[Code of Federal Regulations]
[Title 28, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR50.21]

[Page 73-75]
 
                    TITLE 28--JUDICIAL ADMINISTRATION
 
              CHAPTER I--DEPARTMENT OF JUSTICE (Continued)
 
PART 50--STATEMENTS OF POLICY--Table of Contents
 
Sec. 50.21  Procedures governing the destruction of contraband drug evidence in the custody of Federal law enforcement authorities.

    (a) General. The procedures set forth below are intended as a 
statement of policy of the Department of Justice and will be applied by 
the Department in exercising its responsibilities under Federal law 
relating to the destruction of seized contraband drugs.
    (b) Purpose. This policy implements the authority of the Attorney 
General under title I, section 1006(c)(3) of the Anti-Drug Abuse Act of 
1986, Public Law 99-570 which is codified at 21 U.S.C. 881(f)(2), to 
direct the destruction, as necessary, of Schedule I and II contraband 
substances.
    (c) Policy. This regulation is intended to prevent the warehousing 
of large quantities of seized contraband drugs which are unnecessary for 
due process in criminal cases. Such stockpiling of contraband drugs 
presents inordinate security and storage problems which create 
additional economic burdens on

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limited law enforcement resources of the United States.
    (d) Definitions. As used in this subpart, the following terms shall 
have the meanings specified:
    (1) The term Contraband drugs are those controlled substances listed 
in Schedules I and II of the Controlled Substances Act seized for 
violation of that Act.
    (2) The term Marijuana is as defined in 21 U.S.C. 801(15) but does 
not include, for the purposes of this regulation, the derivatives 
hashish or hashish oil for purposes of destruction.
    (3) The term Representative sample means the exemplar for testing 
and a sample aggregate portion of the whole amount seized sufficient for 
current criminal evidentiary practice.
    (4) The term Threshold amount means:
    (i) Two kilograms of a mixture or substance containing a detectable 
amount of heroin;
    (ii) Ten kilograms of a mixture or substance containing a detectable 
amount of--
    (A) Coca leaves, except coca leaves and extracts of coca leaves from 
which cocaine, ecgonine, and derivatives of ecognine or their salts have 
been removed;
    (B) Cocaine, its salts, optical and geometric isomers, and salts of 
isomers;
    (C) Ecgonine, its derivatives, their salts, isomers, and salts of 
isomers; or
    (D) Any compound, mixture, or preparation which contains any 
quantity of any of the substances referred to in paragraphs (d)(4)(ii) 
(A) through (C) of this section;
    (iii) Ten kilograms of a mixture or substance described in paragraph 
(d)(4)(ii)(B) of this section which contains cocaine base;
    (iv) Two hundred grams of phencyclidine (PCP) or two kilograms of a 
mixture or substance containing a detectable amount of phencyclidine 
(PCP);
    (v) Twenty grams of a mixture or substance containing a detectable 
amount of Lysergic Acid Diethylamide (LSD);
    (vi) Eight hundred grams of a mixture or substance containing a 
detectable amount of N-phenyl-N[1-(2-phenylethyl)-4-piperidiny] 
propanamide (commonly known as fentanyl) or two hundred grams of a 
mixture or substance containing a detectable amount of any analogue of 
N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl propanamide; or
    (vii) Twenty kilograms of hashish or two kilograms of hashish oil 
(21 U.S.C. 841(b)(1)(D), 960(b)(4)).

In the event of any changes to section 401(b)(1) of the Controlled 
Substances Act (21 U.S.C. 841(b)(1) as amended occurring after the date 
of these regulations, the threshold amount of any substance therein 
listed, except marijuana, shall be twice the minimum amount required for 
the most severe mandatory minimum sentence.
    (e) Procedures. Responsibilities of the Federal Bureau of 
Investigation and Drug Enforcement Administration.

When contraband drug substances in excess of the threshold amount or in 
the case of marijuana a quantity in excess of the representative sample 
are seized pursuant to a criminal investigation and retained in the 
custody of the Federal Bureau of Investigation or Drug Enforcement 
Administration, the Agency having custody shall:
    (1) Immediately notify the appropriate U.S. Attorney, Assistant U.S. 
Attorney, or the responsible state/local prosecutor that the amount of 
seized contraband drug exceeding the threshold amount and its packaging, 
will be destroyed after sixty days from the date notice is provided of 
the seizures, unless the agency providing notice is requested in writing 
by the authority receiving notice not to destroy the excess contraband 
drug; and
    (2) Assure that appropriate tests of samples of the drug are 
conducted to determined the chemical nature of the contraband substance 
and its weight sufficient to serve as evidence before the trial courts 
of that jurisdiction; and
    (3) Photographically depict, and if requested by the appropriate 
prosecutorial authority, videotape, the contraband drugs as originally 
packaged or an appropriate display of the seized contraband drugs so as 
to create evidentiary exhibits for use at trial; and
    (4) Isolate and retain the appropriate threshold amounts of 
contraband drug evidence when an amount greater than

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the appropriate threshold amount has been seized, or when less than the 
appropriate threshold amounts of contraband drugs have been seized, the 
entire amount of the seizure, with the exception of marijuana, for which 
a representative sample shall be retained; and
    (5) Maintain the retained portions of the contraband drugs until the 
evidence is no longer required for legal proceedings, at which time it 
may be destroyed, first having obtained consent of the U.S. Attorney, an 
Assistant U.S. Attorney, or the responsible state/local prosecutor;
    (6) Notify the appropriate U.S. Attorney, Assistant U.S. Attorney, 
or the responsible state/local prosecutor to obtain consent to destroy 
the retained amount or representative sample whenever th e related 
suspect(s) has been a fugitive from justice for a period of five years. 
An exemplar sufficent for testing will be retained consistent with this 
section.
    (f) Procedures. Responsibilities of the U.S. Attorney or the 
District Attorney (or equivalent state/local prosecutorial authority). 
When so notified by the Federal Bureau of Investigation or the Drug 
Enforcement Administration of an intent to destroy excess contraband 
drugs, the U.S. Attorney or the District Attorney (or equivalent) may:
    (1) Agree to the destruction of the contraband drug evidence in 
excess of the threshold amount, or for marijuana in excess of the 
representative sample, prior to the normal sixty-day period. The U.S. 
Attorney, or the District Attorney (or equivalent) may delegate to his/
her assistants authority to enter into such agreement; or
    (2) Request an exception to the destruction policy in writing to the 
Special Agent in Charge of the responsible division prior to the end of 
the sixty-day period when retaining only the threshold amount or 
representative sample will significantly affect any legal proceedings; 
and
    (3) In the event of a denial of the request may appeal the denial to 
the Assistant Attorney General, Criminal Division. Such authority may 
not be redelegated. An appeal shall stay the destruction until the 
appeal is complete.
    (g) Supplementary regulations. The Federal Bureau of Investigation 
and the Drug Enforcement Administration are authorized to issue 
regulations and establish procedures consistent with this section.

[Order No. 1256-88, 53 FR 8453, Mar. 15, 1988]