[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
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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\
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\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.
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\15\See supra n. 9.
\16\Pub. L. No. 115-112 (2018).
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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\
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\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\
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\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\
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\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.
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\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.
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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\
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\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.
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By fiscal year, in millions of dollars--
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2018 2019 2020 2021 2022 2023 2019-2023
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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
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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.