```

[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]

 
 H.R. 2851, STOP THE IMPORTATION AND TRAFFICKING OF SYNTHETIC ANALOGUES
                              ACT OF 2017

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                 HOMELAND SECURITY, AND INVESTIGATIONS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 27, 2017

                               __________

                           Serial No. 115-38

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]         

         

      Available via the World Wide Web: http://judiciary.house.gov
      
      
      
                            _________ 

                U.S. GOVERNMENT PUBLISHING OFFICE
                   
 32-310                 WASHINGTON : 2018            
      
      
                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR SMITH, Texas                   ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr., 
TRENT FRANKS, Arizona                    Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania             HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina           DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas              TED LIEU, California
DOUG COLLINS, Georgia                JAMIE RASKIN, Maryland
RON DeSANTIS, Florida                PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado                   BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona

          Shelley Husband, Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

 Subcommittee on Crime, Terrorism, Homeland Security and Investigations

                  TREY GOWDY, South Carolina, Chairman
                  LOUIE GOHMERT, Texas, Vice-Chairman
JIM SENSENBRENNER, Jr., Wisconsin    SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio                   TED DEUTCH, Florida
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
JOHN RATCLIFFE, Texas                HAKEEM JEFFRIES, New York
MARTHA ROBY, Alabama                 TED LIEU, California
MIKE JOHNSON, Louisiana              JAMIE RASKIN, Maryland

                            C O N T E N T S

                              ----------                              

                             JUNE 27, 2017

                           OPENING STATEMENTS

                                                                   Page
The Honorable Louis Gohmert, Texas, Vice-Chairman, Subcommittee 
  on Crime, Terrorism, Homeland Security, and Investigations; 
  Committee on the Judiciary.....................................     1
The Honorable John Conyers, Jr., Michigan, Ranking Member, 
  Committee on the Judiciary.....................................     2
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................     3
The Honorable Sheila Jackson Lee, Texas, Ranking Member, 
  Subcommittee on Crime, Terrorism, Homeland Security, and 
  Investigations; Committee on the Judiciary.....................     5

                               WITNESSES

The Honorable John Katko, New York's 24th Congressional District, 
  U.S. House of Representatives
    Oral Statement...............................................     8
Ms. Demetra Ashley, Acting Assistant Administrator, U.S. Drug 
  Enforcement Administration
    Oral Statement...............................................    11
Mr. Robert Perez, Acting Executive Assistant Commissioner, U.S. 
  Customs and Border Protection
    Oral Statement...............................................    12
Ms. Marcia Lee Taylor, President and CEO, Partnership for Drug-
  Free Kids......................................................
    Oral Statement...............................................    22
Ms. Reta Newman, Special Advisor to Drug Free America Foundation, 
  Chief Chemist and Laboratory Director, Pinellas County Forensic 
  Laboratory
    Oral Statement...............................................    24
Ms. Anglea Pacheco, Commissioner for New York Sentencing 
  Commission, Former District Attorney, First Judicial District 
  of Santa Fe, New Mexico
    Oral Statement...............................................    26

H.R. 2851, STOP THE IMPORTATION AND TRAFFICKING OF SYNTHETIC ANALOGUES 
                              ACT OF 2017

                              ----------                              

                         TUESDAY, JUNE 27, 2017

                        House of Representatives

                   Subcommittee on Crime, Terrorism, 
                 Homeland Security, and Investigations

                       Committee on the Judiciary

                             Washington, DC

    The subcommittee met, pursuant to call, at 11:16 a.m., in 
Room 2141, Rayburn House Office Building, Hon. Louie Gohmert 
[vice chairman of the subcommittee] presiding.
    Present: Representatives Gohmert, Goodlatte, Chabot, 
Ratcliffe, Roby, Gowdy, Jackson Lee, Conyers, Deutch, Jeffries, 
and Lieu.
    Staff Present: Anthony Angeli, Counsel; Scott Johnson, 
Clerk; Mauri Gray, Minority Counsel, Minority Crime Detailee; 
Joe Graupensperger, Minority Chief Counsel, Subcommittee on 
Crime, Terrorism, Homeland Security, and Investigations; 
Veronica Eligan, Minority Professional Staff Member; and 
Monalisa Dugue, Minority Deputy Chief Counsel for Subcommittee 
on Crime, Terrorism, Homeland Security, and Investigations.
    Mr. Gohmert. I apologize for the delay in markup in another 
room and a lot of breathing room here. But I do not want that, 
in any way, to make you think we do not appreciate the 
importance of you, your position, and your testimony. So, we 
will get the ranking member, and we will be ready to start. Are 
we okay if we start?
    All right, we have the ranking member of the full 
committee. So, at this time, the Subcommittee on Crime, 
Terrorism, Homeland Security, and Investigations will come to 
order. Without objection, the chair is authorized to declare 
recesses of the subcommittee at any time. We welcome everyone 
to today's hearing on H.R. 2851, and I will now recognize 
myself for an opening statement.
    Today's hearing concerns a critical issue: Criminal drug 
traffickers and importers are able to circumvent the current 
Federal law by modifying a single atom or molecule of a 
currently controlled substance in a laboratory. They create a 
substance that is technically lawful, but often highly 
dangerous, addictive, and even deadly. These synthetic 
analogues are being trafficked into the United States, often 
from China or Mexico, and pose a grave threat to the health and 
safety of our own Americans.
    Synthetic drugs have caused a public health epidemic in the 
United States. Uncontrolled synthetic analogues have come to 
represent the deadly convergence of the synthetic drug problem 
with the opioid epidemic. The human toll and the financial 
costs are staggering: 52,000 Americans died in 2015 from drug 
overdoses. That is 144 people per day. For those who overdose, 
they present themselves in emergency rooms with a variety of 
issues, many with dangerously high body temperatures.
    Doctors must rely on their experience of treating other 
patients with similar symptoms because, frequently, there are 
no tests to detect the particular type of synthetic drug the 
patient overdosed on. Hospital admissions can last days or even 
weeks in an intensive care unit, spending huge amounts of 
limited resources of our hospitals and healthcare systems.
    And then there is the personal toll. Last year, this 
committee heard from Devin and Veronica Eckhardt, who lost 
their son to one dose of the synthetic drug ``spice.'' On a 
Saturday night on July 2014, Connor Eckhardt smoked a synthetic 
drug and did not feel well, so he laid down to sleep it off. He 
never woke up. Five days later, doctors declared Connor, age 
19, braindead. After his organs were donated, Connor was 
removed from life support.
    The National Institute of Drug Abuse has declared synthetic 
drugs a serious public health risk. Manufacturers and retailers 
of synthetic drugs disingenuously label them as, ``Not for 
human consumption,'' to obey Federal law. They do not identify 
the particular drugs they are peddling, nor is there any 
quality control over the dosage or the adulterants in the 
package. All of this is done in the name of greed.
    Neither the products nor their active ingredients have been 
approved by the FDA for human consumption or for use in 
legitimate medical treatment, causing the purchaser to play 
Russian roulette with their lives. Synthetic drug users also 
place others at risk. Some become violent while under the 
influence, while other abusers, who drive after using these 
drugs, place themselves and others in danger.
    The U.S. has faced situations like this before, and we have 
always responded firmly and decisively. The change to the 
Controlled Substances Act contained in H.R. 2851 represents 
that decisive response. Federal law, meant to protect 
Americans, can no longer be outpaced by resourceful criminals, 
whose sole motive is greed, at the expense of families and even 
human lives. I thank the witnesses for appearing here before 
the subcommittee today and look forward to their participation. 
At this time, I recognize the ranking member for an opening 
statement.
    Mr. Conyers. Thank you, Chairman Gohmert. And welcome to 
our witnesses. We look forward to your testimony. I am grateful 
that each of you has taken time to participate in this 
extremely important conversation about a crucial subject: 
synthetic drug legislation, specifically H.R. 2851.
    I recognize that analogues to some synthetic drugs are 
dangerous and are harming our citizens, particularly young 
people. Some of these modified, man-made substances are more 
potent, more dangerous, and, oftentimes, more deadly than the 
substances they are designed to mimic. However, in responding 
to the dangers these drugs pose, I want to caution my 
colleagues to be very careful in developing any legislation. 
While we will more fully explore these issues today, quite 
frankly, I am concerned that H.R. 2851 is a well-intentioned 
but flawed bill and raises several concerns that I intend to 
discuss with you today.
    First, this bill is overbroad in the new authorities it 
would grant to the Attorney General. While much of the 
conversation surrounding synthetic analogues focuses on the 
chemistry of the substances from the process of manufacturing 
them to their effects on the human body, H.R. 2851 would 
eliminate vital scientific and medical evaluations normally 
undertaken by the Department of Health and Human Services and 
the Food and Drug Administration and the scheduling of drugs.
    Today, it is my intention to explore alternatives to 
completely doing away with the collaboration of DOJ, Health and 
Human Services, and FDA in scheduling synthetic analogues, 
because each of these agencies are equally important to the 
scheduling process. Not only would the Attorney General hold 
the sole authority to schedule these substances, but he would 
also have the power to shape sentencing policy without the 
input of the United States Sentencing Commission that is 
actually studying the issue of synthetic drugs and penalties 
right now.
    Secondly, we must be cautious in our response to synthetic 
drugs, heeding the lessons we learned and the fear-driven 
legislation enacted in response to crime. The bill would 
establish lengthy and sometimes mandatory minimum penalties for 
offenses when users and sellers of these analogues often may 
not even know of the presence of these analogues when combined 
with other substances. Over-penalization would be 
counterproductive and only contribute to our crisis of over-
incarceration.
    In addition, this bill has the potential to chill medical 
research into substances that may be beneficial or into 
alternatives treatments for drug addiction. This is 
particularly so with such a truncated process based solely on 
the Attorney General's determination of what is substantially 
similar and what the predicted effects of a substance may be.
    So, in closing, I want to note that the committee has 
received a letter from over 65 advocacy organizations opposing 
the bill. And, Mr. Chairman, I ask you now for unanimous 
consent to insert the letter with these advocacy organizations 
in the record.
    Mr. Gohmert. Without objection.
    Mr. Conyers. Thank you. Although they are not here to 
testify today, we should take their views into account when 
reviewing this bill. I thank Chairman Gohmert, and again wanted 
to welcome our witnesses, including my friend, Representative 
John Katko, the sponsor of the bill as we discuss this 
legislation. I thank you, Mr. Chairman.
    Mr. Gohmert. Thank you. At this time, I yield to the 
chairman of the full committee, Chairman Goodlatte, for 5 
minutes.
    Chairman Goodlatte. Well, thank you very much, Mr. 
Chairman. I am pleased to be here today as the Judiciary 
Committee builds on its efforts to stop the epidemic of 
synthetic drugs. The Crime Subcommittee held a subject matter 
hearing last year on this issue and the groundbreaking piece of 
legislation we are discussing today is part of the solution to 
that epidemic. I am honored to cosponsor H.R. 2851, the Stop 
the Importation and Trafficking of Synthetic Analogues Act.
    The Controlled Substances Act expresses Federal U.S. drug 
policy by which the manufacture, importation, distribution, 
possession, and use of certain substances are regulated. 
Synthetic drugs, once called designer drugs, but now known as 
new psychoactive substances, are posing a serious public health 
threat. And this bill would update Federal law to provide 
prompt action to stop the unlawful importation and distribution 
of synthetic drugs. This bill maintains the careful balance 
that Congress struck when it first enacted the Controlled 
Substances Act in 1970 to continue to protect the American 
public from harmful and deadly drugs while promoting the safe 
research of new substances.
    The deadliest drug in Virginia last year was a synthetic 
opioid. Fentanyl contributed to more than half of the 1,133 
deaths due to opioid overdoses in 2016. In November 2016, the 
Virginia health commissioner declared the opioid addiction 
crisis a public health emergency in Virginia. As if fentanyl 
were not deadly enough, carfentanil, a synthetic opioid about 
100 times more potent than fentanyl--by the way, fentanyl is 
said to be 100 times more potent than heroin--has been linked 
to numerous overdose deaths around the country. Because 
synthetic drugs are potent and cheap, greedy criminals are 
adding synthetic drugs to cocaine and heroin with deadly 
results. These powerful drugs also present a grave danger to 
first responders, innocent bystanders, and children.
    Last week's China National Narcotics Control Commission 
announced scheduling controls against four new synthetic drugs. 
This and prior scheduling actions by China have been the 
culmination of ongoing cooperative efforts between the DEA and 
the Government of China. While I applaud these efforts and 
encourage them to continue, it is now clear that our laws to 
control synthetic drugs were not designed for the epidemic we 
find ourselves in now.
    There are presently over 400 known synthetic drugs being 
imported and distributed in the United States, many of which 
are technically legal. Criminal drug traffickers and their 
illicit chemists have learned how to manipulate drug molecules 
to completely evade U.S. and international laws solely for 
their own greed and financial profit. H.R. 2851 finally gives 
U.S. law enforcement nimble tools to react as soon as these 
deadly drugs arrive in our country, so we can collectively, 
through enforcement, treatment, and education, retake our 
communities from the plague of synthetic drugs.
    In the 1990s, the U.S. faced a similar situation with 
regard to GHB, the date rape drug. It was scheduled and strict 
Federal laws were enacted. Not long ago, steroid molecules were 
being manipulated much the same way synthetic drugs are now, 
and Congress responded with the Designer Anabolic Steroid 
Control Act enacted in 2014. Today, a unique class of drugs, 
trafficked by highly resourceful criminals, must be confronted 
head on, with a unique and agile response. H.R. 2851 is that 
response. We have a responsibility to protect the American 
people from criminals who exploit misery for profit. It is time 
for Congress to act again.
    I want to thank Congressman Katko for his tireless work on 
this effort, and for introducing the important legislation 
before us today. I want to thank all of our witnesses for their 
testimony. I look forward to hearing their responses to our 
questions. Thank you, Mr. Chairman.
    Mr. Gohmert. Thank you, Mr. Chairman. And at this time, I 
recognize the ranking member of the Crime Subcommittee, Ms. 
Jackson Lee, for her opening statement.
    Ms. Jackson Lee. Chairman Gohmert, thank you so very much 
for your courtesies. And I am delighted that the chairman and 
the ranking member are joining us today along with Mr. Lieu, 
who is joining us. And I saw Mr. Chabot and thank him for his 
presence here as well. We thank the witnesses, and in 
particular, I want to thank my colleague from the Homeland 
Security Committee, Mr. Katko, for his presence here. And, of 
course, Ms. Ashley is the acting assistant administrator with 
the DEA. And Mr. Perez, acting executive assistant, 
commissioner with CBP. It seems like we have the meshing of 
Judiciary and Homeland Security today. So, you are welcome. 
Thank you very much.
    As a ranking member of the Crime Subcommittee, I am 
committed to finding ways to work collaboratively with the 
chairman, my colleagues, and experts like you in order to help 
save lives and maybe loss as a result of fentanyl and fentanyl 
analogues. Now, let me first make the statement that this 
committee has worked in a bipartisan manner in criminal justice 
reform, of which I hope we will reignite on listening to and 
addressing the question of mandatory amendments, but also the 
question of mass incarceration. We also, in a bipartisan 
manner, address the question of fentanyl and recognize its 
deadly impact.
    Last year, the powerful opioid was blamed for hundreds of 
overdose deaths on the East Coast and made its way to my 
congressional district in Houston. Experts like you help us 
save lives that may be lost as a result of fentanyl and 
fentanyl analogues. Drug analysts at the Houston Forensic 
Science Center found fentanyl 10 times last year in fake 
pharmaceuticals and powders. A 2015 investigation found that 
the tragic 2012 death of two teenagers from Grand Forks, North 
Dakota was linked to the usage of synthetic drugs purchased 
from an internet-based company near Houston, Texas.
    It is a national epidemic, a national phenomenon, a 
national crisis. Just this month, a 22-year-old man charged 
with possession of under 2 grams of fentanyl, with intent to 
distribute the dangerous and highly addictive drug from China 
to young people in West Houston area. Given the effect of 
fentanyl and its analogues on our country and in Houston 
particularly, and both familiar and acutely concerned by the 
dangers they pose, and thus look to do whatever I can to 
curtail this alarming epidemic.
    And we did do so in the last Congress with a bipartisan 
bill of this Judiciary Committee that became part of the 
overall Omnibus bill out of Judiciary Committee. I think there 
was a great deal of jubilation that we had passed a bill 
dealing with treatment and prevention as opposed to 
prosecution.
    We must, however, do so in a manner that does not enhance 
the Attorney General's arbitrary war on drugs. This process 
must take into account the scientific analysis as required 
currently under the law for scheduling, rather than a one-size-
fits-all approach based on the Attorney General's prediction of 
potential abuse. I am hoping that those of us who sympathize 
with the author of the bill and have made these indicting 
statements about this terrible drug can find a way to work with 
this legislation to answer some of our concerns.
    This method, as I mentioned, that gives the Attorney 
General the one-size-fits-all has the potential for abuse. This 
method will undoubtedly have a sweeping effect and will produce 
unintended consequences. As we are all aware, oftentimes, we 
respond legislatively to the crisis of the moment with well 
intentions, where lasting adverse impacts result, albeit 
inadvertently. While I am deeply committed to holding 
accountable manufacturers and traffickers of deadly drugs that 
have a high potential for abuse, I am equally concerned about 
the important underlying issues. Let me also say that I am 
equally concerned about treatment and the work that we have 
done in the bill that was passed in the last Congress.
    First, expansion of power. This bill will give the Attorney 
General unfettered authority to criminalize and prosecute any 
drugs he or she elects to add to schedule A and that he 
predicts may generate similar effects or have similar 
composition found in fentanyl and other related controlled 
substances. As written, this bill is both vague and broad in 
scope, likely giving authority to control substances with low 
abuse potential based purely on the substance chemical 
similarity, that of a schedule-controlled substance. The 
Sentencing Commission currently is engaged in an ongoing 
investigation on synthetic drugs. This bill provides no 
meaningful oversight to penalties prescribed by the A.G., 
absent any input by the Commission on his pending 
investigation.
    Second, unlike the Senate version of this bill, the House 
bill adds mandatory minimums to the Federal goal. This is 
particularly problematic given the bipartisan progress this 
committee has made relevant to reduction and harsh sentences 
for drug offenses related to heroin and crack. Section 4 of 
this bill imposes a term of imprisonment of not more than 10 
for the first-time offense or not more than 15 if death or 
serious bodily injury results from the use of a schedule A 
substance, but not more than 20 for a second offense, not more 
than 30 years if death or a serious bodily injury.
    Additionally, it imposes a term of supervised release of 
not less than 3 years and a fine of up to $1 million for first-
time offenders, or not less than 6 years and a fine of up to $2 
million for a second offense. Let me be very clear. I have 
confidence in our Federal judges, and they have testified 
before us on many occasions, asking for the discretion to be 
able to make the right decision and the right sentence. For all 
I know, it may be longer or may be less. But it does not do 
well to have a one-size-fits-all as relates to these kinds of 
cases of which there is probably a lot of issues that the court 
needs to consider.
    Third, this bill disregards the mens rea element that is to 
represent or constitute a crime. Given that these drugs enter 
the border, U.S. sellers are often unaware of the drug's 
composition and potency. Head of DEA Chuck Rosenberg testified 
before the Senate Judiciary Committee last year in June and had 
listed fentanyl, fentanyl derivatives, and their immediate 
precursors are often produced in China. We must be judicious in 
our approach as we seek solutions for the opioid epidemic and 
not rush to over criminalize, which extirpates the already 
overburdened Federal Code and overcrowding prison cells.
    Even Mr. Rosenberg stated, in his testimony, that educating 
his agents on the drugs' toxicity, in a rollcall video that 
warns millions of police officers across the country, is key 
because the drug is volatile and changes every day. Hence, this 
evidence further supports the need to thoroughly analyze and 
educate the public rather than criminalize, prematurely, every 
potential lab-induced nuance that may have a predicted 
potential for abuse.
    I hope that today's hearing will further our efforts in 
seeking avenues to improve, where necessary, rather than 
criminalize and incarcerate absent due process, but more 
importantly, as all of us want to do, to save lives, stop the 
siege of drugs in this country, and particularly the epidemic 
of fentanyl. Where can we do this better and best? We can do it 
when we work together and listen to experts. Thank you, Mr. 
Chairman. I yield back the balance of my time.
    Mr. Gohmert. Okay, the gentlelady's time has expired. At 
this time, we have a very distinguished panel. And without 
anything further, we begin by swearing in our witnesses. So, if 
you would all please rise and raise your right hand.
    Do you and each of you solemnly swear the testimony you are 
about to give before this committee will be the truth, the 
whole truth, and nothing but the truth, so help you God?
    Please be seated. The record will reflect each witness 
answered in the affirmative. And, at this time, I will do a 
brief introduction.
    Of course, Congressman John Katko is the sponsor of H.R. 
2851. You heard some criticisms, and I look forward to your 
statement and information about that. And I am very grateful 
that you took the bold step of moving forward by filing the 
bill, so that we could get to this process. It is entitled the 
Stop the Importation and Trafficking of Synthetic Analogues Act 
of 2017. Our friend, Representative Katko, is the 
representative of New York's 24th congressional district since 
2015. Thank you for being here.
    Ms. Demetra Ashley is the acting assistant administrator 
for diversion control at the U.S. Drug Enforcement 
Administration. She serves as the principle advisor to the 
acting administrator on all diversion enforcement 
investigations and all regulatory matters affecting DEA's 1.7 
million registrants. Ms. Ashley began her DEA career in 1987 in 
the Washington Field Division. She has worked in several 
offices to include the Detroit Field Division, two tours in the 
Chicago Field Division, and several positions in DEA 
headquarters. Ms. Ashley earned a bachelor's degree from Wayne 
State University and a master's degree in communications from 
Northwestern University.
    So, we appreciate your being here, Ms. Ashley. As a State 
prosecutor and judge and chief justice, I gained great respect 
for our DEA agents with whom I have worked in the State of 
Texas, and have even traveled with Mr. Chabot to Colombia and 
seen the DEA really doing some remarkable work there as well. 
So, we appreciate your being here, representing the DEA.
    Mr. Robert Perez is the acting executive assistant 
commissioner for operation support in U.S. Customs and Border 
Protection. Mr. Perez began his career with U.S. Customs 
Services in 1992 as a customs inspector in New Jersey. He has 
held several positions in Washington, D.C. and Detroit, 
Michigan, where, as the court director, he led the activities 
of more than 1,100 CBP employees throughout the State at seven 
ports of entry, including the busiest commercial truck border 
crossing in North America. Mr. Perez holds a bachelor's degree 
in economics from Rutgers University.
    And so, we do appreciate your being here, Mr. Perez. Of 
course, being the active executive assistant commissioner of 
operation support of an organization, they really did not do 
much of anything anymore, and I am prone to sarcasm. You have 
become more vital than ever to maintaining our little 
experiment as a Republic. So, thank you.
    At this time, we recognize Representative Katko for your 
opening statement.
    Ms. Jackson Lee. Mr. Chairman, just one moment, if I might?
    Mr. Gohmert. Yes.
    Ms. Jackson Lee. Let me tell the witnesses I will be able 
to listen to Representative Katko's testimony, and then I will 
step away because of the healthcare crisis that we are going 
through and will try to be back before you finish. If not, let 
me thank you for your testimony. Thank you.
    Mr. Gohmert. Thank you. You are recognized.

    STATEMENTS OF JOHN KATKO, CONGRESSMAN, NEW YORK'S 24TH 
   CONGRESSIONAL DISTRICT; DEMETRA ASHLEY, ACTING ASSISTANT 
ADMINISTRATOR, U.S. DRUG ENFORCEMENT ADMINISTRATION; AND ROBERT 
 PEREZ, ACTING EXECUTIVE ASSISTANT COMMISSIONER, U.S. CUSTOMS 
                     AND BORDER PROTECTION

                    STATEMENT OF JOHN KATKO

    Mr. Katko. Thank you, Chairman Gohmert, Ranking Member 
Jackson Lee, Ranking Member Conyers, and others in the panel. I 
appreciate your allowing me to speak before you today regarding 
H.R. 2851, the Stop the Importation and Trafficking of 
Synthetic Analogues Act of 2017, a bill I recently introduced 
in a bipartisan manner with Congresswoman Kathleen Rice from 
New York.
    I must say, over my 20-year career as a Federal prosecutor 
doing organized crime cases, as well as the last several years 
in Congress, it is much different being in the hot seat here 
than it is being the one asking questions. And I must say I 
enjoy the position I am in right now. I must apologize in 
advance, as with Ms. Jackson Lee, that after my testimony, I am 
going to have to leave because I have a markup that I have to 
deal with that is going on all day.
    The synthetic drug epidemic has swept our Nation, and it 
has crippled communities in Central New York and across this 
great country of ours. Just a week ago, Syracuse Area 
Hospitals, which are the heart of my district, saw a record 
number of overdoses due to synthetic drug abuse. First 
responders across the Nation have seen incredible increases in 
calls due to synthetic overdoses. Fire departments, police 
officers now, instead of dealing with law enforcement matters, 
are often reviving people because of synthetic drug issues.
    For example, in June of 2015, Washington, D.C. recorded 439 
ambulance trips, resulting in 15 per day related to synthetic 
drug abuse. Toxic synthetic drugs are designed to mimic street 
drugs that are already illegal like marijuana, LSD, cocaine, 
ecstasy, and other hard drugs. They can be more potent than the 
real thing and, oftentimes, are far more deadly.
    Unfortunately, when law enforcement encounters a specific 
drug compound, manufacturers of these substances are able to 
simply slightly alter the chemical structure of that drug. This 
puts law enforcement at a serious disadvantage and are 
constantly one step behind them. As a former U.S. attorney, but 
more importantly as a father of teenagers, getting these drugs 
off the streets and out of the hands of our loved ones means a 
top priority for me.
    Two weeks ago, I met with a constituent of my district whom 
I first met when I was campaigning for the first time in 2014. 
Her name was Theresa Wilson. Her son bought synthetic marijuana 
across the counter, and he had a seizure because of it and 
ended up dying because of it. He was a good kid, hardworking 
kid, going to school and everything, but he was killed by a 
synthetic drug that was later identified as XLR11. He purchased 
it at a local headshop in Oswego, New York.
    Unfortunately for Theresa, the drug that killed her son 
managed to remain legal and on the streets for at least 4 years 
after his death until it was finally added to the controlled 
substances list last year in one of the bulk bills that we 
passed identifying controlled substance analogues. While users 
of synthetics are certainly at a risk for overdosing, we are 
now seeing local law enforcement and first responders put in 
harm's way repeatedly by simply coming in contact with these 
dangerous substances. Numerous cases across the country have 
seen emergency personnel die responding to overdoses. This is 
both tragic and unacceptable, and H.R. 2851 is a positive step 
in eradicating these harmful substances from our community.
    The SITSA Act will give local law enforcement and Federal 
law enforcement the necessary tools to target synthetic 
substances and the criminals who traffic them. Specifically, 
this legislation will create a new schedule to the Controlled 
Substances Act and establish a mechanism by which synthetic 
drug analogues can be temporarily or permanently added to that 
schedule in as little as 30 days after the chemical composition 
is determined by the attorney general.
    The new schedule, schedule A, will add 13 synthetic 
fentanyls that have been identified by the DEA as an immediate 
threat to public health and safety. These synthetics have been 
confirmed as the cause of death in at least 162 cases in the 
United States. But I must digress for a moment and comment upon 
the fact that thousands upon thousands upon thousands of heroin 
deaths in this country have been caused by heroin that has been 
laced with synthetic drugs such as fentanyl, and those drugs 
are not accounted for. And as someone spoke earlier, I think it 
was Chairman Goodlatte before he left, 144 people a day are 
dying of heroin overdoses, 144 a day. And the vast majority of 
those heroin overdoses have a component of synthetic drugs 
contained within them. That is what we are trying to stop.
    Finally, the bill maintains firm penalties for foreign 
manufacturers, which is an important component, and 
importation. It provides a multistep sentencing process, which 
includes application of existing Federal guidelines. The goal 
of this legislation is not only to prevent drug abuse, but to 
facilitate proper research so that we may better understand 
these chemical compounds.
    The stories of synthetic drug abuse are in no way limited 
to my area of the country. This is a nationwide epidemic, and 
some of my colleagues have even called it a pandemic; 
colleagues from Ohio, for example. I respectfully ask this 
committee to consider the act because every moment we fail to 
act, every moment we fail to act, another person is affected by 
synthetic drugs. And, think about it: by the time this hearing 
is over, several more people will have died because of 
synthetic drugs that are laced into the heroin.
    I thank you all for allowing me to testify this morning, 
but before I conclude, I just want to briefly respond to Mr. 
Conyers and Ms. Jackson Lee, some of their concerns. You have 
stated, Ranking Member Conyers, that it is going to shape 
sentencing policy that is overbroad in its over-penalization. 
Now, we respectfully submit that this bill simply operates 
within the parameters already set in the Federal statute in 21 
U.S.C. 841. And we are simply taking that statute and allowing 
the process to be expedited, to get these drugs off the street. 
That is very important.
    And with respect to Ms. Jackson Lee's comments about the 
sentencing reform, we are all for sentencing reform and it is a 
bipartisan matter. And I say that from a guy who used to put 
people away all the time in these cases. I believe in 
sentencing reform, and I believe that low-level criminals 
should have safety valves. And I routinely use them in my 
cases. But I can tell you that this does not create any harm to 
the sentencing reform. The sentencing reform is the 21 U.S.C. 
841. This bill is more about process than it is about 
sentencing, in my mind. It is operating within existing 
parameters, largely.
    And with respect to mandatory minimums, the only mandatory 
minimum, other than for supervised release issues, is if 
someone provides drugs that kill somebody, and I stand by that. 
And the bottom line is I respectfully want to continue my 
conversation with both of you and try and have more 
conversations on this. I think it is an important issue.
    Let us not take our eye off the ball here. People are dying 
as we speak from the synthetic drugs that are flooding our 
country. And the heroin alone is not doing it; it is the drugs 
that are laced with these synthetics that are killing them. And 
for the Teresa Wilsons of the world and the people in my 
district that are losing kids every day, we owe it to them to 
do all we can to stop, and that is what this bill attempts to 
do. So, I look forward to speaking with colleagues on both 
sides of the aisle moving forward to try to reach a solution to 
this. I thank you very much, and I appreciate the time for 
allowing me to testify.
    Mr. Gohmert. All right, thank you. And since you are going 
to be stepping away, we will have some flexibility, basically, 
in answering issues that have arisen. We know you have got to 
get away to a markup, and we appreciate your being here. Thank 
you again.
    Mr. Katko. Thank you very much.
    Mr. Gohmert. Ms. Ashley, you are now recognized for 5 
minutes for your opening statement. We look forward to hearing 
from you.

                  STATEMENT OF DEMETRA ASHLEY

    Ms. Ashley. Good morning. Acting Chairman Gohmert, Ranking 
Member Conyers, Ranking Member Jackson Lee, and distinguished 
members of the committee, thank you for the opportunity to be 
here today and speak about the dangers of synthetic drug abuse. 
I have been a diversion investigator with the Drug Enforcement 
Administration for 30 years. Currently, I serve as the acting 
assistant administrator for the Diversion Control Division. I 
cannot think of a more important topic than what you have 
invited this panel to discuss today, specifically how to 
address a threat that is deadly and constantly changing.
    Last year, the Senate Judiciary Committee held a hearing on 
this very topic. The DEA acting administrator, Chuck Rosenberg, 
described this threat in three simple words: vile, volatile, 
and lethal. I believe these three words are even more relevant 
today than they were a year ago.
    Vile because of the insidious manner in which traffickers 
and manufacturers deliberately exploit the unsuspecting and the 
vulnerable, particularly teenagers, the homeless, and those 
suffering from addiction.
    Volatile because the entire synthetic drug landscape 
continues to be more complicated and more dangerous. For every 
one substance that is legislatively or administratively 
controlled, there are many more that remain uncontrolled. The 
challenge for DEA is that this volatile threat requires new and 
innovative means in order to respond quickly.
    Finally, lethal: lethal because the unsuspecting users 
continue to lose their lives at alarming rates. Take, for 
example, two 13-year-old boys in Park City, Utah who overdosed 
after purchasing a synthetic opioid, U-47700, also known as 
pink; they purchased it over the internet. Or an individual 
with an opioid misuse disorder who tragically overdoses after 
unwittingly consuming counterfeit pills containing fentanyl or 
carfentanil. Or a first responder who inadvertently inhales a 
white powder during the course of his normal duties and 
requires multiple hits of naloxone to recover.
    These substances kill people; they kill the unsuspecting 
and the vulnerable, so what is DEA's approach to countering 
this vile, volatile, and lethal threat? Enforcement and 
engagement. DEA will continue to target the most significant 
offenders of the Controlled Substances Act. We will continue to 
focus on the drug cartels, whose only motive is to make 
tremendous profit off of unsuspecting and vulnerable 
populations.
    Because synthetic drugs are made in the lab, the profit 
potential is enormous. One kilogram of fentanyl purchased in 
China for $3,500 to $5,000 can generate millions on the illicit 
market.
    DEA will enforce the rule of law on those criminals who are 
pushing these poisons on our public. DEA also continues to 
engage with its counterparts both domestically and abroad. 
Earlier this month, DEA released an updated video message to 
law enforcements nationwide about the dangers of handling 
fentanyl and its deadly consequences. We provide numerous 
publications to law enforcement and first responders, 
communities, and partnered with demand reductions coalitions 
nationwide as part of our 360 strategy.
    DEA has also been working directly with our law enforcement 
counterparts in China. That relationship has been very 
productive, and we were extremely happy to learn that China 
took action on 116 synthetic substances in October of 2015. In 
March of this year, China subsequently scheduled four 
additional fentanyl analogues and, earlier this month, moved to 
place domestic controls over U-47700. We will continue to 
engage all of our partners on this synthetic issue.
    Last year, you heard testimony from Devin Eckhardt, father 
of Connor Eckhardt, the teenager who tragically lost his life 
after just one use of a synthetic drug. Devin asked that we 
leverage all our collective power and make changes that are 
necessary to eradicate the deadly poisons from our streets. For 
those of us who have had the honor of meeting the Eckhardts or 
any of the countless families whose lives have been turned 
upside down from synthetic drugs, we understand that plea all 
too well. Let me ensure the committee that DEA will do 
everything possible to eradicate these vile, volatile, and 
lethal drugs from our communities.
    I want to thank this committee for their ongoing work and 
their attention to this subject, and I look forward to 
answering any questions you may have.
    Mr. Gohmert. Thank you very much, Ms. Ashley. At this time, 
Mr. Perez, you are recognized for your opening statement. Thank 
you.

                   STATEMENT OF ROBERT PEREZ

    Mr. Perez. Thank you, Chairman Gohmert, Ranking Member 
Conyers, and distinguished members of the subcommittee. Thank 
you for the opportunity to appear today and discuss the role of 
U.S. Customs and Border Protection in combatting the flow of 
dangerous synthetic drugs into the United States, including 
synthetic opioids such as fentanyl, synthetic cannabinoids, and 
synthetic cathinones. The majority of illicit, synthetic drugs 
smuggled into the United States has done so through 
international mail facilities, expressed consignment carrier 
facilities, or through our ports of entry. The dedicated men 
and women of CBP----
    Mr. Gohmert. Excuse me, was that on? It is now, OK.
    Mr. Perez. Thank you. Thank you, Mr. Chairman. The 
dedicated men and women of CBP work around the clock to combat 
this challenge. In fiscal year 2016, CBP officers and agents 
seized or disrupted more than 3.3 million pounds of narcotics. 
CBP seizures of fentanyl, the most frequently-seized synthetic 
opioid, have significantly increased over the past 3 years from 
approximately 2 pounds in 2013 to over 400 pounds in 2016.
    Additionally, last year, CBP interdicted more than 1,200 
pounds of synthetic cannabinoids and over 1,400 pounds of 
synthetic cathinones. Drug trafficking organizations 
continually adapt to evade detection and interdiction by law 
enforcement. CBP uses the same interdiction methods to seize 
synthetic drugs as it uses to detect other illicit substances 
coming across the border.
    Thanks to the support of Congress, CBP has made significant 
investments and improvements to our drug detection technology 
and targeting capabilities. For example, at the National 
Targeting Center, CBP leverages advanced information alongside 
law enforcement intelligence records to identify smuggling 
trends and target shipments that may contain illicit substances 
or related equipment being diverted for the seduced, such as 
pill presses, tablet machines, or precursor chemicals.
    The National Targeting Center also serves as a critical 
focal point for the daily collaboration between CBP and many 
critical law enforcement partners, including the Drug 
Enforcement Administration, Immigration and Customs 
Enforcement, Homeland Security Investigations, the FBI, and 
members of the intelligence community. Drug trafficking 
organizations and individual purchasers often move synthetic 
drugs in small quantities to try to evade detection. In the 
expressed consignment environment, CBP can place an electronic 
hold and notify carriers that a parcel needs to be presented 
for inspection.
    Together with the U.S. Postal Service, CBP is working to 
develop the same capability in the international mail 
environment through an advanced data pilot program. In addition 
to their expertise, training, and intuition, CBP officers and 
agents use various forms of technology and equipment to detect 
synthetic drugs hidden on people and cargo conveyances and 
other containers. Through CBP's Field Triage Infrared Reachback 
Program, infrared spectrometers are utilized to collect data 
from substances believed to be or contain synthetic drugs, 
which is subsequently transmitted for our laboratories for 
interpretation. Trained scientists are, then, able to 
reasonably identify classes of drugs and flag them for 
comprehensive testing, even if the drugs had not been seen 
before.
    Canine operations are another invaluable component of CBP's 
counter narcotic efforts. CBP is currently working to conduct a 
pilot course to assess the feasibility of safely and 
effectively adding fentanyl as a trained odor to deployed 
narcotic detection canine teams. CBP has also implemented a 
program to provide training and equipment to keep our frontline 
employees safe from accidental opioid exposure.
    Through our ongoing pilot, CBP officers and agents are 
trained to recognize the signs and symptoms of an opioid 
overdose and to administer naloxone, a potentially lifesaving 
drug for the treatment of opioid overdoses. CBP will continue 
to do all we can to refine and further enhance the 
effectiveness of our detection and its addiction of dangerous 
synthetic drugs being smuggled into the U.S.
    Chairman Gohmert, Ranking Member Conyers, and distinguished 
members of the subcommittee, thank you for the opportunity to 
testify today. I look forward to answering your questions.
    Mr. Gohmert. All right, thank you, Mr. Perez. At this time, 
we will begin questioning by members.
    Since I am going to be here for the duration of the 
hearing, I am going to wait to ask my questions, and therefore, 
I will go to Mr. Chabot from Ohio. You have 5 minutes for 
questioning.
    Mr. Chabot. Thank you very much, Mr. Chairman. Back in the 
1980s, I was on Cincinnati City Council, and Ronald Reagan was 
President, and the drug scourge in this country had gotten so 
bad that we had declared a war on it. We had a program, ``Just 
Say No.'' We had about 10,000 overdose deaths nationwide back 
in '82. And this year, we think it will be approaching 60,000 
overdose deaths, and so it has gotten incredibly bad out there, 
as the witnesses of this panel have already testified to, and I 
know the next panel will say from different aspects, but much 
the same thing, I am sure.
    Back, again, in my district, and I represent most of the 
city of Cincinnati, during one week last summer, we had 174 
reported overdoses just in one week. We had a young girl, a 9-
year-old girl in March just a couple months ago. She called 911 
after both of her parents overdosed in their SUV on heroin. She 
told the dispatcher that she was scared and that her parents, 
``Will not wake up.'' The girl did not know where she was or 
what was wrong with her parents. But she did know enough to 
call 911 for help, and that call literally saved her parents' 
life, but no little girl or boy, 9-years-old or at any age, 
should ever have to be placed in that situation. So, it is 
terrible out there.
    And Ohio has been one of the worst States with respect to 
this, you know, horrific drug problem that we have, especially 
heroin, and I will get into a question here; I am not just 
going to ramble on and on, but especially when it comes to 
combining heroin, which is already a terribly dangerous drug, 
with these synthetic things like fentanyl, and that is the one 
that is been particularly deadly in Ohio because my 
understanding is that it is something like 50 to 100 times more 
potent than morphine, and then you mix that with the heroin, 
and you have a deadly, deadly brew there.
    I guess my first question is, and I am supportive of this 
legislation, I would welcome you this. I assume you had a 
chance to look at the legislation that we are dealing with 
here. Could you tell us, how will this legislation make your 
jobs easier? How will it make the American people safer right 
now with respect to drug overdoses than they are now? And I 
would invite either or both. If you could turn the mic on 
there? Thank you.
    Ms. Ashley. I can say I am a 30-year investigator with DEA. 
And it has always been helpful to law enforcement to be 
proactive rather than reactive. The situation we are dealing 
with now, it is after the fact, after the uptick of E.R. 
visits, after the uptick of deaths, frankly. So, new 
legislation, more nimble legislation, would give us the 
opportunity to be proactive and get in front of these 
circumstances.
    Mr. Chabot. Thank you. And Mr. Perez.
    Mr. Perez. And, Congressman, I would echo Ms. Ashley's 
comments and add that, from a CBP perspective, given our focus 
on interdiction and the potential deterrent nature of actions 
taken by this body that would not only deliver a greater 
consequence and provide more agility for all of law enforcement 
to apply the law when it comes to these illicit substances, if 
we can deter further people from beginning to even consider 
trafficking in this type of a scourge, that obviously will 
enable us as well and assist us in what it is we do every day.
    Mr. Chabot. Thank you. I have got a minute left that I have 
got. If I could turn just to a related issue. And you have 
already mentioned this, but it is also my understanding, and 
you indicated somewhat this in your testimony, that our first 
responders who are there to, you know, save lives and protect 
people can be now, themselves, at risk because of their 
exposure to these drugs. Could you elaborate a little bit on 
that, what the risk is and what ought to be done about it?
    Mr. Perez. Well, with respect to CBP, again, Congressman, 
we recognized early on, as we began to see an uptake, 
particularly in the fentanyl, which really is primarily the 
most dangerous of the synthetics that we have encountered 
today. Several years ago, in recognition, actually working 
alongside DEA to understand the dangers for our frontline men 
and women, we began to roll out training and awareness training 
and musters to those frontline officers and agents who most 
would come encountering these substances.
    And, in addition to this, being present in about 34 
locations. And the locations where we are seizing the most of 
these substances is where we have also deployed trained 
officers and agents to administer the naloxone, the NARCAN, if 
you will, so that, in case there is an accidental opioid 
overdose, we can immediately respond to that.
    So, that is something that we are continually trying to do 
our very best to protect those men and women who are 
unquestionably our most treasured resource.
    Mr. Chabot. Thank you, my time has expired, Mr. Chairman.
    Mr. Gohmert. I thank the gentleman. At this time, the 
ranking member of the full committee, Mr. Conyers, is 
recognized.
    Mr. Conyers. Thank you, Chairman. I thank the witnesses for 
their very good contributions here. Let me ask Administrator 
Ashley about the eight-factor analysis that is currently being 
used. Would you talk with us a little bit about that?
    Ms. Ashley. Certainly, sir. The current process for 
permanently scheduling controlled substances, the DEA works 
jointly with HHS, and they are great partners. The Food and 
Drug Administration, and also DEA, conduct an eight-factor 
analysis. The issue there is that it is a very extensive 
process. It can take anywhere from 18 months to several years 
to actually permanently schedule the drug.
    We also have the tool of emergency scheduling. Emergency 
scheduling, we would conduct a three-factor analysis also 
working along with HHS. And HHS would complete an eight-factor. 
And, even with all cylinders firing, if everything goes right, 
it would still take 3 to 4 months to emergency schedule a 
substance. And, as I mentioned a little bit ago, we would want 
to be proactive rather than reactive.
    Both our emergency scheduling process and our eight-factor 
analysis for permanent scheduling is after we have collected 
the data, the information, the seizures, the deaths, and the 
uptick in emergency room visits.
    Mr. Conyers. Well, under this bill, we would eliminate the 
eight-factor analysis.
    Ms. Ashley. Well, I am not as familiar with the bill. I am 
generally familiar with it. But from what I understand, it is a 
temporary scheduling. If it is under schedule A, it is 
temporary. So, the analysis is still going to take place in 
order to permanently schedule, if necessary, the substance that 
is encountered.
    Mr. Conyers. Well, would you support eliminating the eight-
factor analysis?
    Ms. Ashley. The eight-factor analysis, I do not believe it 
would be taken away. That is not my understanding. I am not as 
familiar with the bill, sir.
    And I would like to add, as a practical matter, again, HHS, 
they are such great partners with us. Our scientific staff and 
their scientific staff, we are typically looking at the same 
substances, exchanging information constantly. We have 
basically a day-to-day relationship with the scientific staff 
at HHS and also at DEA.
    Mr. Conyers. Now, let me ask you about the enforcement 
power under H.R. 2851. It would give the Attorney General and, 
most likely, the Drug Enforcement Administration, the power to 
make the law, enforce the law, and then decide the appropriate 
sentence for breaking the law. Do you believe that this might 
be a little bit too much power to be located into one agency?
    Ms. Ashley. Sir, I would have to defer to the department in 
speaking about the mandatory minimums or sentencing. As an 
investigator, I can tell you that mandatory minimums are 
another tool. Historically, they have created a deterrent 
effect. Again, I would have to refer back to the department.
    Mr. Conyers. Well, let me ask the same question to my good 
friend sitting next to you, Mr. Perez.
    Mr. Perez. Congressman, I would say from a CBP perspective, 
we would absolutely, and I would absolutely, appreciate the 
complexities with respect to balancing, again, the actual 
consequence delivery. But unquestionably from the interdiction 
focus that we have on the frontline, the enabling in any way 
the agency to not only interdict, but deter further the 
trafficking in these illicit substances is what we would really 
appreciate the opportunity to work with the committee on 
further.
    Mr. Conyers. Well, what about my question, though? I mean, 
do you support the whole idea of eliminating eight-factor 
analysis or not? Or do you know enough about it to venture a 
recommendation?
    Mr. Perez. Thank you, Congressman. On the eight-factor 
analysis, we certainly would defer to the experts over at the 
DEA who really are the frontline in handling those issues.
    Mr. Conyers. Let me ask you this, Mr. Perez: does CBP 
support this legislation in its current form?
    Mr. Perez. Again, Congressman, any effort by this body, we 
would welcome the opportunity to work with the committee to 
further enable law enforcement to interdict and deter the 
trafficking in these substances. Unquestionably, our focus is 
national security, is homeland security, and any effort to 
enable us to further deliver on that law enforcement mission 
and to do so alongside the committee we would welcome that 
committee.
    Mr. Conyers. Well, could you explain how this legislation 
might help CBP in its efforts to stop the flow of synthetic 
analogues enter the United States?
    Mr. Perez. Thank you, Congressman. So, one of the big 
challenges we do have when we encounter these narcotics being 
trafficked in the express consignment environment, in the mail 
facilities, or even across our ports of entry, is the constant 
changes in the chemical structures, the added analogues, the 
diversity with which the drug trafficking organizations are 
adapting in order to evade detection. And so, it is in that 
light and in that vein that, again, we absolutely would welcome 
this effort and are greatly appreciative of what it is the 
committee is endeavoring.
    Mr. Conyers. Thank you. Thank you both for your responses. 
Thank you, Mr. Chairman.
    Mr. Gohmert. Thank you, Mr. Conyers. At this time, I will 
recognize myself for 5 minutes. Ms. Ashley, you were indicating 
earlier that fentanyl could be purchased in China for, say, 
$5,000 and end up bringing here and making millions, with what 
substance would people normally cut that in order to enhance 
the value that dramatically?
    Ms. Ashley. That is a good question, sir. I do not know 
which substance they would cut it with. I am sorry I do not 
know the answer to that question.
    Mr. Gohmert. Because I know we have heard testimony about 
it being added to some other substances and making it more 
dangerous, but I was wondering in order to get to millions of 
dollars in value it has got to be added to something; it has 
got to be cut some way. Mr. Perez, do you have any idea?
    Mr. Perez. What we have seen, Mr. Chairman, with respect to 
the utilization of fentanyl is that actually being used to cut 
heroin along the southern border, in fact. And so, while 
present in much lesser quantities as a percentage of what it is 
we are seizing, it is in those larger seizes, if you will, that 
we are affecting in the southern border that fentanyl itself is 
being used to further the quantities of the heroin that is 
being smuggled.
    Mr. Gohmert. But is it not true that one of the things that 
has brought about the, the heroin epidemic, if you will, has 
been the price of heroin being comparatively cheaper than some 
other drugs. Is that not right?
    Mr. Perez. Absolutely. Mr. Chairman, I would add to that 
the availability and the volume of which of what is moving in 
the elicit markets right now is certainly adding to that as 
well.
    Mr. Gohmert. Ms. Ashley, did you have some additional 
information?
    Ms. Ashley. Yes, Mr. Chairman, I just happen to have one of 
our scientific staff here in the room. He just passed to me 
that fentanyl, as Mr. Perez has already said, is mixed with 
heroin, and then pressed into a pill.
    Mr. Gohmert. And pressed into a pill.
    Ms. Ashley. And pressed into a pill, yes. Also pill presses 
are being imported and used to press the heroin and fentanyl 
mixture into a pill.
    Mr. Gohmert. So, Mr. Perez, what is the primary way in 
which synthetic drugs and fentanyl are making their way to 
America's teenagers and adults bring about this epidemic?
    Mr. Perez. So, originating primarily from China and/or 
Mexico, again for the heroin laced with the fentanyl----
    Mr. Gohmert. Which is more predominant as a source, China 
or Mexico?
    Mr. Perez. Quantity wise, from Mexico, Mr. Chairman. As far 
as incidents are concerned because the volume of actual seizure 
incidence that we are encountering are dominated in both the 
mail environment and the expressed consignment environment 
those would be from China. And so, those are the routes of the 
originating countries as well as the manner with which these 
elicit synthetics are being smuggled.
    Mr. Gohmert. Do you know if, under this bill, kratom would 
be listed as a schedule A drug? Either of you.
    Ms. Ashley. Thank you for the opportunity, I can give you 
an update on kratom. I can say to you, that is not the track 
that kratom is on right now. If I can explain a little, DEA 
took action to schedule kratom back in August 2016 and 
subsequently withdrew that action. And we withdrew the action 
after, you know, concern from stakeholders, concern from 
Congress, even, concern from the public, and we decided to take 
a more prudent measure there. And right now, kratom is on the 
path of eight-factor analysis through the Food and Drug 
Administration, and we are currently waiting on that action. We 
made the request in 2014, and we are waiting for their 
recommendation.
    Mr. Gohmert. Well, under this, would marijuana be a 
schedule A substance?
    Ms. Ashley. Marijuana would not be looked at as a schedule 
A, and the reason is it is already scheduled in schedule I, it 
is already permanently scheduled. So, there would be no need to 
back track that and place it into a temporary sort of 
environment.
    Mr. Gohmert. Well, this bill propose an entirely new 
regulatory scheme where the power is really concentrated in the 
Attorney General and the DEA; what aspects of this bill would 
allow DEA to act quickly to curb synthetic drug importation?
    Ms. Ashley. For importation. So, what it does is as it 
comes into CBP, and my colleague here can actually help to join 
into the response; as it comes in, sometimes it is mislabeled, 
and sometimes it has the accurate label because it is not a 
regulated substance, so they would be able to identify it 
immediately as it comes in because it is on the bill of lading.
    Mr. Gohmert. Thank you. My time has expired. I recognize 
the chairman of the full committee, Chairman Goodlatte.
    Chairman Goodlatte. Well, thank you, Mr. Chairman. Ms. 
Ashley, how many synthetic drugs that would come within the 
scope of this bill are being researched right now by how many 
registrants? In other words, how many registrants have you 
authorized to research synthetic drugs?
    Ms. Ashley. Currently, we have a little over 400 DEA 
registrants registered to handle schedule I controlled 
substance. The thing that is complex about this issue, the U.N. 
reported in 2016 that there are approximately 700 additional 
ones. They are not under DEA regulatory authority, so there 
could be more that are not being tracked and accounted for.
    Chairman Goodlatte. And really creative criminal chemists 
can come up with new molecular combinations on a daily basis 
that would just keep you going through this and going through 
this and going through this. You have got to be able to 
identify them and act quickly once you do identify them; is 
that not----
    Ms. Ashley. That is exactly right. They are made in a lab 
clandestinely.
    Chairman Goodlatte. People who are cutting heroin with 
fentanyl or its analogues or importing fentanyl outside the 
regular drug process are already breaking the law in myriad 
ways; do you believe that this additional layer of deterrents 
will stop people who are already breaking the law?
    Ms. Ashley. I do; I will give you an example. When China 
scheduled the 116 synthetic drugs in October 2015, the amount 
of flow of these substances coming into the United States 
decreased, we approximate, between 40 to 60 percent. Once they 
were identified, Border Control can track them, and there was a 
decrease in what is coming into the country.
    Chairman Goodlatte. Are you concerned about the driving of 
these criminals to the dark Web and seeing more of this simply 
delivered by mail to people?
    Ms. Ashley. Well, the thing with the dark Web, it is ground 
zero for all criminal activity. I do not believe that this sort 
of action would make it any worse frankly. It is just ground 
zero in the dark Web. So there is going to be that criminal 
activity, all aspects of criminal activity in the dark Web no 
matter what laws we put in place.
    Chairman Goodlatte. And the substance still has to go 
through some delivery mechanism. Are there ways to screen for 
this? I mean, are there dogs that can smell these types of 
drugs, or what is done to try to stop?
    Ms. Ashley. It is a very dangerous circumstance, and my 
colleague could probably speak to it better. With the dogs, if 
they are inhaling the same way any human would inhale, it is 
detrimental to their lives.
    Chairman Goodlatte. Good point.
    Mr. Perez. I will add, Mr. Chairman, that CBP is, in fact, 
in the midst of a pilot program where we are testing our canine 
handling teams, a finite number of those to potentially detect 
the odor of fentanyl. As you may know, it is a menu of sorts of 
different odors that the canines are trained on, and so, ever 
so safely, we are in the middle of a pilot program to explore 
the feasibility of introducing fentanyl as an added odor.
    Chairman Goodlatte. So, what is the turnaround time from 
seizing a suspected substance and positively identifying the 
substance? What does CBP do with the package or shipment that 
contains that substance?
    Mr. Perez. Thank you, Mr. Chairman. So, upon seizure, we 
will typically utilize some of the technology that we have 
deployed to the busiest mail facilities, express consignment 
facilities, southwest border locations, through the infrared 
spectrometers that the officers and agents utilize. That data 
is sent directly to our laboratory scientist and, really, 
depending on the circumstance we have in front of us, we could 
turn around those results within 24 hours, if need be, for 
investigative purposes. If we encounter an instance where we 
have a subject, for example, in custody and there is a 
potential investigative lead interaction that need to take 
place.
    But if and when we do encounter some of these substances 
under the normal course of doing business in the mail 
environment, for example, where there is no further 
investigation, typically we will queue those up, and it may 
take several weeks, given the amount of volume of what actually 
gets sent to our laboratories for testing.
    Chairman Goodlatte. Is fentanyl the synthetic you are 
seizing the most, or are there other things that are not on our 
radar?
    Mr. Perez. Thank you, Mr. Chairman. As far as quantities 
are concerned, the synthetic cannabinoids and cathinone in 
quantities still outweigh the fentanyl but unquestionably the 
spike and/or increase in the amount of fentanyl that we are 
seizing is outpacing any other synthetic drug at the moment.
    Chairman Goodlatte. What kind of synthetic drug traffickers 
does CBP particularly target?
    Mr. Perez. Not unlike any other drug trafficking 
organization, Mr. Chairman. We work alongside the entirety of 
the law enforcement communities, certainly at the Federal 
level, but also at the State and local level and our 
international partners. And so, it is not uncommon that those 
same organizations that are trafficking in other types of 
narcotics are also now moving their business into these 
synthetics. And so, the same tools, the same information, the 
same intelligence, the same investigative tools that we utilize 
to combat all those other drug trafficking organizations are 
what we are currently employing to stop this surge.
    Chairman Goodlatte. Very good. Thank you, Mr. Chairman.
    Mr. Gohmert. Thank you, Mr. Chairman. At this point, let me 
just say each of your written statements will be entered into 
the record in its entirety, and we appreciate your testimony 
today. I would ask if you would review H.R. 2851 again and any 
suggestions you may have that would improve it from your 
background experience and training, if you would submit those 
within the next 10 days then that would be immensely helpful to 
us as we go forward. Appreciate that very much. Anything 
further that you have thought of that you needed to add to 
illuminate on any question that you have already answered? All 
right.
    Then, we appreciate your being here and, again, thank you 
so much for your patience. At this time, panel one will be 
excused, and we will ask panel two to please come forward.
    All right, thank you; I appreciate your patience as well. 
Thank you so much for being here. Obviously, this is a very big 
problem.
    Could I ask you each to stand and raise your right hand so 
I could swear the witnesses in?
    Do you, and each of you, solemnly swear that the testimony 
you are about to give before this committee will be the truth, 
the whole truth, and nothing but the truth, so help you God?
    All right, please be seated. The record will reflect each 
witness has responded in the affirmative.
    I will briefly introduce our distinguished witnesses here 
today in our second panel.
    Ms. Marcia Lee Taylor is the President and CEO of the 
Partnership for Drug-Free Kids, a nonprofit organization which 
provides support and guidance to families struggling with their 
son or daughter's substance use. Previously, she served as the 
senior advisor for drug policy research for the Senate 
Judiciary Subcommittee on Crime and Drugs for the Democratic 
Staff Director of the Senate Caucus on International Narcotics 
Control, working for then-Senator Joe Biden. In that capacity, 
she worked on a wide variety of drug policy bills aimed at 
curbing the proliferation of methamphetamine, ecstasy, GHB, as 
well as drug treatment prevention and enforcement initiatives. 
Ms. Taylor is a graduate of the College of the Holy Cross and 
holds a master's degree in public policy from Georgetown 
University. So, thank you for being here, Ms. Taylor.
    I will go ahead and introduce our other witnesses, and then 
we can take testimony one after another. Ms. Reta Newman is a 
special advisor for the Drug Free America Foundation. She is 
also the chief chemist and director at the Pinellas County, 
Florida Forensic Laboratory where she manages operations for 
analysis of fire debris, controlled substances, and other 
chemical components. She has been a forensic chemist since 1989 
and holds her certifications in the analysis of drugs as well 
as fire debris. Ms. Newman has authored several publications 
and offers presentations on a national level. She holds a 
bachelor's degree in chemistry from Missouri State University 
and a master's degree in management from The University of 
Phoenix. Ms. Newman, welcome. We are pleased to have you here, 
as well.
    Ms. Angela Pacheco was the first woman ever elected to the 
first Judicial District Attorney's Office in Santa Fe, New 
Mexico and retired in December 2015, but obviously not 
completely retired from everything. I had a witness once during 
voir dire, and the district attorney said, ``Sir, I see that 
you are retired; what are you retired from?'' And he said, 
``Everything.'' Obviously, that is not your case; you are still 
quite active.
    You previously served as assistant district attorney, 
deputy district attorney, and supervisor of Family Violence 
Unit in that office. Her legal career has consisted primarily 
of criminal prosecution in which she has tried a number of high 
profiled cases. Prior to becoming an attorney, Ms. Pacheco was 
a social worker for 13 years in Northern New Mexico. She 
received a bachelor of arts in social work from the College of 
Santa Fe and her juris doctorate from the Hamlin University 
School of Law.
    So, again, your written statements will each be entered in 
full into the record. At this time, I ask you each to summarize 
your own testimony in 5 minutes or less, and you see how it 
works with the lights. When the yellow light illuminates, there 
will be 1 minute left, but in any event, we are being a little 
less formal here today, and we do appreciate your being here. 
We need your input. And so, at this time, Ms. Taylor, I 
recognize you for your opening statement for 5 minutes.

STATEMENTS OF MARCIA LEE TAYLOR, PRESIDENT AND CEO, PARTNERSHIP 
 FOR DRUG-FREE KIDS; RETA NEWMAN, SPECIAL ADVISOR TO DRUG FREE 
 AMERICA FOUNDATION, CHIEF CHEMIST AND LABORATORY DIRECTOR OF 
 THE PINELLAS COUNTY FORENSIC LABORATORY; AND ANGELA PACHECO, 
FORMER DISTRICT ATTORNEY, FIRST JUDICIAL DISTRICT OF SANTA FE, 
                           NEW MEXICO

                 STATEMENT OF MARCIA LEE TAYLOR

    Ms. Taylor. Chairman Gohmert, Ranking Member Conyers, and 
members of the subcommittee, thank you for inviting me to 
testify today. My name is Marcia Lee Taylor, and I am President 
and CEO of the Partnership for Drug-Free Kids, a 30-year-old 
national nonprofit organization dedicated to supporting 
families struggling with their son or daughters' substance use.
    Created by the advertising industry at the height of the 
powder and crack cocaine epidemic, the partnership has run the 
largest single-issue PSA campaign in our Nation's history. And 
over the course of the past decade, we have developed a number 
of resources that go beyond the 30-second PSA for families to 
get their arms around the addiction issue.
    We empower families with information, support, and guidance 
to get the help their loved one needs and deserves in a variety 
of ways. Through our national toll-free help line, 1-855-
DRUGFREE, and new online live chat service, we have connected 
10,000 families to bilingual, master's-level counselors who 
help them develop a plan to address their child's substance 
use. And with our national network of parent coaches, with 
nearly 200 volunteers in 2017, and our new ``Ask-a-Coach'' 
feature, we connect parents to others who have been there and 
can help them learn how to love their child through this health 
crisis and understand that tough love and rock bottom are not 
the only viable options.
    Through our website, drugfree.org, we provide 5 million 
families per year with the latest cutting edge scientific 
information distilled into actionable tips and tools to help 
them understand the disease of addiction, be better able to 
navigate the treatment system, and get their child to accept 
help. And thanks to our local and national media partners, we 
receive approximately $100 million a year in donated time to 
run PSAs to let parents know that there is help for their loved 
one and that they can find support at the partnership. And 
working with private sector partners like Google and Facebook, 
we help reach parents as they actively search for help online.
    In all of these tools, we use evidence based concepts such 
as community reinforcement and family training, otherwise known 
as CRAFT, and motivational interviewing to help parents obtain 
the best possible outcomes for getting their child into 
treatment and onto the path to recovery.
    Among the parents we serve, the fear of fentanyl and its 
equally deadly analogues is palpable. Our moms and dads see the 
news reports about overdose deaths from adulterated heroin and 
now cocaine. They see stories about counterfeit Xanax pills and 
other medications that are, in fact, pure fentanyl. They read 
accounts of law enforcement officials who overdose from simply 
being in proximity to a seizure of drugs that contain some of 
these potent alternates, and they are terrified that their 
child will be the next statistic.
    Our helpline staff and parent coaches cannot reassure these 
mothers and fathers that everything will be fine, because they 
know that the parent's fears are not overblown. Their kids 
could, in fact, be the next fatality. They know that even if 
there is a first responder nearby to administer a dose of 
NARCAN to reverse the overdose, it may not be enough. In many 
cases, people overdosing on fentanyl need multiple doses of 
NARCAN to revive them if they can be revived at all.
    One mom from New Hampshire, who is in recovery herself from 
heroin, commented to me that when she was using heroin in the 
1970s overdose was not nearly as common. So, when her son 
became addicted, she listened to people who told her to wait 
until he hit rock bottom and was ready for treatment. 
Unfortunately, her son died from a fatal fentanyl dose before 
the elusive rock bottom came to pass. She told me that she 
thought that she had time. With the potency of heroin on the 
street today and the proliferation of fentanyl analogues, 
parents simply do not have time to wait for a child to be ready 
to enter treatment. They need to come up with a plan to 
intervene and help their child further upstream and the 
partnership has resources to help them do just that.
    The legislation before the committee today, H.R. 2851, the 
Stop the Importation and Trafficking of Synthetic Analogues 
Act, takes an important step of classifying 13 fentanyl 
analogues as controlled substances as well as creating a 
mechanism to make it easier to control substances going 
forward. The problem of regulating analogue substances and 
other uncontrolled compounds that are abused is not a new one.
    Prior to my work at the partnership, I spent 11 years 
working on drug policy in the Senate. And during that time, I 
worked on two pieces of legislation that are relevant to the 
discussion today. The Hilary J. Farias and Samantha Reid Date-
Rape Drug Prohibition Act of 2000, which moved gamma 
hydroxybutyric, also known as GHB, from classification as a 
dietary supplement to a controlled substance, and the Anabolic 
Steroid Control Act of 2004 which classified a number of 
substances as steroids and made it easier to control future 
analogues.
    In the GHB legislation and the bill before us today, a 
complicating factor with the possibility that one of the 
substances could have potential as an FDA-approved medication. 
The GHB legislation took the path of bifurcated scheduling, 
whereby the substance was classified as a schedule I control 
substance in its illicit form and left the door open to an FDA 
approved version being a schedule III substance with the 
important caveat that there had to be tight controls and 
restricted distribution. XYREM, the FDA-approved version of the 
drug, is available through a closed distribution network and 
only one pharmacy in the entire country is able to dispense it. 
While the GHB bill was narrowly tailored, the bill before us 
today addresses a wide swath of substances. We must make sure 
when we are crafting the final legislations steps are taken to 
ensure that researchers are able to study schedule A substances 
for future medical use without the restrictions that come with 
studying a schedule I substance.
    In the case of the steroid bill, we knew that there was an 
incentive for chemist to innovate and stay one step ahead of 
law enforcement by making minor alterations to illegal 
substances so they evaded the reach of the law. To control 
that, the legislation amended the definition of anabolic 
steroid in the Controlled Substance Act and removed the 
requirement that the substance must be proven to promote muscle 
growth so that it was easier for DEA to schedule such analogues 
in the future. It is critical the DEA has the ability to act 
swiftly to control new substances that violate the spirit of 
the law particularly when they are as deadly as the fentanyl 
analogues available today.
    The balance between scheduling dangerous substances and 
allowing research on them for medical purposes is difficult to 
get exactly right, but it is critical that we do so in order to 
protect both public health and public safety. Thank you again 
for inviting me here today, and I am happy to answer any 
questions that you might have.
    Mr. Gohmert. All right. Thank you very much, Ms. Taylor.
    Ms. Newman, you are recognized for 5 minutes for an opening 
statement.

                    STATEMENT OF RETA NEWMAN

    Ms. Newman. Good morning, Mr. Gohmert, Ranking Member 
Conyers, and members of the subcommittee. Thank you very much 
for inviting me to testify today about this proposed 
legislation.
    My name is Reta Newman, and I am here today representing 
Drug Free America Foundation for whom I serve as a special 
advisor. Drug Free America is a nonprofit organization 
committed to developing, promoting, and sustaining national and 
international policies and laws that will reduce either illicit 
drug use and drug addiction. I am also the director of the 
Pinellas County Forensic Laboratory at the District Six Medical 
Examiner's Office in Largo, Florida. I have asked to speak to 
you today based on what is going on in our county, which 
hopefully could translate to the rest of the country.
    In my testimony today, in support of this legislation I 
would like to provide an awareness of the impact of synthetic 
drug analogues and false labeling of drugs especially, but not 
limited to, fentanyl analogues through examples taken from 
local drug and death investigations. It should be noted that 
while my testimony is based primarily on what is happening in 
Pinellas and Pasco Counties, which is significant, we are not 
the epicenter of this crisis which makes these statistics all 
the more concerning. In 2010, Florida was in the spotlight for 
the number of deaths associated with prescription drugs. This 
prescription drug crisis was such that the average number of 
accidental deaths associated with prescription drugs increased 
by almost 100 percent in a 2-year period in my county. The 
legislation and enforcement targeting pill mill doctors and 
true prescribing practices by physicians and public education 
to the crisis, the number of overdose deaths associated with 
prescription opioids dropped in 2014 to the lowest rate in 8 
years.
    Unfortunately, since 2015, the overdose rate has increased 
to levels exceeding that over the prescription drug crisis. In 
these cases, however, the increase is due to illicit drugs. I 
clandestinely produced and distributed synthetic opioids are 
the primary drugs of concern death associated with synthetic 
cannabinoids, and cathinones have also increased in this time 
period.
    In 2015, the seize drug unit began to see clandestinely 
produced fentanyl in powders and pills. Fentanyl pills were 
labeled to mimic other pharmaceutical preparations, most 
commonly Xanax and oxycodone. Seven deaths in a 30-day period 
were attributed to these counterfeit pills. A 50-milligram dose 
of a nonextended release oxycodone can be fatal in most 
circumstances. The fentanyl equivalent is less than one half of 
a milligram. Given that the users were likely expecting 30 
milligram oxycodone dosages in these counterfeit pills and 
given the high toxicity of fentanyl, the increase in overdoses 
and overdose deaths were inevitable. In a given week our 
laboratory sees multiple submissions of pills labeled to mimic 
pharmaceutical preparations which contain a wide variety of 
clandestine mixtures.
    In late 2014, a new fentanyl analogue was introduced to the 
clandestine market in Florida. Acetyl fentanyl began appearing 
in seized drug DUI and postmortem investigations. The appeal to 
the distributors is this is an inexpensive, highly potent, 
highly addictive, and noncontrolled drug. When acetyl fentanyl 
became controlled federally in May of 2015, it was rapidly 
replaced with butyryl and furanyl-fentanyls. Upon scheduling of 
those in May 2016, the market shifted in our county to 
fluoroisobutyrfentanyl, which is currently not controlled.
    By simply changing one ion at a more functional group in 
the base structure, a novel drug is created. Because the 
chemical structure of the parent compound, there is the 
potential to create hundreds of analogues of fentanyl. 
Currently approximately 50 have been isolated. The drugs are 
quite literally being tested for potency and toxicity on the 
street. The current known range of potency for these drugs 
varies from 100 to 10,000 times of that of morphine based on 
the analogue structure. In several postmortem cases, the 
determination of the cause of death has not come from the drugs 
identified in this decadence but the drugs in the syringes that 
are still decadence arms or hand. The fatal concentrations of 
some of the synthetic analogues is such that it is below the 
detection limit of the laboratory instrumentation and 
processes.
    The risk of synthetic analogues is not limited to the drug 
user. In the powder form, the drug is easily aerosolized and 
can be absorbed through the skin. There have been several 
instances of first responder exposure to fentanyl analogues. 
Our laboratory also has NARCAN procedures in place to treat our 
coworkers should an exposure happen. The potential for a 
serious event due to widespread accidental or intentional 
exposures do exist.
    In the first 5 months of 2017, fentanyl analogues have 
contributed to the deaths of 60 people in Pinellas and Paschal 
Counties alone. Approximately \1/3\ of those are fentanyl 
analogues that are not controlled. While not necessary is 
potent similar instances of noncontrolled analogues have 
appeared in the forms of multiple other drug classes. Analogs 
as synthetic cannabinoids and synthetic cathinones, among 
others, have resulted in numerous overdoses and overdose deaths 
throughout the country and in our county. As soon as one 
chemical structure becomes controlled, it is rapidly replaced 
with others. Placing proactive legal controls on these 
analogues will not in itself eliminate the drug abuse problem 
in this country. However, without this legislation the criminal 
justice community is severely hampered in their ability to 
attack the problem.
    Thank you for your opportunity to speak today and I would 
be happy to answer any questions.
    Mr. Gohmert. Thank you, Ms. Newman. At this time, Ms. 
Pacheco you are recognized for 5 minutes for an opening 
statement. Thank you.

                  STATEMENT OF ANGELA PACHECO

    Ms. Pacheco. Thank you, sir. Good afternoon, Mr. Chair, 
ranking members. Thank you for the opportunity to testify. My 
name is Angela Pacheco, and I served as the district attorney 
in northern New Mexico for 7 years, retiring in December 2015. 
I am currently a commissioner for the New Mexico Sentencing 
Commission.
    The idea behind this bill is laudable. It is true that many 
synthetic drugs that are substantially similar to drugs like 
fentanyl are entering our country and are behind a lot of 
overdose deaths. The overdose crisis is a national tragedy. I 
have seen its devastating consequences in my home State. We 
should all be alarmed and should take action. But the problem 
with the bill is that it takes a hammer approach to an issue 
that needs a scalpel, resulting in the unattended consequences 
of those with opioid addictions.
    Fentanyl and its synthetic derivatives are often 
manufactured outside the United States. Last June, the head of 
the DEA told the Senate that illicit fentanyl, fentanyl 
derivatives, and their immediate precursors are often produced 
in China. They are often added to heroin high up on the chain 
and then sold on the streets of the United States. From a 
prosecutorial standpoint, it means that proposals like the ones 
contained in this bill to punish every drug seller, regardless 
of their role, for the sale of synthetic drugs will be 
problematic. Presumably, the harsh sentences in the bill are 
supposed to deter drug sellers. But how is the drug seller 
supposed to be deterred if they do not know what is in the 
substance they sell and believe it to be simply heroin? In 
essence, this bill creates a strict liability situation where 
position of heroin with a synthetic derivative results in an 
enhanced sentence. This would mean the individuals are exposed 
to additional lengthy sentences regardless of whether they knew 
or not that the drug they were selling contained these 
synthetic drugs.
    Also, the new charging memo from the Attorney General 
encourages Federal prosecutors to charge as much as they can in 
drug cases. Similarly, there is a lot of pressure on 
prosecutors to do something to slow the opioid epidemic. Should 
this bill pass we will likely see Federal prosecutors charging 
individuals not simply for the sale of heroin, but also 
charging them if the heroin they sell contains the slightest 
trace of a synthetic drug which results in harsher sentences 
for lower-level users. This situation is like the early years 
of the crack epidemic.
    Perhaps the most troubling aspect of this bill is the power 
it grants the Attorney General. Under current law, the Attorney 
General must work with public health officials to decide which 
drugs belong in which schedule and, therefore, which penalties 
apply. This bill completely circumvents the public health 
process, leaving the scheduling decisions almost entirely in 
the hands of the Attorney General. Let me be clear, prosecutors 
and law enforcement should never be permitted to unilaterally 
decide which drug should be made illegal. That is not our role. 
We are not public health experts and we are not scientists. 
This is clearly a separation of powers issue in which those 
decisions should be made by the legislative branch of 
government.
    We have made great strides as a country in how we treat 
drug use. Just last year, this committee worked on the 
Comprehensive Addiction Recovery Act. A bill that was 
subsequently signed into law and has also recently passed a 
Sentencing Reform Act which reduced mandatory minimums. I was 
on the front line when this epidemic began. New Mexico's 
overdose rate has been one of the highest in the Nation for 
over two decades. We have harsh sentences on the books already 
at the State and Federal level, and they did nothing to stop 
our opioid epidemic.
    Our Nation's approach to drugs has failed. We need 
investments in public health. We need treatment. We need harm 
reduction. But, fundamentally, we must learn from mistakes of 
the past and avoid responding to these new challenges by 
continuing the failed policies of the war on drugs. Thank you 
very much.
    Mr. Gohmert. Thank you very much for the testimony. I will 
go ahead and do my questioning last and would recognize the 
ranking member of the full committee for questions.
    Mr. Conyers. Thank you. Thank you, Mr. Chairman. I thank 
all the witnesses. Ms. Pacheco, why do you believe that we 
should not add more drugs to the Federal scheduling and 
sentencing schemes?
    Ms. Pacheco. Mr. Chair and members of the committee, if I 
may, I am not necessarily saying we should not be adding any 
more drugs to the schedulings; what I am saying merely is that 
the scientific process should not be bypassed. As prosecutors, 
I am not in a position to address, you know, the scientific 
aspects of certain drugs. My biggest concern is that, 
regardless of the drugs we add or the penalties attached, we 
still have not made a difference in dealing with the opioid 
epidemic that has existed for the past several years.
    Mr. Conyers. So, you think that we need to invest in public 
health as it relates to synthetic analogues; is that correct?
    Ms. Pacheco. I am sorry, sir, I am not certain I understand 
your question.
    Mr. Conyers. Do you believe we need to invest in public 
health as it relates to synthetic analogues?
    Ms. Pacheco. Representative, basically my position is that 
addictions basically are a public health issue. And we need to 
start addressing addictions as a public health issue, and that 
is why money should be going towards dealing with synthetic 
addictions as all addictions because strictly it is public 
health. Until we can stop the demand for these drugs, the 
supply is going to continue so we must address the needs of the 
individuals who experience these addictions.
    Mr. Conyers. Finally, would you explain, from your point of 
view ``harm reduction,'' a term you mentioned in your written 
testimony? Why do you believe we need harm reduction as it 
relates to synthetic analogues?
    Ms. Pacheco. Well, the concept of harm reduction in general 
is that when an individual is experiencing or has an addiction, 
their main focus is on dealing with their addiction and harm 
reduction basically is so that we can assist the individual to 
address those issues. I am sorry; that is somewhat circular.
    Harm reduction, in its purest form, is, basically, if we 
can provide the individual with support as their going through 
their addiction process then hopefully that they will do no 
other harm such as committing crime, such as continuing to 
sell, such as burglary; we are trying it minimize the amount of 
criminal activity. And harm reduction is basically supporting 
individuals as they're going through their addiction process.
    Mr. Conyers. Thank you so much. Mr. Chairman, I yield back.
    Mr. Gohmert. Thank you, Mr. Conyers. At this time, I 
recognize Mr. Jeffries for 5 minutes.
    Mr. Jeffries. I thank the distinguished chairman and, of 
course, our ranking member, Mr. Conyers, as well as the 
witnesses for your presence here today and the importance of 
your testimony in terms of how we approach the drug problem, 
the opioid addiction crisis that we have here in America in a 
very sensible smart fashion. Ms. Pacheco, the war on drugs, the 
phrase was coined at some point over the last 40 years, I think 
can be traced to the early 1970s, perhaps 1971, when Richard 
Nixon publicly declared drug use in American public enemy 
number one; is that correct?
    Ms. Pacheco. Correct, sir.
    Mr. Jeffries. And at that particular point in time in 1971, 
I believe there were less than 350,000 people incarcerated in 
America; is that right?
    Ms. Pacheco. As to the actual number, I cannot address that 
sir.
    Mr. Jeffries. Okay, I think the record has previously 
reflected here in the Judiciary Committee that that figure is 
accurate. In terms of the present number, 40-plus years later, 
we currently have over 2.1 million people incarcerated in 
America; is that right?
    Ms. Pacheco. That is correct, sir.
    Mr. Jeffries. And a significant number of those individuals 
can be classified as nonviolent drug offenders; is that right?
    Ms. Pacheco. That is correct, sir.
    Mr. Jeffries. Now in the early 1970s when the war on drugs 
began, we were in the midst of a heroin addiction crisis; is 
that correct?
    Ms. Pacheco. Correct, sir.
    Mr. Jeffries. And then, in the 1980s into the early 1990s, 
we were suffering through what could be called the crack 
cocaine epidemic; is that right?
    Ms. Pacheco. Correct, sir.
    Mr. Jeffries. And now we are in the midst of the opioid 
addiction epidemic; is that right?
    Ms. Pacheco. Correct, sir.
    Mr. Jeffries. And during that period of time when we 
exploded the prison population and careened from addiction 
crisis to addiction crisis, increased incarceration of 
nonviolent drug offenders, is there any evidence during that 
time that this sort of, lock them up, throw away the key, law 
and order approach to dealing with our Nation's persistent drug 
problem has been effective?
    Ms. Pacheco. From my observation and my personal 
experience, we have not been successful, sir.
    Mr. Jeffries. If you can elaborate, during your testimony, 
you spoke of the futility of excessive, long sentences in terms 
of dealing with a drug problem; is that correct?
    Ms. Pacheco. Correct, sir.
    Mr. Jeffries. Can you elaborate on that perspective?
    Ms. Pacheco. Originally, sir, if you look at the Federal 
law, and again, I may misstate, but I believe it was in the 
80's when crack was starting to come into focus, and there were 
instances where individual crack is a derivative of cocaine, 
and individuals who had large amounts of cocaine were getting 
smaller sentences than individuals who had much lesser 
possession of crack who were getting higher sentences.
    And, again, similar to the situation is because they were 
seeing so many deaths and harm to family through crack cocaine 
addiction, that the penalties increased substantially. And it 
became kind of an unjust system where people, like I say, who 
had large amounts of cocaine were serving less sentences than 
those with, you know, your individual low-level user who would 
sell one or two hits of crack to maintain their addiction, 
would receive higher sentences than those with large amounts of 
cocaine.
    Mr. Jeffries. Now, in connection with the most recent drug 
crisis that we, in America, are dealing with as it relates to 
opioid addiction, which is impacting people in the inner city 
communities that I represent as well as suburban America, rural 
America, there is no corner of America that is not impacted by 
this. If any of the panelist could comment in the time that I 
have remaining, what would be an enlightened approach, perhaps 
anchored in tackling this problem from a public health 
perspective that we should consider here as members of the 
United States Congress determined to tackle this problem on 
behalf of the people we represent?
    Ms. Taylor. I am happy to field that one. I think that over 
the years we have tended to pick a favorite approach to drug 
policy and what we have learned, most certainly, is that there 
is no silver bullet to this problem. We need to have a 
comprehensive solution. We have seen a lot of legislation, most 
recently the CARA Act, which passed last year, that addresses 
that, and also the money that is invested into treatment as 
part of the 21st Century Cures bill, there really needs to be a 
comprehensive approach.
    But I would argue that we still need to make sure that we 
have the controls that so that these fentanyl analogues are 
getting off the street. And we really need to make sure that we 
are addressing this problem from every possible angle.
    Mr. Jeffries. Thank you very much. My time has expired and 
I appreciate all the testimony from the witnesses here today. I 
yield back.
    Mr. Gohmert. I thank the gentleman from New York. Now 
recognize myself for 5 minutes. I really do appreciate the 
perspective that you each bring from your own experience.
    With regard to the crack cocaine, the reference, I was a 
bit surprised when Dan Lungren who had been a former attorney 
general of California, before that had been in Congress here in 
the 1980s. When this issue came up, he pointed out that, in the 
1980s, Congressman Charlie Rangel and others member of the 
Congressional Black Caucus had pointed out basically that 
anyone that opposed having much tougher sentences for crack, 
which was an epidemic in the African American communities, 
would basically, in essence, be a racist. It meant you did not 
care about getting to the heart of the crack cocaine problem in 
African American communities.
    And so, what Dan had said, and we went back and found 
magazine articles, newspaper articles that backed that up, 
that, actually, the Judiciary Committee here went along with 
that position and agreed to tougher sentences for crack over 
powder cocaine at the urging of African Americans in Congress 
to try to deal with that. Well, it did not work out so well in 
that regard.
    But, Ms. Taylor, I noted in your testimony where you 
mentioned the fear among the parents we serve, the fear of 
fentanyl and its equally deadly analogues, is palpable; you 
said they are terrified that their child might be the next 
statistic, and that is very understandable in view of the 
deaths that we have seen, and we see the numbers rising.
    What I am wondering is if we might transfer that fear to 
those who are selling these drugs by virtue of the fact we make 
a stiff enough penalty if a death or serious bodily injury 
results; they do not know whether they are selling something 
that is going to end them up in prison for the rest of their 
lives because of death or serious bodily injury? It would seem 
like that might be a way of transferring the fear from the 
parents to the drug dealer if he or she does not actually know 
what they are selling. Do you think ignorance should be a 
defense in those cases for drug dealers, Ms. Taylor?
    Ms. Taylor. Well, no, but what I really think is the heart 
of this legislation is taking away the economic incentive for 
the chemist to constantly innovate and change a molecule and 
violate the spirit of the law, but not the letter of the law. 
We have seen this in the steroid world. We have seen this now 
in the opioid world. We will continue to see it and just play a 
game of Whack-a-mole. You know, the eight-factor analysis is 
the ideal, but we need to make sure that DEA is nimble, so 
that, when we detect that there is a problem with a substance, 
we can make sure that we bring it under the proper controls and 
not necessarily as much for what is going on in the street as 
the import side of things, when chemicals are being imported.
    Mr. Gohmert. Thank you. And in the time I have left, Ms. 
Pacheco, how do you feel about making a substantially higher 
penalty for if a deal or serious bodily injury were to result 
from the sale of a drug?
    Ms. Pacheco. Mr. Chair, members of the committee, you know, 
as a prosecutor, I have seen so many, so many different 
situations. And in reference to your question, sir, as a 
prosecutor, if a person knowingly does something to 
intentionally cause somebody's death or harm, there should be 
some type of consequence. The issue, though, if the individual 
does not know what is within the drug that is contained within 
the drug, then how can you say that they knowingly should take 
responsibility for the results of their action? See, that is 
where it gets complicated and, you know----
    Mr. Gohmert. It sounds like you are saying it would be in 
the best interest of a drug dealer to just say, ``I do not want 
to know what is in this; that way I cannot ever be punished if 
somebody dies from what I am selling.'' Is that the result we 
are looking for?
    Ms. Pacheco. No, sir, and most drug dealers that I have 
encountered in my career have been your low-level----
    Mr. Gohmert. From a professional standpoint.
    Ms. Pacheco. From a professional standpoint, of course, 
thank you for that clarification, sir. Most of the drug dealers 
that I have dealt with have been lower level. These are 
individuals who basically are selling to maintain their habits. 
It is because of their addiction. The addiction drives them to 
continue maintaining their habit, so the best way they do it is 
they sell the drug, so they get money, so they can buy more 
drugs, so they can continue their addiction.
    I mean, all they are trying to do is they are trying to 
survive at that level. They are not doing it for monetary 
purposes, for the most part; they are just trying to maintain 
their addiction. And that is what makes it so difficult when we 
talk about drug reform, is that we need to look at it as a 
medical situation. They have a medical condition, and that is 
why the addiction is continuing.
    Mr. Gohmert. Thank you. My time has expired. But, surely, 
we can all agree, at least, if we can step up, if not 
elimination, substantial reduction in the supply coming from 
China and Mexico, would not we all be better off? And I see 
from nodding heads, I think we can.
    And that is one thing I think is mostly misunderstood about 
the President's proposal of the wall: if we can cut down the 
amount of poison, drugs, coming into the United States from or 
through Mexico that would seem to be the best thing a neighbor 
could ever do for Mexico. They have got hardworking people; 
they have got natural resources; they ought to be one of the 
top 10 economies in the world, but they have got more 
corruption than most places because of the drugs. It seems like 
it would be a win for both Nations if we can ever bring that to 
a crawl.
    But we do appreciate so much each of your perspectives. If 
you should have any additional information you wanted the 
committee to consider, the subcommittee, because then it will 
go to the full committee, then please if you could get that to 
the committee here within the next 10 days that would be 
immensely helpful. You each come from different backgrounds, 
and we appreciate having the benefit of your own expertise. Do 
you have anything additional?
    All right, then, with that, this concludes today's hearing. 
We do appreciate your time and, again, your patience.
    Without objection, all members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record. If there is nothing 
further, then this hearing is adjourned. Thank you so much.
    [Whereupon, at 1:08 p.m., the subcommittee was adjourned.]
```