[Federal Register Volume 72, Number 235 (Friday, December 7, 2007)]
[Rules and Regulations]
[Pages 69143-69144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23792]



[[Page 69143]]

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DEPARTMENT OF JUSTICE

28 CFR Part 50

[Docket No. DEA-250F; A.G. Order No. 2920-2007]


Office of the Attorney General; Destruction of Contraband Drug 
Evidence

AGENCY: Department of Justice.

ACTION: Final rule.

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SUMMARY: This rule makes one revision to the Department of Justice 
regulations on the destruction of contraband drug evidence. The rule 
concerns the proper handling and disposal of liquid phencyclidine 
(PCP).

DATES: Effective Date: December 7, 2007.

FOR FURTHER INFORMATION CONTACT: Wendy H. Goggin, Chief Counsel, Drug 
Enforcement Administration, Washington, DC 20537, Telephone (202) 307-
1000.

SUPPLEMENTARY INFORMATION: This final rule implements one change to 
Title 28, Code of Federal Regulations (CFR), Part 50 and addresses the 
proper handling and disposal of liquid PCP, which is problematic 
because it is a controlled substance and acutely hazardous by nature. 
Liquid PCP contains piperidine, a flammable liquid that can be fatal if 
inhaled or ingested; sodium/potassium cyanide, which is highly 
poisonous and corrosive; and solvents, such as benzene, toluene and 
ethyl ether, which are toxic, flammable and possibly carcinogenic. 
These hazardous materials pose significant hazards to life and property 
because of their explosive, flammable, poisonous, and toxic 
characteristics. These risks can partially be mitigated by reducing the 
amount of liquid PCP that the Drug Enforcement Administration (DEA) and 
the Federal Bureau of Investigation (FBI) are presently required to 
preserve.
    A detailed explanation of this revision follows:

28 CFR 50.21

    To address the proper handling and disposal of liquid PCP, this 
amendment implements a change to Title 28, CFR, Part 50, regarding the 
preservation of contraband drug evidence by DEA and the FBI, and will 
reduce the amount of liquid PCP the Government is required to preserve. 
Specifically, the amended regulation will reduce the amount of liquid 
PCP that Department of Justice (DOJ) law enforcement agencies (LEAs) 
are required to preserve from 200 grams of pure liquid PCP, or 2,000 
grams of a liquid that contains a detectable amount of PCP, to 28.35 
grams, or one (1) fluid ounce, of a liquid that contains PCP, in any 
form. Because the quantities currently required to be preserved 
jeopardize the safety of DOJ LEA personnel, reducing the preserved 
amount of liquid PCP to 28.35 grams will substantially reduce the risk 
to DOJ employees and facilities, and simultaneously ensure sufficient 
quantities for re-tests if the identity of a substance is disputed. 
Retention of a greater amount of PCP is unnecessary for due process in 
criminal cases. See 28 CFR 50.21(c); see also United States v. Gibson, 
963 F.2d 708, 711 (5th Cir. 1992).
    The preservation amounts for powdered PCP are unchanged.

Regulatory Certifications

Administrative Procedure Act

    This rule relates to a matter of agency management or personnel and 
is a rule of agency organization, procedure, and practice. As such, 
this rule is exempt from the usual requirements of prior notice and 
comment and a 30-day delay in effective date. See 5 U.S.C. 553(a)(2), 
(b)(3)(A), (d)(3).

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, 
certifies that it will not have a significant economic impact on a 
substantial number of small entities because it pertains to personnel 
and administrative matters affecting the Department. Further, a 
Regulatory Flexibility Analysis was not required to be prepared for 
this final rule because the Department was not required to publish a 
general notice of proposed rulemaking for this matter.

Executive Order 12866

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, section 1(b), 
Principles of Regulation. This rule is limited to agency organization, 
management and personnel as described by Executive Order 12866 section 
3(d)(3) and, therefore, is not a ``regulation'' or ``rule'' as defined 
by that Executive Order. Accordingly, this rule has not been reviewed 
by the Office of Management and Budget.

Executive Order 12988

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice 
Reform.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
13132, Federalism, the Department has determined that this rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995, 2 
U.S.C. 1501 et seq.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.
    This action pertains to agency management, personnel, and 
organization and does not substantially affect the rights or 
obligations of non-agency parties. Accordingly, it is not a ``rule'' 
for purposes of the reporting requirement of 5 U.S.C. 801.

Congressional Review Act

    The Department of Justice has determined that this action is a rule 
relating to agency organization, procedure or practice that does not 
substantially affect the rights or obligation of non-agency parties 
and, accordingly, it is not a ``rule'' as that term is used by the 
Congressional Review Act (Subtitle E of the Small Business Regulatory 
Enforcement Fairness Act of 1996). Therefore, the reporting requirement 
of 5 U.S.C. 801 does not apply.

List of Subjects in 28 CFR Part 50

    Administrative practice and procedure.

[[Page 69144]]


0
Accordingly, by virtue of the authority vested in me as Attorney 
General, including 5 U.S.C. 301 and 28 U.S.C. 509 and 510, Part 50 of 
Title 28 of the Code of Federal Regulations is amended as follows:

PART 50--STATEMENTS OF POLICY [AMENDED]

0
1. The authority citation for part 50 continues to read as follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 1921 et 
seq., 1973c; and Pub. L. 107-273, 116 Stat. 1758, 1824.


0
2. In Sec.  50.21, paragraph (d)(4)(iv) is revised to read as follows:


Sec.  50.21  Procedures governing the destruction of contraband drug 
evidence in the custody of Federal law enforcement authorities.

* * * * *
    (d) * * *
    (4) * * *
    (iv) Two hundred grams of powdered phencyclidine (PCP) or two 
kilograms of a powdered mixture or substance containing a detectable 
amount of phencyclidine (PCP) or 28.35 grams of a liquid containing a 
detectable amount of phencyclidine (PCP);
* * * * *

    Dated: November 30, 2007.
Michael B. Mukasey,
Attorney General.
[FR Doc. E7-23792 Filed 12-6-07; 8:45 am]
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