Sentencing Guidelines for United States Courts, 47322-47324 [2017-21820]

Download as PDF asabaliauskas on DSKBBXCHB2PROD with NOTICES 47322 Federal Register / Vol. 82, No. 195 / Wednesday, October 11, 2017 / Notices required by Section 403 of the Tax Relief and Health Care Act of 2006 which imposes an excise tax on certain transfers of qualifying mineral or geothermal interests. Current Actions: There is no change in the paperwork burden previously approved by OMB. Type of Review: Extension of a currently approved collection. Affected Public: Businesses or other for-profit organizations. Estimated Number of Respondents: 20. Estimated Time Per Respondent: 5 hours, 33 minutes. Estimated Total Annual Burden Hours: 111. The following paragraph applies to all of 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 as long as 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. Request for Comments: Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval. All comments will become a matter of public record. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Approved: October 4, 2017. L. Brimmer, Senior Tax Analyst. [FR Doc. 2017–21922 Filed 10–10–17; 8:45 am] BILLING CODE 4830–01–P VerDate Sep<11>2014 17:58 Oct 10, 2017 Jkt 244001 UNITED STATES SENTENCING COMMISSION Sentencing Guidelines for United States Courts United States Sentencing Commission ACTION: Request for public comment. AGENCY: In August 2017, the Commission indicated that one of its policy priorities would be the ‘‘[c]ontinuation of its multiyear study of offenses involving synthetic cathinones (such as methylone, MDPV, and mephedrone) and synthetic cannabinoids (such as JWH–018 and AM–2201), as well as tetrahydrocannabinol (THC), fentanyl, and fentanyl analogues, and consideration of appropriate guideline amendments, including simplifying the determination of the most closely related substance under Application Note 6 of the Commentary to § 2D1.1.’’ See 82 FR 39949 (Aug. 22, 2017). As part of its continuing work on this priority, the Commission is publishing this request for public comment on issues related to fentanyl and fentanyl analogues. 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 November 13, 2017. ADDRESSES: All written comment should be sent to the Commission by electronic mail or regular mail. The email address for public comment is Public_ Comment@ussc.gov. The regular mail address for public comment is United States Sentencing Commission, One Columbus Circle, NE., Suite 2–500, Washington, DC 20002–8002, Attention: Public Affairs. FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of Legislative and Public Affairs, (202) 502–4500, pubaffairs@ussc.gov. 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). SUMMARY: PO 00000 Frm 00152 Fmt 4703 Sfmt 4703 In August 2016, the Commission indicated that one of its priorities would be the ‘‘[s]tudy of offenses involving MDMA/Ecstasy, synthetic cannabinoids (such as JWH–018 and AM–2201), and synthetic cathinones (such as Methylone, MDPV, and Mephedrone), and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.’’ See U.S. Sentencing Comm’n, ‘‘Notice of Final Priorities,’’ 81 FR 58004 (Aug. 24, 2016). On August 17, 2017, the Commission revised the priority to study offenses involving synthetic cathinones (such as methylone, MDPV, and mephedrone) and synthetic cannabinoids (such as JWH–018 and AM–2201), as well as tetrahydrocannabinol (THC), fentanyl, and fentanyl analogues. See U.S. Sentencing Comm’n, ‘‘Notice of Final Priorities,’’ 82 FR 39949 (Aug. 22, 2017). The Commission also stated that, as part of the study, it would consider possible approaches to simplify the determination of the most closely related substance under Application Note 6 of the Commentary to § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). The Commission expects to solicit comment several times during the study period from experts and other members of the public. On December 19, 2016, the Commission published a notice inviting general comment on synthetic cathinones (MDPV, methylone, and mephedrone) and synthetic cannabinoids (JWH–018 and AM–2201), as well as about the application of the factors the Commission traditionally considers when determining the marihuana equivalencies for specific controlled substances to the substances under study. See U.S. Sentencing Comm’n, ‘‘Request for Public Comment,’’ 81 FR 92021 (Dec. 19, 2016). On April 18, 2017, the Commission held a public hearing related to this priority. The Commission received testimony from experts on the synthetic drugs related to the study, including testimony about their chemical structure, pharmacological effects, trafficking patterns, and community impact. On June 21, 2017, the Commission published a second notice requesting public comment on issues specifically related to MDMA/ecstasy and methylone, one of the synthetic cathinones included in the Commission’s study. See U.S. Sentencing Comm’n, ‘‘Request for E:\FR\FM\11OCN1.SGM 11OCN1 asabaliauskas on DSKBBXCHB2PROD with NOTICES Federal Register / Vol. 82, No. 195 / Wednesday, October 11, 2017 / Notices Public Comment,’’ 82 FR 28382 (June 21, 2017). On August 25, 2017, the Commission published a third notice requesting public comment on issues related to (1) synthetic cathinones and (2) tetrahydrocannabinol (THC) and synthetic cannabinoids. See U.S. Sentencing Comm’n, ‘‘Request for Public Comment,’’ 82 FR 40648 (Aug. 25, 2017). As part of its continuing work on this priority, the Commission is publishing this fourth request for public comment focusing on issues related to fentanyl and fentanyl analogues. In addition to the substance-specific topics discussed below, the Commission anticipates that its work will continue to be guided by the factors the Commission traditionally considers when determining the marihuana equivalencies for specific controlled substances, including their chemical structure, pharmacological effects, legislative and scheduling history, 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 will also consider possible approaches to simplify the determination of the most closely related substance under Application Note 6 of the Commentary to § 2D1.1. The Commission has received comment from the public suggesting that questions regarding ‘‘the most closely related controlled substance’’ arise frequently in cases involving the substances included in the study, and that the Application Note 6 process requires courts to hold extensive hearings to receive expert testimony on behalf of the government and the defendant. Fentanyl and Fentanyl Analogues.— According to the National Institute on Drug Abuse, fentanyl is a powerful synthetic opioid analgesic that is similar to morphine but 50 to 100 times more potent. See National Institute on Drug Abuse, DrugFacts: Fentanyl (June 2016), available at https://www.drugabuse.gov/ publications/drugfacts/fentanyl. Fentanyl is a prescription drug that can be diverted for illicit use. Nonpharmaceutical fentanyl and analogues of fentanyl are also produced in clandestine laboratories for illicit use. See, e.g., U.N. Office on Drugs & Crime, Fentanyl and Its Analogues—50 Years On, Global Smart Update 17 (March 2017), available at https:// www.unodc.org/documents/scientific/ Global_SMART_Update_17_web.pdf. The clandestinely manufactured fentanyl and fentanyl analogues have frequently been identified as the VerDate Sep<11>2014 17:58 Oct 10, 2017 Jkt 244001 substances associated with recent increases in drug overdose deaths. These substances are sold in the illicit drug market as powder, pills, absorbed on blotter paper, mixed with or substituted for heroin, or as tablets that may mimic the appearance of other opioids. The Controlled Substances Act (21 U.S.C. 801 et seq.) classifies fentanyl as a Schedule II controlled substance, along with heroin and other opiates. While there is no other specific reference to the term ‘‘fentanyl’’ in Title 21, United States Code, a subsequent section establishes a mandatory minimum penalty for a substance identified as ‘‘N-phenyl-N-[1-(2phenylethyl)-4-piperidinyl] propenamide.’’ 21 U.S.C. 841(b)(1)(A)(vi). A Department of Justice regulation explains that N-phenyl-N-[1(2-phenylethyl)-4-piperidinyl] propenamide is the substance ‘‘commonly known as fentanyl.’’ 28 CFR 50.21(d)(4)(vii). The Controlled Substances Act prescribes a mandatory minimum penalty of five years for trafficking 40 or more grams of the substance, or ten or more grams of an analogue of the substance. 21 U.S.C. 841(b)(1)(A)(vi); (b)(1)(B)(vi). The Drug Quantity Table in § 2D1.1 contains entries for both ‘‘fentanyl’’ and ‘‘fentanyl analogue,’’ at ratios equivalent to those established by statute. The Drug Equivalency Tables in the Commentary to § 2D1.1 clearly identify fentanyl with the specific substance associated with the statutory minimum penalty by providing a marihuana equivalency for 1 gm of ‘‘Fentanyl (N-phenyl-N-[1-(2phenylethyl)-4-piperidinyl] Propenamide)’’ equal to 2.5 kg of marihuana (i.e., a 1:2,500 ratio). The Drug Equivalency Tables also sets forth the marihuana equivalencies for two other substances, Alpha-Methylfentanyl and 3-Methylfentanyl. Both substances have the same marihuana equivalency ratio, 1:10,000, as fentanyl analogue. Alpha-Methylfentanyl and 3Methylfentanyl are pharmaceutical analogues of fentanyl that were developed in the 1960s or 1970s. See, e.g., T.J. Gillespie et al., Identification and Quantification of AlphaMethylfentanyl in Post Mortem Specimens, 6(3) J. of Analytical Toxicology 139 (May–June 1982). In cases involving a fentanyl analogue other than the two listed above, courts are required by Application Note 6 of the Commentary to § 2D1.1 to ‘‘determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in [§ 2D1.1].’’ Section 2D1.1 provides a three-step process for making PO 00000 Frm 00153 Fmt 4703 Sfmt 4703 47323 this determination. See USSG § 2D1.1, comment. (n.6, 8). First, a court determines the most closely related controlled substance by considering, to the extent practicable, the factors set forth in Application Note 6. Next, the court determines the appropriate quantity of marihuana equivalent of the most closely related controlled substance, using the Drug Equivalency Tables at Application Note 8(D). Finally, the court uses the Drug Quantity Table in § 2D1.1(c) to determine the base offense level that corresponds to that amount of marihuana. Issues for Comment.— 1. The Commission invites general comment on fentanyl and fentanyl analogues, particularly on their chemical structures, 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. How are fentanyl and fentanyl analogues manufactured, distributed, possessed, and used? What are the characteristics of the offenders involved in these various activities? What harms are posed by these activities? How do these harms differ from those associated with other opioids such as heroin, morphine, hydrocodone, or oxycodone? How, if at all, do the harms associated with pharmaceutical fentanyl differ from the harms associated with non-pharmaceutical fentanyl? To the extent the harms posed by these substances are different, should the guidelines provide different penalties for pharmaceutical fentanyl and non-pharmaceutical fentanyl? 2. Fentanyl, when identified as Nphenyl-N-[1-(2-phenylethyl)-4piperidinyl] propenamide, and analogues of that specific chemical, are subject to mandatory minimum penalties under current law, with analogues punished four times more harshly than fentanyl itself. Those penalties have shaped the guidelines provisions related to fentanyl since 1987. The Commission seeks comment on whether there are controlled substances that might commonly be regarded as ‘‘fentanyl analogues’’ that are not analogues of N-phenyl-N-[1-(2phenylethyl)-4-piperidinyl] propenamide and therefore do not meet the statutory definition of an ‘‘analogue.’’ If so, should the guidelines provide penalties for such controlled substances consistent with the mandatory minimum provisions applicable to fentanyl analogues that meet the statutory definition? Should the guidelines instead account for such substances in a different manner than E:\FR\FM\11OCN1.SGM 11OCN1 asabaliauskas on DSKBBXCHB2PROD with NOTICES 47324 Federal Register / Vol. 82, No. 195 / Wednesday, October 11, 2017 / Notices substances to which the mandatory minimum penalty applies? 3. The Commission invites general comment on whether and, if so how, the guidelines should be amended to account for fentanyl and fentanyl analogues. How, if at all, should the guideline provisions related to fentanyl and the fentanyl analogues specifically listed in § 2D1.1 be amended? For example, should the Commission revise the marihuana equivalencies already provided for fentanyl, AlphaMethylfentanyl, and 3-Methylfentanyl? If so, what equivalency should the Commission provide for each substance, and why? Should the Commission amend § 2D1.1 to account for other unlisted fentanyl analogues? For example, should the Commission establish marihuana equivalencies for fentanyl analogues currently not listed in § 2D1.1? If so, what specific fentanyl analogues should the Commission include in the Drug Equivalency Tables and what equivalency should the Commission provide for each such substance? What factors should the Commission consider when deciding whether to account for these substances? 4. The Commission has received anecdotal information about the availability of several fentanyl analogues. How are these novel fentanyl analogues developed, manufactured and trafficked? To what extent are these substances legally manufactured for pharmaceutical purposes and then diverted for illicit trafficking and use, as opposed to having been manufactured illegally? How complex is the procedure to develop these substances and how frequently are they introduced into the illicit drug market? Instead of providing marihuana equivalencies for individual fentanyl analogues, should the Commission consider establishing a single marihuana equivalency applicable to all fentanyl analogues? Are fentanyl analogues sufficiently similar to one another in chemical structure, pharmacological effects, potential for addiction and abuse, patterns of trafficking and abuse, and associated harms, to support the adoption of a broad class-based approach for sentencing purposes? If so, what marihuana equivalency should the Commission provide for fentanyl analogues as a class and why? What factors should the Commission account for if it considers adopting a broad classbased approach for fentanyl and its analogues? Should the Commission define ‘‘fentanyl analogues’’ for purposes of this broad class-based VerDate Sep<11>2014 17:58 Oct 10, 2017 Jkt 244001 approach? If so, how? Are there any fentanyl analogues that should not be included as part of a broad class-based approach and for which the Commission should provide a marihuana equivalency separate from other fentanyl analogues? If so, what equivalency should the Commission provide for each such fentanyl analogue, and why? What are the advantages and disadvantages of a broad class-based approach for fentanyl analogues? If the Commission were to provide a different approach to account for fentanyl analogues in the guidelines, what should that different approach be? Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice and Procedure 4.4. William H. Pryor, Jr., Acting Chair. [FR Doc. 2017–21820 Filed 10–10–17; 8:45 am] BILLING CODE 2210–40–P DEPARTMENT OF VETERANS AFFAIRS [OMB Control No. 2900–0209] Agency Information Collection Activity: Application for Work Study Allowance; Student Work-Study Agreement (Advance Payment); Extended Student Work-Study Agreement; Student Work-Study Agreement Veterans Benefits Administration, Department of Veterans Affairs. ACTION: Notice. AGENCY: In compliance with the Paperwork Reduction Act (PRA) of 1995 this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument. DATES: Comments must be submitted on or before November 13, 2017. ADDRESSES: Submit written comments on the collection of information through www.Regulations.gov, or to Office of Information and Regulatory Affairs, Office of Management and Budget, Attn: VA Desk Officer; 725 17th St. NW., Washington, DC 20503 or sent through electronic mail to oira_submission@ omb.eop.gov. Please refer to ‘‘OMB Control No. 2900–0209’’ in any correspondence. SUMMARY: PO 00000 Frm 00154 Fmt 4703 Sfmt 9990 FOR FURTHER INFORMATION CONTACT: Cynthia Harvey-Pryor, VA Clearance Officer—Office of Quality Privacy and Risk, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461–5870 or email Cynthia.harvey.pryor@va.gov. Please refer to ‘‘OMB Control No. 2900–0209’’ in any correspondence. SUPPLEMENTARY INFORMATION: Authority: Section 3485 of title 38, United States Code, and section 21.4145 of title 38, Code of Federal Regulations necessitate these collections of information. Title: Application for Work Study Allowance; Student Work-Study Agreement (Advance Payment); Extended Student Work-Study Agreement; Student Work-Study Agreement (VA Forms 22–8691, 22– 8692, 22–8692a, and 22–8692b). OMB Control Number: 2900–0209. Type of Review: Renewal of a currently approved collection. Abstract: VA uses the VA Forms 22– 8691, 22–8692, 22–8692a, and 22–8692b collecting information to determine the individual’s eligibility for the workstudy allowance, the number of hours the individual will work, the amount payable, whether the individual desires an advance payment, and whether the individual wants to extend the workstudy contract. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The Federal Register Notice with a 60day comment period soliciting comments on this collection of information was published at 82 FR 35876 on August 1, 2017. Affected Public: Individuals and households. Estimated Annual Burden: 17,865 hours. Estimated Average Burden per Respondent = 23 minutes. Frequency of Response: Once Annually. Estimated Number of Respondents: 113,851. By direction of the Secretary. Cynthia Harvey-Pryor, VA Clearance Officer, Office of Quality Privacy and Risk, Department of Veterans Affairs. [FR Doc. 2017–21823 Filed 10–10–17; 8:45 am] BILLING CODE 8320–01–P E:\FR\FM\11OCN1.SGM 11OCN1

Agencies

[Federal Register Volume 82, Number 195 (Wednesday, October 11, 2017)]
[Notices]
[Pages 47322-47324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21820]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission

ACTION: Request for public comment.

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SUMMARY: In August 2017, the Commission indicated that one of its 
policy priorities would be the ``[c]ontinuation of its multiyear study 
of offenses involving synthetic cathinones (such as methylone, MDPV, 
and mephedrone) and synthetic cannabinoids (such as JWH-018 and AM-
2201), as well as tetrahydrocannabinol (THC), fentanyl, and fentanyl 
analogues, and consideration of appropriate guideline amendments, 
including simplifying the determination of the most closely related 
substance under Application Note 6 of the Commentary to Sec.  2D1.1.'' 
See 82 FR 39949 (Aug. 22, 2017). As part of its continuing work on this 
priority, the Commission is publishing this request for public comment 
on issues related to fentanyl and fentanyl analogues. 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 
November 13, 2017.

ADDRESSES: All written comment should be sent to the Commission by 
electronic mail or regular mail. The email address for public comment 
is Public_Comment@ussc.gov. The regular mail address for public comment 
is United States Sentencing Commission, One Columbus Circle, NE., Suite 
2-500, Washington, DC 20002-8002, Attention: Public Affairs.

FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of 
Legislative and Public Affairs, (202) 502-4500, pubaffairs@ussc.gov.

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).
    In August 2016, the Commission indicated that one of its priorities 
would be the ``[s]tudy of offenses involving MDMA/Ecstasy, synthetic 
cannabinoids (such as JWH-018 and AM-2201), and synthetic cathinones 
(such as Methylone, MDPV, and Mephedrone), and consideration of any 
amendments to the Guidelines Manual that may be appropriate in light of 
the information obtained from such study.'' See U.S. Sentencing Comm'n, 
``Notice of Final Priorities,'' 81 FR 58004 (Aug. 24, 2016). On August 
17, 2017, the Commission revised the priority to study offenses 
involving synthetic cathinones (such as methylone, MDPV, and 
mephedrone) and synthetic cannabinoids (such as JWH-018 and AM-2201), 
as well as tetrahydrocannabinol (THC), fentanyl, and fentanyl 
analogues. See U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 
82 FR 39949 (Aug. 22, 2017). The Commission also stated that, as part 
of the study, it would consider possible approaches to simplify the 
determination of the most closely related substance under Application 
Note 6 of the Commentary to Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy). The Commission 
expects to solicit comment several times during the study period from 
experts and other members of the public.
    On December 19, 2016, the Commission published a notice inviting 
general comment on synthetic cathinones (MDPV, methylone, and 
mephedrone) and synthetic cannabinoids (JWH-018 and AM-2201), as well 
as about the application of the factors the Commission traditionally 
considers when determining the marihuana equivalencies for specific 
controlled substances to the substances under study. See U.S. 
Sentencing Comm'n, ``Request for Public Comment,'' 81 FR 92021 (Dec. 
19, 2016).
    On April 18, 2017, the Commission held a public hearing related to 
this priority. The Commission received testimony from experts on the 
synthetic drugs related to the study, including testimony about their 
chemical structure, pharmacological effects, trafficking patterns, and 
community impact.
    On June 21, 2017, the Commission published a second notice 
requesting public comment on issues specifically related to MDMA/
ecstasy and methylone, one of the synthetic cathinones included in the 
Commission's study. See U.S. Sentencing Comm'n, ``Request for

[[Page 47323]]

Public Comment,'' 82 FR 28382 (June 21, 2017).
    On August 25, 2017, the Commission published a third notice 
requesting public comment on issues related to (1) synthetic cathinones 
and (2) tetrahydrocannabinol (THC) and synthetic cannabinoids. See U.S. 
Sentencing Comm'n, ``Request for Public Comment,'' 82 FR 40648 (Aug. 
25, 2017).
    As part of its continuing work on this priority, the Commission is 
publishing this fourth request for public comment focusing on issues 
related to fentanyl and fentanyl analogues. In addition to the 
substance-specific topics discussed below, the Commission anticipates 
that its work will continue to be guided by the factors the Commission 
traditionally considers when determining the marihuana equivalencies 
for specific controlled substances, including their chemical structure, 
pharmacological effects, legislative and scheduling history, 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 will also consider possible approaches to simplify 
the determination of the most closely related substance under 
Application Note 6 of the Commentary to Sec.  2D1.1. The Commission has 
received comment from the public suggesting that questions regarding 
``the most closely related controlled substance'' arise frequently in 
cases involving the substances included in the study, and that the 
Application Note 6 process requires courts to hold extensive hearings 
to receive expert testimony on behalf of the government and the 
defendant.
    Fentanyl and Fentanyl Analogues.--According to the National 
Institute on Drug Abuse, fentanyl is a powerful synthetic opioid 
analgesic that is similar to morphine but 50 to 100 times more potent. 
See National Institute on Drug Abuse, DrugFacts: Fentanyl (June 2016), 
available at https://www.drugabuse.gov/publications/drugfacts/fentanyl. 
Fentanyl is a prescription drug that can be diverted for illicit use. 
Non-pharmaceutical fentanyl and analogues of fentanyl are also produced 
in clandestine laboratories for illicit use. See, e.g., U.N. Office on 
Drugs & Crime, Fentanyl and Its Analogues--50 Years On, Global Smart 
Update 17 (March 2017), available at https://www.unodc.org/documents/scientific/Global_SMART_Update_17_web.pdf. The clandestinely 
manufactured fentanyl and fentanyl analogues have frequently been 
identified as the substances associated with recent increases in drug 
overdose deaths. These substances are sold in the illicit drug market 
as powder, pills, absorbed on blotter paper, mixed with or substituted 
for heroin, or as tablets that may mimic the appearance of other 
opioids.
    The Controlled Substances Act (21 U.S.C. 801 et seq.) classifies 
fentanyl as a Schedule II controlled substance, along with heroin and 
other opiates. While there is no other specific reference to the term 
``fentanyl'' in Title 21, United States Code, a subsequent section 
establishes a mandatory minimum penalty for a substance identified as 
``N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propenamide.'' 21 U.S.C. 
841(b)(1)(A)(vi). A Department of Justice regulation explains that N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propenamide is the substance 
``commonly known as fentanyl.'' 28 CFR 50.21(d)(4)(vii). The Controlled 
Substances Act prescribes a mandatory minimum penalty of five years for 
trafficking 40 or more grams of the substance, or ten or more grams of 
an analogue of the substance. 21 U.S.C. 841(b)(1)(A)(vi); 
(b)(1)(B)(vi).
    The Drug Quantity Table in Sec.  2D1.1 contains entries for both 
``fentanyl'' and ``fentanyl analogue,'' at ratios equivalent to those 
established by statute. The Drug Equivalency Tables in the Commentary 
to Sec.  2D1.1 clearly identify fentanyl with the specific substance 
associated with the statutory minimum penalty by providing a marihuana 
equivalency for 1 gm of ``Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] Propenamide)'' equal to 2.5 kg of marihuana (i.e., a 
1:2,500 ratio). The Drug Equivalency Tables also sets forth the 
marihuana equivalencies for two other substances, Alpha-Methylfentanyl 
and 3-Methylfentanyl. Both substances have the same marihuana 
equivalency ratio, 1:10,000, as fentanyl analogue. Alpha-Methylfentanyl 
and 3-Methylfentanyl are pharmaceutical analogues of fentanyl that were 
developed in the 1960s or 1970s. See, e.g., T.J. Gillespie et al., 
Identification and Quantification of Alpha-Methylfentanyl in Post 
Mortem Specimens, 6(3) J. of Analytical Toxicology 139 (May-June 1982).
    In cases involving a fentanyl analogue other than the two listed 
above, courts are required by Application Note 6 of the Commentary to 
Sec.  2D1.1 to ``determine the base offense level using the marihuana 
equivalency of the most closely related controlled substance referenced 
in [Sec.  2D1.1].'' Section 2D1.1 provides a three-step process for 
making this determination. See USSG Sec.  2D1.1, comment. (n.6, 8). 
First, a court determines the most closely related controlled substance 
by considering, to the extent practicable, the factors set forth in 
Application Note 6. Next, the court determines the appropriate quantity 
of marihuana equivalent of the most closely related controlled 
substance, using the Drug Equivalency Tables at Application Note 8(D). 
Finally, the court uses the Drug Quantity Table in Sec.  2D1.1(c) to 
determine the base offense level that corresponds to that amount of 
marihuana.
    Issues for Comment.--
    1. The Commission invites general comment on fentanyl and fentanyl 
analogues, particularly on their chemical structures, 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. 
How are fentanyl and fentanyl analogues manufactured, distributed, 
possessed, and used? What are the characteristics of the offenders 
involved in these various activities? What harms are posed by these 
activities? How do these harms differ from those associated with other 
opioids such as heroin, morphine, hydrocodone, or oxycodone? How, if at 
all, do the harms associated with pharmaceutical fentanyl differ from 
the harms associated with non-pharmaceutical fentanyl? To the extent 
the harms posed by these substances are different, should the 
guidelines provide different penalties for pharmaceutical fentanyl and 
non-pharmaceutical fentanyl?
    2. Fentanyl, when identified as N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propenamide, and analogues of that specific chemical, are 
subject to mandatory minimum penalties under current law, with 
analogues punished four times more harshly than fentanyl itself. Those 
penalties have shaped the guidelines provisions related to fentanyl 
since 1987. The Commission seeks comment on whether there are 
controlled substances that might commonly be regarded as ``fentanyl 
analogues'' that are not analogues of N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propenamide and therefore do not meet the statutory 
definition of an ``analogue.'' If so, should the guidelines provide 
penalties for such controlled substances consistent with the mandatory 
minimum provisions applicable to fentanyl analogues that meet the 
statutory definition? Should the guidelines instead account for such 
substances in a different manner than

[[Page 47324]]

substances to which the mandatory minimum penalty applies?
    3. The Commission invites general comment on whether and, if so 
how, the guidelines should be amended to account for fentanyl and 
fentanyl analogues. How, if at all, should the guideline provisions 
related to fentanyl and the fentanyl analogues specifically listed in 
Sec.  2D1.1 be amended? For example, should the Commission revise the 
marihuana equivalencies already provided for fentanyl, Alpha-
Methylfentanyl, and 3-Methylfentanyl? If so, what equivalency should 
the Commission provide for each substance, and why?
    Should the Commission amend Sec.  2D1.1 to account for other 
unlisted fentanyl analogues? For example, should the Commission 
establish marihuana equivalencies for fentanyl analogues currently not 
listed in Sec.  2D1.1? If so, what specific fentanyl analogues should 
the Commission include in the Drug Equivalency Tables and what 
equivalency should the Commission provide for each such substance? What 
factors should the Commission consider when deciding whether to account 
for these substances?
    4. The Commission has received anecdotal information about the 
availability of several fentanyl analogues. How are these novel 
fentanyl analogues developed, manufactured and trafficked? To what 
extent are these substances legally manufactured for pharmaceutical 
purposes and then diverted for illicit trafficking and use, as opposed 
to having been manufactured illegally? How complex is the procedure to 
develop these substances and how frequently are they introduced into 
the illicit drug market?
    Instead of providing marihuana equivalencies for individual 
fentanyl analogues, should the Commission consider establishing a 
single marihuana equivalency applicable to all fentanyl analogues? Are 
fentanyl analogues sufficiently similar to one another in chemical 
structure, pharmacological effects, potential for addiction and abuse, 
patterns of trafficking and abuse, and associated harms, to support the 
adoption of a broad class-based approach for sentencing purposes? If 
so, what marihuana equivalency should the Commission provide for 
fentanyl analogues as a class and why? What factors should the 
Commission account for if it considers adopting a broad class-based 
approach for fentanyl and its analogues? Should the Commission define 
``fentanyl analogues'' for purposes of this broad class-based approach? 
If so, how? Are there any fentanyl analogues that should not be 
included as part of a broad class-based approach and for which the 
Commission should provide a marihuana equivalency separate from other 
fentanyl analogues? If so, what equivalency should the Commission 
provide for each such fentanyl analogue, and why?
    What are the advantages and disadvantages of a broad class-based 
approach for fentanyl analogues? If the Commission were to provide a 
different approach to account for fentanyl analogues in the guidelines, 
what should that different approach be?

    Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of 
Practice and Procedure 4.4.

William H. Pryor, Jr.,
Acting Chair.
[FR Doc. 2017-21820 Filed 10-10-17; 8:45 am]
 BILLING CODE 2210-40-P