[House Report 117-527]
[From the U.S. Government Publishing Office]


117th Congress }                                          { Report
                        HOUSE OF REPRESENTATIVES
  2d Session   }                                          { 117-527
======================================================================
 
   RESOLUTION OF INQUIRY DIRECTING THE PRESIDENT TO PROVIDE CERTAIN 
DOCUMENTS IN THE PRESIDENT'S POSSESSION TO THE HOUSE OF REPRESENTATIVES 
RELATING TO COMMUNICATIONS BY OR AMONG ANY OF THE DEPARTMENT OF HEALTH 
  AND HUMAN SERVICES, THE OFFICE OF NATIONAL DRUG CONTROL POLICY, THE 
WHITE HOUSE, THE DRUG ENFORCEMENT ADMINISTRATION, AND THE DEPARTMENT OF 
 JUSTICE RELATED TO THE EXECUTIVE BRANCH'S RECOMMENDATIONS FOR A LONG-
   TERM, CONSENSUS APPROACH TO REDUCE THE SUPPLY AND AVAILABILITY OF 
ILLICITLY MANUFACTURED FENTANYL-RELATED SUBSTANCES IN THE UNITED STATES

                                _______
                                

 September 29, 2022.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Pallone, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                      [To accompany H. Res. 1274]

    The Committee on Energy and Commerce, to whom was referred 
the resolution (H. Res. 1274) of inquiry directing the 
President to provide certain documents in the President's 
possession to the House of Representatives relating to 
communications by or among any of the Department of Health and 
Human Services, the Office of National Drug Control Policy, the 
White House, the Drug Enforcement Administration, and the 
Department of Justice related to the executive branch's 
recommendations for a long-term, consensus approach to reduce 
the supply and availability of illicitly manufactured fentanyl-
related substances in the United States, having considered the 
same, reports thereon without amendment and without 
recommendation.

                                CONTENTS

                                                                   Page
   I. Purpose and Summary.............................................2
  II. Background and Need for the Legislation.........................2
 III. Committee Hearings..............................................3
  IV. Committee Consideration.........................................3
   V. Committee Votes.................................................3
  VI. Oversight Findings..............................................5
 VII. New Budget Authority, Entitlement Authority, and Tax Expenditure5
VIII. Federal Mandates Statement......................................5
  IX. Statement of General Performance Goals and Objectives...........5
   X. Duplication of Federal Programs.................................5
  XI. Committee Cost Estimate.........................................5
 XII. Earmarks, Limited Tax Benefits, and Limited Tariff Benefits.....6
XIII. Advisory Committee Statement....................................6
 XIV. Applicability to Legislative Branch.............................6
  XV. Section-by-Section Analysis of the Legislation..................6
 XVI. Changes in Existing Law Made by the Bill, as Reported...........6
XVII. Minority Views..................................................7

                         I. PURPOSE AND SUMMARY

    H. Res. 1274 directs the President to furnish to the House 
of Representatives copies of any document or communication in 
the President's possession that refers or relates to 
communications by or among any of the Department of Health and 
Human Services (HHS), the Office of National Drug Control 
Policy (ONDCP), the White House, the Drug Enforcement 
Administration (DEA), and the Department of Justice (DOJ) 
related to the executive branch's recommendations for a long-
term, consensus approach to reduce the supply and availability 
of illicitly manufactured fentanyl-related substances (FRS) in 
the United States.

                II. BACKGROUND AND NEED FOR LEGISLATION

    In 2018, the Drug Enforcement Administration (DEA) used 
emergency authority under the Controlled Substances Act (CSA) 
to temporarily place FRS in Schedule I as a class, based on 
chemical structure. Congress has voted seven times to extend 
temporary class-wide FRS scheduling: once in 2020, three times 
in 2021, and three times in 2022. Most recently, Congress 
extended the temporary class-wide scheduling order in the FY 22 
Consolidated Appropriations Act to December 31, 2022.
    In September 2021, the Administration released a proposal 
to address FRS, which formally recommended permanent class-wide 
scheduling of FRS, expanding and expediting research for all 
schedule I substances, creating an ``off-ramp'' to ensure that 
harmless or medically beneficial substances are not improperly 
classified, and making important reforms to mandatory minimum 
sentencing standards involving FRS. On December 2, 2021, the 
Health Subcommittee held a hearing entitled ``The Overdose 
Crisis: Interagency Proposal to Combat Illicit Fentanyl-Related 
Substances'', which examined the Biden Administration's 
proposal to address FRS. The Committee hosted witnesses from 
ONDCP, Food and Drug Administration (FDA), the National 
Institute on Drug Abuse (NIDA), and DEA.
    H. Res. 1274 directs the President to provide the House of 
Representatives with certain documents or communications by or 
among any of HHS, ONDCP, the White House, DEA and DOJ related 
to the executive branch's recommendations for a long-term, 
consensus approach to reduce the supply and availability of 
illicitly manufactured fentanyl-related substances in the 
United States. The Committee strongly supports continued 
oversight of the Administration's handling of the fentanyl and 
overdose crisis and will continue to work on bipartisan 
legislation to address these critical issues. However, the 
proposals put forth by the minority on fentanyl scheduling do 
not address the entirety and complexity of the issue, and do 
not include provisions to remove or reschedule FRS found to 
pose no risk to public health. Furthermore, the minority 
proposals do not include needed reforms to mandatory minimum 
sentencing provisions involving FRS, thereby posing a risk of 
exacerbating long-standing disparities in the criminal justice 
system. For these reasons, the Committee voted to report H. 
Res. 1274 without recommendation.

                        III. COMMITTEE HEARINGS

    The Committee on Energy and Commerce has not held hearings 
on the legislation.

                      IV. COMMITTEE CONSIDERATION

    H. Res. 1274 was introduced on July 26, 2022, by 
Representatives Latta (R-OH) and Dunn (R-FL) and was referred 
to the Committee on Energy and Commerce. Subsequently, on July 
27, 2022, the resolution was referred to the Subcommittee on 
Health. The resolution was discharged from the Subcommittee on 
Health on September 21, 2022.
    On September 21, 2022, the Committee met in open markup 
session and ordered H. Res. 1274, without amendment, reported 
without recommendation to the House by a recorded vote of 32 
yeas and 22 nays.

                           V. COMMITTEE VOTES

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list each record vote 
on the motion to report legislation and amendments thereto. The 
Committee advises that there was one record vote taken on H. 
Res. 1274, including a motion by Mr. Pallone ordering H. Res. 
1274 reported without recommendation to the House, without 
amendment. The motion on reporting the resolution without 
recommendation was approved by a record vote of 32 yeas to 22 
nays. The following are the record votes taken during Committee 
consideration, including the names of those members voting for 
and against:


                         VI. OVERSIGHT FINDINGS

    Pursuant to clause 3(c)(1) of rule XIII and clause 2(b)(1) 
of rule X of the Rules of the House of Representatives, the 
oversight findings and recommendations of the Committee are 
reflected in the descriptive portion of the report.

 VII. NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

    Pursuant to 3(c)(2) of rule XIII of the Rules of the House 
of Representatives, the Committee adopts as its own the 
estimate of new budget authority, entitlement authority, or tax 
expenditures or revenues contained in the cost estimate 
prepared by the Director of the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974.
    The Committee has requested but not received from the 
Director of the Congressional Budget Office a statement as to 
whether this bill contains any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.

                    VIII. FEDERAL MANDATES STATEMENT

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

       IX. STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

    Pursuant to clause 3(c)(4) of rule XIII, the general 
performance goal or objective of this legislation is to direct 
the President to furnish to the House of Representatives copies 
of any document or communication in the President's possession 
that refers or relates to communications by or among any of 
HHS, ONDCP, the White House, DEA and DOJ related to the 
executive branch's recommendations for a long-term, consensus 
approach to reduce the supply and availability of illicitly 
manufactured fentanyl-related substances in the United States.

                   X. DUPLICATION OF FEDERAL PROGRAMS

    Pursuant to clause 3(c)(5) of rule XIII, no provision of H. 
Res. 1274 is known to be duplicative of another Federal 
program, including any program that was included in a report to 
Congress pursuant to section 21 of Public Law 111-139 or the 
most recent Catalog of Federal Domestic Assistance.

                      XI. COMMITTEE COST ESTIMATE

    Pursuant to clause 3(d)(1) of rule XIII, the Committee 
adopts as its own the cost estimate prepared by the Director of 
the Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974.

    XII. EARMARKS, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS

    Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, the 
Committee finds that H. Res. 1274 contains no earmarks, limited 
tax benefits, or limited tariff benefits.

                   XIII. ADVISORY COMMITTEE STATEMENT

    No advisory committee within the meaning of section 5(b) of 
the Federal Advisory Committee Act was created by this 
legislation.

                XIV. APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

           XV. SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

    H. Res. 1274 directs the President to transmit to the House 
of Representatives, not later than 14 days after the date of 
the adoption of the resolution, documents related to the 
executive branch's recommendations for a long-term, consensus 
approach to reduce the supply and availability of illicitly 
manufactured fentanyl-related substances in the United States. 
This includes communication by or among any of HHS, ONDCP, the 
White House, DEA and DOJ.

       XVI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    There are no changes to existing law made by the bill H. 
Res. 1274.

                          XVII. MINORITY VIEWS

    Energy and Commerce Committee Republicans are pleased that 
Democrats support oversight of the Administration's handling of 
the illicit fentanyl and overdose crisis and look forward to 
conducing robust oversight of these critical issues in the new 
Congress. However, Committee Republicans disagree with 
Democrats' assessment of commonsense proposals that permanently 
place fentanyl-related substances (FRS) in Schedule I. 
Democrats are playing a deadly game with Americans' lives by 
using FRS scheduling as their policy platform for criminal 
justice reform. Democrats' proposal to exempt these weapons-
grade poisons from criminal penalties will only help violent 
drug traffickers send more deadly substances into communities 
across the country.
    Fentanyl is a powerful synthetic opioid that is 50-100 
times stronger than morphine.\1\ Fentanyl analogues, or FRS, 
are illicit--and often deadly--alterations of fentanyl. FRS 
have similar--but not the same--chemical structure, and they 
generally mimic the pharmacological effects of the original 
drug. According to the U.S. Drug Enforcement Administration 
(DEA), drug trafficking organizations (DTOs) typically 
distribute fentanyl and FRS by the kilogram. One kilogram of 
fentanyl has the potential to kill 500,000 people.\2\ If 
ingested, a pill that contains more than two milligrams of 
fentanyl can be lethal.\3\ These substances are surging across 
the southern border and killing more people than ever; they are 
the reason that overdoses in the United States are at an all-
time high. From October 2020 to September 2021, U.S. Customs 
and Border Protection seized approximately 11,201 pounds of 
fentanyl at the border, enough to kill more than 2.5 billion 
people, or the entire U.S. population seven times over.\4\ In 
the previous year, DEA has seized a record number--over 9.5 
million fake prescription pills containing lethal amounts of 
fentanyl and FRS.\5\ More than COVID-19, cancer, heart disease, 
and all other accidents, illicit fentanyl overdose deaths among 
teens accounted for 77% of adolescent deaths in 2021.\6\
---------------------------------------------------------------------------
    \1\U.S. Drug Enforcement Administration, Facts about Fentanyl, 
available at https://www.dea.gov/resources/facts-about-fentanyl.
    \2\Id.
    \3\Id.
    \4\U.S. Customs and Border Protection, Drug Seizures Statistics 
(September 14, 2022), available at https://www.cbp.gov/newsroom/stats/
drug-seizure-statistics.
    \5\U.S. Drug Enforcement Administration, DEA Issues Public Safety 
Alert on Sharp Increase in Fake Prescription Pills Containing Fentanyl 
and Meth, Press Release (September 27, 2021), available at https://
www.dea.gov/press-releases/2021/09/27/dea-issues-public-safety-alert.
    \6\Eli Cahan, Opioid overdose deaths among teens have skyrocketed 
due to fentanyl, ABC News (April 12, 2022), available at https://
abcnews.go.com/Health/opioid-overdose-deaths-teens-skyrocketed-due-
fentanyl/story?id=84035862.
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    Before 2018, DTOs would create new FRS to avoid 
classification as illegal and evade criminal penalties. This 
was a lethal game of ``whack a mole'' for the DEA, as new FRSs 
had to be identified by the DEA and individually scheduled one 
at a time. From 2016-2018 there were 32 new FRS found to have 
caused thousands of deaths across the country.\7\ In February 
2018, the DEA used emergency scheduling powers to temporarily 
place FRS as an entire class in Schedule I. The scheduling 
order caused the creation of novel FRS to grind to a halt 
internationally. According to the National Forensic Lab 
Information System, there were over 7,000 FRS encounters in 
2016-2017. In 2018-2019 there were 758 encounters--a 90 percent 
decrease in encounters.\8\ Since 2018, Congress has extended 
this life-saving emergency scheduling order several times. The 
next extension is slated to expire at the end of 2022.
---------------------------------------------------------------------------
    \7\Timothy Westlake, Witness Testimony: An Epidemic within a 
Pandemic: Understanding Substance Use and Misuse in America, House 
Energy and Commerce Committee (April 14, 2021), available at https://
energycommerce.house.gov/sites/democrats.energycommerce.house.gov/
files/documents/Witness%20Testimony_Westlake_HE_2021.04.14.pdf.
    \8\Id.
---------------------------------------------------------------------------
    Congress must act to permanently schedule these deadly 
poisons by passing the H.R. 6184, the Halt All Lethal 
Trafficking of Fentanyl Act or, HALT Fentanyl Act, which places 
all unscheduled FRS into Schedule I. The legislation also makes 
it easier to conduct federally sanctioned research on Schedule 
I substances, including FRS, which would provide the evidence 
base to facilitate the removal or rescheduling of any FRS found 
to pose no risk to public health. Unfortunately, instead of 
working with Republicans on solutions, Democrats and the Biden 
Administration would rather use the current overdose crisis as 
an opportunity to push misguided criminal justice reforms. In 
September 2021, Biden Administration released legislative 
recommendations to Congress on reducing these deadly 
substances.\9\ And while the Administration did recommend that 
FRS as a class be placed in Schedule I, the Administration also 
recommended exempting these same substances from quantity-based 
drug trafficking mandatory minimums. Republicans are alarmed by 
this dangerous policy because drug traffickers will realize 
that they can avoid mandatory minimum sentences by making 
slight alterations to fentanyl and creating new FRS. This will 
ultimately increase the amount of FRS coming across the border.
---------------------------------------------------------------------------
    \9\The White House, Biden-Harris Administration Provides 
Recommendations to Congress on Reducing Illicit Fentanyl-Related 
Substances, Press Release (September 2, 2021), available at https://
www.whitehouse.gov/ondcp/briefing-room/2021/09/02/biden-harris-
administration-provides-recommendations-to-congress-on-reducing-
illicit-fentanyl-related-substances/.
---------------------------------------------------------------------------
    Democrats raise concerns about the impact of class-wide 
scheduling on those FRS that do not pose a risk to public 
health, and claim that substances with low potential for abuse, 
such as loperamide (Imodium), remifentanil, benzylfentanyl, and 
mirfentanil, would be swept into Schedule I. What they fail to 
say is that those substances do not actually fall under the FRS 
class scheduling language in the HALT Fentanyl Act. Imodium is 
not considered a FRS and is not classifiable as Schedule I 
under the bill language. Unlike other opioids, it generally 
does not enter the central nervous system and lacks the central 
opioid-like effects.\10\ Remifentanil also does not have a 
chemical structure that falls under the FRS classification and 
is already classified under Schedule II.\11\ Benzylfentanyl is 
excluded as an FRS because its non-bioactive and is instead 
controlled as a List I chemical because it is a precursor 
chemical used to produce illicit fentanyl.\12\ Mirfentanil, the 
only substance listed above which could meet the structural 
definition of FRS, actually has adverse effects at high potency 
levels.\13\ Transnational criminal organizations and drug 
cartels are not in the business of synthesizing, manufacturing, 
and distributing new FRSs that aren't bioactive/psychoactive 
and do not get their clients high.
---------------------------------------------------------------------------
    \10\Tamer Akel and Soad Bekheit, Loperamide cardiotoxicity: A Brief 
Review, Annals of Noninvasive Electrocardiology (November 10, 2017), 
available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6931594/.
    \11\21 USC 1308.12.
    \12\21 USC 1310.
    \13\PubChem, National Library of Medicine, Mirfentanil, available 
at https://pubchem.ncbi.nlm.nih.gov/compound/Mirfentanil.
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    Democrats claim that class-wide scheduling of FRS will 
result in overcriminalization and the targeting of minimally 
involved individuals and street level dealers. Mandatory 
minimums are a critical tool for law enforcement to incentivize 
cooperation. Federal prosecutors do not target low level 
dealers or individuals with substance use disorders for 
possession offenses, and instead focus efforts on dismantling 
drug trafficking networks.\14\ Furthermore, statutory safety 
valve and assistance provisions allow prosecutors and judges to 
exempt low-level, nonviolent, and cooperative defendants from 
mandatory minimum sentences. Exempting FRS from trafficking 
mandatory minimums will not only hamper the ability of law 
enforcement to target the most culpable and dangerous drug 
traffickers, but it will also encourage risky experimentation 
with an already lethal drug--and the test subjects will be 
victims in communities across the country.\15\ The fentanyl and 
FRS streaming across the border are weapons-grade poisons and 
are not comparable to crack cocaine, which has been subject to 
sentencing disparities with powder cocaine. To put things in 
perspective, cocaine can be lethal in doses exceeding 1.2 
grams, whereas the lethal dose of fentanyl is 2 milligrams--
about 4 grains of sand.\16\ Under current federal sentencing 
guidelines, the sentence is 5 years for 10 grams of fentanyl/
FRS, and 10 years for more than 100 grams.\17\ 10 grams of a 
FRS is enough to kill 5,000 people, and 100 grams of a FRS 
could kill 50,000 people.
---------------------------------------------------------------------------
    \14\National Association of Assistant United States Attorneys, The 
Overdose Crisis: Interagency Proposal to Combat Illicit Fentanyl-
Related Substances, House Energy and Commerce Committee (November 30, 
2021), available at https://docs.house.gov/meetings/IF/IF14/20211202/
114265/HHRG-117-IF14-20211202-SD014.pdf.
    \15\Id.
    \16\Johnelle Smith, Lethal Doses Of Drugs: How Much Does It Take To 
Cause A Fatal Overdose?, AddictionResource.net (July 5, 2021), 
available at https://www.addictionresource.net/lethal-doses/#how-
dosing-is-determined.
    \17\21 USC 841: Prohibited acts A.
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    Removing mandatory minimums for analogues of a substance 
that has claimed the lives of thousands of Americans is 
illogical and dangerous. It will deeply undermine law 
enforcement efforts to combat drug trafficking. In order to 
better understand why this Administration would choose to 
exempt fentanyl analogue offenders from criminal penalties, 
this Resolution of Inquiry directs the President to provide 
certain documents and communications from the Department of 
Health and Human Services, the Office of National Drug Control 
Policy, the White House, the Drug Enforcement Administration, 
and the Department of Justice related to the executive branch's 
legislative recommendations reducing the supply and 
availability of illicitly manufactured fentanyl-related 
substances in the United States. Illicit fentanyl and FRS are 
simply too deadly for the Biden Administration to be weak on 
traffickers and those who sell these substances to children in 
our communities. It is unfathomable for this administration, at 
a time where crime is at all-time highs and the border crisis 
is surging, to be proposing a policy that would help violent 
drug traffickers send deadly poisons into local communities.

                                   Cathy McMorris Rodgers, 
               Republican Leader, Committee on Energy and Commerce.

                                  [all]