CJS-32-09-00006-P Forensic Laboratory Accreditation & the State DNA Databank

8/12/09 N.Y. St. Reg. CJS-32-09-00006-P

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 32

August 12, 2009

RULE MAKING ACTIVITIES

DIVISION OF CRIMINAL JUSTICE SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CJS-32-09-00006-P

Forensic Laboratory Accreditation & the State 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 sections 6190.1(a)(8), (9) and (11), 6192.1(t), 6192.3(a) and (b) and 6192.4 of Title 9 NYCRR.

Statutory authority:

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

Subject:

Forensic laboratory accreditation & the State DNA Databank.

Purpose:

To update references to documents incorporated by reference and the address of the Department of State.

Text of proposed rule:

1. Paragraphs (8), (9), and (11) of subdivision (a) of section 6190.1 of Title 9 NYCRR are amended to read as follows:

(8) The term ASCLD/LAB refers to the American Society of Crime Laboratory Directors/Laboratory Accreditation Board. Current ASCLD/LAB accreditation guidelines are contained in the [2003] 2008 edition of the ASCLD/LAB Legacy manual and the 2006 edition of the ASCLD/LAB International manual, which may be obtained from the ASCLD/LAB, 139 Technology Drive, Garner, NC 27529. These guidelines may also be viewed at the Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, and the Department of State, [41 State Street] One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231.

(9) The phrase Quality Assurance Standards for Forensic DNA Testing Laboratories refers to standards recommended by the Federal DNA Advisory Board, and approved by the Director of the Federal Bureau of Investigation [on July 15, 1998], which took effect [October 1, 1998] July 1, 2009. These standards may be obtained from the Federal Bureau of Investigation, Laboratory Division, [935 Pennsylvania Avenue, N.W., Washington, DC 20535] 2501 Investigation Parkway, Quantico, Va. 22135. These standards may also be viewed at the Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, and the Department of State, [41 State Street] One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231.

(11) The term ABFT refers to the American Board of Forensic Toxicology, Inc. The current ABFT laboratory accreditation program is found in the [2002] 2006 Forensic Toxicology Laboratory Accreditation Manual, which may be obtained from ABFT, [Administrative Office, P.O. Box 669] 410 North 21st Street, Colorado Springs, CO [80901-0669] 80904. This program may also be viewed at the Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, and the Department of State, [41 State Street] One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231.

2. Subdivision (t) of section 6192.1 of Title 9 NYCRR is amended to read as follows:

The term NDIS [Standards for Acceptance of] 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, which was [authored] created by the FBI, Laboratory Division, [935 Pennsylvania Avenue, NW, Washington, DC 20535] 2501 Investigation Parkway, Quantico, Va. 22135, [effective] on January 11, 2000 and revised May 4, 2005. This document may be reviewed at the Division of Criminal Justice Services, Four Tower Place, Albany, NY 12203, and the Department of State, [41 State Street] One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231.

3. Subdivisions (a) and (b) of section 6192.3 of Title 9 NYCRR are amended to read as follows:

(a) The DNA databank shall be comprised of data generated from DNA testing methods approved in the NDIS [Standards for Acceptance of] DNA Data Acceptance Standards. Loci required for the upload of authorized DNA profiles to the national system shall be in accordance with the NDIS [Standards for Acceptance of] DNA Data Acceptance Standards.

(b) Casework evidence DNA profiles to be maintained in the DNA databank shall be comprised of information for at least six of the STR loci or other combinations of loci using alternative technologies approved for use in the NDIS [Standards for Acceptance of] DNA Data Acceptance Standards. This requirement for a minimum number of loci applies only to those casework evidence DNA profiles which an authorized laboratory desires to have maintained in the forensic index of the DNA databank.

4. Section 6192.4 of Title 9 NYCRR is amended to read as follows:

6192.4 Accuracy and completeness of DNA records. The accuracy and completeness of all DNA records maintained as part of the DNA databank will be assured through compliance with laboratory accreditation standards as promulgated by the commission in Part 6190 of this Title. In addition, accuracy and completeness of all DNA records maintained as part of the DNA databank will be assured through compliance by all forensic DNA laboratories with the requirements of the NDIS [Standards for Acceptance of] DNA Data Acceptance Standards. Each DNA profile (for either convicted offender or forensic samples) submitted must be certified by the submitting laboratory as being associated with the appropriate controls and blanks. Copies of all official correspondence between the DNA databank and participating laboratories will be maintained in the appropriate division file.

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

Mark Bonacquist, Division of Criminal Justice Services, 4 Tower Place, Albany, NY 12203, [phone]

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(1), and 995-c(1).

2. Legislative objectives: The Commission on Forensic Science is established pursuant to Executive Law section 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 it powers and duties. Pursuant to Executive Law section 995-b(1), the Commission must "develop minimum standards and a program of accreditation for all forensic laboratories in New York state." The forensic laboratory accreditation program became effective in 1996. Since the inception of the forensic laboratory accreditation program, the minimum standards and program of accreditation developed by the Commission pursuant to Executive Law section 995-b(1) have been promulgated by the Division of Criminal Justice Service in Part 6190 of Title 9 of the NYCRR.

In addition, Executive Law section 995-c(1) authorizes the Commissioner of the Division of Criminal Justice Services to promulgate a plan for the establishment of a computerized State DNA identification index within the Division. The State DNA identification index became operational in 1996. Since 1996, the plan for the establishment of the State DNA identification Index has been promulgated by the Division of Criminal Justice Service in Part 6192 of Title 9 of the NYCRR.

The proposed rule updates (1) references to accreditation manuals and other documents which are incorporated by reference in Parts 6190 and 6192; and (2) addresses for accrediting entities, the FBI Laboratory, and the Department of State.

3. Needs and benefits: Regulations must set forth the current edition of a document incorporated by reference. Accreditation and DNA testing documents are updated periodically, necessitating amendment of the regulation each time they are so updated. In addition, the Department of State recently moved its offices and the correct address must be referenced in the regulations.

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 make any substantive changes to either the laboratory accreditation program or the DNA Databank implementation plan.

5. Local government mandates: There are no new programs, service, duties, or responsibilities imposed by the rule upon any county, city, town, village, school district, fire district, or other special district.

6. Paperwork: There are no new reporting requirements, forms, or other paperwork that would be required as a result of the rule.

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

8. Alternatives: None. Regulations must set forth the current edition of a document incorporated by reference.

9. Federal standards: There are no applicable federal standards.

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

Regulatory Flexibility Analysis

1. Effect of rule: The proposed rule applies to 22 State, county, and city laboratories. The proposed rule does not apply to small businesses.

2. Compliance requirements: None. There are no reporting, recordkeeping, or other affirmative acts that a small business or local government will have to undertake to comply with the rule.

3. Professional services: No professional services will be needed to comply with the proposed rule.

4. Compliance costs: None. The proposed rule does not make any substantive changes to either the accreditation program or the DNA Databank implementation plan.

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

6. Minimizing adverse impact: Because the proposed rule does not make any substantive changes to either the accreditation program or the DNA Databank implementation plan no adverse impacts were identified.

7. Small business and local government participation: The Commission on Forensic Science reviewed and approved this proposal. The Commission members includes four members representing local laboratories and municipal governments. The proposed rule does not apply to small businesses.

Rural Area Flexibility Analysis

Regulations must set forth the current edition of a document incorporated by reference. The proposed rule updates (1) references to accreditation manuals and other documents which are incorporated by reference in Parts 6190 and 6192; and (2) addresses for accrediting entities, the FBI Laboratory, and the Department of State. It does not make any substantive changes to either the laboratory accreditation program or the State DNA identification index implementation plan. There are no reporting, recordkeeping, professional services, or other affirmative acts that that are likely to be needed in a rural area to comply with the rule. It is apparent from the nature and purpose of the proposal that it will not impose any adverse impact on rural areas.

Job Impact Statement

Regulations must set forth the current edition of a document incorporated by reference. The proposed rule updates (1) references to accreditation manuals and other documents which are incorporated by reference in Parts 6190 and 6192; and (2) addresses for accrediting entities, the FBI Laboratory, and the Department of State. It does not make any substantive changes to either the laboratory accreditation program or the State DNA identification index implementation plan. It is apparent from the ministerial nature and purpose of the proposal that it will have no impact on jobs and employment opportunities.