(q) The [phrase] phrases indirect association and partial match [refers] refer to the determination during the CODIS candidate match confirmation process that a forensic DNA profile is similar to a DNA profile in the offender index and a comparison reveals that the offender may be a close biological relative of the source of the forensic index profile. The phrases may be used interchangeably.

2. New subdivisions (ab), (ac) and (ad) are added to Section 6192.1 of 9 NYCRR to read as follows:

3. New subdivisions (h), (i), (j) and (k) are added to Section 6192.3 of 9 NYCRR to read as follows:

(1) The forensic DNA profile must be associated with:

(i) a Penal Law Article 125 felony offense, other than one defined in Penal Law sections 125.40 or 125.45; or

(ii) a Penal Law Article 130 offense that is defined as a violent felony offense pursuant to Penal Law section 70.02; or

(iii) a class A felony offense defined in Article 130, 135, 150 or 490 of the Penal Law; or

(iv) a crime presenting a significant public safety threat.

(2) The investigating agency and appropriate prosecutor must certify, in the form and manner required by the division, that:

(i) reasonable investigative efforts have been taken in the case; or

(ii) exigent circumstances exist warranting a familial search.

Nothing in this section shall preclude an investigating agency and the appropriate prosecutor from requesting a familial search of an unidentified profile meeting the criteria set forth in the policy which is associated with a case in which a defendant was previously convicted.

(3) The forensic DNA profile must:

(i) be a single source, or a deduced profile originating from a mixture;

(ii) appear to have a direct connection with the putative perpetrator of the crime;

(iii) reside in SDIS; and

(iv) have been searched against DNA profiles in the DNA databank’s offender index.

(1) Upon receipt of an application:

(i) The division will confirm that the requestors have certified that the case requirements in paragraph (1) of subdivision (h) of this Part have been satisfied; and

(ii) The state CODIS administrator will confirm that the sample requirements in subparagraphs (i) and (ii) of paragraph (3) of subdivision (h) of this Part have been verified by the forensic laboratory that generated the forensic DNA profile; and

(iii) The state CODIS administrator will confirm that the sample requirements in subparagraphs (iii) and (iv) of paragraph (3) of subdivision (h) of this Part have been met.

(2) The commissioner shall review all completed applications.

(i) If, upon review and evaluation of such application, the commissioner determines that any of the case and/or any of the sample requirements are not satisfied, the division shall notify the requestors, in writing, that a familial search cannot be performed and identify the requirements not satisfied.

(ii) If, upon review and evaluation of such application, the commissioner determines that all of the case and sample requirements have been satisfied, the law enforcement agency, the district attorney, the director of the new york state police crime laboratory or his or her designee, and the commissioner of the division or his or her designee, must execute a memorandum of understanding among themselves detailing the role of each organization.

(1) use validated software, which has been approved by the DNA subcommittee and the commission, to perform a familial search of the DNA databank and generate a candidate list;

(2) evaluate the candidate list based on established kinship threshold value(s) approved by the DNA subcommittee and commission;

(3) perform Y-STR testing on the candidate sample(s) if the forensic DNA profile is from a male individual and sufficient forensic DNA sample exists for Y-STR testing; and

(4) if appropriate, ensure additional testing is performed on the candidate sample, provided there is sufficient forensic DNA sample available for testing.

(1) The requestors must satisfactorily complete, and demonstrate an understanding of, a mandatory, in-person or at the discretion of the commissioner, video conference training. At a minimum, the training shall address:

(i) how a familial search is conducted, including the limitations of the method;

(ii) guidance on how to best evaluate leads from a familial search in order to protect unknown family relationships (donor parents/adoptions, previously unknown relatives);

(iii) the confidentiality requirements associated with the DNA profiles generated (see, Executive Law §§ 995-c; 995-d; 995-f);

(iv) the requirement to withdraw a request if a suspect is identified through other means before the familial search is completed; and

(v) the requirement to provide follow-up information to the division regarding the case at intervals determined by the division.

(2) If the candidate profiles(s) exceed the established kinship threshold value(s), and are not excluded by additional testing performed, the name(s) of the offender(s) in the DNA databank will be released. The familial DNA search results shall be provided in writing and shall include the following statements:

(i) The information provided is for investigatory law enforcement purposes only;

(ii) The forensic DNA profile could not have come from the named offender in the DNA databank;

(iii) The information provided is not a definitive statement of a familial (i.e., biological) relationship; and

(iv)The information provided shall be treated only as an investigative lead.

(3) If no candidate profiles(s) on the candidate list exceed the established kinship threshold value(s), no name will be released and the requestors will be notified, in writing, that no potential relatives were identified through a familial search.

(4) The forensic DNA sample can be re-searched against the DNA databank upon renewal of the request. In the absence of exigent circumstances, such requests may be made every six months.

1. Statutory authority: Executive Law §§ 837(13), 995-b(9) and (13).

Pursuant to Executive Law § 995-b(9), the Commission on Forensic Science (Commission), in consultation with the DNA Subcommittee, must promulgate a policy for the establishment and operation of a DNA Databank.

The DNA Subcommittee is a subcommittee of the Commission and is composed of scientists with expertise in the fields of molecular biology, population genetics, forensic science, and laboratory standards and quality assurance. Pursuant to Executive Law § 995-b(13), the DNA Subcommittee has been granted authority, through binding recommendations to the Commission, regarding matters relating to the establishment and operation of the DNA Databank.

The Commission 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 (Division) for the staff, administrative assistance, and other resources necessary to carry out its powers and duties. Executive Law § 837(13) authorizes the 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.”

The DNA Databank became operational in 1996. Since its inception, the policy for the establishment and operation of the DNA Databank required pursuant to Executive Law § 995-b(9) has been promulgated by the Division in 9 NYCRR Part 6192. The proposed rule amends 9 NYCRR Part 6192 to codify a familial search policy.

2. Legislative objectives: The Legislature authorized the Commission to promulgate a policy for the establishment and operation of a DNA Databank, and authorized the Division to establish the Databank. Thus, the Legislature clearly intended that the Commission and Division establish and maintain effective procedures governing the DNA Databank.

3. Needs and benefits: DNA profiles generated from evidence associated with criminal investigations are routinely searched against DNA databanks. Currently, the regulations permit “partial matches” that occur inadvertently and may indicate that a perpetrator is a close blood relative of an individual whose DNA is on file. In situations when there is not an association (“match”) or an indirect association (“partial match”) to a sample in the New York State DNA Databank, familial searching can be utilized. Familial searching is a targeted evaluation of the convicted offenders in the DNA Databank. This search generates a list of candidates based on kinship statistics to indicate potential biologically related individuals. Familial searching could greatly increase the pool of potential suspects, thereby increasing the number of crimes solved.

Familial searching is not conducted automatically and can only be performed if certain case and sample requirements are met. The familial search policy describes those conditions and defines the procedures that must be followed.

On May 19, 2017, the DNA Subcommittee reviewed and discussed the familial search policy, and made a recommendation to the Commission to adopt the policy. The Commission formally adopted the policy on June 16, 2017. As the administrative arm of the Commission, the Division intends to carry out its duty to maintain effective procedures governing the DNA Databank by adopting and promulgating the proposed regulations.

4. Costs:

a. There are no costs to regulated parties for the implementation of and continuing compliance with the rule.

b. There are no costs to the agency, the state and local governments for the implementation and continuation of the rule.

c. The cost analysis is based on the fact that the proposal does not impose any new mandates. Familial searching is not conducted automatically and can only be performed if certain case and sample requirements are met. The familial search policy merely describes those conditions and defines the procedures that must be followed.

5. Local government mandates: There are no new mandates.

6. Paperwork: Any request for a familial DNA search must be made through an application to the Division in the form and manner specified by the Division.

If, upon review and evaluation of such application, it is determined that any of the case and/or any of the sample requirements are not satisfied, the Division will notify the requestors, in writing, that a familial search cannot be performed and identify the requirements not satisfied. If, upon review and evaluation of such application, it is determined that all of the case and sample requirements have been satisfied, a memorandum of understanding must be executed.

If the candidate profiles(s) exceed the established kinship threshold value(s), and are not excluded by additional testing performed, the name(s) of the offender(s) in the DNA databank will be released. The familial DNA search results will be provided in writing. If no candidate profiles(s) on the candidate list exceed the established kinship threshold value(s), no name will be released and the requestors will be notified, in writing, that no potential relatives were identified through a familial search.

7. Duplication: No other legal requirements duplicate, overlap, or conflict with the rule.

8. Alternatives: At its April 12, 2017 meeting, the Commission reviewed and discussed the draft familial search policy, regulations and implementation plan as they were proposed by the DNA Subcommittee at its March 27, 2017 meeting. After the matter was thoroughly debated, the Commission voted to send the policy, regulations and implementation plan, along with the Commission’s recommendations, back to the DNA Subcommittee for consideration.

The DNA Subcommittee reviewed the draft familial search policy and recommendations provided by the Commission at its April 12, 2017 meeting. Each section requiring revision or input from the DNA Subcommittee was considered and discussed. The policy was amended, and those changes were subsequently made in the regulations and implementation plan.

9. Federal standards: There are no federal standards.

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

The proposed rule amends 9 NYCRR Part 6192 to codify a familial search policy. DNA profiles generated from evidence associated with criminal investigations are routinely searched against DNA databanks. Currently, the regulations permit “partial matches” that occur inadvertently and may indicate that a perpetrator is a close blood relative of an individual whose DNA is on file. In situations when there is not an association (“match”) or an indirect association (“partial match”) to a sample in the New York State DNA Databank, familial searching can be utilized. Familial searching is a targeted evaluation of the convicted offenders in the DNA Databank. This search generates a list of candidates based on kinship statistics to indicate potential biologically related individuals. Familial searching is not conducted automatically and can only be performed if certain case and sample requirements are met. The policy describes those conditions and defines the procedures that must be followed.

The proposed rule does not apply to small businesses nor does it impose mandates on local governments. As such, it is apparent that the rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments.

The proposed rule amends 9 NYCRR Part 6192 to codify a familial search policy. DNA profiles generated from evidence associated with criminal investigations are routinely searched against DNA databanks. Currently, the regulations permit “partial matches” that occur inadvertently and may indicate that a perpetrator is a close blood relative of an individual whose DNA is on file. In situations when there is not an association (“match”) or an indirect association (“partial match”) to a sample in the New York State DNA Databank, familial searching can be utilized. Familial searching is a targeted evaluation of the convicted offenders in the DNA Databank. This search generates a list of candidates based on kinship statistics to indicate potential biologically related individuals. Familial searching is not conducted automatically and can only be performed if certain case and sample requirements are met. The policy describes those conditions and defines the procedures that must be followed.

There are eight local New York State laboratories, none of which is located in a “rural area.” As such, it is apparent that the rule will not impose any adverse impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas.

The proposed rule amends 9 NYCRR Part 6192 to codify a familial search policy. DNA profiles generated from evidence associated with criminal investigations are routinely searched against DNA databanks. Currently, the regulations permit “partial matches” that occur inadvertently and may indicate that a perpetrator is a close blood relative of an individual whose DNA is on file. In situations when there is not an association (“match”) or an indirect association (“partial match”) to a sample in the New York State DNA Databank, familial searching can be utilized. Familial searching is a targeted evaluation of the convicted offenders in the DNA Databank. This search generates a list of candidates based on kinship statistics to indicate potential biologically related individuals. Familial searching is not conducted automatically and can only be performed if certain case and sample requirements are met. The policy describes those conditions and defines the procedures that must be followed.

As such, it is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs and employment opportunities.