Importation of Morphine Sulfate for Placement

in the National Defense Stockpile

The Attorney General may authorize the General Services Administration to im port morphine sulfate 

from Turkey for placement in the National Defense Stockpile under an exception in 21 U .S.C . 

§ 952(a)(2)(A), if he determ ines that acquisition by import is necessary due to an em ergency in 

which domestic supplies are inadequate to meet a legitimate need of the United States.

A reasonable argum ent can be made that the prohibition in 21 U .S.C . § 952(a) does not apply to the 

importation of drugs by the United States, notwithstanding long-standing and consistent adm inistrative practice and interpretation to the contrary.

July 19, 1982

MEMORANDUM OPINION FOR THE ACTING ADMINISTRATOR, 

DRUG ENFORCEMENT ADMINISTRATION

You asked whether the Attorney General1 may, in light of 21 U.S.C. § 952(a), 

permit the General Services Administration (GSA) to import, for placement in 

the National Defense Stockpile, morphine sulfate manufactured in Turkey. 

Assuming that § 952(a) applies to the importation of drugs by the United States, 

although a reasonable legal argument can be made that it does not, we conclude 

that the Attorney General may nevertheless be in a position to sanction the import 

if the facts indicate that it would fall within an exception to the § 952(a) 

prohibition.2

Section 952(a) provides:

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

1 Your question is phrased in terms of the authority of the Attorney General. We note, however, that the Attorney 

General s authority under 21 U.S C. § 952(a) has been delegated to the Administrator of the Drug Enforcement 

Administration, 28 C.F.R. § 0 100, and has, in the past, been exercised by him. E.g.. 39 Fed Reg 44033 (1974). 

For the purposes of consistency, both with the language of your request and with that of the statute, we will refer 

throughout our opinion to the authority of the Attorney General under § 952(a). It should be understood, however, 

that the Administrator of the Drug Enforcement Administration is the official who actually exercises that authority

2 You asked also that we consider, if we conclude that § 952(a) prohibits the import, whether other, superior legal 

authority is available to authorize it We have researched this point and have found no statute which by its terms or by 

fair implication would authorize the President, the Attorney General, or any other Executive Branch official to 

permit an import otherwise prohibited by § 952(a) Nor do we know of a constitutional power of the Executive, 

applicable in present circumstances, to override a valid law enacted by Congress and made applicable to the United 

States.

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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 controlled 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.

Morphine sulfate is a schedule II controlled substance within the meaning of 

§ 952(a). 21 C.F.R. § 1308.12 (1981). It is not crude opium. Under the plain 

language of § 952(a) its importation into the United States is, therefore, unlawful 

unless one of the exceptions of subsection (2) applies. You have informed us that, 

in your view, competition among domestic manufacturers of morphine sulfate is 

adequate and that the exception contained in § 952(a)(2)(B) is, for this reason, 

unavailable on the facts. We accept this assessment and our opinion does not treat 

that exception. You observe also that “today, no shortage of morphine sulfate is 

known to exist.” This observation calls into question the applicability of the 

exception provided for in § 952(a)(2)(A). We are reluctant, however, to conclude, on the basis of your observation— notwithstanding the recognized expertise of the Drug Enforcement Administration (DEA) concerning the normal needs 

of the country for morphine sulfate and the adequacy of domestic supplies to meet 

those needs— that the availability of a § 952(a)(2)(A) exception is necessarily 

foreclosed under the facts in the case at hand. Our reluctance stems from our 

belief that agency expertise in addition to that of DEA should appropriately be 

consulted to permit full factual development and to assist in making or rejecting 

the finding required by § 952(a)(2)(A).

As stated above, GSA wishes to import morphine sulfate from Turkey for 

placement in the National Defense Stockpile. Under the Strategic and Critical 

Materials Stock Piling Act, 50 U.S.C. §§ 98-98h-4 (Supp. Ill 1979), the 

President is charged with responsibility to “ determine from time to time 

(1) which materials are strategic and critical materials for the purposes of [the

456
Act], and (2) the quality and quantity of each such material to be acquired for the 

purposes of [the Act] and the form in which each such material shall be acquired 

and stored.” 50 U.S.C. § 98b(a). He is directed to acquire and store materials 

determined to be strategic and critical, 50 U.S.C. § 98e(a)(l) and (2), in the 

“ interest of national defense,” and in quantities “ sufficient to sustain the United 

States for a period of not less than three years in the event of a national 

emergency.” 50 U.S.C. § 98b(b)(l) and (2). The basic purpose which Congress 

intended the Act, and thus the authority of the President, to serve is “ to decrease 

and to preclude, when possible, a dangerous and costly dependence by the 

United States upon foreign sources for supplies of [strategic and critical materials] in times of national emergency.” 50 U.S.C. § 98a(b). It is clear that the 

acquisition and maintenance of adequate supplies of strategic and critical materials in the National Defense Stockpile is, under the Act, a high national priority 

and an important responsibility of the President.

The President has delegated to various officials his functions and authority, 

although not his ultimate responsibility, see 3 U.S.C. § 301, under the Strategic 

and Critical Materials Stock Piling Act. Executive Order No. 12155 of Sept. 10,

1979, 44 Fed. Reg. 53071, reprinted in 50 U.S.C. § 98 note (Supp. Ill 1979). 

Relevant here, he has authorized the Director of the Federal Emergency Management Agency (FEMA) to determine on his behalf which materials are to be 

designated strategic and critical and in what quantity, quality and form they are to 

be acquired for storage in the National Defense Stockpile. Executive Order No. 

12155, § 1-101. In addition, he has delegated to the Administrator of General 

Services authority to acquire the designated materials. Executive Order No. 

12155, § 1-102.

Pursuant to this delegation, the Director of FEMA has, we are informed, 

designated opium salts in the form of morphine sulfate as a strategic and critical 

material and has made it one of the highest priority items for acquisition for the 

National Defense Stockpile. At present, in spite of this high priority, the supply 

of opium salts, together with an equivalency in raw opium from which the salts 

may be processed, is 58,697 AMA (anhydrous morphine alkaloid) lbs., or 

approximately 45 percent, below the goal of 130,000 AMA lbs. which the 

Director of FEMA has set. The Administrator of General Services is attempting 

“ to correct this critical shortage” and plans to acquire approximately 44,000 

AMA lbs. of opium salts within one year. The Administration has determined that 

20,000 AMA kilograms (approximately 44,000 AMA lbs.) of morphine sulfate, 

the form of opium salts which FEMA has specified as its first preference for 

storage in the National Defense Stockpile, can be acquired from the Turkish Soil 

Products Office within the established one-year time period.

We doubt that it can be disputed that the acquisition of morphine sulfate for the 

National Defense Stockpile is, within the terms of § 952(a), in furtherance of a 

legitimate need of the United States. The factual question remains, however, 

whether such acquisition by import from Turkey (as opposed to by purchase from 

U.S. manufacturers) is necessary due to an emergency in which domestic 

supplies of morphine sulfate are inadequate to meet this legitimate need. This is

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the finding required by § 952(a)(2)(A). To answer this question, we believe it is 

essential first to identify precisely what that need is, second to determine whether 

failure to fulfill that need creates an emergency situation, and finally to examine 

whether domestic supplies are adequate to meet the need as identified, within the 

time period set by FEMA and GSA.

Since FEMA is the government agency with both the authority and primary 

responsibility under Executive Order No. 12155 to determine what the need is, 

and with the expertise to know whether failure to meet that need creates an 

emergency with respect to the defense preparedness of the United States, its 

views on these issues should be solicited and will be entitled to considerable 

weight. It is also apparent that GSA, which is charged with fulfilling the need, is 

in a position to have or to develop the facts concerning the adequacy and 

availability of domestic supplies to satisfy the need according to the terms set by 

the two agencies.

We cannot, of course, predict whether, after FEMA and GSA have been 

consulted and additional information made available to DEA from other sources 

has been considered, the facts will establish the availability of a § 952(a)(2)(A) 

exception for the importation from Turkey of morphine sulfate for the National 

Defense Stockpile. We cannot rule out the possibility, however, that an inquiry 

properly focused on the relevant facts would establish that § 952(a)(2)(A) is 

applicable to the proposed import. Such an inquiry should give due consideration 

to the requirements and views of FEMA and GSA, as well as to the facts 

presented by them and by other interested parties,3 including: the need for the 

specific substance morphine sulfate in the National Defense Stockpile; the 

quantity and quality of morphine sulfate needed; the period of time within which 

that need must be met; the consequences to national defense preparedness if that 

need is not fulfilled within that time period; whether those consequences would 

constitute an emergency; and whether domestic supplies of morphine sulfate are, 

or will be, adequate during the relevant time period to meet that need, both as to 

quantity and quality, given that the medical, scientific, and other legitimate needs 

of the United States, including the maintenance by private industry of sufficient 

reserve supplies, for opium-based drugs must be met simultaneously.

As we noted earlier, a legal argument can be made that § 952(a) is inapplicable 

in the case of an import by the United States, through one of its agencies, of a 

controlled substance otherwise within the scope of this statute. This argument is 

based on a line of Supreme Court cases best typified by United States v. U nited

M ine Workers, 330 U.S. 258 (1947), which hold that, as a matter of statutory 

construction, unless extraneous and affirmative reasons (such as the legislative 

history or the context within which a statutory scheme operates) indicate otherwise, “ statutes which in general terms divest pre-existing rights or privileges will 

not be applied to the sovereign without express words to that effect.” Id. at 272. 

See also H ancock v. Train, 426 U.S. 167 (1976); United States v. Wittek, 337 

U.S. 346(1949); U nited States v. H erron, 87 U.S. (20 Wall.)251 (1874); U nited

3 A formal hearing on the availability of a § 952(a)(2)(A) exception is nol required. 21 U.S.C. § 958(h).

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S ta tesv. Knight, 3 9 U.S. (14Pet.)301 (1840);and2 6 Op. Att’yGen. 415 (1907) 

(Statute prohibiting, on penalty of forfeiture, transportation of merchandise from 

one United States port to another in foreign-owned vessels inapplicable to the 

shipment of property owned by the United States).

Without going into detail, we observe that nothing specific in the language of 

§ 952(a) or of its predecessor statute, the Narcotic Drugs Import and Export Act 

of 1922, Pub. L. No. 227, § 2(b), 67th Cong., 2d Sess., 42 Stat. 596,21 U.S.C. 

§ 173 (1964) and little in their combined legislative histories indicates clearly 

that they were intended to restrict the actions of the United States. Thus application to § 952(a) of the rule of construction that general statutes do not divest the 

sovereign of pre-existing rights is not clearly precluded. The argument that 

§ 952(a) should not be construed to prohibit importation by the United States is 

strengthened when one considers the statutory mechanisms chosen by Congress 

to enforce it: criminal prosecution, 21 U.S.C. § 960, and forfeiture to the United 

States, 21 U.S.C. §§ 965, 880. Both penalties are inappropriate for application 

to the United States.

Other arguments, however, support the conclusion that the prohibition of 

§ 952(a) should be applied to the United States. Primary among these is that 

DEA and its predecessor agencies responsible for enforcing § 952(a) and its 

progenitor have long interpreted the provisions as applicable to the United States, 

e.g., 21 C.F.R. §§ 1311.24-25 (Exempting military personnel and certain 

federal law enforcement personnel from import and export registration requirements). The United States, as an administrative practice, has never imported 

narcotics in violation of these provisions. This interpretation by the agency 

responsible for administering the statute, and the long and consistent administrative practice, would, we believe, carry great weight with the courts. E.g.,

United States v. Rutherford, 442 U.S. 544, 553-54 (1979). Moreover, although 

direct evidence is scanty, there is some indication in the legislative history that 

§ 952(a) is intended, at least in part, to foster a United States industry to produce 

opium-based drugs and to protect that industry from foreign competition. See

generally C ontrolled D angerous Substances, N arcotics and Drug Control Laws:

H earings Before the House Com mittee on Ways and M eans, 91st Cong., 2d 

Sess., 458-62 (1970) (Statement of Stephen Ailes). See also 21 U.S.C. § 958(h) 

(Giving U.S. manufacturers certain hearing rights before imports may be authorized). Failure to apply the law to the United States, a substantial consumer of 

such drugs, arguably would be inconsistent with such an intent. Further, 

§ 952(a), like its predecessor, places an absolute ban on the importation of opium 

for manufacturing heroin or smoking opium. Since this prohibition was derived 

from § 952(a)’s predecessor and since that statute was enacted in large part in 

reaction to adverse congressional and public opinion concerning the increase in 

drug use in the United States for non-medical purposes—particularly opium 

smoking— it seems doubtful that Congress meant to exempt the United States

459
from this particular prohibition. Finally, § 952(a) must be read in pa ri m ateria

with 21 U.S.C. § 953(a)4, dealing with the export of controlled substances. We 

note that the prohibitions of that section almost certainly are applicable to exports 

by the United States since they are intended to implement the treaties and 

international conventions cited in that section and those treaties and conventions 

apply, by their terms, to actions of the United States government.

In conclusion, an argument can be made, as outlined briefly above, that 

§ 952(a) does not bind the United States. Nevertheless, a contrary legal argument can be made, based on administrative practice and interpretation, that it 

does. In these circumstances, we conclude that it would be imprudent to rely 

solely on this argument to attempt to justify the proposed import by GSA of 

morphine sulfate from Turkey without first carefully examining the relevant facts 

available to FEMA and GSA to determine whether the § 952(a)(2)(A) exception 

is available. Should you determine that the facts do not support an exception 

under that section, we would be pleased to explore more fully the legal question 

of the applicability of § 952(a) to imports of controlled substances by the United 

States.

T h e o d o r e B . O l s o n

A ssistant Attorney G eneral

Office of Legal Counsel

4 Both are sections of the Controlled Substances Import and Export Act, which was enacted as Title III of the

Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub L No 91-513, Title III, 91st Cong , 2d 

Sess., 84 Stat. 1285.

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