8840 Federal Register / Vol. 90, No. 21 / Monday, February 3, 2025 / Notices 

Estimated Total Annual Burden 

Hours: 1,053. 

The following paragraph applies to all 

the collections of information covered 

by this notice: 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless the collection of information 

displays a valid OMB control number. 

Books or records relating to a 

collection of information must be 

retained if their contents may become 

material in the administration of any 

internal revenue law. Generally, tax 

returns and tax return information are 

confidential, as required by 26 U.S.C. 

6103. 

Desired Focus of Comments: The 

Internal Revenue Service (IRS) is 

particularly interested in comments 

that: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility. 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used. 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including using 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, e.g., by 

permitting electronic submissions of 

responses. 

Comments submitted in response to 

this notice will be summarized and/or 

included in the ICR for OMB approval 

of the extension of the information 

collection; they will also become a 

matter of public record. 

Approved: January 27, 2025. 

Ronald J. Durbala, 

IRS Tax Analyst. 

[FR Doc. 2025–02074 Filed 1–31–25; 8:45 am] 

BILLING CODE 4830–01–P 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Request for public comment. 

SUMMARY: The United States Sentencing 

Commission intends to address certain 

issues relating to offenses involving 

fentanyl, fentanyl analogues, and other 

opioids. As part of its statutory 

authority and responsibility to analyze 

sentencing issues, including operation 

of the federal sentencing guidelines, the 

Commission is publishing these issues 

for comment to inform the 

Commission’s consideration of the 

issues related to this topic. The issues 

for comment are set forth in the 

Supplementary Information portion of 

this notice. 

DATES: Public comment regarding the 

issues for comment set forth in this 

notice should be received by the 

Commission not later than May 1, 2025. 

Any public comment received after the 

close of the comment period may not be 

considered. 

ADDRESSES: There are two methods for 

submitting public comment. 

Electronic Submission of Comments. 

Comments may be submitted 

electronically via the Commission’s 

Public Comment Submission Portal at 

https://comment.ussc.gov. Follow the 

online instructions for submitting 

comments. 

Submission of Comments by Mail. 

Comments may be submitted by mail to 

the following address: United States 

Sentencing Commission, One Columbus 

Circle NE, Suite 2–500, Washington, DC 

20002–8002, Attention: Public Affairs— 

Fentanyl and Other Opioids. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Dukes, Senior Public Affairs 

Specialist, (202) 502–4597. 

SUPPLEMENTARY INFORMATION: The 

United States Sentencing Commission is 

an independent agency in the judicial 

branch of the United States 

Government. The Commission 

promulgates sentencing guidelines and 

policy statements for federal courts 

pursuant to 28 U.S.C. 994(a). The 

Commission also periodically reviews 

and revises previously promulgated 

guidelines pursuant to 28 U.S.C. 994(o) 

and submits guideline amendments to 

the Congress not later than the first day 

of May each year pursuant to 28 U.S.C. 

994(p). 

Request for Comment on Offenses 

Involving Fentanyl, Fentanyl 

Analogues, and Other Opioids 

Fentanyl and fentanyl analogue cases 

have increased substantially over the 

last several years. Since fiscal year 2019, 

fentanyl cases have increased 244.7 

percent, such that they comprised 16.3 

percent of all federal drug trafficking 

cases in fiscal year 2023. Today, 

fentanyl represents the third most 

common drug type in federal drug 

trafficking cases. Fentanyl analogue 

cases have increased 113.5 percent since 

fiscal year 2019, but those cases occupy 

a much smaller portion of the federal 

drug trafficking case load (1.4%). 

Previous Commission Action 

In response to rising numbers of 

fentanyl and fentanyl analogue cases, 

the Commission previously undertook a 

multi-year study of synthetic controlled 

substances. In 2018, following that 

study, the Commission amended 

§ 2D1.1 (Unlawful Manufacturing, 

Importing, Exporting, or Trafficking 

(Including Possession with Intent to 

Commit Those Offenses); Attempt or 

Conspiracy) to add an enhancement 

specific to fentanyl and fentanyl 

analogue cases. In particular, the 

Commission added a new specific 

offense characteristic at subsection 

(b)(13) providing a 4-level increase 

when the defendant knowingly 

misrepresented or knowingly marketed 

as another substance a mixture or 

substance containing fentanyl or a 

fentanyl analogue. See USSG, App. C. 

amend. 807 (effective Nov. 1, 2018). In 

adding this new specific offense 

characteristic, the Commission pointed 

to the harm attendant to cases where a 

user does not know the substance they 

are using contains fentanyl or fentanyl 

analogue. Id. As the Commission 

explained, ‘‘[b]ecause of fentanyl’s 

extreme potency, the risk of overdose 

death is great, particularly when the 

user is inexperienced or unaware of 

what substance he or she is using.’’ Id. 

Thus, the Commission concluded that 

‘‘it is appropriate for traffickers who 

knowingly misrepresent fentanyl or a 

fentanyl analogue as another substance 

to receive additional punishment.’’ Id. 

In 2023, the Commission amended 

§ 2D1.1(b)(13) based on the continued 

increase in fentanyl and fentanyl 

analogue distribution. See USSG, App. 

C. amend. 818 (effective Nov. 1, 2023). 

The amendment added a new 

subparagraph (B) with an alternative 2- 

level enhancement for offenses where 

the defendant represented or marketed 

as a legitimately manufactured drug 

another mixture or substance containing 

fentanyl or a fentanyl analogue, and 

acted with willful blindness or 

conscious avoidance of knowledge that 

such mixture or substance was not the 

legitimately manufactured drug. Id. As 

grounds for the amendment, the 

Commission cited data from the Drug 

Enforcement Agency (‘‘DEA’’) showing a 

substantial increase in the seizure of 

fake prescription pills. Id. The DEA 

reported seizing over 50.6 million fake 

pills in calendar year 2022, with 70 


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Federal Register / Vol. 90, No. 21 / Monday, February 3, 2025 / Notices 8841 

percent containing fentanyl. Id. Of those 

seized pills containing fentanyl, six out 

of ten contained a potentially lethal 

dose of the substance. Id. The 

Commission also pointed to the increase 

in drug overdose deaths—most of which 

involved synthetic opioids, primarily 

fentanyl. Id. 

Feedback From Stakeholders 

Since 2023, the Commission has 

continued to receive public comment on 

whether the guidelines appropriately 

account for factors specific to offenses 

involving fentanyl, fentanyl analogues, 

and other opioids. For example, in a 

recent letter to the Commission, the 

Department of Justice stated that, 

‘‘although the Commission added [a] 

new two-level enhancement [at 

§ 2D1.1(b)(13)(B)] to address the harm 

associated with imitation pills, the new 

two-level enhancement has proven not 

to be very useful.’’ Letter from Scott 

Meisler, Ex-Officio Member, U.S. Sent’g 

Comm’n, to Hon. Carlton W. Reeves, 

Chair, U.S. Sent’g Comm’n (July 15, 

2024) at 5, available at https://

www.ussc.gov/sites/default/files/pdf/ 

amendment-process/public-comment/ 

202407/89FR48029_public-comment_

R.pdf [hereinafter ‘‘DOJ Letter’’]. 

Commission data shows that, in fiscal 

year 2023, 2.1 percent of individuals 

sentenced for fentanyl trafficking and 

1.5 percent sentenced for fentanyl 

analogue trafficking received the 4-level 

increase for knowingly misrepresenting 

or knowingly marketing a mixture or 

substance containing fentanyl or a 

fentanyl analogue as another substance. 

Because the enhancement at 

§ 2D1.1(b)(13)(B) became effective 

November 1, 2023, only preliminary 

2024 data is available. Based on this 

preliminary data, 12 individuals 

sentenced for fentanyl trafficking and 

zero individuals sentenced for fentanyl 

analogue trafficking received the 2-level 

willful blindness enhancement. 

To address the harm in cases 

involving fentanyl, fentanyl analogues, 

and other opioids, the Department of 

Justice proposed several amendments to 

§ 2D1.1 to enhance sentences when 

certain circumstances are present. See 

DOJ Letter at 6–8. First, the Department 

of Justice proposed creating an 

enhancement under § 2D1.1 for 

distribution of fentanyl, fentanyl 

analogues, and other opioids to 

individuals under the age of 21. Id. at 

6. According to the Department of 

Justice, ‘‘[m]embers of that age group 

have increasingly become victims of 

drug overdoses.’’ Id. Commission data 

reveals 37 cases in fiscal year 2023 in 

which the offense involved distribution 

of fentanyl or a fentanyl analogue to a 

person under 21 years old. 

Second, the Department of Justice 

proposed creating an enhancement 

under § 2D1.1 for drug-trafficking 

offenses using ‘‘the dark web or other 

anonymizing technologies to avoid 

detection.’’ DOJ Letter at 6. The 

Department of Justice explains that 

individuals ‘‘are increasingly relying on 

anonymizing technologies to further 

their illicit activity, posting 

advertisements for fentanyl pills on dark 

web marketplaces where the seller is 

unknown to the buyer, the transaction 

involves an exchange of cryptocurrency, 

and the product is shipped with 

misleading tracking information.’’ Id. 

Commission data reveals 60 cases in 

fiscal year 2023 in which the offense 

involved the use of the dark web or 

cryptocurrency to traffic fentanyl or a 

fentanyl analogue. Of these 60 cases, 39 

cases involved the use of both the dark 

web and cryptocurrency, 17 cases 

involved only the use of the dark web, 

and four cases involved only the use of 

cryptocurrency. 

Third, the Department of Justice asked 

the Commission to consider an 

enhancement for drug trafficking 

offenses involving fentanyl or another 

synthetic opioid adulterated with 

xylazine or medetomidine. DOJ Letter at 

6–7. According to the Department of 

Justice, individuals engaged in drug 

trafficking ‘‘are increasingly adulterating 

fentanyl with these alpha-2-adrenergic 

agonists, which can extend a user’s high 

and also serve as a filler and binding 

agent.’’ Id. The Department of Justice 

notes that the effects of these substances 

‘‘have not yet been fully studied’’ but 

states that they ‘‘are profoundly 

dangerous because their effects cannot 

be reversed by life-saving medicines like 

naloxone (Narcan).’’ Id. at 7. 

Commission data reveals 94 cases in 

fiscal year 2023 in which the offense 

involved mixing fentanyl or a fentanyl 

analogue with xylazine or 

medetomidine. Of these 94 cases, 90 

cases used xylazine as the mixing agent, 

and four cases used medetomidine as 

the mixing agent. 

Issues for Comment 

1. The Commission seeks comment on 

whether it should consider revising 

§ 2D1.1 to add an enhancement for 

distribution of fentanyl, fentanyl 

analogues, and other opioids to 

individuals under the age of 21. If so, 

should the enhancement be defendantbased or offense-based? By how many 

levels should the enhancement increase 

base offense levels, and what is the basis 

for such increase? Should the 

Commission consider any other changes 

to § 2D1.1 to address the harm in these 

cases? 

2. The Commission seeks comment on 

whether it should consider revising 

§ 2D1.1 to add an enhancement for 

fentanyl, fentanyl analogue, and opioid 

offenses involving the use of the dark 

web or other anonymizing technologies. 

If so, how should the Commission 

define or describe what technologies 

qualify for the enhancement? Should 

the enhancement be defendant-based or 

offense-based? By how many levels 

should the enhancement increase base 

offense levels, and what is the basis for 

such increase? Should the Commission 

consider any other changes to § 2D1.1 to 

address the harm in these cases? 

3. The Commission seeks comment on 

whether it should consider revising 

§ 2D1.1 to add an enhancement for drug 

trafficking offenses involving fentanyl, a 

fentanyl analogue, or another synthetic 

opioid adulterated with xylazine or 

medetomidine. The Commission invites 

comment on xylazine and 

medetomidine, particularly their 

pharmacological effects, potential for 

addiction and abuse, the patterns of 

abuse and harms associated with their 

abuse, and the patterns of trafficking 

and harms associated with their 

trafficking. The Commission also invites 

comment on whether there are other 

adulterants to fentanyl, fentanyl 

analogues, and other synthetic opioids 

for which an enhancement should 

apply. If the Commission were to add an 

enhancement to § 2D1.1 for drug 

trafficking offenses involving fentanyl, a 

fentanyl analogue, or another synthetic 

opioid adulterated with xylazine, 

medetomidine, or another adulterant 

should the enhancement be defendantbased or offense-based? By how many 

levels should the enhancement increase 

base offense levels, and what is the basis 

for such increase? Should the 

Commission consider any other changes 

to § 2D1.1 to address the harm in these 

cases? 

Authority: 28 U.S.C. 994(a), (o), (p), 

(x); USSC Rules of Practice and 

Procedure 2.2, 4.3, 4.4. 

Carlton W. Reeves, 

Chair. 

[FR Doc. 2025–02128 Filed 1–31–25; 8:45 am] 

BILLING CODE 2210–40–P 


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