[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 389 Introduced in Senate (IS)]
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118th CONGRESS
1st Session
S. 389
To deter the trafficking of illicit fentanyl, provide justice for
victims, and for other purposes.
_______________________________________________________________________
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.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Justice Against Sponsors of Illicit
Fentanyl Act of 2023''.
SEC. 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.
SEC. 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:
``Sec. 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''.
SEC. 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.
SEC. 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.
SEC. 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.
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