E7-23792. Office of the Attorney General; Destruction of Contraband Drug Evidence

AGENCY:

Department of Justice.

ACTION:

Final rule.

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 [phone].

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

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]

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.

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

§ 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.