The Biden administration has an opportunity to curb the ongoing opioid epidemic in a unique area: the postal system.
This opportunity is the result of a 2018 federal law that required the U.S. Postal Service and Customs and Border Protection (CBP) to begin turning away international packages that lack advance electronic data (AED) in order to prevent opioids and other illicit goods from entering the country through the mail system. AED is a valuable resource for law enforcement and the postal service as it includes information about the shipper, recipients and contents of an international postal package.
But years of delays, exacerbated by slow compliance in federal agencies, have led to missed deadlines and have allowed deadly substances to enter the country. After Congress provided an extension in December 2020, CBP was required to issue regulations by March 15, 2021, to finalize new rules for refusing international packages that lack AED. The Department of Homeland Security has announced that it will be issuing regulations soon but has not yet published them in the Federal Register.
For the Biden administration, establishing and firmly enforcing new rules for international packages would strengthen homeland security. The new rules could block one of the key pathways that illegal narcotics take into the United States and contain the ongoing overdose epidemic.
Key questions about the potential regulations include whether they will provide the government with flexibility to issue waivers to countries that may struggle to provide AED, and how CBP will respond to such waiver requests. If the Biden administration is generous in extending waivers, it will risk signaling a lax approach to international security—particularly its commitment to countering threats coming from the People’s Republic of China.
Background on the Opioid Epidemic and Vulnerabilities in the Postal System
In May 2020, the Centers for Disease Control and Prevention (CDC) reported that more than 80,000 Americans had died from overdoses over the prior 12 months, the most on record. Synthetic opioids (including fentanyl) were a “primary driver” of the increasing number of Americans succumbing to overdoses. The CDC warned that overdoses were increasing during the first months of the coronavirus pandemic, suggesting that the 2021 overdose death count could be much worse.
The opioid epidemic has tragically turned the U.S. postal system into a transporter and source of fentanyl. According to a 2018 bipartisan congressional investigation by Sens. Rob Portman and Tom Carper, it’s easy for Americans to purchase fentanyl from online sellers and have it shipped into the United States via the U.S. Postal Service. Senate investigators posed as buyers and found a robust online marketplace of suppliers.
“All of the online sellers actively sought to induce a purchase of fentanyl or other illicit opioid. Their sales pitches made it sound easy to purchase fentanyl, and each preferred to ship any purchases to the United States through the international arm of the Postal Service,” wrote the
Senate Permanent Subcommittee on Investigations. The subcommittee’s report even noted that their investigators “negotiated” with the sellers and that “ the online sellers proactively followed up, sometimes offering deeper discounts to entice a sale.”
Where are these fentanyl and other opioid sellers located? The Drug Enforcement Administration (DEA) reports that China remains “the main source for all fentanyl-related substances trafficked into the United States,” including through the international mail. The People’s Republic of China banned the production and sale of fentanyl in 2019, but suppliers continue to find ways to work around the restriction to continue the drug trade. A recent National Public Radio exposé found that more than a hundred suppliers continue to sell fentanyl and related chemicals from Chinese facilities to customers around the world.
The 2018 STOP Act
The alarming findings of the Senate investigation prompted bipartisan legislation to close the security vulnerabilities in international mail. Portman, along with Sens. Amy Klobuchar, Marco Rubio and Maggie Hassan, introduced the Synthetics Trafficking & Overdose Prevention (STOP) Act, which became law when President Trump signed a package of reform measures to curb the opioid crisis in October 2018.
The STOP Act required the U.S. Postal Service and Customs and Border Protection to require advance electronic data on international packages and shipments from foreign countries. The data would explain “who and where it is coming from, who it’s going to, where it’s going and what’s in it,” explained the sponsoring lawmakers.
Private carriers, such as FedEx and UPS, have been required to collect and report AED since post-9/11 reforms. But the Postal Service, which handles much higher volumes of international shipping, has been exempt. Collecting the data would allow CBP officers and inspectors to analyze shipments, identify trends, and block illicit shipments of fentanyl and other dangerous substances. For example, a CBP officer or analyst at the National Targeting Center could analyze AED and spot a package originating from a certain supplier in China en route to a domestic customer. CBP could apply greater scrutiny to the package when it arrives in the United States and, in many cases, prevent the shipment from reaching its destination.
The Trump Administration’s Successful Renegotiation of International Postal Rules
One might imagine that the United States could unilaterally require such data on shipments to block fentanyl and other dangerous goods from entering the country. But the rules for regulating international shipping are actually governed by the Universal Postal Union, which was established by an 1874 treaty intended to align international postal systems and regulations. The STOP Act required the secretary of state to negotiate international postal agreements to ensure compliance with this requirement.
In 2018, the Trump administration threatened to withdraw from the Universal Postal Union, citing unfair postal rates, which allowed China and other countries to pay a smaller fee than domestic customers to ship a package through the U.S. postal system, putting American companies at a disadvantage. That is, it cost less for a company to mail a package from Beijing to any U.S. location than from Seattle to a customer in Ohio. President Trump’s trade adviser, Peter Navvaro, led the administration’s hard-line approach to Universal Postal Union reforms and successfully negotiated reforms to the international postal agreement that leveled the playing field.
The Universal Postal Union reforms also included new requirements for foreign posts to provide AED. Specifically, changes in 2019 required foreign posts to provide AED on packages containing goods and clarified that packages lacking this information can be denied entry into a postal system.
State Department official Eric Green explained the consequences of the Universal Postal Union changes at a December 2020 Senate Homeland Security and Governmental Affairs Committee (HSGAC) hearing. As Green noted, the new rules allowed postal systems around the world to require packages to arrive with AED, to seek funding to develop capabilities to manage and screen AED, and to block inadmissible packages.
Missed Deadlines and Extensions
Despite the Trump administration successfully negotiating a multilateral agreement involving 190 members, federal agencies have missed deadlines and failed to fully enforce the 2018 law or leverage the new international postal agreement. According to a 2019 bipartisan letter from Portman and Carper, the Postal Service had not complied with the law’s requirement to obtain AED from all packages originating from China and 70 percent of other packages by Dec. 31, 2018. Available data show that many international packages destined for the United States continue to lack the required information.
According to the Postal Service, 67 percent of inbound packages had AED as of December 2019. But that figure dropped to 54 percent as of October 2020.
CBP was required to issue regulations for how packages lacking AED would be treated by October 2019. But they weren’t submitted to the Office of Management and Budget (OMB) until May 2020 and are still pending.
At the December HSGAC hearing, CBP official Thomas F. Overacker pointed to internal administrative reviews as a reason why the deadline to issue regulations was missed. He explained that the regulation took 13 months to complete. That led to an interagency review before the regulations were submitted to OMB in August. The review was ongoing at the time of the hearing.
As a result of CBP’s missed deadline to issue regulations, the Postal Service and CBP missed a Jan. 1 deadline for all packages to have AED before entering into the United States. Congress granted an extension until March 15.
The Biden Administration’s Opportunity
The Biden administration is now responsible for complying with the STOP Act and securing the postal system from fentanyl and other illicit substances. Secretary of Homeland Security Alejandro Mayorkas committed to issuing the overdue regulations during his recent confirmation hearing. “One of my priorities will be to be sure that we promulgate those regulations because I very well understand the urgency of the threat that you identified,” Mayorkas committed, when asked by Portman.
The Department of Homeland Security has now announced that an interim final rule, titled “Mandatory Advance Electronic Information for International Mail Shipments,” will be published in the Federal Register soon. The department described the new regulations as establishing “a mandatory AED program for certain inbound mail shipments."
The regulations may establish minimum data requirements, penalties and rules for packages that arrive without AED. It remains to be seen if the new regulations will address the issue of waivers for countries that are unable to comply with the new mandatory AED requirement.
In his December testimony, CBP’s Overacker stated that the agency’s goal was for waivers to be “temporary, … granted based on volume, capacity, and risk factors.” But a recent Postal Service inspector general report explained that 135 countries could not provide AED to the Postal Service as of spring 2020.
Paul Steidler, a senior fellow at the Lexington Institute, a public policy think tank, urged the Biden administration to limit its use of waivers and strengthen other countries’ ability to comply with the new rules. “Waivers should be few and far between and only for the world’s poorest and most isolated countries,” Steidler told me. “And, we should help poorer countries’ postal systems set up AED, providing grants and other technical assistance if necessary. It is a small price to pay for keeping drugs and dangerous counterfeit products out of America.”
Limiting waivers and improving the capacity of foreign posts to provide AED is critical for securing the mail. Fentanyl suppliers and others shipping illicit goods from China or other countries may use indirect shipping through countries that are awarded waivers to bypass AED requirements and CBP screeners.
The Biden administration’s response to waiver requests and its broader approach to securing international mail will provide insight into its approach to homeland security. Critics of the 100 percent AED requirement will argue that the firm application of the rules will hinder trade and increase costs for American consumers. However, denying waivers and strictly enforcing the requirement is needed to prevent the ongoing import of deadly fentanyl into the United States.
Americans have become tragically accustomed to daily death counts numbering in the thousands during the coronavirus pandemic. But the U.S. cannot ignore the hundreds of Americans who are dying each day from fentanyl and other overdoses. Closing vulnerabilities in the postal system is a necessary first step to address this epidemic.