Extending Temporary Emergency Scheduling of Fentanyl Analogues Act

Madam Speaker, I thank the chairman of the Committee on Energy and Commerce for the constant diligence that he has in the landscape of healthcare and energy, consumer issues. Certainly, as a member of the Committee on the Judiciary, we are looking forward to working with this committee on a very important matter.

So I want to acknowledge the work of the Committee on Energy and Commerce and indicate that isn't it sad that we have not been able to find common ground to work on this issue. I am very concerned that what we are now doing, we probably would need more time for our committees to work together. I am concerned that we might be extending the Trump administration's temporary class-wide emergency scheduling of fentanyl, a substance that all of us vigorously opposed.

Madam Speaker, I think the chairman is well-aware of my longstanding concern on criminalizing substance abuse instead of preventing and treating it. I know that our two committees have a common perspective and agreement on that, but I have seen failed policies in my own neighborhood that have disproportionately impacted communities of color.

For instance, in the 1980s, Congress adopted harsh mandatory minimum sentences for crack cocaine offenses and putting many in unjust and lengthy terms of imprisonment.

Madam Speaker, I simply want to indicate an acknowledgment of fentanyl and its impact that it has had, and I want to acknowledge the importance of us working together. But I also want to put on the record my concern with the DEA's temporary order that would group all fentanyl-related substances under a class-wide ban.

You see, what I know we can document is that the recipient, the taker, gets the short end of the criminal justice stick, and with that, I have concerns. But as we take more time to do this, I want to make sure the traffickers, the cartels, the gangs, are put in the eye of the storm where they belong.

Madam Speaker, I thank the chairman for yielding.

Madam Speaker, just to put on the record that the data shows that there are already significant racial disparities in some of the Federal cases and mandatory minimum sentences involving fentanyl analogues.

I don't want to put words in the mouth of my chairman, Chairman Pallone, but I have heard him speak to these issues, and I am grateful for it. I am grateful for his sensitivity. So I wanted to come to the floor knowing the work that has been done, but also knowing your understanding. And I wanted to just make sure that these communities that cannot speak for themselves clearly are put on the record.

I need not say that the trial that we just had with the George Floyd case and what was trying to be represented in that case, albeit was a very tiny or minute or nonexistent amount. So I want to make sure that we do this right and we get the time to do it.

Madam Speaker, I thank the gentleman for his leadership.

Washington, DC,

April 19, 2021.

President Joseph R. Biden, Jr.,

The White House,

Washington, DC.

Dear President Biden: We write to express our serious

concerns with class-wide scheduling of fentanyl-related

substances, joining with our colleagues Senators Booker,

Hirono, Markey, Warren and Whitehouse, who wrote to you about

this issue on April 14. We too commend your commitment to end

mandatory minimums, to address racial disparities, and to

achieve criminal justice reform. We also agree with the

Administration's recognition of the pressing need to

``eradicate racial, gender and economic inequities that

currently exist in the criminal justice system. We look

forward to working with your Domestic Policy Council and the

interagency working group that has been formed to develop

specific policy solutions for criminal justice reform. At the

same time, we also hope to collaborate with you and your

Administration to enact just and restorative policies that

will meaningfully transform our nation's response to

substance use disorders through the lens of public health and

racial equity.

We agree with our Senate colleagues that fentanyl use is a

serious concern. Combatting substance use, including the

illicit use of fentanyl, is a top priority for all of us.

However, we ask that you reject the last Administration's

misguided approach to the opioid epidemic, especially

regarding class-wide scheduling of fentanyl analogues.

As an initial matter, federal prosecutors may already

pursue charges concerning harmful fentanyl analogues, with or

without class-wide scheduling. In addition, classifying all

fentanyl analogues as Schedule I substances is unnecessary

for federal prosecutions of these cases. Independent from any

temporary scheduling order for certain substances, the

federal government has the authority to prosecute anyone who

possesses, imports, distributes, or manufactures any

unscheduled fentanyl analogue with a high potential for

abuse, no medical value, and the ability to cause overdose

deaths. In addition, the Department of Justice can continue

to prosecute any case involving the illicit manufacturing or

distribution of any fentanyl-related substances under a

separate statutory scheme established by the Federal Analogue

Act. The DEA can also continue to use its existing authority

to schedule specific fentanyl-related substances as

Controlled Substances under the well-established interagency

process.

However, under the Trump Administration, the Drug

Enforcement Administration used its emergency scheduling

authority to place certain fentanyl analogues onto Schedule I

of the Controlled Substances Act. The Temporary Scheduling

Order (``the Order'') scheduled a general ``class'' of

``fentanyl-related substances.'' In doing so, the Trump

Administration expanded the application of mandatory minimum

penalties to a broader range of federal cases, while also

creating additional barriers to medical research. The Order

also circumvented the standard procedures for the scheduling

of substances under the Controlled Substances Act, preventing

input from the Department of Health and Human Services and

other relevant interagency experts.

The Trump Administration's Order also widened the net as

far as the application of mandatory minimum penalties. As you

know, people of color have been disproportionately subject to

mandatory minimum sentences, preventing judges from being

allowed to apply penalties that fit the facts and

circumstances of each case. Continuation of this Order will

further perpetuate current racial disparities that exist

throughout the criminal justice system. According to the most

recent statistics from the U.S. Sentencing Commission, there

are significant racial disparities in the prosecution of

fentanyl cases, with people of color comprising almost 75% of

those sentenced in 2019. This also holds true for federal

convictions in cases involving fentanyl analogues, for which

68% of those sentenced were people of color. To keep this

approach in place--even temporarily--will further exacerbate

existing racial disparities.

In addition, mandatory minimum penalties continue to

disproportionately impact individuals with a minor role in

the offense. In 2019, more than half of all federal fentanyl-

analogue prosecutions involved a street-level seller or other

minor role. During this challenging time, our most vulnerable

communities, especially communities of color, have been

disproportionately impacted by the COVID-19 pandemic. Moving

forward, we must not exacerbate these health and justice

inequities. We need to reject approaches that expand criminal

penalties, rather than prioritize evidence-based approaches

to this public health crisis.

Moreover, we need to work to reduce barriers to research in

order to expand opportunities to identify antidotes to

fentanyl-analogue overdoses and to improve treatment options.

By extending the Order, critical medical research will

continue to be limited during a time when the country is

facing even greater concerns regarding the opioid crisis and

the rising number of overdoses. For these reasons, we urge

you to discard this misguided approach.

Drug addiction is a serious problem in communities across

the country, and we are profoundly concerned about fentanyl-

related deaths. The current pandemic has furthered worsened

the tragic impact of overdoses as so many Americans continue

to struggle through this isolating and stressful crisis. We

must learn from the lessons of the past as we prioritize

evidence-based, public health approaches and pursue better

and more just means to address this problem, rather than

the class-wide scheduling of fentanyl analogues.

Sincerely,

Jerrold Nadler, Henry C. ``Hank'' Johnson, Jr., Hakeem

Jeffries, Ted Lieu, Val B. Demings, Sheila Jackson Lee,

Theodore E. Deutch, David N. Cicilline, Pramila Jayapal,

Mondaire Jones, Deborah K. Ross, Tony Cardenas, Yvette D.

Clark, Cori Bush, and Bobby L. Rush, Members of Congress.

Madam Speaker, I move to suspend the rules and pass the bill (H.R. 2630) to amend the Temporary Reauthorization and Study of the Emergency Scheduling of Fentanyl Analogues Act to extend until September 2021, a temporary order for fentanyl-related substances, as amended.

Madam Speaker, I ask unanimous consent that all Members may have 5 legislative days in which to revise and extend their remarks and include extraneous material on H.R. 2630.

Madam Speaker, I yield myself such time as I may consume.

Madam Speaker, I rise to seek support for the Extending Temporary Emergency Scheduling of Fentanyl Analogues Act.

As we continue to combat the COVID-19 pandemic, we are also facing a tragic, growing trend of overdose deaths across this country.

We have lost nearly 1 million Americans since the beginning of the Nation's drug epidemic. These Americans are sons, daughters, mothers, fathers, neighbors, coworkers, and members of our communities. Now, data tells us that the COVID-19 pandemic, increased isolation, and related economic hardships over the past year may be hampering efforts to turn the tide.

Last week, Madam Speaker, the Centers for Disease Control and Prevention released its most recent data finding that, from August 2019 to August 2020, there were 88,000 overdose deaths reported. That is the highest ever recorded in a 12-month period.

This most recent data represents a worsening crisis driven primarily by synthetic opioids, such as illicitly manufactured fentanyl. This drug is 50 times more potent than heroin and 100 times more potent than morphine. Although fentanyl itself is often used for medical purposes, use of illicitly manufactured fentanyl has increased in recent years, including co-use with cocaine and methamphetamines. As little as 2 milligrams can cause a lethal overdose.

Congress has recognized this unprecedented threat and acted in strong bipartisan fashion to combat it with resources to communities around the country. We passed major pieces of legislation like the Comprehensive Addiction and Recovery Act, the 21st Century Cures Act, and the SUPPORT for Patients and Communities Act.

At the end of last year, in the final omnibus bill, we included over $4 billion to increase mental health and substance use services and support. Recognizing the worsening trends early this year, we passed the American Rescue Plan last month that provided an additional $4 billion in resources. This critical funding will be used to enhance mental health and substance use disorder services supported by the Substance Abuse and Mental Health Services Administration, the Health Resources and Services Administration, and the Indian Health Service.

Madam Speaker, while this critical assistance is on the way, unfortunately, due to the disturbing rates of overdose and substance use, more work is clearly needed. The Biden administration is asking Congress to extend a temporary tool we provided last Congress so that agency experts can come together to examine the facts and come up with an effective, long-term solution. That tool is the authority to temporarily classify fentanyl-related substances as schedule I substances under the Controlled Substances Act.

Ensuring fentanyl-related substances remain scheduled will maintain an important deterrent to traffickers, manufacturers, and those distributing this substance.

During an Energy and Commerce Committee hearing last week, the White House Office of National Drug Control Policy's Acting Director Regina LaBelle testified on the importance of this extension. Acting Director LaBelle highlighted ongoing discussions with the Department of Health and Human Services, the Department of Justice, and the Drug Enforcement Administration. She testified that an extension of this temporary authority would allow executive branch agencies time to convene and present a long-term solution to this ever-changing drug environment that balances the risk of illicit fentanyl with the need to ensure appropriate enforcement.

The Biden administration is taking this drug epidemic seriously and has delivered a thoughtful, thorough set of drug policy priorities. I ask my colleagues to join me in giving these agency experts time to produce a thoughtful, thorough solution to this scourge of overdose deaths.

Madam Speaker, I urge my colleagues to support this measure, and I reserve the balance of my time.

Madam Speaker, I yield such time as he may consume to the gentleman from New Hampshire (Mr. Pappas), the sponsor of this legislation.

Madam Speaker, I reserve the balance of my time.

Madam Speaker, I yield 3 minutes to the gentlewoman from Texas (Ms. Jackson Lee).

Madam Speaker, I yield an additional 1 minute to the gentlewoman from Texas.

Madam Speaker, I have no further speakers, and I reserve the balance of my time.

Madam Speaker, I would urge support for this bipartisan bill, and I yield back the balance of my time.

Madam Speaker, I yield myself such time as I may consume.

I am disappointed that we are kicking the can down the road on a short-term extension of DEA's emergency scheduling order to keep dangerous fentanyl analogues in schedule I.

While I will vote in favor of this bill today because allowing this lifesaving order to expire is unacceptable, this short-term extension from the Democratic majority fails to meet the gravity of the situation facing our communities, our border, and our country.

They have had 2 years to come to the table and work with us on a permanent solution to combat fentanyl and fentanyl analogues and the dangers that they pose to Americans. If we don't act, these dangerous drugs being smuggled across our southern border would effectively become street legal.

We need a permanent solution to save the lives of people in despair and to protect our communities, and we need Democrats in the House and the Senate to wake up and take it seriously. Nearly all States are seeing a spike in synthetic opioid deaths, with 10 Western States reporting a more than 98 percent increase. This pandemic has made it worse.

In my home State of Washington, the fentanyl positivity rate has increased 236 percent, more than any other State in the country. My community lost two teenagers recently from a suspected fentanyl-related death. They had their whole lives in front of them.

Just a few milligrams of fentanyl, what can fit on the ear of Abraham

Lincoln on our penny--that is a pretty small amount--is lethal.

Fentanyl analogues are oftentimes more potent, and more than a thousand of them have been created over the years to mimic fentanyl's opioid effects and outsmart the law.

With class-wide scheduling, any dangerous variant of fentanyl is controlled under schedule I. According to the DEA, right now, there are 27 new fentanyl-related substances that have been encountered and immediately controlled under the class-wide scheduling order. All of those substances are many times more potent than heroin and pose serious health and safety risks. One recently encountered substance was approximately eight times more potent than fentanyl.

In addition to the ongoing, unprecedented humanitarian crisis at the border, fentanyl and other dangerous opioids are also pouring across our border at an ever-increasing rate. The Border Patrol just reported a 233 percent increase in fentanyl seizures at the southern border just in the last year.

If the class-wide scheduling of fentanyl-related substances is allowed to expire, drug traffickers will be further emboldened to smuggle this poison into our communities.

The Trump administration also worked hard to make the Chinese Communist Party accountable for the fentanyl analogues that were being manufactured in China, forcing them to crack down on it. If we let this expire and do not make it permanent, we will be sending a clear message to the CCP that it is okay for them to ease up and let this illicit industry continue to grow.

Moving forward, we must work with the DEA and other agencies to make this scheduling permanent, just like Mr. Latta's FIGHT Fentanyl Act, while making reforms to improve scientific research on these substances.

I am glad that the majority is agreeing with us that we cannot let this expire. I am gravely disappointed that it is only a few months. This extension will buy us far less time than the 1-year extension Republican leader Jim Jordan and I put forward and the 7-month extension that was requested by the Biden administration.

If this 5-month extension is signed into law, I call on Democrats and Republicans to begin working immediately on a longer term solution. We stand ready to immediately begin the bipartisan work necessary to get a permanent fix signed into law. I am committed to working over the next 5 months to solve this issue once and for all and not just settle on a short-term extension.

Madam Speaker, I urge a ``yes'' vote on this temporary extension, and I reserve the balance of my time.

Madam Speaker, I yield 2 minutes to the gentleman from Kentucky (Mr. Guthrie), the lead Republican on the Health Subcommittee.

Madam Speaker, I yield 2 minutes to the gentleman from Tampa, Florida, (Mr. Bilirakis), a leader on the Committee on Energy and Commerce.

Madam Speaker, I yield 3 minutes to the gentleman from Georgia (Mr. Carter), the only pharmacist on our committee, and a leader on this issue.

Madam Speaker, I yield 2 minutes to the gentlemen from Pennsylvania (Mr. Joyce), a great member and leader on the committee.

Madam Speaker, I yield 2 minutes to the gentleman from Wisconsin (Mr. Fitzgerald).

Madam Speaker, I yield 2 minutes to the gentlewoman from Texas (Ms. Van Duyne).

Madam Speaker, I have no further speakers, and I yield back the balance of my time.

Mr. President, we are in the midst of the worst opioid epidemic in a generation, and one tragic aspect of this is the widespread use of fentanyl, a deadly opioid that has killed thousands of people in America.

In 2018, the Drug Enforcement Administration took the unprecedented step of placing all fentanyl-related substances, also known as fentanyl analogs, on schedule I under the Controlled Substances Act. That makes it easier to prosecute any individual who sells or even simply possesses fentanyl analogs, and it subjects those individuals to stiff mandatory minimum penalties regardless of individual circumstances. Typically, a drug is only added to schedule I after the Department of Health and Human Services conducts a scientific study to determine if it has a high potential for abuse and no accepted medical use.

The DEA has had the temporary authority to bypass this process for 2 years. The authority was scheduled to expire on February 6 of last year, 2020. The DEA warned us of the dire consequences if it expired. In response, I worked with Senator Lindsey Graham and Senator Feinstein and authored legislation extending the authority for 15 months, until May 6, 2021.

So what did the Trump administration do for the 12 months that it was in office with this issue still looming? Nothing and neither did Congress.

Now the Biden administration has asked Congress for an additional extension of the DEA's temporary authority in order to evaluate this issue. Just last week, the Senate confirmed Lisa Monaco as Deputy Attorney General. She will oversee the Drug Enforcement Administration. President Biden's nominee to head the DEA, Anne Milgram, is still to be considered by the Senate, so this request now for a temporary extension seems reasonable.

Let me add, though, at the same time as we grapple with the opioid epidemic, we are also in the midst of a national reckoning about racism and massive incarceration in America. We hold more prisoners, by far, than any country in the world. This is largely due to our failed War on Drugs, which has disproportionately targeted people of color. While the majority of illegal drug users and drug dealers in our country is White, the vast majority of

people incarcerated for drug offenses is African American or Latino. That is a fact.

More than three decades ago--and I remember this well as I served in the House at the time--Congress responded to the dramatic rise in the use of crack cocaine by dramatically increasing sentences for nonviolent drug offenders; for example, with a sentencing guideline for crack cocaine as compared to powder cocaine of 100 to 1. Well, that was it. We were going to get tough. We were going to send a message. It didn't work. The overall use of illegal drugs actually increased after we increased these penalties between 1990 and 2014, and the availability of drugs like heroin and methamphetamine, instead of going down, increased.

Senator Cory Booker is the chair of the Criminal Justice and Counterterrorism Subcommittee of the Senate Judiciary. He has brought these concerns to the floor of the Senate time and again. I was proud to join him as well as Senator Grassley and Senator Lee. We authored the FIRST STEP Act to begin reforming our criminal justice system from the previous effort with our War on Drugs.

Senator Booker has raised serious concerns about extending the DEA's order when it comes to these fentanyl analogs. For example, he notes the significant racial disparity in fentanyl analog prosecutions. People of color comprise 68 percent of those being sentenced. He also notes that addiction is, in fact, a public health crisis and that we cannot prosecute ourselves out of the opioid epidemic, a lesson we should have learned with the War on Drugs.

So there is an important debate to be had about how to effectively combat the abuse of fentanyl, but we cannot resolve it today on the floor of the Senate. The DEA's authority is scheduled to expire next week, and we will be gone. Last week, the House passed a bill extending the scheduling order until October 22. Senator Booker has agreed not to object to the House bill so that the Senate will have an opportunity to debate the future of this DEA authority and consider other important reforms to our criminal justice system.

Mr. President, at this point, I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 2630, which was received from the House and is at the desk.

I ask unanimous consent that the bill be considered read a third time.

I know of no further debate on the bill.

I ask unanimous consent that the motion to reconsider be considered made and laid upon the table with no intervening action or debate.

Madam Speaker, I thank the gentlewoman for yielding.

Madam Speaker, I am here today to ask my colleagues across the aisle to set aside this weak bill and support permanently--permanently as in forever--scheduling fentanyl and its analogues.

We just heard from the gentlewoman from Texas. We all agree: It is not good. Fentanyl is the problem.

Here, we have an opportunity for us to work together to help stem the flow of deadly fentanyl and its analogues in our country. This is an issue that impacts every one of us--every one of us. Whether we are Republican, Democrat, Independent, it impacts every one of us in our communities.

Just last week, in my home State of Georgia, the Georgia Attorney General announced that he is investigating fatal drug overdoses based on counterfeit medications laced with fentanyl and its analogues. These individuals bought illegal products they believed to be Xanax, Percocet, and oxycodone.

Overdoses like this happen every day all over the country--all over the country. Yet, some of my colleagues want to go soft on fentanyl analogues and let these products become legal in just mere weeks, or temporarily schedule it for a few months until they can craft another weak plan.

How can anyone seriously argue that a drug 50 times more potent than heroin and which almost always proves fatal when ingested, should ever be legal?

These products are manufactured illegally, and they are largely brought into the U.S. through the southern border. Every year, U.S. agents intercept enough fentanyl and its analogues to kill every single American several times over. In fact, Customs and Border Patrol announced in 2019, they had enough seized fentanyl to kill 800 million people. And that is what they had seized; we don't know what else came across.

I visited the border last week to see the crisis firsthand. Border patrol agents are so overwhelmed with a 20-year record high number of illegal immigrants that smugglers and cartels are using this as an opportunity to traffic more fentanyl substances.

If the President and Vice President would visit the border, they would be able to talk to the agents firsthand and see for themselves how serious the issue is.

Instead, they have elected to leave our border wide open. We are inviting drug traffickers to bring fentanyl substances into the country and distribute it in our streets. This should not be a partisan issue. Fentanyl does not discriminate. It does not.

The individuals manufacturing and distributing fentanyl and its analogues are criminals, and they are getting our neighbors killed. This is not an issue that is going away. It is only getting worse. The CDC reports that there were enough overdoses last year than any single year before.

This is the time for us to crack down on fentanyl-related substances, and I hope that we will do that.