Department of Justice
Proposals for Addressing Issues Created by the COVID-19 Pandemic

1. Antitrust Enforcement: Toll deadlines in antitrust merger review and criminal
enforcement programs for short periods of time necessitated by the COVID-19 pandemic.
Legislative proposals, including language and explanation, are attached at Tab A.

2. CriminalandCivil Enforcement:Three legislativeproposalsto addressthe statute of
limitationsand Speedy Trial Act issues. First,a new statutory provisionto Title 28 to
allow the chief judge, upon applicationof the AG, to delay or toll judicial proceedings,
includingstatutes of limitationsand Speedy Trial Act deadlines,when the court is closed
or partially closed because of a naturaldisaster,civil disobedience,or other emergency
situation. Second,a new statutory provisionto Title 18, to allow the Chief Justice to
suspect statute of limitationswhen the country is in a state of emergency.Third, an
additionsubsectionto the Speedy Trial Act allowingfor exclusionof time for any delay
attributedto a national emergency resultingin suspensionof statutes of limitationsunder
the prior proposal or delay under the first proposal. The full legislative proposals,
includinglanguageand explanation,are attached at Tab B.
3. ATF Testing: designate priority testing for federal agents and trainees at
FLETC/Quantico. This would be similar to the response in Washington State where they
set up provisions to directly contract with private labs to test first-responders. Ideally, the
proposal may benefit from additional funding as well. Legislative proposals, including
language and explanations, are attached at Tab C.

4. USMSAuthorities: There are two proposalsfor additionalUSMS authorities. The first
is a waiver of the annual cap for all personnelwho may be involvedin emergency
operationsthis year. With intense emergency operations and a possible degradationof
the workforce due to illness. It is probable that many USMSemployeesmay reach the
annual pay caps this year. The second is an Administrationsupporteddanger pay
proposal for USMSpersonneloperating overseas. This legislationwill give us the same
authority that FBI and DEAalready have to designate personnelfor danger pay who
operate overseas. The urgency of this proposalhas intensifiedwith COVID,as USMS
personnelare now subject to additional riskswhen executingcertain foreign extraditions.
Legislative proposals,includinglanguageand explanations,are attached at Tab D.
5. Federal Criminal and Civil Enforcement for US Attorneys: This proposal would
allow video teleconferencing for preliminary hearings (initial appearances, preliminary
hearings, arraignments, and detention hearings). Legislative proposal, including
language and explanation, is attached at Tab E.

 6. Executive Office for Immigration Review (EOIR): EOIR has several proposals that
address the impact of COVID-19 on their operations. These legislative proposals,
including language and explanations, are attached at Tab F.

7. DEA Authorities: There are two legislative changes that would be helpful to DEA to
access to the data that would assist in determining critical drug supplies and supporting
our role in public health and safety. The legislative proposals, including language and
explanation, are attached at Tab G.

 Tab A: Antitrust Tolling Proposals

This proposal would include legislation to toll deadlines in the Antitrust Division’s merger review
and criminal enforcement programs for short periods of time necessitated by the COVID-19
pandemic. One proposal would allow designated officials to extend waiting periods in the civil
premerger review program. The other would provide for tolling of the statute of limitations on
criminal antitrust enforcement matters during the pandemic emergency period. Both legislative
actions are necessary to enable the Division to balance pandemic-response needs with pre-existing
statutory deadlines that do not account for today’s exigent circumstances.
1. Hart-Scott-Rodino Act Amendment Proposal
The pandemic may render the Division unable to timely process premerger notifications within the
statutory 15-day and 30-day deadlines, and legislation is necessary to enable it to extend those
deadlines. The proposed amendment would authorize the Assistant Attorney General for Antitrust
(the “Assistant Attorney General”) and the Federal Trade Commission (the “FTC”), represented
by the Chairman of the FTC (the “Chairman”), when acting jointly, to toll all premerger waiting
periods for a fixed period in response to a natural disaster, pandemic, lapse in appropriations, or
other force majeure. The proposal and its rationale are discussed in further detail below.
The Hart-Scott-Rodino Act (“HSR Act”) (15 USC § 18a) was enacted in 1976 and reformed in
2000. For transactions that meet overall size thresholds and certain other requirements, the HSR
Act and its implementing regulations create a premerger notification program. Under this program,
parties to the transaction are required to file a notification and report form (the “HSR Notification”)
with the Division and the FTC (collectively, the “Agencies”), and then wait 15 or 30 days while
the Agencies assess the transaction and decide whether to request more information.
Prior to the HSR Act, parties could, and often did, consummate transactions that raised significant
antitrust concerns before the Agencies had an opportunity to consider the competitive effects of
those transactions. This created significant consumer harm and made remedying unlawful
transactions difficult. By requiring merger reporting before consummation, the HSR Act therefore
supports Agencies’ ability to obtain timely, effective relief to prevent anticompetitive effects.
In fiscal year 2018, 2,111 transactions were reported under the HSR Act. Each of the HSR
Notifications associated with these 2,111 transactions was reviewed by the Agencies’ staff.
Following this review, where necessary, the Agencies opened investigations to further ascertain
whether a subset of transactions were likely harm consumers. This review and investigation
requires considerable time and manpower for the Agencies and for private parties, requiring that
they have staffing on-hand and capable of accessing, exchanging, and assessing large quantities of
information about significant merger transactions.
At the same time, the HSR Act has waiting periods in order to minimize the impediment to and
burden on private transactions. Once the applicable waiting period lapses, unless the Agencies take
further action the parties are legally permitted to consummate their transaction.
As written, the HSR Act does not provide a means by which the Agencies can extend the statutory
waiting periods in response to a natural disaster, pandemic, lapse in appropriations, or other force
majeure.

Page1 of 4

 Tab A: Antitrust Tolling Proposals

As detailed above, the Agencies need adequate time and resources to be able to fulfill the
congressional intent and purpose behind the HSR Act, namely the pre-consummation review and
assessment of transactions with the potential to harm American consumers. In exigent
circumstances such as a natural disaster, pandemic, lapse in appropriations, or other force majeure,
the ability of the Agencies to conduct such review and assessment can be materially inhibited.
This inhibition stems from the greatly reduced capability of the Agencies’ staff to both obtain the
information needed as well as to consult internally to form an informed opinion on the potential
competitive harm (or lack thereof) of a given transaction. Circumstances may further inhibit the
Agencies’ reviews if access to or communication with third parties is limited. At the same time,
the Agencies do not currently have the ability to toll the HSR waiting period for these purposes.
This proposed legislation would confer upon the Assistant Attorney General and the Chairman the
ability to act jointly to toll the HSR waiting period in the event of a natural disaster, pandemic,
lapse in appropriations, or other force majeure. This measure would preserve the effectiveness of
the premerger review program and thus support the Department’s efforts to protect competition in
the U.S. economy.
The proposed measure is consistent to similar recent amendments to the Foreign Investment Risk
Review Modernization Act of 2018 (“FIRRMA”). Applying to a similar transaction-specific
review regime that pertains to national security conducted by the Committee on Foreign
Investment in the United States (“CFIUS”), FIRRMA added a provision that tolled all deadlines
and time limitations in CFIUS reviews during lapses in government appropriations. The proposed
legislation supported by the Division differs from the FIRRMA approach in that it authorizes
tolling only for a fixed period. This fixed period provides a greater level of certainty to parties as
to when the HSR waiting period would resume, thus preserving, to the extent possible, parties’
economic freedom.
Proposed Legislative Language

Section 1. Purpose

It is the purpose of this Act to limit the disruption that pandemic response and other emergency
measures have on the premerger notification regime of the antitrust laws.
Section 2. Premerger Notification

Section 605 of Public Law 101–162 (15 U.S.C. 18a) is amended—

(1) in subsection (b)(1)(B) by inserting “, (e)(3)” after “(e)(2)” and before “or (g)(2)” and

(2) in subsection (e) by adding at the end the following:

“(3) The Assistant Attorney General and the Chairman of the Federal Trade Commission, upon a
good faith belief that the offices of the Department of Justice or the Federal Trade Commission
may be significantly inhibited from receiving or reviewing notifications required under subsection

Page2 of 4

 Tab A: Antitrust Tolling Proposals

(a)due to a natural disaster, pandemic,lapse in appropriations,or other force majeure,may jointly
issue a tolling order. A tolling order shall be publicizedthrough public announcementand, to the
extent possible, notice to affected parties. A tolling order shall toll the waiting period required
under subsection (b)(1) by fifteen days. A tolling order shall apply to all transactions for which a
notificationhas been received and the waiting period has not expired and for any transactions for
which a notification is received while the order, or such renewals, are in effect. A tolling order
shall apply to all notificationsrequired under subsection (a), although terminationsof the waiting
periodpursuant to subsection (b)(2)shall continue to be permitted. A tollingorder may be revoked
early, or renewed as many times as necessary,by joint statement of the Assistant Attorney General
and the Chairman of the Federal Trade Commission.”

2. Tolling the Statute of Limitations for Criminal Antitrust Violations
COVID-19 and measures taken to prevent its transmission risk disrupting effective criminal law
enforcement by, among other things, hindering investigations,making witnesses unavailable,and
delayingor suspending the operationof grand juries. These disruptions may not just delay ongoing
investigations, but also effectively curtail these investigations and preclude the prosecution of
criminal antitrust offenses due to the running of the statute of limitations.
The Antitrust Division is committed to antitrust enforcement against cartels and collusion. These
are some of the most egregious antitrust violations—price fixing, bid rigging, and customer and
territorial allocation. Criminal prosecutions for Sherman Act offenses are subject to the generally
applicable statute of limitations, 18 U.S.C. § 3282, which provides for a five-year statute of
limitations.Some offenses have their own statute of limitations expressly provided by law. In the
experience of Antitrust Divisionprosecutorswho have prosecutedboth antitrust crimes and crimes
involving financial institutions, antitrust conspiracies are equally as complex as many of the
offenses subject to the ten-year statute of limitations provided by 18 U.S.C. § 3293. Criminal
antitrust conspiracies by definition always involve more than one company. These companies are
often multinational companies with employees and evidence located around the globe. Antitrust
conspiracies often last for long periods of time and can be very secretive and hard to detect,
particularly without insider evidence. Antitrust cases are also very document intensive, like other
white-collar crimes enumerated in 18 U.S.C. § 3293.
Legislative action is necessary to prevent disruptions related to the coronavirus from irreparably
impairing the investigation and prosecution of criminal offenses by suspending the statute of
limitationsfor offenses untilthat risk has passedand the usual operation of courts, the government,
and businesseshas returned.
Proposed Legislative Language

Section 1. Findings. On March 13, 2020, the President of the United States, acting under 50
U.S.C. § 1621, declared a national emergency (hereafter “the national emergency”) in connection
with the novel coronavirus, “SARS-CoV-2,” which causes the disease COVID-19.

Page3 of 4

 Tab A: Antitrust Tolling Proposals

Section 2. Purpose. SARS-CoV-2 and measures taken to prevent its transmission risk disrupting
effective criminal antitrust law enforcement by, among other things, hindering investigations,
making witnesses unavailable, and delaying or suspending the operation of grand juries. It is the
purpose of this act to prevent these disruptions from irreparably impairing the investigation and
prosecution of criminal antitrust offenses by suspending the statute of limitations for offenses until
that risk has passed.
Section 3. The running of the statute of limitations applicable to any offense arising under sections
1, 2, and 3, of Title 15 shall be suspended from the date of enactment until the later of 180 days
from the date of enactment, or 60 days after the termination of the national emergency pursuant to
50 U.S.C. § 1622.

Page4 of 4

 Tab B – Criminal and Civil Provisions - Updated

SEC. 1. EMERGENCY AUTHORITY TO DELAY OR TOLL JUDICIAL
PROCEEDINGS.
(a) IN GENERAL -- Chapter 111 of title 28, United States Code, is amended by
adding at the end the following:

§ 1660. Emergency Authority to Delay, or Toll Judicial Proceedings.

“(a) IN GENERAL -- Upon application of the Attorney General or the Attorney
General’s designee or on his own motion, the chief judge of any trial court of the United
States that has been affected (or, if the chief judge is unavailable, the most senior
available active judge of that court or the chief judge or circuit Justice of the court of
appeals that includes that court) may, in the event of a natural disaster, civil disobedience,
or other emergency situation requiring the full or partial closure of courts or other
circumstances inhibiting the ability of litigants to comply with deadlines imposed by
statutes or by the rules of procedure applicable in the courts of the United States, enter
such order or orders as may be appropriate to delay, toll, or otherwise grant relief from
time deadlines imposed by otherwise applicable statutes and rules of procedure for such
period and in such judicial district as may be appropriate, including, without limitation:
otherwise applicable statutes of limitation; the Speedy Trial Act, 18 U.S.C. 3161; any
statutes or rules of procedure otherwise affecting pre-arrest, post-arrest, pre-trial, trial,
and post-trial procedures in criminal and juvenile proceedings and all civil process and
proceedings, including the time for commencing actions brought by the United States
pursuant to 28 USC 2415 and 28 USC 2462; and the filing of notices of appeal.
“(b) CRIMINAL CASES AND CIVIL ENFORCEMENT ACTIONS -- In setting new
time limits under this section for criminal cases and civil enforcement actions brought by
the government, the court shall consider the government’s ability to investigate, litigate
and process defendants during and beyond the emergency situation.

“(c) APPEALS -- Upon application of the Attorney General or the Attorney General’s
designee or on his own motion, the chief judge of a court of appeals that has been
affected or that includes any trial court of the United States so affected (or, if the chief
circuit judge is unavailable, the most senior available active circuit judge or the circuit
Justice) may, in the event of a natural disaster, civil disobedience, or other emergency
situation requiring the full or partial closure of courts or other circumstances inhibiting
the ability of litigants to comply with deadlines imposed by statutes or by the rules of
procedure applicable in the courts of the United States, enter such order or orders as may
be appropriate to delay, toll, or otherwise grant relief from time deadlines imposed by
otherwise applicable statutes and rules of procedure governing appellate proceedings in
such circuit for such period as may be appropriate.
“(d) Nothing in this section shall be construed to limit the inherent authority of a federal
court to manage legal proceedings before it.”

 Tab B – Criminal and Civil Provisions - Updated

(b) CLERICALAMENDMENT.----Thetable of sections at the beginningof
Chapter 111of title 28, UnitedStatesCode, is amendedby adding at the end the
followingnew item:
“§ 1660. Emergency Authority to Delay or Toll Judicial Proceedings.”.

EXPLANATION

The new section 1660 of title 28 allows the chief judge of any district court (or, if
the chief district judge is not available, the next most senior active district judge in the
district or the chief judge or circuit Justice of the court of appeals for the circuit in which
the district is located), either on motion of the Attorney General or his designee or on the
court’s own motion, to enter an order or orders to delay or toll any and all deadlines
imposed by statute or rules of procedure whenever the district court is fully or partially
closed by virtue of any natural disaster, civil disobedience, or other emergency situation.
While individual judges currently possess this authority, this provision would enable the
chief judge of an affected district to ensure that all judges within that district address
issues involving time limits in a consistent manner.

Subsection (b) of the new section 1660 would make clear that, in setting new time
limits applicable in criminal cases, the court must consider the government’s ability to
investigate, litigate and process defendants during and beyond the emergency situation.
While the court can be expected to give consideration to the difficulties faced by all
litigants in such cases, the law is designed to ensure that the court also give appropriate
consideration to the unique needs that may be imposed on the federal government in
responding to the types of emergencies that could result in the need to seek to invoke the
authority provided in section 1660.
The new sectionwould provide like authorityto the chief judge of the court of
appealsfor the circuit when the court of appealsitself is so affected. Such authoritymay
also be exercisedby the chief judge of the court of appealsto delay or toll time limitsfor
appellate litigantswithin specificdistrictsin the circuit when emergencysituationsaffect
litigantsin that district.

 Tab B – Criminal and Civil Provisions - Updated

SEC. 2. SUSPENSION OF STATUTE OF LIMITATIONS PURSUANT TO
STATE OF EMERGENCY.
Chapter 213 of title 18, United States Code, is amended by adding at the end the
following:

§ 3302. Emergency Suspension of Limitations

Notwithstanding any provision to the contrary, when the United States is in a state of
national emergency, as described in 50 U.S.C. 1621, and upon a finding by the Chief
Justice of the United States that emergency conditions will materially affect the
functioning of the federal courts, the statute of limitations applicable to any offense over
which federal district courts have jurisdiction pursuant to 18 U.S.C. 3231 or civil action
over which any court of the United States has jurisdiction pursuant to 28 USC 2415 or 28
USC 2462 shall be tolled during the period of the national emergency and for one year
following the end of the national emergency. Nothing in this section shall be construed
to limit the authority of a federal court to further delay or toll statutes of limitation
pursuant to 28 U.S.C. 1660.

EXPLANATION

The new section 3302 of title 18, UnitedStates Code, would suspend the statute
of limitationsfor all federal offenses during a period of nationwideemergencyif the
Chief Justice determinesthat the emergencywill materiallyaffect the functioningof the
federal courts.
This provision does not apply to any cases in which the statute of limitations
expired prior to its enactment and cannot be relied upon to revive any such prosecution.

 Tab B – Criminal and Civil Provisions - Updated

SEC. 3. SPEEDY TRIAL

Section 3161 of title 18, United States Code, is amended in subsection (h) by inserting
after paragraph (8) the following:
(9) Any period of delay attributable to a national emergency that results in the
suspension of statutes of limitation pursuant to 18 U.S.C. 3302.

(10) Any period of delay authorized by a federal court pursuant to 28 U.S.C. 1660.

EXPLANATION

This amendment to Section 3161 of title 18, United States Code, would provide
for automatic exclusions of time under the Speedy Trial Act for any period of delay
attributable to a national emergency that results in a suspension of statutes of limitations
under 18 U.S.C. § 3302 and for any period of delay that is attributable to an order issued
pursuant to 28 U.S.C. § 1660(a).

 Tab C: ATF Testing Authorities

SEC. XXX. COVERAGE OF TESTINGFORCOVID–19 FORESSENTIAL FEDERAL LAW ENFORCEMENT
PERSONNEL
I N G ENERAL. —

The Department of Health and Human Services (HHS) shall prioritize

distribution of COVID-19 test-kits to Special Agents and Deputy United States
Marshals in the law enforcement components of the Department of Justice
(specifically, the Bureau of Alcohol, Tobacco, Firearms and Explosive,Drug
Enforcement Administration, Federal Bureau of Investigation,and United States
Marshal’s Service). Department of Justice law enforcement agencies have an
immediate,priority need to test Special Agents and Deputy U.S. Marshals for
COVID-19 to maintain mission effectiveness as these personnel must respond to
critical public safety incidents, includingenforcement of quarantine orders issued
by HHS.

 Tab D: USMS Proposals in Response to COVID-19

Danger Pay

Proposal:

Section 219: Section 151 of the Foreign Relations Authorization Act, Fiscal Years 1990 and
1991 (Public Law 101–246 (5 U.S.C. 5928 note)), is amended by: (a) striking “or” after "Drug
Enforcement Administration" and inserting “the”; and (b) inserting after “Federal Bureau of
Investigation”: “, or the United States Marshals Service”.
Explanation:

•

The Department requests that Congressgrant the USMarshalsService the same authority
that the FBIand the DEAhave to provide danger pay for employeesassignedto foreign posts
where the duties to be performedin those locationspose a threat to the safety of the
employees.
Under current law, the State Department identifies foreign locations for which government
agencies are authorized to pay their employees a danger pay allowance, i.e., a percentage of their
regular pay, not to exceed 35% of the basic pay of the employee. The regions are identified on
the basis of civil insurrection,civil war, terrorism, or wartime conditions which threaten physical
harm or imminent danger to the health or well-being of the employee. 5 U.S.C. § 5928.
Subsequent statutory language authorizes the DEA and the FBI to provide danger pay to
employees in foreign areas that have not otherwise been deemed eligible by the State Department.
These provisions recognize the unique danger posed to the employees based on the law
enforcement nature of the duties they perform in those locations.

o

Section 151of the Foreign Relations Authorization Act, Fiscal Years 1990 and 1991
(Public Law 101-246) amended 5 U.S.C. § 5928 by adding: “The Secretary of State may
not deny a request by the Drug Enforcement Administration to authorize a danger pay
allowance (under section 5928 of title 5, United States Code) for any employee of such

o

agency.”
Section 11005 of the 21st Century DOJ Appropriations Authorization Act (Public Law
107-273) further amended Section 151of the Foreign Relations Authorization Act by
inserting ``or Federal Bureau of Investigation'' after ``Drug Enforcement
Administration''.

o

Ineach instance where an allowance is initiated or terminated, the Secretary of State shall
inform the Speaker of the House of Representatives and the Committee on Foreign
Relations of the Senate of the action taken and the circumstances justifying it.

•

The USMS currently has employees engaged in dangerous and difficult work in Mexico,
Dominican Republic, Jamaica, and Colombia who would benefit from danger pay.
The USMS was authorized and funded to establish a permanent presence in Mexico, Jamaica, and
the DominicanRepublic in FY 2003 (P.L. 108-7), and Colombia in FY 2018 (P.L. 115-141).
USMS is engaged in supporting its missions abroad such as investigations involving violent
fugitives and sex offenders under InternationalMegan’s Law, and transnational criminal

 Tab D: USMS Proposals in Response to COVID-19

organizations. Further,USMS provides technical and administrativeexpertise to foreign
governments in accordancewith US missions abroad.
It can be difficult for USMSto recruit employees to leave their homes and take dangerous
overseas assignments generally. A pay incentive would be helpfulin recruitingqualified
individuals for these positions. In addition,it can be harmful to morale to realize that, in taking
these foreign assignments,the safety of USMS employees is valued less than that of their DOJ
counterparts who are serving in the same locations, such as Mexico and Colombia.
If granted this authority, the USMS does not require additional funding to implement it.

USMS Exception to the Limitation on Premium Pay

(a) DEFINITION.—Inthis section, the term ‘‘covered employee’’ means any Deputy
U.S. Marshal employed by the United States MarshalsService who performslaw enforcement
duties by the United States Marshals Service.
(b) EXCEPTION TO THE LIMITATION ON PREMIUMPAY.—

(1) IN GENERAL.—Notwithstanding

any other provision of law, section 5547(a)

of title 5, United States Code, shall not apply to any covered employee to the
extent that its application would prevent a covered employee from receiving
premium pay, as provided under the amendment made by paragraph (2).
(2) TECHNICAL AND CONFORMING AMENDMENT.—To be determined

(c) TREATMENT OF ADDITIONAL PAY.—If subsection (b) results in the payment of
additional premium pay to a covered employee of a type that is normally creditable as basic pay
for retirement or any other purpose, that additional pay shall not—
(1) be considered to be basic pay of the covered employee for any purpose; or
(2) be used in computing a lump-sum payment to the covered employee for
accumulated and accrued annual leave under section 5551 or section 5552 of
title 5, United States Code.
(d) AGGREGATE LIMIT.—With respect to the application of section 5307 of title 5,
United States Code, the payment of any additional premium pay to a covered employee as a
result of subsection (b) shall not be counted as part of the aggregate compensation of the covered
employee.
(e) EFFECTIVE DATE.—Thissection and the amendments made by this section shall take
effect as if enacted on December 31, 2019.

 Tab E: Federal Criminal and Civil Proposals for US Attorneys

Allowing Video Teleconferencingfor PreliminaryProceedings:
Explanation:
One of the challenges created by coronavirus involveswhether, when, and under what conditions
to move inmates and defendants from one location to another. These challenges apply to
preliminary federal criminal proceedings,such as initial appearances,arraignments,preliminary
hearings,and detention hearings. Federal Rules of Criminal Procedure 5 and 10 provide a
vehicle to addressthis challenge by allowing initial appearances and arraignments to be held
using video teleconferencing,provided the defendant consents. Authorizing the general use of
teleconferencingfor these preliminary proceedings would ensure that defendants are able to
access courts shortly after their arrest. It also would limit any disruptions caused by the
coronavirus.

ProposedText:
Subsection(f) of Title 18, United States Code, Section 3142, is amended by adding the following
text at the end: “Video teleconferencingmay be used to conduct a hearing pursuant to this
section.”

Federal Rule of Criminal Procedure 5(f) is amended by striking “if the defendant consents.”

FederalRule of Criminal Procedure5.1is amendedby adding the followingparagraph(i):
“Video teleconferencingmay be used to conduct a hearingpursuant to this section.”

Federal Rule of Criminal Procedure 10(c) is amended by striking “if the defendant consents.”

Subsection (a) of Federal Rule of Criminal Procedure 32.1is amended:
in subparagraph (1), by inserting after “magistrate judge” the following: “, except as
provided in Rule 32.1(a)(7)”; and
by adding the following subparagraph (7): “Video teleconferencing may be used to
conduct a hearing pursuant to Rule 32.1(a).”

Subsection (a) of Federal Rule of Criminal Procedure 43 is amended:
by inserting, after “Rule 5,” the following: “Rule 5.1,”;
by striking “or”; and

 Tab E: Federal Criminal and Civil Proposals for US Attorneys

“by inserting, after “Rule 10”, the following: “, or Rule 32.1”

Relevant Text, Including Edits:
Fed. R. Crim. P. 5(f):
Video teleconferencing may be used to conduct an appearance under this rule if the defendant
consents.
Fed. R. Crim. P. 10(c):
Video teleconferencing may be used to arraign a defendant if the defendant consents.
Fed. R. Crim. P. 32.1(a)(1):
A person held in custody for violating probation or supervised release must be taken without
unnecessary delay before a magistrate judge, except as provided in Rule 32.1(a)(7).
Fed. R. Crim. P. 43:
Unless this rule, Rule 5, Rule 5.1, or Rule 10, or Rule 32.1 provides otherwise, the defendant
must be present at . . .

 Tab F: EOIR Proposals

PUBLIC HEALTH INADMISSABILITY

SEC. 1182. 1182. Inadmissible aliens

(a) INGENERAL -- Chapter 12 of title 8, United States Code, is amended in
subsection ( a)(1)(A)(i) by inserting) the following:
§ 1182 (a)(1)A)(i). Classes of aliens ineligible for visas or admission

(A)In general-- Any alien—

(i)

who is determined(in accordancewith regulationsprescribedby the
Secretaryof Healthand HumanServices)to have a communicabledisease
of public healthsignificance,which shall includeinfectionwith
coronavirus,COVID-19,or SARS-CoV-2or any disease associated
therewith;

SEC. 1158. ASYLUM

Chapter 12 of title 8, United States Code, is amended in subsection (a)(2) by inserting
after paragraph (E) the following:

§ 1158 (a)(2) AUTHORITY TO APPLY FOR ASYLUM

(F) Paragraph (1) shall not apply to an alien if the Secretary of Homeland Security or the
Attorney General determines that the alien—
(i) is infected with a communicable disease of public health significance, which shall
include infection with coronavirus, COVID-19, or SARS-CoV-2 or any disease
associated therewith or
(ii) is subject to a presidential proclamation suspending and limiting the entry of aliens
into the United States.

SEC. 1231. Detention, release, and removal of aliens ordered removed

Section 1231of title 8, United States Code, is amended in subsection (b)(3)(B) by
inserting after paragraph (iv) the following:

 Tab F: EOIR Proposals

(v) (I) the alien is infected with a communicable disease of public health significance,
which shall include infection with coronavirus, COVID-19, or SARS-CoV-2 or any
disease associated therewith, or
(II) the alien is subject to a presidential proclamation suspending and limiting the entry of
aliens into the United States.

SEC. 2242. EXCLUSIONOF CERTAIN ALIENS

In Division G (Foreign Affairs Reform and Restructuring Act of 1998), section 2242(c)
of Pub. L. 105-227 (8 USC 1231, note), adding the following language:

(c) EXCLUSION OF CERTAIN ALIENS.—To the maximum extent consistent
with the obligations of the United States under the Convention, subject to any
reservations, understandings, declarations, and provisos contained in the United
States Senate resolution of ratification of the Convention, the regulations described
in subsection (b) shall exclude from the protection of such regulations aliens
described in section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C.
1231(b)(3)(B)). Aliens infected with a communicable disease of public health
significance, which shall include infection with coronavirus, COVID-19, or SARSCoV-2 or any disease associated therewith or aliens subject to a presidential
proclamation suspending and limiting the entry of aliens into the United States shall
not be eligible for protection under the Convention.

 Tab G: DEA Authorities in Response to COVID-19

Legislative Recommendationsto Ensure an Adequate Drug Supply Throughout the United
States

I. ARCOS Expansion

To further protect the drug supply, DEA is flagging statutory limitations to ARCOS requirements
in the CSA that leaves a significant gap in DEA’s ability to monitor the flow of controlled
substances delivered across the United States and ensure that there are no drug shortages.
Currently, manufacturers and distributors are required to report the sale of only Schedule I,
Schedule II, and some Schedule III narcotics to DEA. During crises like the one our country
currently faces, reporting on all controlled substances would improve DEA’s to have visibility
over all prescribed drugs to ensure Americans have access to the drugs they need. For example,
one drug that is currently not to be reported to the DEA is tramadol, a highly effective pain
reliever that is commonly prescribed throughout the country. However, because it is a Schedule
IV drug, DEA has no visibility of its availability.
Additionally, manufacturers and distributors are only required to report to ARCOS quarterly. In
this ongoing crisis, where time is of the essence, we request a 30-day mandatory reporting
period.

Expandingthe requirementto report all prescriptiondrugs combinedwith a shorter reporting
schedule for manufacturersand distributorswill allow DEA to ensure the U.S. has an adequate
drug supply and take immediateaction to repair supply and demand issues immediately,
especially during this time of nationalemergency.

21 U.S.C. § 827(d)(1): (d) Periodic reports to Attorney General
(1) Every person registered under section 823 of this title shall, no less frequently than
monthly and in such form as the Attorney General may require, make reports in
electronic format to the Attorney General of every sale, delivery or other disposal (other
than by dispensing by a practitioner) by him of any controlled substance, identifying by
the registration number assigned under this subchapter the person or establishment
(unless exempt from registration under section 822(d) of this title) to whom such sale,
delivery, or other disposal was made.
Note: Any other changes necessary throughout Title 21 U.S.C. and Title 21 C.F.R. would need
to be identified in order to conform with this change.

It is understandable that monthly reporting from all registrants (i.e. transfers from pharmacy to
pharmacy) may be too expansive. However, the statutory limitation in 21 U.S.C. § 827(d)(1) of
reporting pertaining to “narcotics” only could be rectified by removing the word “narcotic” and
replace it with the word “all” in 21 U.S.C. § 827(d)(1). This small change would provide the
Diversion control division a more robust picture of the closed loop of distribution, allowing us to
better serve our role in public health and safety.

1

 Tab G: DEA Authorities in Response to COVID-19

II. PDMP Data

Currently, 49 states have operational prescription drug monitoring programs (PDMPs) that
collects details about every prescription in their state. This gathered data includes: name,
quantity, and strength of the drug prescribed; details about the doctor who wrote the prescription;
and the pharmacy that filled the prescription. None of this critical information is required to be
shared with DEA; in fact, if DEA seeks this information in the course of an investigation, it must
subpoenaed.
This lack of data sharing causes a significant gap of information for DEA, as currently our
agency is only able to track controlled substances from manufacturer to pharmacies, and is at a
distinct disadvantage of ensuring an adequate drug supply and stop illicit diversion of controlled
substances. This data gap also makes it difficult for the DEA to accurately set the nation’s drug
quota each year. Ultimately, the DEA has an incomplete view of the licit drug distribution
system it is charged by Congress to oversee.

However, under the new statutory requirements of the SUPPORT Act, DEA is now charged with
taking into account the amount of diversion of five specific substances (oxycodone,
hydrocodone, oxymorphone, hyrdopmorphone, and fentanyl). DEA intelligence shows that
diversion of prescription drugs most frequently takes place at the prescriber, dispenser, and
patient level, which is captured in PDMP at the state level but is not readily available to the
DEA. DEA recommends providing states with grants to support “patient-encrypted PDMP data
sharing.” These grants would allow for states to easily share critical information with DEA,
greatly improving the agency’s ability to ensure an adequate drug supply for medical, scientific,
and research purposes. It will also allow DEA to fulfill its new statutory obligations by
providing a complete picture of the distribution process of controlled substances.
Note: Currently, DEA is in an awkward position of potentially relying on its broad authority as
the regulator/approver of registrants and controlled substances to threaten states or to use 21
USC 876 subpoena authority. 876 subpoenas are somewhat controversial generally depending
on your view of federal authority and especially so the more you extrapolate from an individual
target in a specific investigation (see recent OIG report). Obviously, if Congress required states
to share that info, we would be in a much cleaner legal position moving forward.

2

 Tab H: BOP Provisionsfor COVID-19 Response

Legislative Recommendations to Ensure an adequate drug supply throughout the United
States: Bureauof Prisons (BOP)

I.

PPE and Test Kits - There should be prioritization for BOP to order and obtain
personal protective equipment and test kits based on the density of our inmate
population dense, high traffic, high volume, high turnover, and high security
areas. The current inability to guarantee the purchase of infectious disease PPE and
supplies now and moving forward is a vulnerability. BOP is currently competing and
engaging the same landscape of vendors as all other federal agencies and private
entities. BOP prioritization is currently subject to an individual manufacturer’s
specific recognition of BOP as a priority and subsequent allocation of their inventory
to the BOP.

II.

Home confinement under Sec. 3624(c)(2) - BOP should have the discretion to expand
use of home confinement pass our current limitations of 10% of the term of
imprisonment or 6 months.

1