II 118th CONGRESS 1st Session S. 389 IN THE SENATE OF THE UNITED STATES February 9, 2023 Mr. Thune introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To deter the trafficking of illicit fentanyl, provide justice for victims, and for other purposes.

1. Short title This Act may be cited as the Justice Against Sponsors of Illicit Fentanyl Act of 2023 . 2. Findings and purpose (a) Findings Congress finds the following: (1) International drug trafficking is a serious and deadly problem that threatens the vital interests of the United States and the safety and health of every community in the United States. (2) Transnational criminal organizations, cartels, and violent gangs are leading perpetrators of drug trafficking, often combining the manufacture and distribution of synthetic opioids with violence, human smuggling and trafficking, firearms trafficking, and public corruption, and pose a sustained threat to the homeland security of the United States. (3) Illicit fentanyl is primarily produced in clandestine laboratories and trafficked into the United States in powder and pill form, including fentanyl-laced counterfeit pills. (4) The People's Republic of China (hereinafter in this section referred to as China ) is the primary source country of fentanyl precursor chemicals used to manufacture the illicit fentanyl that is trafficked into the United States. (5) The Commission on Combating Synthetic Opioid Trafficking, established under section 7221 of the National Defense Authorization Act for Fiscal Year 2020 ( Public Law 116–92 ), reported in 2022 that China, which supplied 70 to 80 percent of fentanyl seized by Federal authorities between 2014 and 2019, has been surpassed by Mexico as the dominant source of illicit fentanyl in the United States. (6) Illicit fentanyl is primarily trafficked by land into the United States through legal ports of entry, as well as between such ports of entry, with some trafficking facilitated by domestic and foreign-based social media and encrypted communication applications. (7) In fiscal years 2021 and 2022, U.S. Customs and Border Protection seized over 24,000 pounds of fentanyl at ports of entry, a 200 percent increase from the amounts seized in fiscal years 2019 and 2020. (8) Deaths caused by the trafficking of illicit fentanyl have reached epidemic proportions, as— (A) fentanyl was involved in nearly 200,000 deaths in the United States during the period between 2014 and 2020; (B) the number of drug overdose deaths in the United States surpassed 100,000 during the period between May 2020 and April 2021, of which over 64,000 deaths were related to fentanyl; and (C) fentanyl and other synthetic opioids caused approximately 2/3 of more than 107,000 fatal overdoses in the United States during 2021. (9) Overdose deaths remain a leading cause of injury-related death in the United States, and fentanyl-related deaths are the leading cause of deaths among adults aged 18 to 45. (10) Failure to meaningfully combat illicit fentanyl trafficking will continue to stress the health care and law enforcement resources of the United States. (11) It is necessary to recognize the substantive causes of action for aiding and abetting and conspiracy liability under the Controlled Substances Act ( 21 U.S.C. 801 et seq. ). (12) The decision of the United States Court of Appeals for the District of Columbia in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983), which has been widely recognized as the leading case regarding Federal civil aiding and abetting and conspiracy liability, including by the Supreme Court of the United States, provides the proper legal framework for how such liability should function in the context of the Controlled Substances Act ( 21 U.S.C. 801 et seq. ). (13) Persons, entities, or countries that knowingly or recklessly contribute material support or resources, directly or indirectly, to persons or organizations that pose a significant risk of committing acts of trafficking of illicit fentanyl that threaten the safety and health of nationals of the United States or the national security, foreign policy, or economy of the United States, necessarily direct such conduct at the United States, and should reasonably anticipate being brought to court in the United States to answer for that conduct. (14) The United States has a compelling interest in providing persons and entities injured as a result of the trafficking of illicit fentanyl into the United States with full access to the court system in order to pursue civil claims against persons, entities, or countries that have knowingly or recklessly provided material support or resources, directly or indirectly, to the persons or organizations responsible for their injuries. (b) Purpose The purpose of this Act is to provide civil litigants with the broadest possible basis, consistent with the Constitution of the United States, to seek relief against persons, entities, and foreign countries, wherever acting and wherever they may be found, that have provided material support, directly or indirectly, to foreign organizations or persons that engage in the trafficking of illicit fentanyl into the United States. 3. Responsibility of foreign states for the trafficking of fentanyl into the united states (a) In general Chapter 97 of title 28, United States Code, is amended by inserting after section 1605B the following: 1605C. Responsibility of foreign states for the trafficking of fentanyl into the united states (a) Definition In this section, the term fentanyl trafficking means— (1) means any illicit activity— (A) to produce, manufacture, distribute, sell, or knowingly finance or transport— (i) illicit fentanyl, including any controlled substance that is a synthetic opioid and any listed chemical (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 )) that is a synthetic opioid utilized for fentanyl production; or (ii) active pharmaceutical ingredients or chemicals that are used in the production of fentanyl; (B) to attempt to carry out an activity described in subparagraph (A); or (C) to assist, abet, conspire, or collude with any other person to carry out an activity described in subparagraph (A); (2) a violation of section 401(a)(1) of the Controlled Substances Act ( 21 U.S.C. 841(a)(1) ) involving manufacturing, distributing, or dispensing, or possessing with intent to manufacture, distribute, or dispense, fentanyl or a fentanyl-related substance in or into the United States; (3) an attempt or conspiracy to commit a violation described in paragraph (2); (4) having manufactured, distributed, or dispensed, or possessed with intent to manufacture, distribute, or dispense, fentanyl or a fentanyl-related substance outside the United States with the intention of such fentanyl or fentanyl-related substance being distributed or dispensed in or into the United States in violation of section 401(a)(1) or 406 of the Controlled Substances Act ( 21 U.S.C. 841(a)(1) , 846); or (5) having produced or manufactured, distributed, or dispensed, or possessed with intent to manufacture, distribute, or dispense, a substance that is a precursor to fentanyl or a fentanyl-related substance with the intention of such precursor, fentanyl, or fentanyl-related substance being distributed or dispensed in or into the United States in violation of section 401(a)(1) or 406 of the Controlled Substances Act ( 21 U.S.C. 841(a)(1) , 846). (b) Responsibility of foreign states A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by— (1) an act of fentanyl trafficking in or into the United States; and (2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred. (c) Claims by nationals of the United States (1) Definition In this subsection, the term person has the meaning given the term in section 1 of title 1. (2) Claims If a foreign state would not be immune under subsection (b) with respect to an act of fentanyl trafficking in or into the United States, a national of the United States may bring a claim against the foreign state in the same manner, and may obtain the same remedies, as a claim with respect to an act of international terrorism brought under section 2333. (3) Aiding and abetting liability In an action under paragraph (2) for an injury arising from an act of fentanyl trafficking in or into the United States, liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of fentanyl trafficking. (4) Effect on other foreign sovereign immunities Nothing in paragraph (3) affects immunity of a foreign state from jurisdiction under other law. (d) Rule of construction A foreign state shall not be subject to the jurisdiction of the courts of the United States under subsection (b) on the basis of an omission or a tortious act or acts that constitute mere negligence. . (b) Technical and conforming amendments (1) The table of sections for chapter 97 of title 28, United States Code, is amended by inserting after the item relating to section 1605B the following: 1605C. Responsibility of foreign states for the trafficking of fentanyl into the United States. . (2) Subsection 1605(g)(1)(A) of title 28, United States Code, is amended by striking or section 1605B and inserting , 1605B, or 1605C . 4. Stay of actions pending state negotiations (a) Exclusive jurisdiction The courts of the United States shall have exclusive jurisdiction in any action in which a foreign state is subject to the jurisdiction of a court of the United States under section 1605C of title 28, United States Code, as added by section 3(a) of this Act. (b) Intervention The Attorney General, in consultation with the Administrator of the Drug Enforcement Administration, may intervene in any action in which a foreign state is subject to the jurisdiction of a court of the United States under section 1605C of title 28, United States Code, as added by section 3(a) of this Act, for the purpose of seeking a stay of the civil action, in whole or in part. (c) Stay (1) In general A court of the United States may stay a proceeding against a foreign state in an action brought under section 1605C of title 28, United States Code, as added by section 3(a) of this Act, if the Secretary of State certifies that the United States is engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought. (2) Duration (A) In general A stay under this section may be granted for not more than 180 days. (B) Extension (i) In general The Attorney General may petition the court for an extension of the stay for additional 180-day periods. (ii) Recertification A court shall grant an extension under clause (i) if the Secretary of State recertifies that the United States remains engaged in good faith discussions with the foreign state defendant concerning the resolution of the claims against the foreign state, or any other parties as to whom a stay of claims is sought. 5. Severability If any provision of this Act or any amendment made by this Act, or the application of a provision or amendment to any person or circumstance, is held to be invalid, the remainder of this Act and the amendments made by this Act, and the application of the provisions and amendments to any other person not similarly situated or to other circumstances, shall not be affected by the holding. 6. Effective date The amendments made by this Act shall apply to any civil action— (1) pending on, or commenced on or after, the date of enactment of this Act; and (2) arising out of an injury to a person, property, or business on or after January 1, 2013.