulated parties for the implementation of and continuing compliance with the rule: None.

b. Costs to the agency, the state and local governments for the implementation and continuation of the rule: None.

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 fact the proposal does not impose mandates or other requirements on forensic laboratories. It merely provides guidance as to when information from the DNA identification index may be released in the event of an inadvertent match between a casework evidence DNA profile and an offender DNA profile.

5. Local government mandates: There are no new mandates imposed by the rule upon any local government.

6. Paperwork: A forensic laboratory that has a partial match must complete an application to the Division requesting the name of the offender and, as part of the application, confirm that: a local DNA index system search has been performed using the profile in the Forensic Index; the forensic DNA profile derives from a single source and contains at least ten of the CODIS core loci; the submitting agency and the appropriate prosecutor have committed to pursue further investigation of the case if the name is released and agree to provide follow-up information to the Division regarding the outcome of the case; and the submitting laboratory has confirmed that release of the name will be followed by a report to the investigating agency.

7. Duplication: No other legal requirements of the state and federal governments, duplicate, overlap, or conflict with the rule.

8. Alternatives: The Commission engaged in considerable debate and discussion as to whether it should authorize release of information from the DNA identification index in response to a partial match. The legal and policy implications associated with a partial match policy were discussed by the Commission at several meetings. A few members of the Commission expressed the opinion that such a policy should not be implemented. They felt that the privacy concerns were not outweighed by the benefits of this proposal and that action should be legislative. Ultimately, however, a majority of the Commission members were in favor of implementing the partial match policy and concomitant regulatory changes due to the untenable ethical bind they felt lab personnel were placed in by not releasing this information -- which was inadvertently obtained and which simply provides an investigative lead. They believe that based upon the legality of the Subject Index (9 NYCRR § 6192.1[x]) and broad jurisdiction of the Commission, their action was warranted.

9. Federal standards: The partial match policy is based on recommendations made by the Scientific Working Group on DNA Analysis Methods (SWGDAM) Ad Hoc Committee on Partial Matches in October 2009.

10. Compliance schedule: Regulated parties are expected to be able to comply with the rule immediately.

Regulatory Flexibility Analysis

1. Effect of rule: The Commission on Forensic Science is established pursuant to Executive Law § 995-a. Although it is technically an independent entity, the Commission has no staff or budget and relies on the Division of Criminal Justice Services for the staff, administrative assistance, and other resources necessary to carry out its powers and duties. Pursuant to Executive Law § 995-b(9), the Commission must promulgate a policy for the establishment and operation of a DNA identification index. The DNA identification index became operational in 1996. 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 of Criminal Justice Services in 9 NYCRR Part 6192. The proposed rule amends 9 NYCRR Part 6192 to codify 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 policy describes the events that need to transpire for release of the offender's name. There are two parts to this: first is the process of releasing the offender's name in the event of a partial match with the national DNA database (known as the Combined DNA Identification System or CODIS). The second part is the process for a partial match obtained from a New York State CODIS search. The partial match policy is largely based on recommendations made by the Scientific Working Group on DNA Analysis Methods (SWGDAM) Ad Hoc Committee on Partial Matches in October 2009. The proposed rule will help ensure that laboratories provide relevant information to law enforcement while protecting the confidentiality of information in the DNA identification index.

The proposed rule does not apply to small businesses.

2. Compliance requirements: The rule imposes no mandates on local governments.

3. Professional services: No professional services not otherwise available at a forensic laboratory will be needed to comply with the proposed rule.

4. Compliance costs: None. The cost analysis is based on the fact the proposal does not impose mandates or other requirements on forensic laboratories. It merely provides guidance as to when information from the DNA identification index may be released in the event of an inadvertent match between a casework evidence DNA profile and an offender DNA profile.

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

6. Minimizing adverse impact: The rule imposes no mandates on local governments. It merely provides guidance as to when information from the DNA identification index may be released in the event of an inadvertent match between a casework evidence DNA profile and an offender DNA profile. It is therefore expected that there will be no adverse impact on local governments.

7. Small business and local government participation: The Commission on Forensic Science and DNA Subcommittee both reviewed and approved this proposal. These entities include among their members three representatives of local government laboratories and two county district attorneys. These members provided comment and input regarding the proposed rule.

Rural Area Flexibility Analysis

The proposal applies to eleven forensic laboratories operated by municipalities, none of which is located in a “rural area.” As such, it will not impose any adverse economic impact on rural areas, or reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas.

Job Impact Statement

The proposed rule amends Part 6192 to codify a partial match policy in the event of an inadvertent match between a casework evidence DNA profile and an offender DNA profile. The policy describes the events that need to transpire for release of the offender’s name. The proposed rule will help ensure that laboratories provide relevant information to law enforcement while protecting the confidentiality of information in the DNA identification index. As such, it is apparent from the nature and purpose of the proposal that it will have no impact on jobs and employment opportunities.