82 FR 47322 - Sentencing Guidelines for United States Courts

UNITED STATES SENTENCING COMMISSION

Federal Register Volume 82, Issue 195 (October 11, 2017)

Page Range		47322-47324
FR Document		2017-21820
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.
Federal Register, Volume 82 Issue 195 (Wednesday, October 11, 2017)
[Federal Register Volume 82, Number 195 (Wednesday, October 11, 2017)]
[Notices]
[Pages 47322-47324]
From the Federal Register Online  [www.thefederalregister.org]
[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 [email protected]. 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, [email protected].

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
47322 Federal Register / Vol. 82, No. 195 / Wednesday, October 11, 2017 / Notices

required by Section 403 of the Tax UNITED STATES SENTENCING In August 2016, the Commission
Relief and Health Care Act of 2006 COMMISSION indicated that one of its priorities would
which imposes an excise tax on certain be the ‘‘[s]tudy of offenses involving
transfers of qualifying mineral or Sentencing Guidelines for United MDMA/Ecstasy, synthetic cannabinoids
geothermal interests. States Courts (such as JWH–018 and AM–2201), and
Current Actions: There is no change synthetic cathinones (such as
AGENCY: United States Sentencing
Methylone, MDPV, and Mephedrone),
in the paperwork burden previously Commission
and consideration of any amendments
approved by OMB. ACTION: Request for public comment. to the Guidelines Manual that may be
Type of Review: Extension of a appropriate in light of the information
currently approved collection. SUMMARY: In August 2017, the
Commission indicated that one of its obtained from such study.’’ See U.S.
Affected Public: Businesses or other policy priorities would be the Sentencing Comm’n, ‘‘Notice of Final
for-profit organizations. ‘‘[c]ontinuation of its multiyear study of Priorities,’’ 81 FR 58004 (Aug. 24, 2016).
offenses involving synthetic cathinones On August 17, 2017, the Commission
Estimated Number of Respondents:
(such as methylone, MDPV, and revised the priority to study offenses
20.
mephedrone) and synthetic involving synthetic cathinones (such as
Estimated Time Per Respondent: 5 methylone, MDPV, and mephedrone)
hours, 33 minutes. cannabinoids (such as JWH–018 and
AM–2201), as well as and synthetic cannabinoids (such as
Estimated Total Annual Burden tetrahydrocannabinol (THC), fentanyl, JWH–018 and AM–2201), as well as
Hours: 111. and fentanyl analogues, and tetrahydrocannabinol (THC), fentanyl,
consideration of appropriate guideline and fentanyl analogues. See U.S.
The following paragraph applies to all
amendments, including simplifying the Sentencing Comm’n, ‘‘Notice of Final
of the collections of information covered
determination of the most closely Priorities,’’ 82 FR 39949 (Aug. 22, 2017).
by this notice:
related substance under Application The Commission also stated that, as part
An agency may not conduct or of the study, it would consider possible
Note 6 of the Commentary to § 2D1.1.’’
sponsor, and a person is not required to approaches to simplify the
See 82 FR 39949 (Aug. 22, 2017). As
respond to, a collection of information determination of the most closely
part of its continuing work on this
unless the collection of information related substance under Application
priority, the Commission is publishing
displays a valid OMB control number. Note 6 of the Commentary to § 2D1.1
this request for public comment on
Books or records relating to a collection issues related to fentanyl and fentanyl (Unlawful Manufacturing, Importing,
of information must be retained as long analogues. The issues for comment are Exporting, or Trafficking (Including
as their contents may become material set forth in the SUPPLEMENTARY Possession with Intent to Commit These
in the administration of any internal INFORMATION portion of this notice.
Offenses); Attempt or Conspiracy). The
revenue law. Generally, tax returns and Commission expects to solicit comment
DATES: Public comment regarding the
tax return information are confidential, several times during the study period
issues for comment set forth in this from experts and other members of the
as required by 26 U.S.C. 6103.
notice should be received by the public.
Request for Comments: Comments Commission not later than November
submitted in response to this notice will On December 19, 2016, the
13, 2017.
be summarized and/or included in the Commission published a notice inviting
ADDRESSES: All written comment should general comment on synthetic
request for OMB approval. All be sent to the Commission by electronic
comments will become a matter of cathinones (MDPV, methylone, and
mail or regular mail. The email address mephedrone) and synthetic
public record. for public comment is Public_ cannabinoids (JWH–018 and AM–2201),
Comments are invited on: (a) Whether Comment@ussc.gov. The regular mail as well as about the application of the
the collection of information is address for public comment is United factors the Commission traditionally
necessary for the proper performance of States Sentencing Commission, One considers when determining the
the functions of the agency, including Columbus Circle, NE., Suite 2–500, marihuana equivalencies for specific
whether the information shall have Washington, DC 20002–8002, Attention: controlled substances to the substances
practical utility; (b) the accuracy of the Public Affairs. under study. See U.S. Sentencing
agency’s estimate of the burden of the FOR FURTHER INFORMATION CONTACT: Comm’n, ‘‘Request for Public
collection of information; (c) ways to Christine Leonard, Director, Office of Comment,’’ 81 FR 92021 (Dec. 19, 2016).
enhance the quality, utility, and clarity Legislative and Public Affairs, (202) On April 18, 2017, the Commission
of the information to be collected; (d) 502–4500, pubaffairs@ussc.gov. held a public hearing related to this
ways to minimize the burden of the SUPPLEMENTARY INFORMATION: The priority. The Commission received
collection of information on United States Sentencing Commission is testimony from experts on the synthetic
respondents, including through the use an independent agency in the judicial drugs related to the study, including
of automated collection techniques or branch of the United States testimony about their chemical
other forms of information technology; Government. The Commission structure, pharmacological effects,
and (e) estimates of capital or start-up promulgates sentencing guidelines and trafficking patterns, and community
costs and costs of operation, impact.
asabaliauskas on DSKBBXCHB2PROD with NOTICES

policy statements for federal courts
maintenance, and purchase of services pursuant to 28 U.S.C. 994(a). The On June 21, 2017, the Commission
to provide information. Commission also periodically reviews published a second notice requesting
Approved: October 4, 2017. and revises previously promulgated public comment on issues specifically
guidelines pursuant to 28 U.S.C. 994(o) related to MDMA/ecstasy and
L. Brimmer,
and submits guideline amendments to methylone, one of the synthetic
Senior Tax Analyst. the Congress not later than the first day cathinones included in the
[FR Doc. 2017–21922 Filed 10–10–17; 8:45 am] of May each year pursuant to 28 U.S.C. Commission’s study. See U.S.
BILLING CODE 4830–01–P 994(p). Sentencing Comm’n, ‘‘Request for

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Public Comment,’’ 82 FR 28382 (June substances associated with recent this determination. See USSG § 2D1.1,
21, 2017). increases in drug overdose deaths. comment. (n.6, 8). First, a court
On August 25, 2017, the Commission These substances are sold in the illicit determines the most closely related
published a third notice requesting drug market as powder, pills, absorbed controlled substance by considering, to
public comment on issues related to (1) on blotter paper, mixed with or the extent practicable, the factors set
synthetic cathinones and (2) substituted for heroin, or as tablets that forth in Application Note 6. Next, the
tetrahydrocannabinol (THC) and may mimic the appearance of other court determines the appropriate
synthetic cannabinoids. See U.S. opioids. quantity of marihuana equivalent of the
Sentencing Comm’n, ‘‘Request for The Controlled Substances Act (21 most closely related controlled
Public Comment,’’ 82 FR 40648 (Aug. U.S.C. 801 et seq.) classifies fentanyl as substance, using the Drug Equivalency
25, 2017). a Schedule II controlled substance, Tables at Application Note 8(D). Finally,
As part of its continuing work on this along with heroin and other opiates. the court uses the Drug Quantity Table
priority, the Commission is publishing While there is no other specific in § 2D1.1(c) to determine the base
this fourth request for public comment reference to the term ‘‘fentanyl’’ in Title offense level that corresponds to that
focusing on issues related to fentanyl 21, United States Code, a subsequent amount of marihuana.
and fentanyl analogues. In addition to section establishes a mandatory Issues for Comment.—
the substance-specific topics discussed minimum penalty for a substance 1. The Commission invites general
below, the Commission anticipates that identified as ‘‘N-phenyl-N-[1-(2- comment on fentanyl and fentanyl
its work will continue to be guided by phenylethyl)-4-piperidinyl] analogues, particularly on their
the factors the Commission traditionally propenamide.’’ 21 U.S.C. chemical structures, their
considers when determining the 841(b)(1)(A)(vi). A Department of Justice pharmacological effects, potential for
marihuana equivalencies for specific regulation explains that N-phenyl-N-[1- addiction and abuse, the patterns of
controlled substances, including their (2-phenylethyl)-4-piperidinyl] abuse and harms associated with their
chemical structure, pharmacological propenamide is the substance abuse, and the patterns of trafficking
effects, legislative and scheduling ‘‘commonly known as fentanyl.’’ 28 CFR and harms associated with their
history, potential for addiction and 50.21(d)(4)(vii). The Controlled trafficking. How are fentanyl and
abuse, the patterns of abuse and harms Substances Act prescribes a mandatory fentanyl analogues manufactured,
associated with their abuse, and the minimum penalty of five years for distributed, possessed, and used? What
patterns of trafficking and harms trafficking 40 or more grams of the are the characteristics of the offenders
associated with their trafficking. substance, or ten or more grams of an involved in these various activities?
The Commission will also consider analogue of the substance. 21 U.S.C. What harms are posed by these
possible approaches to simplify the 841(b)(1)(A)(vi); (b)(1)(B)(vi). activities? How do these harms differ
determination of the most closely The Drug Quantity Table in § 2D1.1 from those associated with other opioids
related substance under Application contains entries for both ‘‘fentanyl’’ and such as heroin, morphine, hydrocodone,
Note 6 of the Commentary to § 2D1.1. ‘‘fentanyl analogue,’’ at ratios equivalent or oxycodone? How, if at all, do the
The Commission has received comment to those established by statute. The Drug harms associated with pharmaceutical
from the public suggesting that Equivalency Tables in the Commentary fentanyl differ from the harms
questions regarding ‘‘the most closely to § 2D1.1 clearly identify fentanyl with associated with non-pharmaceutical
related controlled substance’’ arise the specific substance associated with fentanyl? To the extent the harms posed
frequently in cases involving the the statutory minimum penalty by by these substances are different, should
substances included in the study, and providing a marihuana equivalency for the guidelines provide different
that the Application Note 6 process 1 gm of ‘‘Fentanyl (N-phenyl-N-[1-(2- penalties for pharmaceutical fentanyl
requires courts to hold extensive phenylethyl)-4-piperidinyl] and non-pharmaceutical fentanyl?
hearings to receive expert testimony on Propenamide)’’ equal to 2.5 kg of 2. Fentanyl, when identified as N-
behalf of the government and the marihuana (i.e., a 1:2,500 ratio). The phenyl-N-[1-(2-phenylethyl)-4-
defendant. Drug Equivalency Tables also sets forth piperidinyl] propenamide, and
Fentanyl and Fentanyl Analogues.— the marihuana equivalencies for two analogues of that specific chemical, are
According to the National Institute on other substances, Alpha-Methylfentanyl subject to mandatory minimum
Drug Abuse, fentanyl is a powerful and 3-Methylfentanyl. Both substances penalties under current law, with
synthetic opioid analgesic that is similar have the same marihuana equivalency analogues punished four times more
to morphine but 50 to 100 times more ratio, 1:10,000, as fentanyl analogue. harshly than fentanyl itself. Those
potent. See National Institute on Drug Alpha-Methylfentanyl and 3- penalties have shaped the guidelines
Abuse, DrugFacts: Fentanyl (June 2016), Methylfentanyl are pharmaceutical provisions related to fentanyl since
available at https://www.drugabuse.gov/ analogues of fentanyl that were 1987. The Commission seeks comment
publications/drugfacts/fentanyl. developed in the 1960s or 1970s. See, on whether there are controlled
Fentanyl is a prescription drug that can e.g., T.J. Gillespie et al., Identification substances that might commonly be
be diverted for illicit use. Non- and Quantification of Alpha- regarded as ‘‘fentanyl analogues’’ that
pharmaceutical fentanyl and analogues Methylfentanyl in Post Mortem are not analogues of N-phenyl-N-[1-(2-
of fentanyl are also produced in Specimens, 6(3) J. of Analytical phenylethyl)-4-piperidinyl]
clandestine laboratories for illicit use. Toxicology 139 (May–June 1982). propenamide and therefore do not meet
asabaliauskas on DSKBBXCHB2PROD with NOTICES

See, e.g., U.N. Office on Drugs & Crime, In cases involving a fentanyl analogue the statutory definition of an
Fentanyl and Its Analogues—50 Years other than the two listed above, courts ‘‘analogue.’’ If so, should the guidelines
On, Global Smart Update 17 (March are required by Application Note 6 of provide penalties for such controlled
2017), available at https:// the Commentary to § 2D1.1 to substances consistent with the
www.unodc.org/documents/scientific/ ‘‘determine the base offense level using mandatory minimum provisions
Global_SMART_Update_17_web.pdf. the marihuana equivalency of the most applicable to fentanyl analogues that
The clandestinely manufactured closely related controlled substance meet the statutory definition? Should
fentanyl and fentanyl analogues have referenced in [§ 2D1.1].’’ Section 2D1.1 the guidelines instead account for such
frequently been identified as the provides a three-step process for making substances in a different manner than

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substances to which the mandatory approach? If so, how? Are there any FOR FURTHER INFORMATION CONTACT:
minimum penalty applies? fentanyl analogues that should not be Cynthia Harvey-Pryor, VA Clearance
3. The Commission invites general included as part of a broad class-based Officer—Office of Quality Privacy and
comment on whether and, if so how, the approach and for which the Risk, Department of Veterans Affairs,
guidelines should be amended to Commission should provide a 810 Vermont Avenue NW., Washington,
account for fentanyl and fentanyl marihuana equivalency separate from DC 20420, (202) 461–5870 or email
analogues. How, if at all, should the other fentanyl analogues? If so, what Cynthia.harvey.pryor@va.gov. Please
guideline provisions related to fentanyl equivalency should the Commission refer to ‘‘OMB Control No. 2900–0209’’
and the fentanyl analogues specifically provide for each such fentanyl analogue, in any correspondence.
listed in § 2D1.1 be amended? For and why?
example, should the Commission revise What are the advantages and SUPPLEMENTARY INFORMATION:
the marihuana equivalencies already disadvantages of a broad class-based Authority: Section 3485 of title 38,
provided for fentanyl, Alpha- approach for fentanyl analogues? If the United States Code, and section 21.4145
Methylfentanyl, and 3-Methylfentanyl? Commission were to provide a different of title 38, Code of Federal Regulations
If so, what equivalency should the approach to account for fentanyl
necessitate these collections of
Commission provide for each substance, analogues in the guidelines, what
and why? should that different approach be? information.
Should the Commission amend Authority: 28 U.S.C. 994(a), (o), (p), (x);
Title: Application for Work Study
§ 2D1.1 to account for other unlisted USSC Rules of Practice and Procedure 4.4. Allowance; Student Work-Study
fentanyl analogues? For example, Agreement (Advance Payment);
should the Commission establish William H. Pryor, Jr., Extended Student Work-Study
marihuana equivalencies for fentanyl Acting Chair. Agreement; Student Work-Study
analogues currently not listed in [FR Doc. 2017–21820 Filed 10–10–17; 8:45 am] Agreement (VA Forms 22–8691, 22–
§ 2D1.1? If so, what specific fentanyl BILLING CODE 2210–40–P 8692, 22–8692a, and 22–8692b).
analogues should the Commission
include in the Drug Equivalency Tables OMB Control Number: 2900–0209.
and what equivalency should the DEPARTMENT OF VETERANS Type of Review: Renewal of a
Commission provide for each such AFFAIRS currently approved collection.
substance? What factors should the Abstract: VA uses the VA Forms 22–
Commission consider when deciding [OMB Control No. 2900–0209]
8691, 22–8692, 22–8692a, and 22–8692b
whether to account for these Agency Information Collection collecting information to determine the
substances? Activity: Application for Work Study individual’s eligibility for the work-
4. The Commission has received
Allowance; Student Work-Study study allowance, the number of hours
anecdotal information about the
Agreement (Advance Payment); the individual will work, the amount
availability of several fentanyl
Extended Student Work-Study payable, whether the individual desires
analogues. How are these novel fentanyl
Agreement; Student Work-Study an advance payment, and whether the
analogues developed, manufactured and
Agreement individual wants to extend the work-
trafficked? To what extent are these
substances legally manufactured for AGENCY: Veterans Benefits study contract. An agency may not
pharmaceutical purposes and then Administration, Department of Veterans conduct or sponsor, and a person is not
diverted for illicit trafficking and use, as Affairs. required to respond to a collection of
opposed to having been manufactured ACTION: Notice. information unless it displays a
illegally? How complex is the procedure currently valid OMB control number.
to develop these substances and how SUMMARY: In compliance with the The Federal Register Notice with a 60-
frequently are they introduced into the Paperwork Reduction Act (PRA) of 1995 day comment period soliciting
illicit drug market? this notice announces that the Veterans comments on this collection of
Instead of providing marihuana Benefits Administration (VBA),
information was published at 82 FR
equivalencies for individual fentanyl Department of Veterans Affairs, will
35876 on August 1, 2017.
analogues, should the Commission submit the collection of information
consider establishing a single abstracted below to the Office of Affected Public: Individuals and
marihuana equivalency applicable to all Management and Budget (OMB) for households.
fentanyl analogues? Are fentanyl review and comment. The PRA Estimated Annual Burden: 17,865
analogues sufficiently similar to one submission describes the nature of the hours.
another in chemical structure, information collection and its expected
cost and burden; it includes the actual Estimated Average Burden per
pharmacological effects, potential for
data collection instrument. Respondent = 23 minutes.
addiction and abuse, patterns of
trafficking and abuse, and associated DATES: Comments must be submitted on Frequency of Response: Once
harms, to support the adoption of a or before November 13, 2017. Annually.
broad class-based approach for ADDRESSES: Submit written comments Estimated Number of Respondents:
sentencing purposes? If so, what on the collection of information through 113,851.
asabaliauskas on DSKBBXCHB2PROD with NOTICES

marihuana equivalency should the www.Regulations.gov, or to Office of
By direction of the Secretary.
Commission provide for fentanyl Information and Regulatory Affairs,
analogues as a class and why? What Office of Management and Budget, Attn: Cynthia Harvey-Pryor,
factors should the Commission account VA Desk Officer; 725 17th St. NW., VA Clearance Officer, Office of Quality
for if it considers adopting a broad class- Washington, DC 20503 or sent through Privacy and Risk, Department of Veterans
based approach for fentanyl and its electronic mail to oira_submission@ Affairs.
analogues? Should the Commission omb.eop.gov. Please refer to ‘‘OMB [FR Doc. 2017–21823 Filed 10–10–17; 8:45 am]
define ‘‘fentanyl analogues’’ for Control No. 2900–0209’’ in any BILLING CODE 8320–01–P
purposes of this broad class-based correspondence.

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Document Created: 2018-10-25 09:58:40
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Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Request for public comment.
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.
Contact		Christine Leonard, Director, Office of Legislative and Public Affairs, (202) 502-4500, [email protected]
FR Citation		82 FR 47322