     Applicability of 21 U.S.C. § 952(a) to the Importation of
     Morphine Sulfate by the General Services Administration

The provision in 21 U .S C . § 952(a), w hich prohibits im portation of certain controlled substances
  ex cep t in c e rta in sp e c ifie d c irc u m sta n c e s , a p p lie s to im p o rta tio n by the U nited S tates
  G overnm ent.

Notw ithstanding the canon of statutory construction that a law should not be read to im pose new
  burdens on the governm ent in derogation of its preexisting nghts and privileges, well-established
  and consistent adm inistrative practice and interpretation of the coverage of 2 1 U .S .C . § 952(a), as
  well as its legislative history, indicate that that law covers im portations by the U nited States
  governm ent.


                                                                                          October 18, 1982

             MEMORANDUM OPINION FOR THE COMMISSIONER,
                FEDERAL PROPERTY RESOURCES SERVICE,
                  GENERAL SERVICES ADMINISTRATION

   This responds to your request for our opinion whether 21 U.S.C. § 952(a)
applies to the importation of controlled substances by the United States or its
agents. This question has arisen in the context of a proposed importation of
morphine sulfate from Turkey, with which your agency has been involved.
   Section 952(a) of Title 21, U.S. Code, is a central provision of the Controlled
Substances Import and Export Act of 1970 (the Act).1 The broad terms of
§ 952(a) provide that it ‘“shall be unlawful” to import into the United States
controlled substances except in certain circumstances.2 On its face, § 952(a)
does not exclude the United States from its coverage. On the other hand, it also
does not specifically include the United States. Accordingly, in view of the fact
that the provision imposes limitations on those whom it covers, and in light of the
longstanding canon of statutory construction that statutes imposing burdens
should not lightly be read to deny governments preexisting rights or privileges,3 a


  1Title III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is entitled the Controlled
Substances Import and Export Act of 1970. As its name indicates. Title III places a number of restrictions on the
import into and export from the United States of controlled substances See Pub. L. No. 91-513, Title III. 91st
Cong., 2d Sess , 84 Stat. 1285, 21 U S C. §§ 951-966
  2 The language of 21 U.S C § 952(a) is quoted in its entirety in part II infra
  3 This canon of statutory construction is stated in a number o f judicial opinions. See, e.g., Hancock v Train, 426
U S. 167, 179 (1976); United States v. Wittek, 337 U S. 346 (1949); United States v. United Mine Workers c f
America. 330 U S. 258, 272-73(1947); United States v Herron. 87 U.S. (20 Wall ) 251 (1874); United States v.
Knight, 39 U .S. (14 Pet ) 301 (1840)


                                                       577
question arises whether the statute does in fact cover importations by the United
States, such as that proposed in this case.
   We have concluded that, despite the canon of construction referred to in the
previous paragraph, the statute and pertinent legislative materials do demonstrate
Congress’ intention that the law’s limitations apply broadly. This intention would
not be consistent with implying a general exception for actions by the United
States or its agents. This view is strongly buttressed by the fact, discussed below,
that the federal agency most directly responsible for enforcing the Act— the Drug
Enforcement Administration (DEA)— consistently has taken the position that the
statute does reach actions by the United States. In such circumstances, we find no
adequate justification in the canon of interpretation— a device for use in doubtful
cases— for concluding that 21 U .S.C . § 952(a) does not apply to actions by the
United States. In practical terms, this means that the importation by the United
States of controlled substances referred to in § 952(a) is prohibited unless one of
the exceptions in § 952(a) is found to pertain.

                                           I. Background Facte

   Your opinion request follows an earlier opinion of this Office, dated July 19,
1982, which also dealt with the proposed importation of morphine sulfate from
Turkey.4 In that opinion, we assumed arguendo that § 952(a)’s proscription on
the importation of controlled substances, except in certain circumstances, does
cover actions by the United States.5 Passing that issue, we noted that further
attention might profitably be paid to the exceptions themselves, viewed in light of
the particular facts concerning the proposed importation of morphine sulfate.
   Specifically, we suggested that the involved agencies should ascertain whether
the “ emergency” exception in 21 U.S.C. § 952(a)(2)(A) could apply to the
proposed importation of morphine sulfate for purposes of replenishing the
National Defense Stockpile’s supply of such substances. We noted that we were
not aware of whether the facts would establish the basis for invoking such an
exception. Nevertheless, we sought to identify the appropriate lines of inquiry.6
Having done so, we indicated that if the facts would not support the use of the
emergency exception, we would be glad to address the underlying legal question
regarding 21 U .S.C . § 952(a)’s applicability to the United States.

   4 See M emorandum for Francis M. Mullen, J r., Acting Administrator, Drug Enforcement Administration, from
Theodore B . Olson, Assistant Attorney Genera), Office of Legal Counsel, entitled “ Importation of Morphine
Sulfate from TUrkey” (July 19,1982). [Note: The July 19,1982 opinion is reprinted in this volume at p. 455, supra.
Ed.]
   5 We noted in the July 19,1982 opinion not only that an argument could be made that21 U .S.C . § 952(a)doesnot
apply to the United States, but also that a contrary argument could be advanced. In view of the lack of any sure
footing for the contention regarding the nonapplicability of § 952(a) to the United States, we suggested that further
attention be paid to the possibility o f utilizing the statutory exception for an emergency in present circumstances.
   6 For instance, we noted that, in order to m ake the requisite finding for using the emergency exception in 21
U S C . § 952(a)(2)(A), it would be “ essential first to identify precisely what that need [for morphine sulfate] is,
second to determ ine w hether failure to fulfill that need creates an emergency situation, and finally to examine
w hether dom estic supplies are adequate to meet the need as identified. . . ” Memorandum, supra note 4 , at 4.


                                                        578
                                    II. Analysis of the Statute

   The question before us is one of statutory construction. The pertinent language
is as follows:

             It shall be unlawful to import into the customs territory of the
           United States from any place outside thereof (but within the
          United States), or to import into the United States from any place
          outside thereof, any controlled substance in schedule I or II of
          subchapter I of this chapter, or any narcotic drug in schedule III,
          IV, or V of subchapter I of this chapter, except that—
                (1) such amounts of crude opium and coca leaves as the
             Attorney General finds to be necessary to provide for medical,
             scientific, or other legitimate purposes, and
                (2) such amounts of any controlled substance in schedule I
             or II or any narcotic drug in schedule III, IV, or V that the
             Attorney General finds to be necessary to provide for the
             medical, scientific, or other legitimate needs of the United
             States—
                   (A) during an emergency in which domestic supplies of
                such substance or drug are found by the Attorney General to
                be inadequate, or
                   (B) in any case in which the Attorney General finds that
                competition among domestic manufacturers of the con­
                trolled substance is inadequate and will not be rendered
                adequate by the registration of additional manufacturers
                under section 823 of this title,
          may be so imported under such regulations as the Attorney
          General shall prescribe. No crude opium may be so imported for
          the purpose of manufacturing heroin or smoking opium.7

   There is no question that morphine sulfate— a refined derivative, or salt, of
opium— is a schedule II controlled substance within the meaning of § 952(a).8 It
is not “ crude opium” for purposes of § 952(a)(1). Accordingly, its importation
into the United States in present circumstances is barred unless one of the
exceptions in § 952(a)(2) applies, or unless— and this is the issue about which
you have sought our opinion— § 952(a) as a whole does not cover actions of the
United States but rather is limited to actions by private, nongovernmental parties.
   On the one hand, it may be argued that the broad terms of § 952(a) should not
be read to cover actions by the United States in light of the canon of construction

   7 21 U.S C § 952(a)
   8 See 21 U S C. § 812(c), 21 C.F.R. § 1308.12. Morphine is the pnncipal alkaloid, or organic base, of opium,
which is the coagulated juice o f the opium poppy plant, papaver sommferum. Morphine in the form of a soluble
salt— such as morphine sulfate— is used as an analgesic o r a sedative. See Webster’s Third New International
Dictionary 1471 (1976); 15 Encyclopaedia Bntanmca 856 (1971)


                                                    579
identified at the outset of this opinion. This canon holds that, absent contrary
indication in relevant legislative materials, a statute imposing burdens normally
should not be read to impose those burdens on the government in derogation of its
preexisting rights or privileges.9
   Historically, this rule originated in the English doctrine that the Crown is
presumed to be unaffected by acts of Parliament unless the acts are directed
specifically at the C row n.10 Because in the United States sovereignty always has
resided by theory and practice in the people, rather than in a monarch, transplan­
tation of the English rule to this country necessarily has led to its subtle
transformation. The rule’s chief policy basis in American case law is the notion
that Congress is presumed to have intended to preserve on behalf of the people the
efficient functioning of government, and therefore a statute generally should not
be read to impose new burdens on government without indications that this in fact
was Congress’ intention." In the present context, this rule of construction could
be used as a basis for arguing that § 952(a) was not intended to impose new
burdens on the United States, for the provision does not clearly state that it was so
intended.
   On the other hand, the foregoing canon of construction should not be viewed as
an absolute guide to the construction of any statute. One commentator has stated
that although the canon has been useful in a number of cases, “ [i]t is questionable
. . . whether the rule still continues to command the same influence today.” 3 C.
Sands, Sutherland Statutory Construction § 62.03 (4th ed. 1974). The “ rule”
that the government normally is to be excluded from coverage of statutes
imposing burdens is, in fact, subject to numerous exceptions. It is merely a guide
to the most plausible construction of legislative intent when other indications of
such intent are not present or dominant. The central inquiry when faced, as we
are here, with possible application of the canon of construction is to determine
whether there are other specific grounds on which to rest an interpretation of the
statute that are more definite and ultimately more helpful than the canon of
construction itself.12
   In present circumstance, one of the most striking features is the existence of a
longstanding, consistent, and specific administrative construction of the statute
in question on the very point at issue here. In conversations with officials of the
Drug Enforcement Administration— which is responsible for administering the
statute of which § 952(a) is a central part— we have learned that for years the
agency has interpreted § 952(a) as applying not only to importations of con­

   9 See U nited States v United Mine Workers o f America, 330 U S 258. 272-73 (1947), United States v Herron,
87 U .S. (20 Wall.) 251 (1874). United States v. Knight, 39 U S. (14 Pet.) 301 (1840)
   10 See U nited States v. California, 297 U .S . 175, 186 (1936); see also 3 C Sands, Sutherland Statutory
Construction § 62 01 (4th ed 1974).
   11 See Hancock v 7ram . 4 2 6 U S . 167, 169 (1976), Letter Minerals, Inc v. U nitedStates, 352U S. 220, 224-25
(1957); U nitedStates v Wittek. 337 U S 346 (1949); Guaranty Trust Co v. U nitedStates. 304 U.S. 126, 132-33
(1938).
   12 As the Supreme Court has noted, the canon of construction is merely “ an aid to consistent construction of
statutes of the enacting sovereign when their purpose is in doubt, but it does not require that the aim of a statute fairly
fo be inferred be disregarded because not explicitly stated.” United States v California, 297 U.S 175, 186 (1936).
See United States v Wittek. 337 U S 346, 3 58-59 (1949); 3 C Sands, Sutherland Statutory Construction § 62 02
(4th ed. 1974)

                                                           580
trolled substances by private parties, but also to importations of such substances
by the government itself, specifically including federal agencies. Thus, in the
course of the routine administration of this statute, the DEA and its predecessor
agency13 have confronted precisely the issue that has been put to us. The federal
agencies involved have been required to meet all statutory and regulatory
requirements pertaining to importations of controlled substances.14
   For instance, we have been told that when an agency, such as the National
Institute on Drug Abuse of the Department of Health and Human Services, has
sought to import quantities of controlled substances for laboratory tests, the
agency has been required by the DEA to comply with applicable registration and
permit requirements. These requirements, authorized by statute, see 21 U.S.C.
§§ 957 & 958, are set forth in the DEA’s regulations, see 21 C.F.R. §§ 1311 &
1312 (1981). Among other things, these regulations require importers of con­
trolled substances to obtain an annual registration, unless specifically exempted
from the requirement. See 21 C.F.R. § 1311.21. Among those who are exempt
from this requirement are officials of the United States Army, Navy, Marine
Corps, Air Force, Coast Guard, or Public Health Service, see 21 C.F.R.
§ 1311.24, and officials of the United States Customs Service, the Food and
Drug Administration, and “ any other Federal officer who is lawfully engaged in
the enforcement of any Federal law relating to controlled substances. . . .” See
21 C.F.R. § 1311.25. By exempting these federal officials, the DEA has plainly
indicated its understanding that otherwise, the requirements would have applied
to the officials— as they do to officials not exempted. Furthermore, before any
person may import a controlled substance, a permit must be issued. See 21
C.F.R. § 1312.11. Specific grounds for the issuance of such permits are set forth
in the DEA’s regulations. See 21 C.F.R. § 1312.13. These permit requirements,
the DEA has told us, also have regularly been applied to federal agencies seeking
to impiort quantities of controlled substances for official purposes.
   The existence of such a consistent agency interpretation of its own authorizing
legislation is viewed by courts as being of substantial importance. The Supreme
Court has underscored that “ [w]hen faced with a problem of statutory con­
struction, this Court shows great deference to the interpretation given the statute
by the officers or agency charged with its administration.” Udall v. Tollman, 380
U.S. 1, 16 (1965). The reason for this deference is that agencies have consider­
able familiarity with the nuances of their authorizing legislation and its applica­
tion in practice, and may generally be presumed to be expert in its construction.
See generally Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381 (1969);
Zemel v. Rusk, 381 U.S. 1, 11-12 (1965). Of course, courts remain ultimate
arbiters of the law in contested cases. S ee, e .g ., V olksw agenw erk Ak-
tiengesellschaft v. FMC, 390 U.S. 261, 272 (1968). However, courts give


  13 The Drug Enforcement Administration was created by a reorganization plan in 1973 The description in text of
DEA’s interpretation of § 952(a), enacted in 1970, also applies, we are told, to its predecessor, the Bureau of
Narcotics and Dangerous Drugs
  14 Our discussion of the D EA’s interpretation of § 952(a) necessarily relies on factual representations made to us
by DEA officials


                                                       581
significant weight to a plain and longstanding administrative construction. The
Supreme Court has explained that such a construction has the power “ to per­
suade,” if not “ control,” judicial analysis:
            We consider that the rulings, interpretations and opinions of
         [agencies], while not controlling upon the courts by reason of
         their authority, do constitute a body of experience and informed
         judgment to which courts and litigants may properly resort for
         guidance. The weight of such a judgment in a particular case will
         depend upon the thoroughness evident in its consideration, the
         validity of its reasoning, its consistency with earlier and later
         pronouncements, and all those factors which give it power to
         persuade, if lacking power to control.
G eneral Electric Co. v. Gilbert, 429 U.S. 125, 141-2 (1976), quoting Skidmore
v. Swift & C o., 323 U .S. 134, 140 (1944).
    In this case, the DEA’s understanding of the coverage of federal agencies by
§ 952(a) is well-established and consistent. Moreover, it would appear to be the
product of informed judgment. Certainly, the DEA has been confronted repeat­
edly with situations in which it has had to determine how to treat federal agencies
under § 952(a). Each time, we are told, it has reached the view that such agencies
are subject, as are private parties, to applicable statutory and regulatory require­
ments. Furthermore, this interpretation, we understand, dates back at least to the
time of the passage of § 952(a) in 1970, if not to earlier years when § 952(a)’s
immediate predecessor (which was similar in nature) was in effect. In such
circumstances, courts would pay even greater attention to the agency’s view. See,
e .g ., SEC v. Sloan, 436U .S. 103, 120 (1978); E. I .D uPont de Nemours & Co. v.
Train, 430 U.S. 112, 134—35 (1977); Union Electric Co. v. EPA, 427 U.S. 246,
256 (1976); Train v. Natural Resources Defense Council, 421 U.S. 60, 87
(1975); H ercules, Inc. v. EPA, 598 F.2d 91, 101 (D.C. Cir. 1978).
    Our own review of the statute’s legislative history tends, at a general level, to
confirm the D EA ’s understanding of § 952(a)’s coverage. First, there are un­
mistakable indications that Congress intended the importation restriction to
operate as a critical element in the statute’s scheme of controlling the importation
of controlled substances.15 Furthermore, there are indications that any importa­
tion of controlled substances by a ll importers— whether or not a private importer
that might be suspected of seeking to engage in illicit conduct— was intended to
be covered. Thus, the major committee report on'the bill containing § 952(a) that
was enacted in 1970 stated that the importation restriction refers “ to any article,
any bringing in or introduction of such article into any area. . . .’’ H.R. Rep. No.
1444 (Pt. 1), 91st C ong., 2d Sess. 74 (1970) (emphasis added). In floor debate on
the predecessor provision, the Narcotic Drugs Import and Export Act of 1922,
Pub. L. No. 227, 67th Cong., 2d Sess., 42 Stat. 596, 21 U.S.C. § 173 (1964),
the provision’s proponent stated that the predecessor importation restriction was

  15 See H .R . Rep. No. 1444 (Pt. 1). 91st C ong., 2d Sess. 71-80 (1970). See also 116 Cong. Rec. 33317(1970).


                                                     582
an effort to use “ best efforts to control or cause to be controlled all those who
import or export morphine, cocaine, or their respective salts.” 62 Cong. Rec.
6334 (1922) (emphasis added). These references in the legislative history to “ any
importation” and “ all those who import” morphine or a salt of morphine suggest
that Congress intended a broad coverage of the importation restriction. It is
consistent with this intent to construe § 952(a), as the DEA has done, to cover
actions of \jthe United States.
   Furthermore, there is some indication in the legislative history that one
purpose served by the importation restriction is to prevent drug manufacturers in
foreign countries from having access to the domestic American market in
finished narcotic drugs. Thus, the relevant Committee report on the 1922
predecessor to § 952(a) stated that the restriction on the importation of finished
narcotic drugs (as opposed to raw opium and coca leaves) “ will also . . .close the
legitimate domestic market to foreign manufacturers.” H.R. Rep. No. 852, 67th
Cong., 2d Sess. 7-8 (1922).16 Although the precise reasons for closing the
domestic market to foreign manufacturers may not be entirely clear, they may
reasonably be understood to include the desire to protect the American drug
industry from foreign competition— as well as simply to shut off importation in
order to prevent illicit trafficking in drugs. Certainly, domestic drug industry
representatives involved in manufacturing finished narcotics have so understood
the intent of § 952(a). See, e .g ., Controlled Dangerous Substances, Narcotics
and Drug Control Laws: Hearings Before the House Committee on Ways and
Means, 91st Cong., 2d Sess. 458-62 (1970) (testimony of Stephen Ailes on
behalf of three American firms licensed in 1970 to import opium for processing
for legitimate medical purposes). Moreover, we understand from our con­
versations with DEA officials that the DEA itself is of the view that one—
although not the major—statutory aim served by § 952(a) is the protection of the
domestic American drug industry from foreign competition.
   We would not want to rest an interpretation of § 952(a) entirely on the few
indications of a “ protectionist” purpose that we have found in the legislative

  16 The full passage in the course o f which this comment occurs is the following:
       The existing law in section 1 of the narcotic drugs import and export act [of 1909, as amended by the
       Harrison Act of 1914]. . . prohibits the importation of smoking opium, but permits the importation
       for medical purposes of other opium products          . . The United States manufactures more than a
       sufficient amount o f narcotic drugs for domestic medical and scientific uses. The committee
       therefore believes it desirable to restrict our importation to raw opium and coca leaves, and to admit
       these only in amounts found by the Secretary of State, the Secretary of the Treasury, and the
       Secretary of Commerce to be sufficient lo provide our manufacturers with enough of the raw
       products for the domestic and scientific uses of this country, and for foreign exportation as required
       by the opium convention for medical and scientific uses of legitimate foreign consumers. This
       restriction will also aid in enforcing our export restrictions. . . . It will also aid in preventing
       evasions of the Harrison Act, by means of the unlawful importation into this country of narcotic
       drugs previously imported by us and sent into the export trade, and will close the legitimate domestic
       market to foreign manufacturers. By proper action in authorizing the importation of the raw
       products, it is believed that the three Secretaries can curb any tendency to increase the pnce of the
       manufactured narcotic drugs which might otherwise result from the prohibition of their importation,
       and by such action also take account of increased domestic consumption beyond the ordinary needs
       for medical and scientific uses, due either to diversion of drugs into illegitimate domestic channels
           .. or to epidemic or war conditions. (Emphasis added.)
H.R Rep. No. 852, 67th Cong., 2d Sess. 7-8 (1922).

                                                       583
history. However, we must acknowledge that, however ambiguous they may
appear to be, such indications do exist, and they directly support the notion that
§ 952(a) should be interpreted to apply to the United States, as well as to private
parties.17
    In sum, in view of the longstanding and consistent agency interpretation of
§ 952(a) and its predecessor as applying to importations of controlled substances
by private parties and federal agencies, in view of suggestions in the legislative
history that Congress intended a broad construction of § 952(a) in order to fulfill
its purposes, and in view of the absence of any indication in the legislative history
to the contrary, we conclude that § 952(a) should be understood to apply to
importations by the United States. It thus applies to the proposed importation of
morphine sulfate from Turkey that is presently the subject of negotiations involv­
ing the General Services Administration.

                                                                  T   heodore        B. O lson
                                                              Assistant Attorney General
                                                               Office c f Legal Counsel




   17 An argument can be made that Congress did not intend to cover the United States in § 952(a), for it provided for
a means of enforcing § 952(a), namely, by possible criminal penalty, see 21 U .S C § 960. that is not appropriately
applied against the United States. The problem with this argument is that it ignores that the criminal enforcement
provisions are not exclusive 21 U .S C § 964 states that any penalty imposed for violation of the import and export
restrictions ' ‘shall be in addition to, and not in lieu of. any civil or administrative penalty or sanction authonzed by
law.*’ It is not inconceivable that an aggrieved private party may be able to achieve judicial review of an importation
of a controlled substance by the United States, and seek in a judicial proceeding a civil remedy predicated on an
alleged violation of § 952(a). Accordingly, we cannot give definitive weight to the existence of criminal enforcement
provisions in the statute To us, the central question is what Congress’ intent in imposing the importation restriction
itself appears to have been That question is best resolved by referring to § 952(a) s own legislative history and. in
this case, the longstanding agency construction of the provision.

                                                          584
