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WASHINGTON -- House members appeared divided during a hearing about a proposal to permanently assign fentanyl-related substances (FRS) to Schedule I, but they were united on one thing: someone from the Justice Department should have been there.

"I want all members to know that we invited the Department of Justice -- the DOJ -- to testify, but they chose not to appear at today's hearing," Rep. Anna Eshoo (D-Calif.), chairwoman of the House Energy & Commerce Health Subcommittee, said at the start of Thursday's hearing. "DOJ's refusal to testify I find to be troubling, and they offered no legitimate reason."

"It is unfortunate that the Department of Justice can't be here today to explain this policy," said Rep. Brett Guthrie (R-Ky.), the subcommittee's ranking member. "Did the DOJ refuse to show up to today's hearing because they are unable to justify the policies in this proposal? Why didn't this administration send their top federal law enforcement agency to share their plans with the American people on how they will get these deadly poisons off our street? ... I know sometimes these hearings aren't convenient for people to appear, but it is our job for oversight and is their job to be here."

Asked to comment on the matter, a Justice Department spokesperson responded via email that "the DEA [Drug Enforcement Administration], which is a part of the Department of Justice, testified at the hearing." But clearly many subcommittee members felt that wasn't enough.

"Here we are at this hearing, and we have a border where fentanyl is pouring across the border; enough fentanyl was seized during the month of September to kill 2.1 billion people," said Rep. Earl "Buddy" Carter (R-Ga.). "This has got to be addressed. If we have to, let's subpoena the Department of Justice; let's subpoena [the Department of] Homeland Security, and get them here to answer these questions."

The hearing was called to discuss for reducing FRS supply and availability. The proposal calls for permanently scheduling these drugs under Schedule I -- the strictest form of regulation -- but it also includes an expedited process to reschedule those substances that are later found not to be dangerous enough to warrant Schedule I.

Currently, a temporary order is in effect that places all of these drugs under Schedule I; under the Continuing Resolution passed by Congress on Thursday, that order will be extended until Feb. 18.

Eshoo said that civil rights groups were initially concerned about the proposal.

Placing all of these drugs on Schedule I "expands the number of drugs subject to mandatory minimum sentences that contribute to the disproportionate incarceration of racial minorities," she said. "To address this concern, mandatory minimums would not apply in most cases involving fentanyl-related substances unless there is death or serious bodily harm. And if a substance is later removed from Schedule I, incarcerated individuals could have their sentences reduced or vacated."

The proposal "would also make it easier for researchers to get permission from the federal government to study all Schedule I substances," Eshoo added. "The current restrictions deter many researchers from studying these drugs, and removing some of these barriers will help us better understand how to treat addiction."

However, Republicans didn't favor the exemption regarding criminal penalties, which also exempts minimums for drug trafficking.

"This would prevent our law enforcement from finding and putting away drug traffickers who are bringing these chemical weapons across the border," said Rep. Cathy McMorris Rodgers (R-Wash.), ranking member of the full Energy & Commerce Committee. "For the parents we're fighting for, it would mean criminals who killed their kids could keep trafficking these lethal substances with lower repercussions. Surely there is bipartisan support to deliver justice for these families. We should be working together to punish those who make, import, and distribute these poisons to our children, and help those with substance abuse disorders with treatment and recovery."

On the other hand, Rep. Tony Cárdenas (D-Calif.) thought some of the penalties were too harsh.

"Congress must address rising overdoses as the public health crisis that it is, rather than a problem of not enough enforcement," he said. "Because of this, I am concerned that class-wide scheduling takes the approach of guilty until proven innocent. We would be criminalizing compounds which haven't even been discovered yet. This approach applies harsh federal penalties and restrictions, even if a compound turns out to be non-harmful."

Cárdenas added that "fentanyl and fentanyl-related substances are in a category of compounds, which also includes medication for pain, diarrhea, Parkinson's disease, depression, anxiety, and dementia."

Nora Volkow, MD, director of the National Institute on Drug Abuse, said it is important to make researchers' work easier than it is under the current scheduling regime.

"Even experienced researchers report that obtaining or modifying a DEA registration can take many months," she said. "Researchers have also reported a lack of clarity on the registration requirements and variability in their interpretation. These challenges can slow research progress and dissuade investigators from working with Schedule I substances."

Louis Milione, principal deputy administrator at the DEA, discussed his agency's campaign to seize fake pills containing fentanyl that are widely advertised on the Internet.

"We seized millions of fake pills, thousands of pounds of fentanyl powder, and dozens of guns, and arrested more than 800 drug traffickers," Milione said. "The fentanyl threat is an existential threat to our country. Now more than ever, it is critical that Congress permanently schedule fentanyl related substances as a class to enable DEA and our law enforcement partners to seize these substances before they enter the country, and as they are encountered in our communities."

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