[Congressional Record Volume 169, Number 27 (Thursday, February 9, 2023)]
[Senate]
[Pages S323-S324]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. THUNE:
  S. 389. A bill to deter the trafficking of illicit fentanyl, provide 
justice for victims, and for other purposes; to the Committee on the 
Judiciary.
  Mr. THUNE. Madam President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 389

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Justice Against Sponsors of 
     Illicit Fentanyl Act of 2023''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--Congress finds the following:
       (1) International drug trafficking is a serious and deadly 
     problem that threatens the vital interests of the United 
     States and the safety and health of every community in the 
     United States.
       (2) Transnational criminal organizations, cartels, and 
     violent gangs are leading perpetrators of drug trafficking, 
     often combining the manufacture and distribution of synthetic 
     opioids with violence, human smuggling and trafficking, 
     firearms trafficking, and public corruption, and pose a 
     sustained threat to the homeland security of the United 
     States.
       (3) Illicit fentanyl is primarily produced in clandestine 
     laboratories and trafficked into the United States in powder 
     and pill form, including fentanyl-laced counterfeit pills.
       (4) The People's Republic of China (hereinafter in this 
     section referred to as ``China'') is the primary source 
     country of fentanyl precursor chemicals used to manufacture 
     the illicit fentanyl that is trafficked into the United 
     States.
       (5) The Commission on Combating Synthetic Opioid 
     Trafficking, established under section 7221 of the National 
     Defense Authorization Act for Fiscal Year 2020 (Public Law 
     116-92), reported in 2022 that China, which supplied 70 to 80 
     percent of fentanyl seized by Federal authorities between 
     2014 and 2019, has been surpassed by Mexico as the ``dominant 
     source'' of illicit fentanyl in the United States.
       (6) Illicit fentanyl is primarily trafficked by land into 
     the United States through legal ports of entry, as well as 
     between such ports of entry, with some trafficking 
     facilitated by domestic and foreign-based social media and 
     encrypted communication applications.
       (7) In fiscal years 2021 and 2022, U.S. Customs and Border 
     Protection seized over 24,000 pounds of fentanyl at ports of 
     entry, a 200 percent increase from the amounts seized in 
     fiscal years 2019 and 2020.
       (8) Deaths caused by the trafficking of illicit fentanyl 
     have reached epidemic proportions, as--
       (A) fentanyl was involved in nearly 200,000 deaths in the 
     United States during the period between 2014 and 2020;
       (B) the number of drug overdose deaths in the United States 
     surpassed 100,000 during the period between May 2020 and 
     April 2021, of which over 64,000 deaths were related to 
     fentanyl; and
       (C) fentanyl and other synthetic opioids caused 
     approximately \2/3\ of more than 107,000 fatal overdoses in 
     the United States during 2021.
       (9) Overdose deaths remain a leading cause of injury-
     related death in the United States, and fentanyl-related 
     deaths are the leading cause of deaths among adults aged 18 
     to 45.
       (10) Failure to meaningfully combat illicit fentanyl 
     trafficking will continue to stress the health care and law 
     enforcement resources of the United States.
       (11) It is necessary to recognize the substantive causes of 
     action for aiding and abetting and conspiracy liability under 
     the Controlled Substances Act (21 U.S.C. 801 et seq.).
       (12) The decision of the United States Court of Appeals for 
     the District of Columbia in Halberstam v. Welch, 705 F.2d 472 
     (D.C. Cir. 1983), which has been widely recognized as the 
     leading case regarding Federal civil aiding and abetting and 
     conspiracy liability, including by the Supreme Court of the 
     United States, provides the proper legal framework for how 
     such liability should function in the context of the 
     Controlled Substances Act (21 U.S.C. 801 et seq.).
       (13) Persons, entities, or countries that knowingly or 
     recklessly contribute material support or resources, directly 
     or indirectly, to persons or organizations that pose a 
     significant risk of committing acts of trafficking of illicit 
     fentanyl that threaten the safety and health of nationals of 
     the United States or the national security, foreign policy, 
     or economy of the United States, necessarily direct such 
     conduct at the United States, and should reasonably 
     anticipate being brought to court in the United States to 
     answer for that conduct.
       (14) The United States has a compelling interest in 
     providing persons and entities injured as a result of the 
     trafficking of illicit fentanyl into the United States with 
     full access to the court system in order to pursue civil 
     claims against persons, entities, or countries that have 
     knowingly or recklessly provided material support or 
     resources, directly or indirectly, to the persons or 
     organizations responsible for their injuries.
       (b) Purpose.--The purpose of this Act is to provide civil 
     litigants with the broadest possible basis, consistent with 
     the Constitution of the United States, to seek relief against 
     persons, entities, and foreign countries, wherever acting and 
     wherever they may be found, that have provided material 
     support, directly or indirectly, to foreign organizations or 
     persons that engage in the trafficking of illicit fentanyl 
     into the United States.

     SEC. 3. RESPONSIBILITY OF FOREIGN STATES FOR THE TRAFFICKING 
                   OF FENTANYL INTO THE UNITED STATES.

       (a) In General.--Chapter 97 of title 28, United States 
     Code, is amended by inserting after section 1605B the 
     following:

     ``Sec. 1605C. Responsibility of foreign states for the 
       trafficking of fentanyl into the united states

       ``(a) Definition.--In this section, the term `fentanyl 
     trafficking' means--
       ``(1) means any illicit activity--
       ``(A) to produce, manufacture, distribute, sell, or 
     knowingly finance or transport--
       ``(i) illicit fentanyl, including any controlled substance 
     that is a synthetic opioid and any listed chemical (as 
     defined in section 102 of the Controlled Substances Act (21 
     U.S.C. 802)) that is a synthetic opioid utilized for fentanyl 
     production; or
       ``(ii) active pharmaceutical ingredients or chemicals that 
     are used in the production of fentanyl;
       ``(B) to attempt to carry out an activity described in 
     subparagraph (A); or
       ``(C) to assist, abet, conspire, or collude with any other 
     person to carry out an activity described in subparagraph 
     (A);
       ``(2) a violation of section 401(a)(1) of the Controlled 
     Substances Act (21 U.S.C. 841(a)(1)) involving manufacturing, 
     distributing, or dispensing, or possessing with intent to 
     manufacture, distribute, or dispense, fentanyl or a fentanyl-
     related substance in or into the United States;
       ``(3) an attempt or conspiracy to commit a violation 
     described in paragraph (2);
       ``(4) having manufactured, distributed, or dispensed, or 
     possessed with intent to manufacture, distribute, or 
     dispense, fentanyl or a fentanyl-related substance outside 
     the United States with the intention of such fentanyl or 
     fentanyl-related substance being distributed or dispensed in 
     or into the United States in violation of section 401(a)(1) 
     or 406 of the Controlled Substances Act (21 U.S.C. 841(a)(1), 
     846); or
       ``(5) having produced or manufactured, distributed, or 
     dispensed, or possessed with intent to manufacture, 
     distribute, or dispense, a substance that is a precursor to 
     fentanyl or a fentanyl-related substance with the intention 
     of such precursor, fentanyl, or fentanyl-related substance 
     being distributed or dispensed in or into the United States 
     in violation of section 401(a)(1) or 406 of the Controlled 
     Substances Act (21 U.S.C. 841(a)(1), 846).
       ``(b) Responsibility of Foreign States.--A foreign state 
     shall not be immune from the jurisdiction of the courts of 
     the United States in any case in which money damages are 
     sought against a foreign state for physical injury to person 
     or property or death occurring in the United States and 
     caused by--
       ``(1) an act of fentanyl trafficking in or into the United 
     States; and
       ``(2) a tortious act or acts of the foreign state, or of 
     any official, employee, or agent of that foreign state while 
     acting within the scope of his or her office, employment, or 
     agency, regardless where the tortious act or acts of the 
     foreign state occurred.
       ``(c) Claims by Nationals of the United States.--
       ``(1) Definition.--In this subsection, the term `person' 
     has the meaning given the term in section 1 of title 1.
       ``(2) Claims.--If a foreign state would not be immune under 
     subsection (b) with respect to an act of fentanyl trafficking 
     in or into the United States, a national of the United States 
     may bring a claim against the foreign state in the same 
     manner, and may obtain the same remedies, as a claim with 
     respect to an act of international terrorism brought under 
     section 2333.

[[Page S324]]

       ``(3) Aiding and abetting liability.--In an action under 
     paragraph (2) for an injury arising from an act of fentanyl 
     trafficking in or into the United States, liability may be 
     asserted as to any person who aids and abets, by knowingly 
     providing substantial assistance, or who conspires with the 
     person who committed such an act of fentanyl trafficking.
       ``(4) Effect on other foreign sovereign immunities.--
     Nothing in paragraph (3) affects immunity of a foreign state 
     from jurisdiction under other law.
       ``(d) Rule of Construction.--A foreign state shall not be 
     subject to the jurisdiction of the courts of the United 
     States under subsection (b) on the basis of an omission or a 
     tortious act or acts that constitute mere negligence.''.
       (b) Technical and Conforming Amendments.--
       (1) The table of sections for chapter 97 of title 28, 
     United States Code, is amended by inserting after the item 
     relating to section 1605B the following:

``1605C. Responsibility of foreign states for the trafficking of 
              fentanyl into the United States.''.
       (2) Subsection 1605(g)(1)(A) of title 28, United States 
     Code, is amended by striking ``or section 1605B'' and 
     inserting ``, 1605B, or 1605C''.

     SEC. 4. STAY OF ACTIONS PENDING STATE NEGOTIATIONS.

       (a) Exclusive Jurisdiction.--The courts of the United 
     States shall have exclusive jurisdiction in any action in 
     which a foreign state is subject to the jurisdiction of a 
     court of the United States under section 1605C of title 28, 
     United States Code, as added by section 3(a) of this Act.
       (b) Intervention.--The Attorney General, in consultation 
     with the Administrator of the Drug Enforcement 
     Administration, may intervene in any action in which a 
     foreign state is subject to the jurisdiction of a court of 
     the United States under section 1605C of title 28, United 
     States Code, as added by section 3(a) of this Act, for the 
     purpose of seeking a stay of the civil action, in whole or in 
     part.
       (c) Stay.--
       (1) In general.--A court of the United States may stay a 
     proceeding against a foreign state in an action brought under 
     section 1605C of title 28, United States Code, as added by 
     section 3(a) of this Act, if the Secretary of State certifies 
     that the United States is engaged in good faith discussions 
     with the foreign state defendant concerning the resolution of 
     the claims against the foreign state, or any other parties as 
     to whom a stay of claims is sought.
       (2) Duration.--
       (A) In general.--A stay under this section may be granted 
     for not more than 180 days.
       (B) Extension.--
       (i) In general.--The Attorney General may petition the 
     court for an extension of the stay for additional 180-day 
     periods.
       (ii) Recertification.--A court shall grant an extension 
     under clause (i) if the Secretary of State recertifies that 
     the United States remains engaged in good faith discussions 
     with the foreign state defendant concerning the resolution of 
     the claims against the foreign state, or any other parties as 
     to whom a stay of claims is sought.

     SEC. 5. SEVERABILITY.

       If any provision of this Act or any amendment made by this 
     Act, or the application of a provision or amendment to any 
     person or circumstance, is held to be invalid, the remainder 
     of this Act and the amendments made by this Act, and the 
     application of the provisions and amendments to any other 
     person not similarly situated or to other circumstances, 
     shall not be affected by the holding.

     SEC. 6. EFFECTIVE DATE.

       The amendments made by this Act shall apply to any civil 
     action--
       (1) pending on, or commenced on or after, the date of 
     enactment of this Act; and
       (2) arising out of an injury to a person, property, or 
     business on or after January 1, 2013.

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