Combating Illicit Fentanyl Act of 2019

America’s overdose epidemic is spreading geographically, is increasing across all demographic groups and the sharp increase in drug overdose deaths in the United States between 2015 to 2016 was fueled by a surge in illicit fentanyl, a highly potent drug about 80 to 100 times as strong as morphine by weight and is 30 to 40 times stronger than heroin by weight, as well as fentanyl-related compound analogue overdoses.

Fentanyl began to appear on United States streets in the early 2000s, in recent years it has become a major international drug control issue as overdose deaths from its abuse continue to rise, with a spike beginning in 2013. Foreign-sourced fentanyl killed more Americans in 2016 than all other illicit drugs, and synthetic opioids such as fentanyl and tramadol accounted for more than 29,000 United States drug overdose deaths in 2017, according to provisional data from the Centers for Disease Control and Prevention. Illicit fentanyl is not a diverged pharmaceutical product, is illicitly manufactured, and is clandestinely distributed and integrated into the illicit drug supply, usually sold as “heroin” in powder form, or as counterfeit opioid or benzodiazepine pills.

In Ocean County, New Jersey, based on data from the Ocean County Prosecutor’s Office, in 2014, 10 percent of all overdose deaths had fentanyl in their systems, and by 2018 that number had risen to 80 percent.

The Drug Enforcement Administration reports that of the illicit fentanyl class substances and hundreds of other designer drugs it has identified, “the vast majority … are manufactured in China”. In 2018, a year-long congressional probe found that illicit fentanyl could easily be bought online from Chinese “labs” and mailed to the United States due to gaps in oversight in the United States Postal Service, and despite increased cooperation between United States and Chinese counter-narcotics agencies, illicit fentanyl is still shipped to the United States.

According to written testimony submitted to Congress by the RAND Corporation, regulatory capacity in China is inadequate to effectively police its expansive pharmaceutical and chemical industries, and according to the United States-China Economic and Security Review Commission, corrupt practices among local officials limit the effectiveness of regulations and allows criminal actors to facilitate the fentanyl trade.

In June 2018, $1,700,000 worth of Chinese fentanyl was detected by counternarcotics agents in a Philadelphia port during a routine inspection, China has publicly gone to great lengths to shirk responsibility for illicit fentanyl emanating out of the country, and in June 2018, Chinese official Liu Yuejin blamed the crisis on the American people, saying “When fewer and fewer Americans use fentanyl, there would be no market for it”, ignoring the Chinese supply of the illicit substance, and China fails to effectively regulate precursor chemicals, including fentanyl precursors.

According to Dr. Daniel Ciccarone’s street-based research, fentanyl lacks a lingo or slang, indicating that this is more of a supply than a demand issue and its intentional use is far outweighed by non-intentional use. On September 6, 2018, at a hearing before the House Committee on Foreign Affairs Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations, expert private witnesses from diverse professional and academic backgrounds all concurred that China can do more to stem the flow of fentanyl.

According to the United Nations General Assembly, the drug trade poses a threat to “development, peace and security and human rights”, and the United Nations Convention against Transnational Organized Crime (the Palermo Convention), a multilateral treaty against transnational organized crime including in the realm of narcotics signed and ratified by China which entered into force in 2003, obligates States Parties to “ensure effective action by its authorities in the prevention, detection and punishment of the corruption of public officials”.

Combating illicit fentanyl is a top priority of the Trump Administration and the President has called it “outrageous” that fentanyl comes from China. The Trump Administration has both highlighted China’s role in the crisis and targeted Chinese manufacturers and traffickers, and at an August 16, 2018, cabinet meeting, President Trump directed then Attorney General Sessions to step up efforts to stem inflows of fentanyl from China.

Statewide in New York, the number of fentanyl related deaths increased by nearly 160 percent from 2015 to 2016. In April 2018, in Suffolk County, New York, Federal agents seized more than 90 lbs of fentanyl and heroin with $10,000,000 street value, the largest opioid bust in Suffolk County history to date.

At the 2018 G20 summit in Buenos Aires, China had agreed to tighten fentanyl controls. However, there has not yet been demonstratable and sustained evidence of commitment.

In general— Not later than 90 days after the date of the enactment of this Act, and annually thereafter, the Secretary of State and the Secretary of the Treasury shall jointly submit to the appropriate congressional committees a report that identifies each person in the People’s Republic of China and Chinese Government official involved in the production of fentanyl and its trafficking into the United States.

Form— The report required by subsection (a) shall be submitted in unclassified form, but may contain a classified annex.

Appropriate congressional committees defined— In this section, the term appropriate congressional committees means—

the President should impose financial sanctions under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) against each person and government official identified in the report required by section 3;

the President should impose sanctions under section 1263(b) of the National Defense Authorization Act for Fiscal Year 2017 (22 U.S.C. 2656 note) against each person and government official identified in the report required by section 3 that meet the criteria under paragraph (3) or (4) of section 1263(a) of such Act;

the President should impose financial sanctions pursuant to section 805 of the Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1904) against each person and government official identified in the report required by section 3; and

the President should exclude each person and government official identified in the report required by section 3 as ineligible for visas or admission to the United States pursuant to section 212(a)(2)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(C)).