[Senate Report 115-353]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 640

115th Congress      }                                   {     Report
                                   SENATE 
 2d Session         }                                   {     115-353                                                               
_______________________________________________________________________
                                 
                                                    

                           OPIOID ACT OF 2018

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 3047

           TO ESTABLISH A NARCOTIC DRUG SCREENING TECHNOLOGY
          PILOT PROGRAM TO COMBAT ILLICIT OPIOID IMPORTATION,
                         AND FOR OTHER PURPOSES
                         

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


               November 13, 2018.--Ordered to be printed
               
               
                            _________ 

                U.S. GOVERNMENT PUBLISHING OFFICE
                   
                        WASHINGTON : 2018                     
               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
        

                    RON JOHNSON, Wisconsin, Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
              Jennifer L. Selde, Professional Staff Member
               Margaret E. Daum, Minority Staff Director
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Michelle M. Benecke, Minority Advisor
                     Laura W. Kilbride, Chief Clerk
                     
                     
                     
                     

                                                       Calendar No. 640
                                                       
                                                       
115th Congress   }                                        {  Report
                                 SENATE
                                                                 
 2d Session      }                                        {  115-353

======================================================================



 
                           OPIOID ACT OF 2018

                                _______
                                

               November 13, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 3047]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 3047) to establish 
a narcotic drug screening technology pilot program to combat 
illicit opioid importation, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment (in the nature of a substitute) and an amendment to 
the title and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................5
 IV. Section-by-Section Analysis......................................6
  V. Evaluation of Regulatory Impact..................................6
 VI. Congressional Budget Office Cost Estimate........................6
VII. Changes in Existing Law Made by the Bill, as Reported............7

                         I. PURPOSE AND SUMMARY

    S. 3047, the Opportunities to Provide for Illicit Opioid 
Interdiction and Detection (OPIOID) Act of 2018, or the 
``OPIOID Act of 2018'', directs Department of Homeland Security 
(DHS) components, including Customs and Border Protection (CBP) 
and the Science and Technology Directorate (S&T), to coordinate 
with the United States Postal Service (USPS) and other 
appropriate Federal agencies to develop new technology to 
detect illicit substances entering the United States at ports 
of entry.

              II. BACKGROUND AND THE NEED FOR LEGISLATION

    The United States is currently in the middle of a drug 
abuse epidemic, fueled by opioid consumption that is killing a 
record number of Americans every year.\1\ The Centers for 
Disease Control and Prevention (CDC) estimates that, in 2017, 
over 70,000 Americans died of drug overdoses.\2\ Since 2016, 
synthetic opioids--opioids not derived from plant materials--
have been responsible for the greatest number of drug 
overdoses, accounting for over 30 percent of all overdoses in 
the United States in 2016 alone--nearly double the rate in 
2015.\3\ Synthetic opioids also fall under the larger umbrella 
of ``new psychoactive substances'' (NPS), or drugs which are 
not scheduled under the major international treaties on 
narcotic control.\4\ According to the Drug Enforcement 
Administration (DEA), fentanyl is the ``most prevalent and most 
significant synthetic opioid threat to the United States.''\5\
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    \1\Data Brief, Center for Disease Control and Prevention, National 
Center for Health Statistics, Drug Overdose Deaths in the United 
States, 1999-2016 (Dec. 2017), https://www.cdc.gov/nchs/products/
databriefs/db294.htm; Data Brief, Center for Disease Control and 
Prevention, National Center for Health Statistics, Drug Poisoning 
Deaths in the United States, 1980-2008 (Dec. 2011), https://
www.cdc.gov/nchs/products/databriefs/db81.htm.
    \2\Center for Disease Control and Prevention, National Center for 
Health Statistics, Provisional Drug Overdose Death Counts (July 11, 
2018), https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm.
    \3\Puja Seth, et al., Overdose Deaths Involving Opioids, Cocaine, 
and Psychostimulants--United States, 2015-2016, Centers for Disease 
Control, Morbidity and Mortality Weekly Report (Mar. 30, 2018), https:/
/www.cdc.gov/mmwr/volumes/67/wr/mm6712a1.htm.
    \4\Draft Report, The President's Commission on Combating Drug 
Addiction and the Opioid Crisis, 26 (Nov. 1, 2017), available at 
https://www.whitehouse.gov/sites/whitehouse.gov/files/images/
Final_Report_Draft_11-1-2017.pdf. The two major international treaties 
on narcotic control are the Single Convention on Narcotic Drugs (1961) 
and the Convention on Psychotropic Substances (1971). Single Convention 
on Narcotic Drugs, Mar. 30, 1961, 18 U.S.T. 1407, 520 U.N.T.S. 204; 
Convention on Psychotropic Substances, Feb. 21, 1971, 32 U.S.T. 543, 
1019 UNTS 175.
    \5\Intelligence Brief, Drug Enforcement Admin., Fentanyl Remains 
the Most Significant Synthetic Opioid Threat and Poses the Greatest 
Threat to the Opioid User Market in the United States (May 2018), 
available at https://www.dea.gov/ops/PRB-DIB-003-18.pdf.
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    Both the CDC and the DEA have pointed to illicitly-
manufactured fentanyl as the primary source of the fentanyl 
epidemic and increase in overdose deaths.\6\ Illicit fentanyl 
and its analogues, or chemically similar drugs, are 
manufactured in China and Mexico, then transported into the 
United States in parcel packages--either directly or through 
third countries--smuggled across the southwest border from 
Mexico.\7\ Fentanyl precursor chemicals, or non-narcotic 
substances used to produce narcotics, have also been seized at 
ports of entry, indicating that the final step in fentanyl 
synthesizing may also be occurring domestically.\8\
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    \6\See supra n. 3; see also Dep't of Justice and Drug Enforcement 
Admin., 2017 National Drug Threat Assessment 57 (Oct. 2017), available 
at https://www.dea.gov/docs/DIR-040-17_2017-NDTA.pdf.
    \7\Id. at 62, 65.
    \8\Id. at 62.
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    CBP, responsible for enforcing U.S. laws at the nation's 
borders and at official ports of entry, is seizing an 
increasing amount of fentanyl.\9\ Through the first half of 
fiscal year (FY) 2018, CBP seized 984 pounds of fentanyl at 
ports of entry--nearly twice the amount seized in all of FY 
2016.\10\ However, without screening every package, car or 
truck at U.S. ports of entry, CBP cannot quantify how much is 
being missed. To interdict illicit drugs at ports of entry, CBP 
primarily relies on processing advanced manifest information of 
inbound cargo and passengers through the National Targeting 
Center to identify high-risk cargo or travelers.\11\
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    \9\Press Release, Customs and Border Protection, Philadelphia 
Seizes Nearly $1.7 Million in Fentanyl Shipped from China (June 28, 
2018), https://www.cbp.gov/newsroom/local-media-release/philadelphia-
cbp-seizes-nearly-17-million-fentanyl-shipped-china.
    \10\Id.
    \11\John Davis, Fighting the Opioid Scourge: CBP disrupts flow of 
illegal opioids at our borders, Customs and Border Protection, https://
www.cbp.gov/frontline/fighting-opioid-scourge.
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    However, in an April 2016 roundtable, CBP shared with this 
Committee the challenges of identifying high-risk cargo in the 
international mail environment, where advanced information is 
sometimes not available or is incomplete.\12\ Since then, the 
Committee has conducted oversight of private express shippers, 
USPS, and the U.S. Department of State's continued improvements 
to the quantity and quality of advanced information about 
international mail arriving at ports of entry.\13\ In a January 
hearing before the Committee, CBP stated that, in addition to 
advanced information, which can sometimes be limited or 
incomplete, it also uses narcotic canine detection, officer 
experience or country targeting to identify high-risk packages 
or cargo shipments.\14\
---------------------------------------------------------------------------
    \12\Preventing Drug Trafficking through International Mail: 
Roundtable convened by the S. Comm. On Homeland Sec. and Governmental 
Affairs, 114th Cong. (Apr. 19, 2016).
    \13\See Letter from Ron Johnson, Chairman, S. Comm. on Homeland 
Sec. and Governmental Affairs, et al., to John F. Kerry, Sec'y, Dep't 
of State (Sep. 15, 2016) available at https://www.hsgac.senate.gov/imo/
media/doc/Letter%20to%20State%20re%20International%20Mail% 
2009152016.pdf; Letter from Ron Johnson, Chairman, S. Comm. on Homeland 
Sec. and Governmental Affairs, and Claire McCaskill, Ranking Member, S. 
Comm. on Homeland Sec. and Governmental Affairs, to Rex Tillerson, 
Sec'y, Dep't of State (Nov. 20, 2017) available at https://
www.hsgac.senate.gov/imo/media/doc/2017-11-
20%20CMC%20RHJ%20ltr%20to%20State%20re%20fentanyl.pdf; Letter from Ron 
Johnson, Chairman, S. Comm. on Homeland Sec. and Governmental Affairs, 
and Claire McCaskill, Ranking Member, S. Comm. on Homeland Sec. and 
Governmental Affairs, to Elaine Duke, Acting Sec'y, Dep't of Homeland 
Sec. (Nov. 20, 2017) available at https://www.hsgac.senate.gov/imo/
media/doc/2017-11-20%20CMC%20RHJ%20ltr%20to%20DHS%20re%20fentanyl.pdf; 
letter from Ron Johnson, Chairman, S. Comm. on Homeland Sec. and 
Governmental Affairs, and Claire McCaskill, Ranking Member, S. Comm. on 
Homeland Sec. and Governmental Affairs, to Megan Brennan, Postmaster 
Gen., U.S. Postal Service (Nov. 20, 2017) available at https://
www.hsgac.senate.gov/imo/media/doc/2017-11-
20%20CMC%20RHJ%20ltr%20to%20USPS%20re%20fentanyl.pdf.
    \14\Combatting the Opioid Crisis: Exploring Vulnerabilities in 
International Mail Security: Hearing Before the S. Comm. on Homeland 
Sec. and Governmental Affairs, Permanent Subcomm. on Investigations, 
115th Cong. (2018) (Written Testimony of Customs and Border Protection 
Office of Field Operations Executive Assistant Commissioner Todd Owen), 
https://www.dhs.gov/news/2018/01/25/written-testimony-cbp-senate-
homeland-security-and-governmental-affairs-permanent.
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    After an individual, package, or cargo has been identified 
as potentially carrying illicit drugs, it is possible to 
identify any illicit substances using state-of-the-art analysis 
tools, which are capable of identifying over 14,000 
substances.\15\ In January 2018, President Trump signed the 
International Narcotics Trafficking Emergency Response by 
Detecting Incoming Contraband with Technology (INTERDICT) Act 
to allow CBP to buy additional chemical identification 
technology to help quickly identify possible illicit substances 
at ports of entry.\16\ However, there are limits to existing 
technology.
---------------------------------------------------------------------------
    \15\See supra n. 9.
    \16\Pub. L. No. 115-112 (2018).
---------------------------------------------------------------------------
    In November 2017, the President's Commission on Combating 
Drug and Addiction and the Opioid Crisis (President's 
Commission) released a report and recommendations to combat the 
drug addiction crisis in the U.S.\17\ The report identified 
challenges CBP faces with existing processes to detect and 
interdict fentanyl and its analogues, stating, ``fentanyl's 
ability to be shipped in very small quantities, a low number of 
available automated detection systems, and the relatively small 
number of trained canines make intercepting fentanyl and 
fentanyl analogues . . . monumentally difficult.''\18\ Further, 
the President's Commission acknowledged that ``our inability to 
reliably detect fentanyl at our land borders and at our 
international mail handling facilities creates untenable 
vulnerabilities.''\19\
---------------------------------------------------------------------------
    \17\See supra n. 4, Draft Report.
    \18\Id. at 63.
    \19\Id. at 120.
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    The President's Commission ultimately recommended that 
Federal agencies coordinate to develop additional technologies 
to detect and interdict fentanyl and other synthetic opioids at 
the border and at international mail facilities.\20\ This 
recommendation was reflected in S&T's FY 2019 budget proposal, 
which included a research project to develop cost-effective 
``rapid screening-at-speed technologies for the detection and 
interdiction of opioids/fentanyls.''\21\ With CBP's 
collaboration, this project aims to identify and close 
detection gaps and meet CBP's operational requirements while 
not restricting cross-border traffic.\22\
---------------------------------------------------------------------------
    \20\Id. at 63-65; id. at 120-21.
    \21\Dep't of Homeland Sec., Science and Tech. Directorate, Budget 
Overview: Fiscal Year 2019 Congressional Justification 76, available at 
https://www.dhs.gov/sites/default/files/publications/
Science%20and%20Technology%20Directorate.pdf.
    \22\Id. at 77.
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    Fentanyl and synthetic opioids are not, however, the only 
drug threat facing the United States. DEA highlights 
methamphetamine, cocaine, and non-opioid NPS in the 2017 
National Drug Threat Assessment.\23\ According to the CDC, 
cocaine overdose deaths increased by over 50 percent from 2015 
to 2016, while deaths by ``psychostimulants with abuse 
potential'', including methamphetamine and 3, 4-methylenedioxy-
methamphetamine (the chemical name of MDMA or Ecstasy), 
increased by over 30 percent in the same year.\24\ In total, 
nearly 18,000 Americans died of drug overdoses because of 
substances in those two categories in 2016.\25\ Further, the 
DEA and CDC have raised concerns that cocaine is increasingly 
mixed with fentanyl and fentanyl analogues, increasing the risk 
of overdose.\26\
---------------------------------------------------------------------------
    \23\See supra n. 6, Dep't of Justice and Drug Enforcement Admin. at 
v.
    \24\See supra n. 3.
    \25\Id.
    \26\See supra n. 6, Dep't of Justice and Drug Enforcement Admin. at 
88.
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    According to DEA, the trafficking routes for cocaine, 
psychostimulants, and non-opioid NPS are similar to routes used 
for fentanyl and synthetic opioids. Specifically, cocaine and 
methamphetamine are traditionally trafficked through ports of 
entry along the southwest border,\27\ while NPS are usually 
trafficked through international mail.\28\ CBP seizure data 
supports this: in FY17, 87 percent of cocaine and 83 percent of 
methamphetamine seized was at ports of entry.\29\ Given the 
increasing threat of these drugs, the similar trafficking 
patterns to fentanyl, and the increasing likelihood that they 
could be mixed with fentanyl and other synthetic opioids, CBP 
and S&T should seek to identify technology that is capable of 
identifying these substances in addition to fentanyl.
---------------------------------------------------------------------------
    \27\See supra n. 6, Dep't of Justice and Drug Enforcement Admin. at 
77; id. at 91.
    \28\Id. at 122.
    \29\Customs and Border Protection, CBP Enforcement Statistics 
FY2018, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics.
---------------------------------------------------------------------------
    In May 2018, the staff of Ranking Member Claire McCaskill, 
the bill's sponsor, issued a report finding a rapid increase in 
fentanyl seizures at land border ports of entry and through 
incoming mail to the United States, and detailing the demands 
this is placing on CBP's officers.\30\
---------------------------------------------------------------------------
    \30\Minority Staff Report, Senate Committee on Homeland Security 
and Governmental Affairs, Combating The Opioid Epidemic: Intercepting 
Illicit Opioids at Ports of Entry (May 2018).
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    To address the recommendations of the President's 
Commission and to help CBP improve the ability to detect 
fentanyl and other dangerous narcotics, this bill directs S&T 
and CBP to coordinate on research for new detection technology 
for use at ports of entry. The research outlined in the S&T 
budget proposal satisfies this intent. However, S&T should 
ensure that new technology is capable of detecting other 
illicit substances, specifically those that present the 
greatest risk of deadly overdose in the U.S. Further, the 
technology should be able to detect precursor chemicals for 
synthetic drug production to prevent drug traffickers from 
completing the final steps of production within the United 
States. Committee amendments to S. 3047 widened the capability 
of the technology to reflect the Committee work to target 
cocaine and methamphetamine trafficking and abuse alongside 
heroin and opioids.\31\
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    \31\See generally Border Security--2015: Hearing Before the S. 
Comm. on Homeland Sec. and Governmental Affairs, 114th Cong. (2015), 
available at https://www.gpo.gov/fdsys/pkg/CHRG-114shrg94901/pdf/CHRG-
114shrg94901.pdf; Border Security--2015: Hearing Before the S. Comm. on 
Homeland Sec. and Gov't Aff., 114th Cong. (2015), available at https://
www.gpo.gov/fdsys/pkg/CHRG-114shrg94899/pdf/CHRG-114shrg94899.pdf.
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    To ensure new technology developed meets the operational 
goals of CBP, the bill includes an annual reporting 
requirement. This annual report, required for four years, must 
summarize research developed within DHS and its components, 
including any work in coordination with other agencies, as well 
as any operational processes and procedures needed to implement 
the new technology. This report should also include an 
estimated cost of, and timeframe for, implementation; a 
description of the Federal policy changes needed for 
implementation; and a description of any potential challenges 
to implement the bill's requirements fully.

                        III. LEGISLATIVE HISTORY

    Senator Claire McCaskill (D-MO) introduced S. 3047, the 
Opportunities to Provide for Illicit Opioid Interdiction and 
Detection Act of 2018, on June 11, 2018, with Senators Angus 
King (I-ME) and Joe Manchin (D-WV). The bill was referred to 
the Committee on Homeland Security and Governmental Affairs.
    The Committee considered S. 3047 at a business meeting on 
June 13, 2018. During the business meeting, a twice modified 
substitute amendment was offered by Senators Ron Johnson, 
McCaskill, and Heidi Heitkamp, and an amendment to change the 
title of the bill was offered by Senators Johnsons and 
McCaskill. Both amendments were accepted by unanimous consent. 
The bill, as amended, was ordered reported favorably by voice 
vote en bloc. Senators present for the unanimous consent 
request and vote were Johnson, Portman, Lankford, Enzi, 
McCaskill, Carper, Peters, Hassan, Harris, and Jones.

        IV. SECTION-BY-SECTION ANALYSIS OF THE BILL, AS REPORTED

Section 1. Short title

    This section designates the short title of the bill as the 
``Opportunities to Provide for Illicit Opioid Interdiction and 
Detection Act of 2018'' or the ``OPIOID Act of 2018''.

Sec. 2. Definitions

    This section includes definitions of the term 
``Commissioner'' and ``Under Secretary'' to mean the 
Commissioner of CBP and Under Secretary of S&T, respectfully. 
It also defines ``covered substances'' under the bill to mean 
specific illicit substances and their precursors, as well as 
narcotic drugs and psychoactive substances, more broadly.

Sec. 3. Interagency collaboration on research and technology 
        development.

    This section directs the Commissioner and the Under 
Secretary to coordinate with the heads of appropriate Federal 
agencies, including the Postmaster General of the USPS, to 
develop technology to detect illicit substances, including 
fentanyl, synthetic opioids, and precursors, as well as other 
narcotic drugs. This includes coordination for both substances 
entering the U.S. by mail, and separately by border ports of 
entry in either motor vehicles or cargo containers. This 
section also directs the Commissioner and Under Secretary to 
conduct outreach to the private sector for information to 
develop this technology.
    This section also requires CBP and S&T, in consultation 
with the agencies with which each coordinates research, to 
report to Congress on the technology and related screening 
procedures developed through the coordinated research. This is 
an annual report which will sunset after four years.

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 11, 2018.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 3047, the OPIOID Act 
of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

S. 3047--OPIOID Act of 2018

    S. 3047 would direct Customs and Border Protection (CBP), 
the Postal Service, and other federal agencies to collaborate 
to develop technology to detect certain drugs that enter the 
United States in the mail. Using information provided by CBP, 
CBO estimates that it would cost roughly $100 million over the 
2019-2021 period to deploy drug detection systems at 
international mail facilities.
    The costs of the bill fall within budget function 750 
(administration of justice) and are shown in the following 
table. Estimated outlays are based on the historical rate of 
spending for similar programs.

----------------------------------------------------------------------------------------------------------------
                                                             By fiscal year, in millions of dollars--
                                                ----------------------------------------------------------------
                                                   2018     2019     2020     2021     2022     2023   2019-2023
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level..................        0      100        0        0        0        0       100
Estimated Outlays..............................        0       40       40       20        0        0       100
----------------------------------------------------------------------------------------------------------------

    Enacting S. 3047 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting S. 3047 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    S. 3047 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On June 6, 2018, CBO transmitted a cost estimate for 
several bills addressing the opioid crisis that were ordered 
reported by the House Committee on Ways and Means on May 16, 
2018. One of those bills was H.R. 5788, the Securing the 
International Mail Against Opioids Act of 2018, which contains 
a provision similar to S. 3047. CBO's estimates of the 
budgetary effects of those provisions are the same.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

       VII. CHANGES IN EXISTING LAW MADE BY THE ACT, AS REPORTED

    Because this legislation would not repeal or amend any 
provision of current law, it would not make changes in existing 
law within the meaning of clauses (a) and (b) of paragraph 12 
of rule XXVI of the Standing Rules of the Senate.