WASHINGTON, DC – Today, U.S. Senator Rob Portman (R-OH), Ranking Member of the Senate Homeland Security and Governmental Affairs Committee, released a new report examining the laws governing synthetic opioid interdiction, the synthetic opioid precursor supply chain from China to Mexico, and the finished-product supply chain from Mexico to the U.S. The report, titled Addressing the Supply Chain of Synthetic Drugs in the United States, focuses on the consequences of not permanently scheduling fentanyl-related substances in the Controlled Substance Act resulting in the limit of law enforcement’s ability to fight the influx of these drugs and the malign actions of drug cartels in Mexico and around the world to exploit our weaknesses and inability to counter these transnational criminal organizations (TCOs).
This report builds on Portman’s bipartisan Synthetics Trafficking & Overdose Prevention (STOP) Act, which became law in 2018. As the then-Chairman of the Permanent Subcommittee on Investigations, Portman conducted an 18-month investigation into the influx of deadly synthetic drugs like fentanyl into our country and released a stunning bipartisan report titled Combatting the Opioid Crisis: Exploiting Vulnerabilities in International Mail, detailing how drug traffickers exploit vulnerabilities in our international mail system to easily ship synthetic drugs like fentanyl from China into the United States through the U.S. Postal Service. The STOP Act closes this loophole by requiring advance electronic data on all inbound international packages, including packages coming from China and requires the Postal Service to refuse any inbound international packages without advance electronic data. However, this new report reveals how China and other TCOs are exploiting a legitimate U.S. trade via in-bond shipments to transship chemical precursors from foreign countries through the U.S. to Mexico.
The report makes several recommendations for how the federal government can work to combat the influx of deadly fentanyl into the United States, including passing Senator Portman’s bipartisan Federal Initiative to Guarantee Health by Targeting (FIGHT) Fentanyl Act to permanently schedule illicitly manufactured and deadly fentanyl. In addition, earlier this year Portman introduced the Transnational Criminal Investigative Unit Stipend Act to authorize the payment of stipends to the TCIU foreign law enforcement officers who are vetted and trained here in the United States. The legislation was included in the FY 2023 NDAA that passed Congress in December.
“With drug overdoses at an all-time high, Congress must do everything it can to stop synthetic opioids like fentanyl from destroying lives in America and around the world. This report demonstrates malign actors across the world will stop at nothing to exploit America’s addiction epidemic and continue to push these deadly drugs into our communities,” said Senator Portman. “I hope the federal government will follow our report’s recommendations to address gaps that have allowed the synthetic drug supply chain to prosper, and mitigate the devastating effects of these deadly drugs, which have impacted families and communities all across Ohio and our country.”
The report’s key findings include:
- Not permanently scheduling fentanyl-related substances in the Controlled Substances Act limits law enforcement abilities to fight it. The U.S. has created temporary scheduling orders on fentanyl and its analogues, but not permanently scheduling it in the Controlled Substances Act limits law enforcement by reducing regulatory authorities and penalties and by signaling to other countries, such as China—which has permanently scheduled fentanyl—that the U.S. is not taking the Fentanyl crisis as seriously as it could.
- The United Nations Commission on Narcotic Drugs has scheduled the primary precursor chemicals used for the production of fentanyl, but the U.S. must be vigilant in monitoring alternate precursors to keep pace with adaptations by transnational criminal organizations. As traditional synthetic drug precursors become regulated and targeted, TCOs are switching to alternate precursors that have legal uses and are not controlled. TCOs also alter or mislabel shipments of precursors and exploit the abstract nature of chemical nomenclature and classification systems to avoid detection of scheduled substances.
- The Synthetics Trafficking and Overdose Prevention (STOP) Act largely eliminated mail delivery of fentanyl, but waivers to the act create potential gaps. The STOP Act increased the security of U.S. inbound international mail packages by requiring advanced electronic data (AED) to be submitted for enhanced vetting by CBP. However, CBP can issue waivers for shipments from countries that it determines do not have the capacity to collect and transmit AED. This gap creates the potential for criminal organizations to transship fentanyl or other drugs through over 100 STOP ACT exempted countries.
- TCOs exploit legitimate U.S. trade via in-bond shipments to transship chemical precursors from foreign countries through the U.S. to Mexico. The supply chain has shifted with synthetic drug precursor chemicals now being shipped from China to Mexico for final production in clandestine laboratories before smuggling them into the U.S. through the southwest border. As TCOs seek to utilize the most efficient and effective shipping routes to commingle their illicit cargo with legitimate trade, they are using Transportation & Export (T&E) and Immediate Export (IE) programs to ship precursors from China to Mexico after transiting through the U.S. CBP receives limited information to assist their targeting efforts as these are in-bond shipments where the commodity only enters the U.S. to be immediately exported into Mexico. Additionally, under current policies, these chemical shipments are exempt from certain disclosure requirements.
- DHS does not have adequate authorities to perform investigations to counter transnational criminal organizations. Title 21 of U.S. Code authorizes only DEA and the FBI to investigate narcotic and other controlled substance crimes. DHS agencies, which have the primary responsibility of combating contraband, such as drugs, entering the U.S. under Title 19 (Customs), but they lack Title 21 authority, and their employees must rely on cross-designation from DEA. This creates unnecessary obstacles and limitations, most notably for HSI, which has statutory authority to investigate all aspects of TCO criminal activity except drugs.
- Low non-intrusive inspection (NII) rates are a gaping hole in border security. NII systems deployed at various POEs are large-scale scanning technology that enable CBP to detect contraband, such as narcotics and weapons, as well as materials that pose potential nuclear and radiological threats. Over 84 percent of the fentanyl seizures along the southwest border in FY 2022 occurred at designated POEs from passenger and commercial vehicles and pedestrians. Despite the effectiveness of NII, CBP currently only scans 2 percent of all passenger vehicles and 15 percent of all commercial vehicles at the southwest border.
- Unlike international air or sea travel, CBP receives little to no advanced passenger information (API) for individuals seeking to make entry into the U.S. at southwest land ports of entry. API improves efficiency by allowing risk-informed screening determinations and increasing successful interdictions, thus enhancing border security while reducing congestion for legitimate travel. The lack of API results in CBP having limited information in making screening determinations, reducing successful interdictions and increasing processing time for legitimate border crossings.
- Technology and modernization deficiencies at and between land POEs along the southwest border limit operations. The need to implement more NII scanning equipment and API technology is contingent on infrastructure improvements at POEs. This includes between POEs with the increase in the smuggling of synthetic drugs through these areas. Additionally, even after these modernization efforts are put in place, they cannot reach their full potential until staffing shortages are addressed.
- The lack of authorities and limited success in targeting unmanned aircraft systems (UAS) operated by TCOs hinder law enforcement efforts. With over 8,000 cross border incursions by UAS in a recent one year period, CBP is the only federal agency along the southwest border authorized to detect and mitigate UAS. Additionally, only five areas of responsibility along the border are designated as covered assets by DHS to allow the mitigation of drones.
The report makes the following recommendations:
- Congress should pass the Federal Initiative to Guarantee Health by Targeting Fentanyl (FIGHT Fentanyl) Act and take action to schedule fentanyl and fentanyl-related substances permanently in the Controlled Substances Act, which will enhance law enforcement efforts and lead to more effective diplomacy with international partners.
- CBP should reduce the number of STOP Act waivers. These waivers create a backdoor, through which the mail system, could once again, be used as a delivery mechanism for Fentanyl and synthetic opioids.
- CBP should work to improve visibility on global supply chains by developing strategies to prevent Transportation & Export (T&E) and Immediate Export (IE) in-bond shipments from being exploited by TCOs to transship chemical precursors. This should include requiring advanced notification and data be submitted for all in-bond chemical shipments and designating common precursor chemicals used to make synthetic drugs as controlled commodities for end-to-end transparency.
- The U.S. should leverage the mission of the World Customs Organization to develop international standards to monitor and target the global shipments of chemical precursors that are commonly used to create synthetic drugs. So doing would foster cooperation and facilitate legitimate trade, modeled after their Programme Global Shield.
- Congress should grant Title 21 drug authority to DHS components, such as HSI and CBP, which have responsibility for combating TCOs and stopping the illicit flow of synthetic drugs from entering our country.
- CBP should significantly increase NII of passenger and commercial vehicles and pedestrians entering land POEs with the goal of reaching 100 percent.
- CBP should improve and deploy more API processes at southwest border land POEs, such as pre-primary scanning, license plate readers, and radio frequency identification ready lanes, to enhance vetting efforts without impeding legitimate trade and travel.
- DHS should invest in more technology, modernization, and staffing at and between land POEs. This includes POE infrastructure improvements to allow for more NII scanning and API processes, autonomous surveillance towers in remote border areas, more CBP officers and technicians, and more HSI agents.
- Increased bilateral cooperation from Mexico is needed on data sharing and operations, and with increased cooperation, Congress could improve international task forces by authorizing HSI to pay stipends to its foreign vetted task force members.
- DHS should designate the entire southwest border as a covered asset to allow for UAS mitigation and expand the number Federal agencies to have the authorization to detect and mitigate along the border.
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