b'(Slip Opinion)\n\nLicensing Marijuana Cultivation in Compliance\nwith the Single Convention on Narcotic Drugs\nUnder the Controlled Substances Act, the Drug Enforcement Administration may register\nan applicant to cultivate marijuana only if the registration scheme is consist ent with\nthe Single Convention on Narcotic Drugs. To comply with the Single Convention,\nDEA\xe2\x80\x99s licensing framework must provide for a system in which DEA or its legal agent\nhas physical possession and ownership over the cultivated marijuana and assumes control of the distribution of marijuana no later than four months after harvesting.\nJune 6, 2018\n\nMEMORANDUM OPINION FOR THE ACTING CHIEF COUNSEL\nDRUG ENFORCEMENT ADMINISTRATION\nUnder the Controlled Substances Act, the Attorney General is authorized to license marijuana cultivation if he determines that it would be\n\xe2\x80\x9cconsistent with the public interest and with United States obligations\nunder international treaties, conventions, or protocols in effect on May 1,\n1971.\xe2\x80\x9d 21 U.S.C. \xc2\xa7 823(a). Such obligations include those under the\nSingle Convention on Narcotic Drugs (\xe2\x80\x9cSingle Convention\xe2\x80\x9d), Mar. 30,\n1961, 18 U.S.T. 1407. As relevant here, the Single Convention requires\nparties either to prohibit marijuana cultivation altogether or, if they permit\ncultivation, to establish \xe2\x80\x9ca single government agency\xe2\x80\x9d to oversee marijuana growers and generally to monopolize the wholesale trade in the marijuana crop. Id. arts. 22, 23(3), 28(1). That single agency must strictly\nregulate any lawful cultivation of marijuana by, among other things, \xe2\x80\x9cpurchas[ing] and tak[ing] physical possession of [the] crops as soon as possible, but not later than four months after the end of the harvest.\xe2\x80\x9d Id. art.\n23(2)(d).\nThis opinion considers whether the Drug Enforcement Administration\n(\xe2\x80\x9cDEA\xe2\x80\x9d), which exercises the Attorney General\xe2\x80\x99s licensing authority,\nmust alter existing licensing practices to comply with the Single Convention. At present, DEA does not purchase or take physical possession of\nlawfully grown marijuana at any point in the distribution process. Instead,\nthe only currently licensed marijuana cultivator grows and distributes the\nmarijuana itself pursuant to a contract with, and under the supervision of,\nthe National Institute on Drug Abuse (\xe2\x80\x9cNIDA\xe2\x80\x9d), a component of the\nDepartment of Health and Human Services\xe2\x80\x99 National Institutes of Health.\nIn 2016, DEA revised this process and announced that it would increase\nthe number of licensees and supervise the additional growers itself.\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nSee Applications To Become Registered Under the Controlled Substances\nAct To Manufacture Marijuana To Supply Researchers in the United\nStates, 81 Fed. Reg. 53,846, 53,848 (Aug. 12, 2016) (\xe2\x80\x9cApplications To\nManufacture Marijuana\xe2\x80\x9d). Under the new policy, DEA would not purchase or possess the marijuana before licensees distributed it to government-approved researchers. Several entities have applied for licenses\nunder the new policy, but no applications have been approved.\nWe conclude that DEA must change its current practices and the policy\nit announced in 2016 to comply with the Single Convention. DEA must\nadopt a framework in which it purchases and takes possession of the\nentire marijuana crop of each licensee after the crop is harvested. In\naddition, DEA must generally monopolize the import, export, wholesale\ntrade, and stock maintenance of lawfully grown marijuana.1 There may\nwell be more than one way to satisfy those obligations under the Single\nConvention, but the federal government may not license the cultivation of\nmarijuana without complying with the minimum requirements of that\nagreement.\nI.\nThe Single Convention entered into force for the United States on June\n24, 1967, after the Senate had given its advice and consent to the United\nStates\xe2\x80\x99 accession. See Single Convention, 18 U.S.T. 1407. The Convention requires parties to impose stringent controls on the cultivation, manufacture, and distribution of narcotic drugs, including \xe2\x80\x9ccannabis,\xe2\x80\x9d which it\ndefines as \xe2\x80\x9cthe flowering or fruiting tops of the cannabis plant (excluding\nthe seeds and leaves when not accompanied by the tops) from which the\n1\n\nIn preparing this opinion, we considered the views of DEA, the Office of the General\nCounsel of the Department of Health and Human Services, and the Department of State\xe2\x80\x99s\nOffice of the Legal Adviser. See Applications To Manufacture Marijuana, 81 Fed. Reg. at\n53,846\xe2\x80\x9348 (discussing requirements of the Single Convention applicable to licensing\nmarijuana cultivation); Lyle E. Craker, PhD, 76 Fed. Reg. 51,403, 51,409\xe2\x80\x9311 (DEA Aug.\n18, 2011) (same); Lyle E. Craker, 74 Fed. Reg. 2101, 2114\xe2\x80\x9318 (DEA Jan. 14, 2009)\n(same); Memorandum for Steven A. Engel, Assistant Attorney General, Office of Legal\nCounsel, from Matthew S. Bowman, Deputy General Counsel, Department of Health and\nHuman Services (Apr. 13, 2018) (\xe2\x80\x9cHHS Mem.\xe2\x80\x9d); Office of Law Enforcement and Intelligence and Office of Treaty Affairs, Single Convention Analysis (Jan. 29, 2018) (\xe2\x80\x9cState\nMem.\xe2\x80\x9d); Letter for Steven A. Engel, Assistant Attorney General, Office of Legal Counsel,\nfrom Jennifer G. Newstead, Legal Adviser, Department of State (Apr. 17, 2018) (\xe2\x80\x9cState\nSupp. Mem.\xe2\x80\x9d).\n\n2\n\n\x0cLicensing Marijuana Cultivation\n\nresin has not been extracted, by whatever name they may be designated.\xe2\x80\x9d\nSingle Convention art. 1(1)(b). Parties must, among other things, establish\nquotas on the import and manufacture of cannabis, generally prohibit the\npossession of cannabis, and adopt penal provisions making violations of\nthose controls punishable offenses. Id. arts. 21, 33, 36.\nArticle 28 of the Single Convention requires that any lawful cultivation\nof the cannabis plant be subject to the same system of strict controls \xe2\x80\x9cas\nprovided in article 23 respecting the control of the opium poppy.\xe2\x80\x9d Id. art.\n28. The cross-referenced provisions in Article 23 provide as follows:\n1. A Party that permits the cultivation of the opium poppy for the\nproduction of opium shall establish, if it has not already done so,\nand maintain, one or more government agencies (hereafter in this\narticle referred to as the Agency) to carry out the functions required under this article.\n2. Each such Party shall apply the following provisions to the cultivation of the opium poppy for the production of opium and to\nopium:\na. The Agency shall designate the area in which, and the plots of\nland on which, cultivation of the opium poppy for the purpose\nof producing opium shall be permitted.\nb. Only cultivators licensed by the Agency shall be authorized to\nengage in such cultivation.\nc. Each license shall specify the extent of the land on which the\ncultivation is permitted.\nd. All cultivators of the opium poppy shall be required to deliver\ntheir total crops of opium to the Agency. The Agency shall purchase and take physical possession of such crops as soon as\npossible, but not later than four months after the end of the harvest.\ne. The agency shall, in respect of opium, have the exclusive right\nof importing, exporting, wholesale trading and maintaining\nstocks other than those held by manufacturers of opium alkaloids, medicinal opium, or opium preparations. Parties need not\nextend this exclusive right to medicinal opium and opium preparations.\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\n3. The governmental functions referred to in paragraph 2 shall be\ndischarged by a single government agency if the constitution of\nthe Party concerned permits it.\nThe agency\xe2\x80\x99s \xe2\x80\x9cexclusive right[s]\xe2\x80\x9d over the harvested marijuana need not\nextend to \xe2\x80\x9cmedicinal\xe2\x80\x9d marijuana or marijuana \xe2\x80\x9cpreparations,\xe2\x80\x9d but the\nnational cannabis agency must still purchase and take physical possession\nof all marijuana grown for such purposes. Id. art. 23(2)(d)(e); see Report\nof the International Narcotics Control Board for 2014, at 35 (Mar. 3,\n2015) (\xe2\x80\x9c2014 INCB Report\xe2\x80\x9d); Secretary-General of the United Nations,\nCommentary on the Single Convention on Narcotic Drugs, 1961, at 284,\n314 (1973) (\xe2\x80\x9cCommentary\xe2\x80\x9d).2\nThree years after the United States acceded to the Single Convention,\nCongress in 1970 enacted the Controlled Substances Act (\xe2\x80\x9cCSA\xe2\x80\x9d), 21\nU.S.C. \xc2\xa7 801 et seq., \xe2\x80\x9ca comprehensive statute designed to rationalize\nfederal control of dangerous drugs.\xe2\x80\x9d Nat\xe2\x80\x99l Org. for Reform of Marijuana\nLaws (NORML) v. DEA, 559 F.2d 735, 737 (D.C. Cir. 1977). \xe2\x80\x9c[A] number\nof the provisions of [the CSA] reflect Congress\xe2\x80\x99 intent to comply with\nthe obligations imposed by the Single Convention.\xe2\x80\x9d Control of Papaver\nBracteatum, 1 Op. O.L.C. 93, 95 (1977); see, e.g., 21 U.S.C. \xc2\xa7\xc2\xa7 801(7),\n811(d)(1), 958(a); see also S. Rep. No. 91-613, at 4 (1969) (\xe2\x80\x9cThe United\nStates has international commitments to help control the worldwide drug\ntraffic. To honor those commitments, principally those established by\nthe Single Convention on Narcotic Drugs of 1961, is clearly a Federal\nresponsibility.\xe2\x80\x9d).\nThe CSA imposes strict controls on marijuana, which is defined to include \xe2\x80\x9call parts of the plant Cannabis sativa L.\xe2\x80\x9d and all compounds and\nderivatives thereof, with certain exceptions not relevant here. 21 U.S.C.\n\xc2\xa7 802(16). The statute classifies marijuana as a schedule I substance, the\nmost stringent classification available, reflecting a determination that\nmarijuana \xe2\x80\x9chas a high potential for abuse\xe2\x80\x9d and \xe2\x80\x9cno currently accepted\nmedical use.\xe2\x80\x9d 21 U.S.C. \xc2\xa7 812(b); see Craker v. DEA, 714 F.3d 17, 19\n(1st Cir. 2013); 21 C.F.R. \xc2\xa7 1308.11. The CSA makes the unauthorized\n\nThe United Nations\xe2\x80\x99 Economic and Social Council requested that the SecretaryGeneral prepare the Commentary \xe2\x80\x9cin the light of the relevant conference proceedings and\nother material\xe2\x80\x9d in order to aid governments in applying the Single Convention. Economic\nand Social Council Resolution 1962/914(XXXIV)D (Aug. 3, 1962).\n2\n\n4\n\n\x0cLicensing Marijuana Cultivation\n\npossession, manufacture, and distribution of marijuana a crime punishable\nby severe penalties. 21 U.S.C. \xc2\xa7\xc2\xa7 841, 844.\nAlthough federal law recognizes no currently accepted medical use for\nmarijuana, see United States v. Oakland Cannabis Buyers\xe2\x80\x99 Co-op., 532\nU.S. 483, 491 (2001), it does permit the cannabis plant to be cultivated\nlawfully for research purposes pursuant to a DEA license. See 21 U.S.C.\n\xc2\xa7\xc2\xa7 822(a)(1), 823(a); 21 C.F.R. pt. 1301.3 Since its founding in 1973,\nDEA has licensed only one such grower to supply researchers with marijuana\xe2\x80\x94the National Center for Natural Products Research (\xe2\x80\x9cNational\nCenter\xe2\x80\x9d), a division of the University of Mississippi. See Lyle E. Craker,\n74 Fed. Reg. at 2104; Applications To Manufacture Marijuana, 81 Fed.\nReg. at 53,846. The National Center cultivates marijuana pursuant to a\ncontract administered by NIDA. Besides overseeing the cultivation of\nmarijuana, NIDA also plays a role in determining which researchers may\nobtain marijuana for medical or scientific use. See 21 U.S.C. \xc2\xa7 823(f );\nAnnouncement of Revision to the Department of Health and Human\nServices Guidance on Procedures for the Provision of Marijuana for\nMedical Research as Published on May 21, 1999, 80 Fed. Reg. 35,960\n(June 23, 2015).\nThe current contract between NIDA and the National Center, which\nbecame effective on March 23, 2015, provides that the National Center\nwill, among other things, \xe2\x80\x9ccultivate and harvest, process, analyze, store,\nand distribute cannabis . . . for research.\xe2\x80\x9d Award/Contract Issued by Nat\xe2\x80\x99l\nInst. on Drug Abuse, to the University of Mississippi, Contract No.\nHHSN271201500023C, at 4 (effective Mar. 23, 2015) (\xe2\x80\x9c2015 NIDA\nContract\xe2\x80\x9d). The National Center must also \xe2\x80\x9c[p]rovide an adequate DEA\napproved storage facility\xe2\x80\x9d for the harvested cannabis and may ship it to\nresearchers only \xe2\x80\x9cas required by NIDA.\xe2\x80\x9d Id. at 17. All work under the\ncontract is to be \xe2\x80\x9cmonitored\xe2\x80\x9d by the Government Contracting Officer\xe2\x80\x99s\nRepresentative, an employee at NIDA\xe2\x80\x99s headquarters in Bethesda, Maryland. Id. at 16, 34. The contract requires the NIDA representative to\nmonitor technical progress based on the National Center\xe2\x80\x99s monthly progress reports, to evaluate the National Center\xe2\x80\x99s work, to perform technical\nevaluations and inspections of a sample of the marijuana shipped to\nNIDA, and to assist in resolving technical problems. Id. at 17, 26, 34.\n3 Sections 822(a) and 823(a) vest authority over registration for such licenses in the\nAttorney General. Pursuant to 21 U.S.C. \xc2\xa7 871(a), the Attorney General delegated this\nfunction to DEA. 28 C.F.R. \xc2\xa7 0.100(b).\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nIn 2016, in response to increasing public interest in marijuana research,\nDEA announced a new policy reflecting its intention to increase the\nnumber of federally authorized growers. See Applications To Manufacture\nMarijuana, 81 Fed. Reg. at 53,846\xe2\x80\x9348. Under the new policy, a grower, if\napproved for a license, would \xe2\x80\x9cbe permitted to operate independently,\nprovided the grower agrees (through a written memorandum of agreement\nwith DEA) that it will only distribute marijuana with prior, written approval from DEA.\xe2\x80\x9d Id. at 53,848. NIDA would not be involved in monitoring the additional licensees. We understand that DEA has several\ncurrently pending requests from entities that seek to register as marijuana\ngrowers under that policy.\nII.\nUnder the CSA, DEA may register an applicant to cultivate marijuana\nonly if the registration scheme is consistent with the Single Convention.\nWe address whether DEA\xe2\x80\x99s practices and policy for licensing marijuana\ncultivation comply with the Single Convention and, if not, what changes\nDEA must make to conform to the treaty.\nA.\nAn international agreement has the force of domestic U.S. law if it\nis self-executing or if Congress has implemented it by legislation. See\nMedell\xc3\xadn v. Texas, 552 U.S. 491, 504\xe2\x80\x9305 (2008). Here, Congress has\nexecuted the Single Convention in the CSA. In that Act, Congress provided that the Attorney General \xe2\x80\x9cshall\xe2\x80\x9d license the cultivation of marijuana\n\xe2\x80\x9cif he determines that such registration is consistent with . . . United\nStates obligations under international treaties, conventions, or protocols\nin effect on May 1, 1971.\xe2\x80\x9d 21 U.S.C. \xc2\xa7 823(a).4 The Attorney General is\nthus required to determine that the licensing scheme is consistent with the\nSingle Convention before exercising his authority to register an applicant\nto cultivate marijuana. See Control of Papaver Bracteatum, 1 Op. O.L.C.\nat 99; Memorandum for John E. Ingersoll, Director, Bureau of Narcotics\nand Dangerous Drugs, from Mary C. Lawton, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, Petition to Decontrol Marihuana\xe2\x80\x94\n4 The Single Convention was amended by a 1972 protocol, but the amendments are not\nmaterial to the obligations discussed in this opinion. See Protocol Amending the Single\nConvention on Narcotic Drugs, Mar. 25, 1972, 26 U.S.T. 1439.\n\n6\n\n\x0cLicensing Marijuana Cultivation\n\nInterpretation of Section 201 of the Controlled Substances Act of 1970,\nat 4 (Aug. 21, 1972) (\xe2\x80\x9c[I]n making determinations as to the fitness of\nregistrants to receive licenses for manufacture or export and import of\ncontrolled substances, the Attorney General is instructed to ensure consistency \xe2\x80\x98with United States obligations under international treaties.\xe2\x80\x99\xe2\x80\x9d).\nArticle 23(2) of the Single Convention, made applicable to marijuana\ncultivation by Article 28, contains five requirements for the supervision,\nlicensing, and distribution of marijuana. See Single Convention art.\n23(2)(a)\xe2\x80\x93(e). Under current regulations and practice, DEA satisfies the\nfirst three requirements. The Convention specifies that the agency must\ndesignate the land on which cannabis cultivation is permitted, limit cultivators to those licensed by the agency, and specify the extent of the land\non which cultivation is permitted. Id. art. 23(2)(a), (b), (c). Federal regulations implement those requirements by mandating that a marijuana manufacturer obtain a DEA license annually for each physical location at which\nmarijuana is grown. 21 U.S.C. \xc2\xa7 822(a)(1); 21 C.F.R \xc2\xa7\xc2\xa7 1301.11(a),\n1301.12(a). DEA establishes annual production quotas for lawful marijuana cultivation, and it has exercised that authority by setting the annual\nquotas for the National Center, the only entity ever registered by DEA to\ngrow marijuana to supply researchers in the United States. 21 U.S.C.\n\xc2\xa7 826; 21 C.F.R. \xc2\xa7 1303.11. DEA has ample authority under this framework to specify the areas and circumstances under which a licensee may\ncultivate marijuana and in fact satisfies the first three requirements of\nArticle 23(2) of the Single Convention in registering applicants under the\nCSA pursuant to those requirements.\nArticle 23 of the Single Convention also imposes control requirements\nbeyond those currently carried out by DEA. Under Article 23(2)(d), \xe2\x80\x9call\ncultivators shall be required to deliver their total crops\xe2\x80\x9d to the agency, and\nthe agency \xe2\x80\x9cshall purchase and take physical possession of such crops as\nsoon as possible, but not later than four months after the end of the harvest.\xe2\x80\x9d Article 23(2)(e) requires the agency to \xe2\x80\x9chave the exclusive right of\nimporting, exporting, wholesale trading and maintaining stocks.\xe2\x80\x9d The\nUnited States currently attempts to comply with those requirements\nthrough NIDA\xe2\x80\x99s contract with the National Center, under which NIDA\xe2\x80\x99s\ncontracting officials supervise the National Center\xe2\x80\x99s cultivation of marijuana and distribution of marijuana to researchers. Article 23\xe2\x80\x99s final requirement, however, provides that the \xe2\x80\x9cgovernmental functions\xe2\x80\x9d in Article\n23(2) must be \xe2\x80\x9cdischarged by a single government agency if the constitution of the Party concerned permits it.\xe2\x80\x9d Single Convention art. 23(3).\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nWe conclude that the existing licensing framework departs from Article\n23 in three respects. First, the division of responsibilities between DEA\nand NIDA, a component of the Department of Health and Human Services\n(\xe2\x80\x9cHHS\xe2\x80\x9d), contravenes Article 23(2)\xe2\x80\x99s requirement that all Article 23\nfunctions be carried out by a single government agency. Second, neither\nof the two government agencies \xe2\x80\x9ctake[s] physical possession\xe2\x80\x9d of the\nmarijuana grown by the National Center, as required by Article 23(2)(d).\nThird, no federal agency exercises a monopoly over the wholesale trade in\nmarijuana, as required by Article 23(2)(e). We discuss each departure in\nturn.\n1.\nCurrent practice diverges from the Single Convention\xe2\x80\x99s requirement\nthat a single agency undertake each of the listed control functions unless\nthe constitution of the treaty party forbids it. As explained, DEA is responsible for the controls required by Article 23(2)(a), (b), and (c) because it effectively designates the area where marijuana cultivation is\npermitted, limits cultivators to those licensed by the agency, and speci fies the extent of the land on which cultivation is permitted. NIDA, for\nits part, attempts to satisfy the physical-possession and governmentmonopoly-control requirements of Article 23(2)(d) and (e) by supervising\ncultivation under its contract with the National Center. That division of\nauthority is contrary to Article 23(3), because nothing in the Constitution\nwould preclude the United States from discharging all of those controls\nthrough one government agency.\nDEA agrees that \xe2\x80\x9cthe United States fails to adhere strictly\xe2\x80\x9d to the single\ngovernment agency provision because \xe2\x80\x9cboth DEA and HHS carry out\ncertain functions set forth in article 23, paragraph 2.\xe2\x80\x9d Lyle E. Craker,\nPhD, 76 Fed. Reg. at 51,409.5 For the current framework to be in compli-\n\n5\n\nMembers of Congress and the American Bar Association have also recognized that\nthe division of regulatory responsibilities among federal agencies fails to comply with the\nSingle Convention. See 129 Cong. Rec. 7434 (Mar. 24, 1983) (Rep. McKinney) (recognizing that the current division of responsibilities is in \xe2\x80\x9cviolation of the [S]ingle\n[C]onvention\xe2\x80\x9d and introducing a bill that would create an \xe2\x80\x9cOffice for the Supply of\nInternationally Controlled Drugs\xe2\x80\x9d within the Department of Health and Human Services\nto \xe2\x80\x9ccomply[] with the [S]ingle [C]onvention on [N]arcotic [D]rugs\xe2\x80\x9d); Report No. 1 of the\nSection of Administrative Law, 109 Ann. Rep A.B.A. 447, 482 (1984) (noting that the\nSingle Convention \xe2\x80\x9crequires that a single government agency license all domestic pro-\n\n8\n\n\x0cLicensing Marijuana Cultivation\n\nance with the single-agency requirement of the treaty, we would have to\nview NIDA as performing the physical-possession and governmentmonopoly functions on behalf of DEA. See State Mem. at 5. But we do\nnot believe that NIDA acts for DEA, and it is unlikely that DEA could\nlawfully supervise NIDA in the performance of its functions. We are\naware of no statute that gives DEA that authority. And the President may\nnot delegate to DEA his constitutional authority to supervise NIDA in the\nexercise of its statutory responsibilities. See Centralizing Border Control\nPolicy Under the Attorney General, 26 Op. O.L.C. 22, 24\xe2\x80\x9325 (2002).\n2.\nWe turn next to the requirement that the single government agency\n\xe2\x80\x9cpurchase and take physical possession\xe2\x80\x9d of the marijuana. Single Convention art. 23(2)(d). As noted above, NIDA contracts with, and partially\noversees, the cultivation of marijuana by the National Center, which is\nlicensed by DEA. But under that contractual arrangement, neither NIDA\nnor DEA takes physical possession of the marijuana. Rather, the National\nCenter itself stores the marijuana on the premises of the University of\nMississippi and ships it to researchers approved by DEA. Neither NIDA\nnor DEA accepts delivery of the harvested crops. That contractual arrangement does not satisfy the United States\xe2\x80\x99 obligations under Article\n23(d). The contract at most results in a federal government agency\xe2\x80\x99s having constructive, rather than physical, possession of the marijuana crop.\na.\nThe Single Convention does not define \xe2\x80\x9cphysical possession.\xe2\x80\x9d In construing that term we should \xe2\x80\x9cbegin with the text of the treaty and the\ncontext in which the written words are used.\xe2\x80\x9d Water Splash, Inc. v. Menon, 137 S. Ct. 1504, 1508\xe2\x80\x9309 (2017) (internal quotation marks omitted);\nsee also Restatement (Third) of the Foreign Relations Law of the United\nStates \xc2\xa7 325(1) (Am. Law Inst. 1987) (\xe2\x80\x9cRestatement of Foreign Relations\xe2\x80\x9d) (\xe2\x80\x9cAn international agreement is to be interpreted in good faith\naccording to the ordinary meaning to be given to its terms in their context\nand in light of its object and purpose.\xe2\x80\x9d); Vienna Convention on the Law of\nduce[r]s of marijuana, specify the particular plots of land on which it is to be grown, and\ncollect the crops of all domestic producers of marijuana\xe2\x80\x9d and that \xe2\x80\x9cat present the authority\nto control marijuana production is split between\xe2\x80\x9d government agencies).\n\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nTreaties art. 31(1), opened for signature May 23, 1969, 1155 U.N.T.S.\n331(\xe2\x80\x9cVienna Convention\xe2\x80\x9d) (similar).6\nWe think it evident from the treaty\xe2\x80\x99s text and context that \xe2\x80\x9cphysical\npossession\xe2\x80\x9d requires growers licensed under the CSA to transfer the crops\nto the physical, and not merely legal, control of the federal government.\nArticle 23(2)(d) says that \xe2\x80\x9ccultivators\xe2\x80\x9d must \xe2\x80\x9cdeliver their total crops\xe2\x80\x9d to\nthe government\xe2\x80\x94a clear indication that the treaty contemplates the physical transfer of control from one party to another. The Single Convention\xe2\x80\x99s\nCommentary reinforces that point in emphasizing that \xe2\x80\x9cthe time between\nthe harvest and delivery of the crop should be as short as possible\xe2\x80\x9d and\nrecommending that parties \xe2\x80\x9cset a final date after which possession of\nharvested [crops] by a private cultivator is in any event illegal and [the\ncrop] subject to confiscation.\xe2\x80\x9d Commentary at 283 (emphasis added). And\nthis understanding of the words used in the Single Convention is further\nconfirmed by the decisions of U.S. courts, which have consistently distinguished constructive possession from physical possession, with the latter\nrequiring direct physical control over the item in question.7\nOne might argue that NIDA, through its contract, satisfies the treaty\nrequirements of physical possession via the pervasive influence and\ncontrol NIDA exercises over the National Center\xe2\x80\x99s cultivation operations.\nSee State Mem. at 5; State Supp. Mem. at 2. NIDA\xe2\x80\x99s contract does provide that the National Center serves as \xe2\x80\x9cNIDA\xe2\x80\x99s cannabis drug repository.\xe2\x80\x9d 2015 NIDA Contract at 16. DEA regulations also include detailed\nspecifications for the material, size, and accessibility of the storage facility. See 21 C.F.R. \xc2\xa7\xc2\xa7 1301.71\xe2\x80\x931301.76. The contract further specifies\nparticular temperatures for the storage facility and notes that \xe2\x80\x9c[l]ocal DEA\nagents will determine the exact type of security required.\xe2\x80\x9d 2015 NIDA\n6 The United States is not a party to the Vienna Convention, but this Office has relied\non Article 31 as generally reflecting customary international law and practice. See Interpretation of Article 17 Bis of the US-EU Air Transport Agreement, 40 Op. O.L.C. __,\nat *5 (Apr. 14, 2016); \xe2\x80\x9cProtected Person\xe2\x80\x9d Status in Occupied Iraq Under the Fourth\nGeneva Convention, 28 Op. O.L.C. 35, 53 n.21 (2004).\n7 See, e.g., United States v. Hunter, 558 F.3d 495, 503\xe2\x80\x9304 (6th Cir. 2009) (\xe2\x80\x9cActual\npossession exists when an individual knowingly has direct physical control over a thing at\na given time[.]\xe2\x80\x9d); United States v. Derose, 74 F.3d 1177, 1185 (11th Cir. 1996) (defining\n\xe2\x80\x9cactual possession\xe2\x80\x9d as \xe2\x80\x9cphysical possession or . . . actual personal dominion over the thing\nallegedly possessed\xe2\x80\x9d); United States v. Raper, 676 F.2d 841, 848 (D.C. Cir. 1982) (finding constructive possession even though the drugs were in another\xe2\x80\x99s \xe2\x80\x9cphysical possession\xe2\x80\x9d); United States v. Moreno, 649 F.2d 309, 313 (5th Cir. Unit A June 1981) (same).\n\n10\n\n\x0cLicensing Marijuana Cultivation\n\nContract at 17. And the contract provides for federal monitoring of compliance by the NIDA representative, although that supervision occurs\nprimarily from NIDA\xe2\x80\x99s headquarters in Bethesda, Maryland. Id. at 16, 26,\n34. But the control that NIDA exercises through these contractual provisions amounts at most to constructive possession of the marijuana, and is\nthus insufficient to meet the treaty requirement of physical possession by\nthe federal government.\nIn particular, this requirement demands that the government have physical control over the crop. Because a government acts through its agents,\nthat mandate means the marijuana must be delivered to government\nagents who must have personal and direct physical access to the crops in\nquestion, and not simply the ability or power to obtain access to them.\nb.\nIt could be argued that the National Center\xe2\x80\x99s employees are acting as\nfederal government agents, and that the federal government physically\npossesses marijuana grown by the National Center through those employees. But in a similar context, for purposes of asking whether the federal\ngovernment is liable for the actions of a contractor under the Federal Tort\nClaims Act, the Supreme Court has emphasized that requiring compliance\nwith \xe2\x80\x9cfederal standards and regulations\xe2\x80\x9d or contract terms that \xe2\x80\x9cfix specific and precise conditions to implement federal objectives\xe2\x80\x9d does not suffice to \xe2\x80\x9cconvert the acts of [contractors] into federal governmental acts.\xe2\x80\x9d\nUnited States v. Orleans, 425 U.S. 807, 815\xe2\x80\x9316 (1976). A contractor\xe2\x80\x99s\nemployees may become federal agents only if the government has the\nauthority \xe2\x80\x9cto control the detailed physical performance of the contractor\xe2\x80\x9d\nand supervise its \xe2\x80\x9cday-to-day operations.\xe2\x80\x9d Id. at 814\xe2\x80\x9316 (internal quotation marks omitted).\nFor analogous reasons, the National Center\xe2\x80\x99s employees are not agents\nof the federal government. The parameters of the contract do not provide\nfor DEA or NIDA to supervise closely the day-to-day physical operations\nof the National Center\xe2\x80\x99s distribution and storage functions. And the NIDA\ncontract disavows the notion that it creates an agency relationship. It\nprovides that the National Center operates \xe2\x80\x9c[i]ndependently, and not as an\nagent of the Government\xe2\x80\x9d and, further, that the National Center \xe2\x80\x9cshall be\nrequired to furnish all necessary services, qualified personnel, materials,\nequipment, and facilities, not otherwise provided by the Government.\xe2\x80\x9d\n2015 NIDA Contract at 15 (emphasis added). There is simply no indica11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\ntion that the federal government, rather than the National Center, exercises the kind of close supervision of the National Center\xe2\x80\x99s employees that\nwould make them federal agents.\nWe are also not persuaded by a similar line of argument contending that\nthe National Center \xe2\x80\x9ccould be considered an extension of \xe2\x80\x9d the federal\ngovernment. Applications To Manufacture Marijuana, 81 Fed. Reg. at\n53,847. The suggestion is that the National Center itself operates as the\nfederal government in carrying out the controls required by the Single\nConvention. The question of whether an entity is part of the federal government turns on a variety of factors, including whether the government\nowns the entity; whether the government appoints its officers and directors; whether Congress has defined its corporate purposes or appropriated\nfunds for its operations; and whether the entity is controlled by or operates for the benefit of the federal government. See Dep\xe2\x80\x99t of Transp. v.\nAss\xe2\x80\x99n of Am. Railroads, 575 U.S. 43, 51\xe2\x80\x9355 (2015); United States v. New\nMexico, 455 U.S. 720, 739\xe2\x80\x9340 (1982); Memorandum for Edward A.\nFrankle, General Counsel, National Aeronautics & Space Administration,\nfrom Randolph D. Moss, Assistant Attorney General, Office of Legal\nCounsel, Re: Applicability of Government Corporation Control Act to\nGain Sharing Benefit Agreement at 7\xe2\x80\x939 (Sept. 18, 2000).\nUnder those factors, the National Center is not an extension of the federal government. The National Center is part of the University of Mississippi, located on campus in a university-owned building, and run by its\nown employees. It does not operate solely for a federal purpose, but\ninstead was established to help the University conduct \xe2\x80\x9cresearch to discover and develop natural products for use as pharmaceuticals, dietary\nsupplements and agrochemicals, and to understand the biological and\nchemical properties of medicinal plants.\xe2\x80\x9d National Center for Natural\nProducts Research, About NCNPR, https://pharmacy.olemiss.edu/ncnpr/\nabout-ncnpr/ (last visited June 6, 2018). While the federal government\npays the National Center to grow marijuana and exercises some supervision over its growing operations, the government does not generally fund\nor control the National Center. That the National Center may physically\npossess the marijuana it grows, then, does not satisfy the federal government\xe2\x80\x99s obligation to do so.8\n8 The Supreme Court has cautioned against applying \xe2\x80\x9cbackground principle[s] of\nAmerican law\xe2\x80\x9d that are \xe2\x80\x9crelevant to the interpretation of federal statutes\xe2\x80\x9d but were not\nnecessarily adopted by the signatories to a treaty (for example, the presumption in favor\n\n12\n\n\x0cLicensing Marijuana Cultivation\n\nc.\nIn addition to taking \xe2\x80\x9cphysical possession,\xe2\x80\x9d Article 23(2)(d) requires\nthat the national agency \xe2\x80\x9cpurchase\xe2\x80\x9d the marijuana from the cultivator.\nThat requirement provides for the government to pay for and take legal\ntitle to the marijuana. The Commentary advises that the payment of money was meant to encourage the delivery of the crops because \xe2\x80\x9c[p]rompt\npayment, a good price and other favourable conditions of purchase may\nbe incentives to producers to deliver speedily their total\xe2\x80\x9d crops to the\nagency. Commentary at 283. The exchange of payment for the harvested\ncrops encourages each grower to deliver its full inventory to the government.\nNeither NIDA nor DEA \xe2\x80\x9cpurchases\xe2\x80\x9d the harvested crops from the\nNational Center, but it could be said that NIDA does not need to do so if\nit already has title to the marijuana. See State Mem. at 4\xe2\x80\x935; HHS Mem.\nat 5\xe2\x80\x936. Although the contract between NIDA and the National Center\nincludes some provisions discussing government property, they do not\nexpressly address or otherwise make clear where title to the marijuana\ncrops lies.9 But we need not decide whether NIDA has title to the crops.\nThe requirement that the federal government physically possess the marijuana crops is distinct from the requirement that it \xe2\x80\x9cpurchase\xe2\x80\x9d the crops\nand thus secure title. See Single Convention art. 23(d). Physical possession is not conferred by mere \xe2\x80\x9ctransfer of title or risk of loss.\xe2\x80\x9d In re World\nImports, Ltd., 862 F.3d 338, 344 (3d Cir. 2017) (interpreting the Bankruptcy Code\xe2\x80\x99s reference to \xe2\x80\x9creceipt of goods\xe2\x80\x9d as requiring \xe2\x80\x9cphysical\nof equitable tolling of federal statutes of limitations). Lozano v. Montoya Alvarez, 572\nU.S. 1, 12 (2014). Here, we have sought help from analogies drawn from U.S. law to\ninterpret the Single Convention \xe2\x80\x9cin good faith in accordance with the ordinary meaning to\nbe given to its terms in their context and in light of its object and purpose.\xe2\x80\x9d Restatement\nof Foreign Relations \xc2\xa7 325(1).\n9 The current NIDA contract incorporates a clause of the Federal Acquisition Regulation dealing with government title to property. 2015 NIDA Contract at 55. That clause\nstates that \xe2\x80\x9c[t]itle to property (and other tangible personal property) purchased with funds\navailable for research and having a unit acquisition cost of less than $5,000 shall vest in\nthe Contractor upon acquisition or as soon thereafter as feasible; provided that the Contractor obtained the Contracting Officer\xe2\x80\x99s approval before each acquisition .\xe2\x80\x9d 48 C.F.R.\n\xc2\xa7 52.245-1 Alternate II (2012). If the unit acquisition cost is $5,000 or more, title vests\n\xe2\x80\x9cas set forth in this contract.\xe2\x80\x9d Id. The application of this clause to marijuana the contractor grows rather than purchases is ambiguous and the contract does not otherwise expressly address title to the crops.\n\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\npossession\xe2\x80\x9d); see Matter of Brio Petroleum, Inc., 800 F.2d 469, 472 (5th\nCir. 1986) (same); Matter of Marin Oil, Inc., 740 F.2d 220, 225 (3d Cir.\n1984) (same). Moreover, DEA certainly does not have title to the crops.\nEven if NIDA had formal legal title to the crops, the current arrangement\nwould still have to be adjusted to comply with the treaty\xe2\x80\x99s requirements\nthat a single government agency be charged with licensing cultivators,\npurchasing, and physically possessing the crops. In the course of making\nthose adjustments, DEA could enter into a contract that expressly states\nthat it owns the marijuana crops, should the agency seek to obviate the\nneed for a purchase and claim ownership in the marijuana from its inception, rather than buying back the crops shortly after the harvest.\n3.\nFinally, we do not believe that the current arrangement provides for the\nfederal government to exercise \xe2\x80\x9cthe exclusive right of importing, exporting, wholesale trading and maintaining stocks\xe2\x80\x9d in the drug, as required by\nArticle 23(2)(e). DEA has authority to control the lawful distribution of\nthe crops in certain respects. But just as with the physical possession\nrequirement, the Single Convention contemplates that the government\nmonopoly will involve more than the exercise of regulatory authority. The\nCommentary on the Convention stresses that wholesale trade \xe2\x80\x9cmust be\nundertaken by governmental authorities,\xe2\x80\x9d rather than private parties,\nbecause of the risk of diversion. Commentary at 278. The Convention\ncontemplates an actual \xe2\x80\x9cmonopoly,\xe2\x80\x9d id. at 284, i.e., \xe2\x80\x9c[t]he market condition existing when only one economic entity produces a particular product\nor provides a particular service.\xe2\x80\x9d Black\xe2\x80\x99s Law Dictionary 1160 (10th ed.\n2014). The government agency responsible for the relevant controls must\nown the crops and be the sole distributor of the marijuana. In allowing the\nNational Center to maintain possession of the marijuana and ship it to\nDEA-approved researchers, the NIDA contract does not create the required government monopoly over the lawful marijuana trade.10\n10 The government monopoly need not extend to \xe2\x80\x9cmedicinal\xe2\x80\x9d marijuana. Single Convention art. 23(e). But that exception is not available under current federal law. As noted\nabove, the federal government has not recognized any accepted medical use for marijuana. See Oakland Cannabis Buyers\xe2\x80\x99 Co-op., 532 U.S. at 491. As a result, \xe2\x80\x9cthere is currently no such thing in the United States as \xe2\x80\x98medicinal cannabis\xe2\x80\x99\xe2\x80\x9d for purposes of the Single\nConvention. Lyle E. Craker, 74 Fed. Reg. at 2116. Moreover, anyone who wished to\nproduce medicinal marijuana or marijuana preparations would still be required to pur-\n\n14\n\n\x0cLicensing Marijuana Cultivation\n\nFor the reasons discussed above, the National Center does not play the\nrole of the government monopolist. See supra Part II.A.2.b. Indeed, that\nconclusion is buttressed here by a constitutional concern. If the National\nCenter were viewed as exercising significant authority in establishing a\nfederal government monopoly over the lawful distribution of marijuana,\nin conformity with the international obligations of the United States, its\nofficials might be viewed as officers of the United States, who would\nneed to be appointed consistent with the Appointments Clause. See Ass\xe2\x80\x99n\nof Am. Railroads, 575 U.S. at 55\xe2\x80\x9356; Officers of the United States Within\nthe Meaning of the Appointments Clause, 31 Op. O.L.C. 73, 87\xe2\x80\x9393, 100\xe2\x80\x93\n110, 121 (2007). If any National Center officials were officers of the\nUnited States, they would have to be appointed either by the President\nwith the advice and consent of the Senate, or, pursuant to statutory authority, by a court of law, a department head, or the President alone. See U.S.\nConst. art. II, \xc2\xa7 2, cl. 2. We are not aware that any National Center officials are so appointed, but because, as discussed above, we do not believe\nthat the National Center is exercising the sovereign authority of the United States, such concerns do not arise.\nB.\nEven if the current framework departs from Article 23, it would still\ncomply with the Convention if it satisfied Article 39, which provides that,\n\xe2\x80\x9c[n]otwithstanding anything contained in this Convention, a Party shall\nnot be, or be deemed to be, precluded from adopting measures of control\nmore strict or severe than those provided by this Convention.\xe2\x80\x9d We therefore must consider whether the NIDA contract system may be viewed as\nresulting in a \xe2\x80\x9cmore strict or severe\xe2\x80\x9d system of controls than one where\nthe government physically possesses the marijuana crops and monopolizes their distribution. See State Mem. at 4\xe2\x80\x936.\nArticle 39 permits a party to the Single Convention to impose substitute\nmeasures that result in tighter controls than those otherwise required. See\nCommentary at 449. But as the Commentary explains, such \xe2\x80\x9csubstitute\nmeasures should clearly be \xe2\x80\x98more strict or severe\xe2\x80\x99 to prevent any . . .\ndoubts\xe2\x80\x9d about their validity. Id. (emphasis added). As examples of \xe2\x80\x9c[p]ermissible substitute controls,\xe2\x80\x9d the Commentary identifies \xe2\x80\x9cthe prohibition\n\nchase cannabis stocks from the national cannabis agency that purchases and takes physical\npossession of the marijuana crop grown by licensees. See Commentary at 284.\n\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nof manufacture of and trade in certain drugs instead of subjecting them to\na system of licensing, or the imposition of the death penalty in place of\n\xe2\x80\x98imprisonment or other penalties of deprivation of liberty.\xe2\x80\x99\xe2\x80\x9d Id. at 449\xe2\x80\x9350.\nThe close regulation of the National Center is not clearly more strict or\nsevere than the controls in Articles 23 and 28. The Office of the Legal\nAdviser points out that the NIDA contract, unlike the controls required by\nArticle 23(2), addresses the risk of diversion during the cultivation process in addition to diversion that may occur after the crops are harvested.\nSee State Mem. at 5; State Supp. Mem. at 1.11 For example, the National\nCenter must maintain its registration for working with scheduled drugs,\n2015 NIDA Contract at 13, which requires certain security measures for\nmanufacturing activities, see, e.g., 21 C.F.R. \xc2\xa7 1301.73(b) (\xe2\x80\x9cManufacturing activities with controlled substances shall be conducted in an area or\nareas of clearly defined limited access which is under surveillance by an\nemployee or employees designated in writing as responsible for the area.\xe2\x80\x9d).\nAs effective as those contractually imposed diversion controls may be\nduring marijuana cultivation, however, we cannot say that they clearly\ncompensate for the absence of the required controls governing the trade in\nthe crops, which the treaty drafters evidently believed posed greater risks\nof diversion. The controls required by Article 23 of the Single Convention\nreflect the specific concern that \xe2\x80\x9cexperience has shown that permitting\nlicensed private traders to purchase the crops results in diversion of large\nquantities of drugs into illicit channels.\xe2\x80\x9d Commentary at 278. The treaty\ndrafters thus concluded that \xe2\x80\x9cthe acquisition of the crops and the wholesale and international trade in these agricultural products cannot be entrusted to private traders, but must be undertaken by governmental authorities in the producing countries.\xe2\x80\x9d Id. The Commentary then explains that\npursuant to Article 23 \xe2\x80\x9c[f ]armers should be required to deliver the opium\nas soon as the Agency requests it, that is, is in a position to take physical\npossession of the crops of the cultivator concerned. . . . The Convention\nnot only requires that the Agency should take physical possession of the\nThe Office of the Legal Adviser suggests that DEA\xe2\x80\x99s framework is also stricter than\nrequired by the Single Convention because DEA establishes annual quotas for the National Center\xe2\x80\x99s marijuana production. See State Mem. at 1, 5. But those quotas not only\nindirectly implement the requirements in Article 23(2) for the national cannabis agency to\ndesignate the land on which cultivation is permitted, see Commentary at 281, but also\ndirectly implement Article 21 of the Convention, which requires parties to limit the\nannual quantity of drugs lawfully manufactured and imported. DEA\xe2\x80\x99s quotas are therefore\nnot more strict or severe than the Single Convention otherwise requires.\n11\n\n16\n\n\x0cLicensing Marijuana Cultivation\n\nopium, but also that it should \xe2\x80\x98purchase\xe2\x80\x99 it as soon as possible.\xe2\x80\x9d Id. at 283.\nIn other words, allowing the National Center, rather than the federal\ngovernment, to distribute marijuana replicates in critical respects a system\nthat the drafters rejected as inadequate, not one that they would have seen\nas \xe2\x80\x9cclearly more strict.\xe2\x80\x9d\nWe also believe that reliance upon Article 39 here would be hard to\nreconcile with other provisions in the Single Convention that expressly\nprovide parties with discretion to impose appropriate controls. For example, Article 28(3) gives parties discretion \xe2\x80\x9cto adopt such measures as may\nbe necessary to prevent the misuse of, and illicit traffic in, the leaves of\nthe cannabis plant.\xe2\x80\x9d12 See also Single Convention art. 2(8) (requiring\nparties to \xe2\x80\x9cuse their best endeavours to apply . . . such measures of supervision as may be practicable\xe2\x80\x9d to substances that \xe2\x80\x9cmay be used in the illicit\nmanufacture of drugs\xe2\x80\x9d); id. art. 30(2)(b)(ii) (stating that parties should\nrequire that prescriptions for Schedule I drugs be written on official forms\n\xe2\x80\x9c[i]f the Parties deem these measures necessary or desirable\xe2\x80\x9d); id. art.\n30(4) (stating that parties should require certain drug wrappings if the\nparties \xe2\x80\x9cconsider[] such measure necessary or desirable\xe2\x80\x9d). Article 23 and\nthe remaining provisions of Article 28, however, require a party to adopt\nvery specific controls over the cultivation of marijuana (aside from the\nleaves of the plant) and do not give discretion to choose alternative\nmeans, simply because the party believes in good faith that the controls\nwill accomplish the same purpose. Article 39 thus permits parties to\ndepart from the specific controls mandated only where the alternatives are\nplainly more \xe2\x80\x9cstrict or severe.\xe2\x80\x9d The existing licensing scheme falls short\nof that standard.\nC.\nIn considering the appropriate interpretation of the Single Convention,\nwe have reviewed the statements and practice of the International Narcotics Control Board (\xe2\x80\x9cINCB\xe2\x80\x9d), the international body established by the\nSingle Convention to monitor treaty compliance, which we understand\nhas not objected to the United States\xe2\x80\x99 licensing scheme. While the interpretation of a body charged with monitoring treaty implementation may\n\n12 As noted above, the Single Convention\xe2\x80\x99s definition of cannabis does not include the\nleaves when unaccompanied by the top of the plant. Single Convention art. 1(1)(b). The\nCSA\xe2\x80\x99s definition of marijuana, by contrast, includes the leaves. 21 U.S.C. \xc2\xa7 802(16).\n\n17\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nsometimes help in resolving ambiguities in the treaty\xe2\x80\x99s text, such views\nare not authoritative interpretations of the treaty or legally binding on the\nUnited States or other parties.13\nHere, the INCB\xe2\x80\x99s failure to object reveals little. The INCB\xe2\x80\x99s mandate\ndoes not require it to note every instance of noncompliance. Rather, the\nINCB is charged with identifying situations in which the Convention\xe2\x80\x99s\naims \xe2\x80\x9care being seriously endangered by reason of the failure of any\nParty, country or territory to carry out [its] provisions.\xe2\x80\x9d Single Convention art. 14(1)(a). In fulfilling this mandate, the INCB has, for example,\nobjected to \xe2\x80\x9cthe legalization of the production, sale and distribution of\ncannabis for non-medical and non-scientific purposes in the states of\nAlaska, Colorado, Oregon and Washington.\xe2\x80\x9d 2014 INCB Report at 25.\nBut the fact that the INCB has not objected to the federal licensing\nscheme does not mean that the INCB views that framework as complying\nwith the Single Convention.\nIndeed, the INCB\xe2\x80\x99s interpretation of the Single Convention appears entirely consistent with ours. For instance, the INCB\xe2\x80\x99s 2014 annual report\nadvises that \xe2\x80\x9cStates wishing to establish programmes for the use of cannabis for medical purposes that are consistent with the requirements of the\nSingle Convention must establish a national cannabis agency to control,\nsupervise and license the cultivation of cannabis crops.\xe2\x80\x9d Id. at 35. The\nnational cannabis agency must \xe2\x80\x9cpurchase and tak[e] physical possession\nof crops\xe2\x80\x9d and maintain \xe2\x80\x9cthe exclusive right of wholesale trading and\nmaintaining stocks.\xe2\x80\x9d Id. While the INCB has not expressly objected to the\nUnited States\xe2\x80\x99 licensing scheme, it has \xe2\x80\x9cnote[d] that the control measures\nin place under many existing programmes in different countries fall short\nof the requirements set out above.\xe2\x80\x9d Id. at 36. We do not infer from the\nINCB\xe2\x80\x99s silence any affirmative approval of the existing licensing scheme\nor the licensing schemes of other countries.\n\n13\n\nSee INS v. Aguirre-Aguirre, 526 U.S. 415, 427\xe2\x80\x9328 (1999) (guidance issued by\nthe Office of the UN High Commissioner for Refugees regarding the interpretation of\nthe Refugee Convention \xe2\x80\x9cmay be a useful interpretative aid, but it is not binding on\nthe Attorney General, the [Board of Immigration Appeals], or United States courts\xe2\x80\x9d);\nObservations of the United States of America on the Human Rights Committee\xe2\x80\x99s Draft\nGeneral Comment 35: Article 9, 2014 Digest of United States Practice in International\nLaw ch. 6, \xc2\xa7 A(2)(b), at 179 (\xe2\x80\x9cThe United States believes the views of the Committee\nshould be carefully considered by the States Parties. Nevertheless, they are neither\nprimary nor authoritative sources of law.\xe2\x80\x9d).\n\n18\n\n\x0cLicensing Marijuana Cultivation\n\nD.\nWe have also reviewed information about executive branch practice\nand the practice of other state parties to the Single Convention. As we\nhave observed, the Executive Branch has long licensed the National\nCenter to grow marijuana without having a single government agency\npurchase and take physical possession of the cannabis crops after harvest.\nA number of other state parties to the Single Convention apparently\nfollow the U.S. practice. See State Mem. at 6\xe2\x80\x937; State Supp. Mem. at 3.\nThe practice of the Executive Branch and other state parties is relevant\nin treaty interpretation. Courts \xe2\x80\x9cfind particularly persuasive a consistent\npattern of Executive Branch interpretation, reflected in the application of\nthe treaty by the Executive and the course of conduct of the parties in\nimplementing the agreement.\xe2\x80\x9d Relevance of Senate Ratification History to\nTreaty Interpretation, 11 Op. O.L.C. 28, 36 (1987) (citing O\xe2\x80\x99Connor v.\nUnited States, 479 U.S. 27, 32\xe2\x80\x9333 (1986)); see also Vienna Convention\nart. 31(3)(b) (noting that, \xe2\x80\x9ctogether with the context,\xe2\x80\x9d treaty interpretation\nshould take into account \xe2\x80\x9c[a]ny subsequent practice in the application of\nthe treaty which establishes the agreement of the parties regarding its\ninterpretation\xe2\x80\x9d). The practices of a treaty\xe2\x80\x99s parties can also be useful\nevidence of the parties\xe2\x80\x99 \xe2\x80\x9cunderstanding of the agreement they signed.\xe2\x80\x9d\nUnited States v. Stuart, 489 U.S. 353, 369 (1989); see Medell\xc3\xadn, 552 U.S.\nat 507.\nBut as the Supreme Court has explained, \xe2\x80\x9cwhere the text [of a treaty] is\nclear . . . we have no power to insert an amendment.\xe2\x80\x9d Chan v. Korean Air\nLines, Ltd., 490 U.S. 122, 134 (1989) (holding that the text of the Warsaw\nConvention controlled where it could not \xe2\x80\x9cbe dismissed as an obvious\ndrafting error\xe2\x80\x9d).14 Here, Articles 23 and 28 clearly require that the United\n\n14 See Water Splash, 137 S. Ct. at 1511 (\xe2\x80\x9c[W]hen a treaty provision is ambiguous, the\nCourt may look beyond the written words to the history of the treaty, the negotiations, and\nthe practical construction adopted by the parties.\xe2\x80\x9d (internal quotation marks omitted));\nEastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534\xe2\x80\x9335 (1991) (explaining that treaty\ninterpretation begins \xe2\x80\x9cwith the text of the treaty and the context in which the w ritten\nwords are used,\xe2\x80\x9d while \xe2\x80\x9c[o]ther general rules of construction may be brought to bear on\ndifficult or ambiguous passages\xe2\x80\x9d (internal quotation marks omitted)); United States v.\nJeong, 624 F.3d 706, 711 (5th Cir. 2010) (\xe2\x80\x9cOnly if the language of a treaty, when read in\nthe context of its structure and purpose, is ambiguous may we resort to extraneous\ninformation like the history of the treaty, the content of negotiations concerning the treaty,\nand the practical construction adopted by the contracting parties.\xe2\x80\x9d (internal quotation\n\n19\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nStates have a single government agency \xe2\x80\x9cpurchase and take physical\npossession of \xe2\x80\x9d lawfully grown cannabis crops \xe2\x80\x9cas soon as possible, but\nnot later than four months after the end of the harvest,\xe2\x80\x9d Single Convention\nart. 23(2)(d), and that this agency thereafter \xe2\x80\x9chave the exclusive right of\nimporting, exporting, wholesale trading and maintaining stocks\xe2\x80\x9d of marijuana, id. art. 23(2)(e).\nIn addition to the fact that the Single Convention is unambiguous, state\npractice does not appear to reflect a conclusive or consistent interpretation\nof the controls required. See Memorandum for Edwin Meese, III, Attorney\nGeneral, from Charles J. Cooper, Assistant Attorney General, Office of\nLegal Counsel, Re: Intent and Constitutionality of Legislation Prohibiting\nthe Maintenance of an Office of the Palestine Liberation Organization in\nthe United States at 4 n.5 (Feb. 13, 1988) (declining to depart from the\ntext of an international agreement based on inconclusive post-ratification\npractice). The Office of the Legal Adviser identifies Australia, Canada,\nIsrael, and the United Kingdom as countries with similar licensing practices as the United States, in which the government agency does not\npurchase or take physical possession of the marijuana, but allows private\ngrowers to distribute it. State Supp. Mem. at 3. But the practices of a\nhandful of the 186 parties to the treaty are entitled to comparatively little\nweight in illuminating the meaning of the treaty, and certainly do not\nsupply the kind of subsequent practice that \xe2\x80\x9cestablishes the agreement\nof the parties regarding its interpretation.\xe2\x80\x9d Vienna Convention art.\n31(3)(b).\nIn fact, the practice of parties regarding lawful marijuana cultivation is\nhardly unambiguous. In the Czech Republic, for example, the applicable\nlegal regime requires licensed cannabis growers to \xe2\x80\x9ctransfer cannabis\ngrown and harvested . . . exclusively to the State Institute for Drug Control,\xe2\x80\x9d which is instructed to \xe2\x80\x9cbuy cannabis harvested within 4 months of\nits harvesting.\xe2\x80\x9d On Dependency Producing Substances and on Amending\nCertain Other Acts, Act No. 167/1998 Coll. sec. 24b(1) (as amended).\nAnd a 2017 report on cannabis legislation in Europe states that in Italy,\n\xe2\x80\x9c[f ]rom November 2015, the [Ministry of Health] can issue permits for\n\nmarks omitted)); Avero Belgium Ins. v. American Airlines, Inc., 423 F.3d 73, 86 (2d Cir.\n2005) (holding that secondary evidence of the parties\xe2\x80\x99 intent \xe2\x80\x9cmay be useful where the\nintentions of the party States cannot be deduced by the treaty\xe2\x80\x99s plain language, but we\nneed not rely upon such evidence here as the text of Montreal Protocol No. 4 is clear and,\nconsequently, controlling\xe2\x80\x9d (internal citation omitted)).\n\n20\n\n\x0cLicensing Marijuana Cultivation\n\ncultivation\xe2\x80\x9d of cannabis and that \xe2\x80\x9c[l]icensed farmers deliver the cannabis to the ministry, which then allocates it for production.\xe2\x80\x9d European\nMonitoring Centre for Drugs and Drug Addiction, Cannabis Legislation\nin Europe: An Overview 8 (2017).15 Currently, it appears that the only\nauthorized grower in Italy is the Italian Army, see Anna Momigliano,\nIn Italy, the Army Provides Medical Marijuana. And Some Say That\xe2\x80\x99s\na Problem, Wash. Post, Dec. 1, 2017, which would suggest that a single\nItalian government agency has physical possession of the crop and a\nmonopoly on trade in cannabis, as the text of Articles 23 and 28 requires.\nThere is also evidence that other parties to the Single Convention have\nestablished a single government agency to administer the controls required by Articles 23 and 28. See, e.g., Narcotic Drugs Act 1967, Act\nNo. 53/1967 (Cth) ch 2 pt 2 (as amended) (Austl.) (establishing marijuana\nlicensing framework operated by the Department of Health); Report of\nthe International Narcotics Control Board for 2005, at 16 (Mar. 1, 2006)\n(noting that \xe2\x80\x9csince the last report of the Board was published, the Government of the United Kingdom has established a national cannabis agency\xe2\x80\x9d); David Mansfield, An Analysis of Licit Opium Poppy Cultivation:\nIndia and Turkey 10\xe2\x80\x9317 (Apr. 2001) (describing the regulation of opium\nin Turkey under the Grain Marketing Board and in India under the Central\nBureau for Narcotics).\nWe find relevant as well the practice of countries that license private\ngrowers to cultivate the opium poppy and the coca leaf\xe2\x80\x94both of which\nare subject to the same Article 23 regime as the cannabis plant.16 The\npractice among countries that permit lawful production of those plants is\nconsistent with the text of Article 23. In India, Turkey, and Peru, for\n\n15 The report also describes the Netherlands\xe2\x80\x99 regime for medicinal cannabis, which\nprovides that cannabis producers may be \xe2\x80\x9clicenced by the Dutch government and must\nsell all produce to the [Office of Medicinal Cannabis], which then distributes it to pharmacies.\xe2\x80\x9d Cannabis Legislation in Europe: An Overview at 7. Although this regime\nappears to comply with the text of the Single Convention, the Netherlands has a separate\nregime for non-medical cannabis, pursuant to which it licenses coffee shops to sell small\nquantities of cannabis. The INCB has objected to this practice and noted that it \xe2\x80\x9cis in\ncontravention of the provisions of the [Single] Convention.\xe2\x80\x9d Report of the International\nNarcotics Control Board for 2001, at 35 (Feb. 27, 2002).\n16 Article 26 provides that Article 23 applies to licit cultivation of the coca leaf except\nthat the government agency is not required to take physical possession of the crops within\nfour months, but only \xe2\x80\x9cas soon as possible after the end of the harvest.\xe2\x80\x9d Single Convention art. 26(1).\n\n21\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nexample, a government agency purchases and takes physical possession of\nthose crops following the harvest.17\nThe Office of the Legal Adviser suggests that state practice with regard\nto opium may not be instructive as to marijuana because \xe2\x80\x9c[t]he vulnerabilities of the two plants\xe2\x80\x9d to diversion \xe2\x80\x9care significantly different\xe2\x80\x9d owing to\ntheir different properties. State Mem. at 6. But the Single Convention\xe2\x80\x99s\ndrafters recognized that \xe2\x80\x9cthe conditions under which the cannabis plant is\ncultivated for the production of drugs are very different from those under\nwhich the opium poppy is grown for opium,\xe2\x80\x9d and nonetheless \xe2\x80\x9cprovide[d]\nthe same regime for both, namely that of article 23.\xe2\x80\x9d Commentary at\n313.18\nWhile state practice is therefore inconclusive, the Single Convention\xe2\x80\x99s\ndrafting history would strongly support our interpretation of the text of\nArticles 23 and 28 even if the treaty were ambiguous. See Water Splash,\n137 S. Ct. at 1511. An earlier draft of the Single Convention would have\nprovided a less-stringent regime for cannabis than applicable to the coca\nleaf, under which a closely regulated private entity could grow marijuana.\nUnder that draft, a \xe2\x80\x9c\xe2\x80\x98licensed scientific institute\xe2\x80\x99\xe2\x80\x9d would have been permitted to \xe2\x80\x9c\xe2\x80\x98produce, manufacture, possess and export under close State\nsupervision to the government of another Party small amounts of cannabis\n. . . for the purpose of scientific research.\xe2\x80\x99\xe2\x80\x9d Memorandum for Malcolm R.\nWilkey, Assistant Attorney General, Criminal Division, from Robert\nKramer, Assistant Attorney General, Office of Legal Counsel, Re: Constitutionality of Legislation to Carry Out Certain Provisions of Draft Single\nConvention on Narcotic Drugs at 2\xe2\x80\x933 n.2 (Jan. 20, 1960) (quoting Article\n39 of draft Single Convention). With regard to the coca leaf, however, the\ndraft would have provided for the Article 23 system of controls. See id.\n17 See Central Bureau of Narcotics, Licit Cultivation, http://www.cbn.nic.in/html/\noperationscbn.htm (last visited June 6, 2018) (explaining that licensed opium cultivators\nin India \xe2\x80\x9care required to tender their entire produce to the Government\xe2\x80\x9d); Mansfield,\nAn Analysis of Licit Opium Poppy Cultivation at 10\xe2\x80\x9312 (describing the licensing and\ncontrol measures for opium cultivation in Turkey, overseen by the Grain Marketing\nBoard, which takes physical possession of crops); United Nations Office on Drugs and\nCrime, Peru Coca Cultivation Survey 8 (June 2005) (explaining that the National Coca\nEnterprise (\xe2\x80\x9cENACO\xe2\x80\x9d) \xe2\x80\x9chas a monopoly on the commercialization and industrialization\nof the coca leaves,\xe2\x80\x9d such that \xe2\x80\x9cthe selling of coca leaves to any party other than ENACO\nis considered illicit by national law\xe2\x80\x9d).\n18 Indeed, the Commentary suggests that the regime for opium could, \xe2\x80\x9cin practice,\xe2\x80\x9d\nprove to be inadequate to control cannabis production. Commentary at 313 n.9.\n\n22\n\n\x0cLicensing Marijuana Cultivation\n\nat 1\xe2\x80\x932 n.1 (quoting Article 36 of draft Single Convention). In other words,\nthe Single Convention\xe2\x80\x99s drafters considered, but rejected, allowing licensed private institutions to produce, store, and ship marijuana under\nclose government supervision, and instead adopted a requirement that the\ngovernment take physical possession of the crop and conduct trade in the\ndrug. That history also shows that the drafters of the Single Convention\nconsidered applying less-stringent controls to marijuana, but declined to\ndo so and instead applied the same stringent controls to marijuana, opium,\nand the coca leaf.\nIII.\nFor similar reasons, DEA\xe2\x80\x99s 2016 policy statement also fails to establish\na framework that would fully comply with Articles 23 and 28 of the\nSingle Convention.\nUnder that policy, DEA would allow a licensee \xe2\x80\x9cto operate independently\xe2\x80\x9d of NIDA, \xe2\x80\x9cprovided the grower agrees (through a written memorandum of agreement with DEA) that it will only distribute marijuana with\nprior, written approval from DEA.\xe2\x80\x9d Applications To Manufacture Marijuana, 81 Fed. Reg. at 53,848. Such a licensee would also \xe2\x80\x9cbe subject to\nall applicable requirements of the CSA and DEA regulations, including\nthose relating to quotas, record keeping, order forms, security, and diversion control.\xe2\x80\x9d Id. DEA suggests that these requirements would be consistent with the purposes of Articles 23 and 28 of the Single Convention\nbecause these requirements \xe2\x80\x9cwill succeed in avoiding one of the scenarios\nthe treaty is designed to prevent: Private parties trading in marijuana\noutside the supervision or direction of the federal government.\xe2\x80\x9d Id.\nWhile DEA focuses on its view of the broader purposes of the treaty\xe2\x80\x99s\nrequirements, the Single Convention requires the United States to adopt\nspecific, listed controls if it licenses cannabis cultivation. A single government agency must purchase and take physical possession of harvested\ncannabis, and generally monopolize the wholesale trade in that plant. The\nUnited States cannot satisfy those requirements simply by employing\nalternatives that the government believes may prevent unlawful diversion.\nAs we have explained, Articles 23 and 28 certainly could have given the\nparties the discretion to determine the particular controls necessary.\nRather than take that route, the parties to the treaty agreed to certain\nspecific controls, and Congress has required the Attorney General to\napply those strictures when granting licenses under the CSA. Accord23\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\ningly, DEA\xe2\x80\x99s licensing procedures must comply with those choices.\nDEA\xe2\x80\x99s announced policy, however, would not comply with Articles 23\nand 28 of the Single Convention.\nIV.\nWe conclude that DEA must alter the marijuana licensing framework to\ncomply with the Single Convention. DEA has discretion to develop a\nregulatory framework that meets the requirements of Articles 23 and 28.\nIn doing so, DEA need not rule out a regime in which DEA purchases or\ntakes legal title to the marijuana plants prior to their cultivation; adopts a\nsystem of regulation and day-to-day supervision that would create an\nagency relationship; or relies upon NIDA\xe2\x80\x99s expertise to assist the agency\nin its functions. At a minimum, however, this licensing framework must\nprovide for a system in which DEA or its legal agent has physical possession and ownership over the cultivated marijuana and assumes control of\nthe distribution of marijuana no later than four months after harvesting.\nIn justifying the current licensing framework, DEA had concluded that\nthe division of labor with NIDA was \xe2\x80\x9ca result of the existing statutes,\nregulations, and Congressional appropriations,\xe2\x80\x9d and declined to opine on\nwhether, absent legislation, DEA could carry out all the functions required by the Single Convention. Lyle E. Craker, PhD, 76 Fed. Reg. at\n51,409\xe2\x80\x9310. Having examined DEA\xe2\x80\x99s and NIDA\xe2\x80\x99s authorities, we do not\nbelieve that further legislation is required for DEA to perform those\nfunctions. DEA has statutory authority to do so pursuant to 21 U.S.C.\n\xc2\xa7 823(a), which obliges DEA (by delegation from the Attorney General)\nto ensure that registrations for the manufacture of marijuana comply with\nthe Single Convention. That language authorizes DEA to take steps reasonably necessary to ensure that the registration scheme complies with the\nSingle Convention, which as we have said clearly contemplates that a\nsingle government agency will purchase and take physical possession of\nmarijuana crops from registrants. The statute thus authorizes DEA to\nperform the control functions contemplated by the Single Convention,\nincluding the functions of purchasing (or otherwise securing title over)\nand taking physical possession of marijuana crops. Reading the statute\notherwise would preclude DEA from registering any marijuana manufacturer because no registration could be in compliance with the Single\nConvention, contrary to Congress\xe2\x80\x99s evident intent that DEA administer\nthe registration system. Congress has also established a fund for DEA\xe2\x80\x99s\n24\n\n\x0cLicensing Marijuana Cultivation\n\ndiversion control program, which includes DEA activities \xe2\x80\x9crelated to the\nregistration and control of the manufacture, distribution, [and] dispensing\n. . . of controlled substances.\xe2\x80\x9d 21 U.S.C. \xc2\xa7 886a(2)(B) (emphasis added).\nBecause Congress has made compliance with the Single Convention a\nnecessary condition of registration, id. \xc2\xa7 823(a), that fund may be used in\npurchasing, storing, and monopolizing the wholesale trade in marijuana.\nAnd although HHS has statutory authority to \xe2\x80\x9cdetermine the qualifications\nand competency\xe2\x80\x9d of the researchers who seek to purchase marijuana from\nlicensed growers to conduct research, id. \xc2\xa7 823(f ), that provision would\nnot bar DEA from establishing a government monopoly from which those\nresearchers could purchase marijuana.\nThe NIDA contract is a longstanding feature of the marijuana licensing\nscheme, and the current version of that contract is annually renewable\nthrough March 2020. 2015 NIDA Contract at 27. Although DEA must\ndischarge the obligations required by Article 23(2), NIDA may still play a\nsignificant role. The relevant statutes require that \xe2\x80\x9c[r]egistration applications by practitioners wishing to conduct research with controlled substances in schedule I shall be referred to the Secretary [of Health and\nHuman Services], who shall determine the qualifications and competency\nof each practitioner requesting registration, as well as the merits of the\nresearch protocol.\xe2\x80\x9d 21 U.S.C. \xc2\xa7 823(f ). The Single Convention does not\nrequire that a single government agency be charged with all responsibilities related to marijuana, and the congressional decision to delegate those\nresponsibilities to HHS is consistent with the Single Convention. Aside\nfrom carrying out its role under section 823(f ), NIDA may continue to\nexercise some supervision over certain aspects of the marijuana cultivation, and DEA may consult NIDA in the process. We see no reason why\nthe NIDA contract framework might not remain in place under a system\nin which DEA assumes clear title to the marijuana, either at inception or\nby purchase after harvest, and then takes physical possession after harvest. For instance, DEA could station one or more employees at the National Center after cultivation as a way of ensuring physical possession of\nthe marijuana and exclusive control over its distribution.\nWe would be pleased to advise on these or any other matters concerning implementation of a new licensing framework.\nHENRY C. WHITAKER\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n25\n\n\x0c'


b'Exclusion of Medicine and Medical Supplies From Controls\nUnder the Export Administration Act of 1979\nC o n g ress in ten d ed th e exclusion in \xc2\xa7 6 (0 o f th e E x p o rt A d m in istratio n A c t o f 1979 for\nm edicine an d m edical supplies to be absolute, and d id not in ten d to lim it it by im posing\na strict sta n d ard o f hum an need.\nT h e P resid en t has b ro ad d isc retio n to d e te rm in e w h e th e r p a rtic u la r e x p o rts a re m edicines\no r m edical supplies w ithin th e exclusion, su b ject o n ly to th e lim itation su g g e sted by the\nco n c e p t o f basic h u m an need.\n\nNovember 13, 1980\nMEMORANDUM OPINION FOR TH E SPECIAL ASSISTANT\nTO TH E PR ESID EN T FOR CONSUMER A FFA IRS\nThis responds to your request for our opinion as to the scope of the\nexclusion of \xe2\x80\x9cmedicine or medical supplies\xe2\x80\x9d from export controls under\nthe Export Administration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503\n(1979), 50 U.S.C. App. \xc2\xa7 2401 (Supp. Ill 1979). In pertinent part, the\nexclusion in \xc2\xa7 6(0 of the Act reads:\n(0 Exclusion for Medicine and Medical Supplies\xe2\x80\x94\nThis section does not authorize export controls on medi\xc2\xad\ncine or medical supplies. It is the intent of Congress that\nthe President not impose export controls under this sec\xc2\xad\ntion on any goods or technology if he determines that the\nprincipal effect of the export of such goods or technology\nwould be to help meet basic human needs. This subsection\nshall not be construed to prohibit the President from\nimposing restrictions on the export of medicine or medical\nsupplies under the International Emergency Economic\nPowers Act.\n50 U.S.C. App. \xc2\xa7 2405(f). You have asked whether the exclusion is\nlimited to only those \xe2\x80\x9cgoods or technology . . . the principal effect of\nwhich would be to help meet basic human needs\xe2\x80\x9d; and, if so, what is\nmeant by the phrase \xe2\x80\x9cbasic human needs\xe2\x80\x9d; and how and by whom the\ndeterminations of exclusion are to be made.\n\n809\n\n\x0cI. The Scope of the Exclusion\nYour question concerning the scope o f the \xc2\xa7 6(F) exclusion (actually,\nthe absence of authority to impose controls) arises because there is\ntension between the first and second sentences of the subsection as\nquoted above. The first sentence uses the phrase \xe2\x80\x9cmedicine or medical\nsupplies\xe2\x80\x9d in describing the goods and technology excluded from con\xc2\xad\ntrols, while the second sentence defines the exclusion in terms of a\nstandard of \xe2\x80\x9cbasic human needs.\xe2\x80\x9d Yet the Act defines neither phrase\nand does not otherwise indicate whether they are intended to have the\nsame meaning. Because of this ambiguity, there are two possible read\xc2\xad\nings of the effect of the two sentences together.\nFirst, as you inquired, the second sentence could be read as limiting\nor further defining the first. Thus, although the first sentence seems to\nexclude from controls all medicine and medical supplies, the second\nsentence would limit the exclusion to medicine and medical supplies,\nthe principal effect of which would be to help meet basic human needs.\nAlternatively, the second sentence might be read as merely explaining\nthe basis for the absolute exclusion in the first sentence and would not\nimpose a strict standard of human need on the exclusion. The question\nis not free from doubt, but we conclude that the latter interpretation is\nthe better reading of the language of the subsection itself and is also\nmore consistent with the sparse legislative history of the exclusion.\nInitially, we note the interpretive problems that you suggested. As to\nthe statutory language itself, the first sentence, the only operative\nlanguage of the subsection, is phrased as an absolute exclusion. To read\nthe second sentence as a limitation on this absolute exclusion would\nhave the effect of giving greater weight to the language phrased merely\nas a statement of intent than to the operative language itself. Moreover,\nonly if the standard of \xe2\x80\x9cbasic human needs\xe2\x80\x9d encompasses less than all\nmedicines and medical supplies could the question of limitation even\narise; and, in the absence of definitions in the Act or the legislative\nhistory of \xe2\x80\x9cmedicine or medical supplies\xe2\x80\x9d or of \xe2\x80\x9cbasic human needs,\xe2\x80\x9d it\nis not evident that the second sentence is a limitation on the first.\nInstead, Congress could have intended to convey its belief that all\nmedicine and medical supplies would help meet a broadly conceived\nstandard of basic human need. With regard to the majority of medicine\nand medical supplies, this belief would be supportable in fact. The\npossibility that there might exist some medical goods that would not be\nthought to meet a standard of basic human need no matter how broadly\nit was defined, should not prevent Congress from legislating on the\nbasis of this presumption with regard to the entire class of goods.\nThere is little legislative history of \xc2\xa7 6(f)- The House version of the\nExport Administration Act originally contained an exclusion for food,\nmedicine, and medical supplies. H.R. 4034, 96th Cong., 1st Sess. \xc2\xa7 6(f)\n(1979) (discussed at 125 Cong. Rec. 24,034 (1979)). The House Report\n810\n\n\x0caccompanying the bill, however, is not helpful concerning the question\nof interpretation, for it merely restates the language of the bill itself.\nH.R. Rep. No. 200, 96th Cong., 1st Sess. 20 (1979). The Senate version\nof the Act, S. 737, 96th Cong., 1st Sess. (1979), contained no exclusion\nat all. The conference committee agreed to the House version with an\namendment to make the exclusion apply only to medicine and medical\nsupplies. Again, however, the conference report does no more than\nstate this procedural history. H.R. Rep. No. 96-482, 96th Cong., 1st\nSess. 46 (1979).\nThe hearings before the House subcommittee considering the bill are\nsomewhat more revealing. Again, the discussion of the exclusion was\nnot extensive; but we believe that what little discussion there was\nsupports our interpretation that the second sentence of the subsection is\nan explanation and not a limitation. As originally proposed, the exclu\xc2\xad\nsion in the House bill was limited to the first two sentences of what is\nnow \xc2\xa7 6(0- It did not provide, as the third sentence of the subsection\nnow does, that the exclusion \xe2\x80\x9cshall not be construed to prohibit the\nPresident from imposing restrictions on the export of medicine or\nmedical supplies, under the International Emergency [Economic]\nPowers Act,\xe2\x80\x9d 50 U.S.C. App. 2405(0 (referring to 50 U.S.C. \xc2\xa7 1701\n(Supp. I 1977)). William A. Root, Director of the Office of East-West\nTrade at the Department of State, objected to the subsection as pro\xc2\xad\nposed because it did not explicitly recognize the President\xe2\x80\x99s powers\nunder the International Emergency Economic Powers Act. But there is\nno indication that Director Root understood \xc2\xa7 6(0 as proposed to be\nother than an absolute exclusion. In fact, it was this understanding that\nled to his concern about the President\xe2\x80\x99s emergency powers. Specifi\xc2\xad\ncally, Director Root testified:\nProposed section 6(g) [now \xc2\xa7 6(0] would exclude food,\nmedicine, and medical supplies from export controls au\xc2\xad\nthorized by this act for foreign policy purposes. Nor\xc2\xad\nmally, controls need not extend to these items. However,\nthere may arise instances where commercial exports even\nof food and medicine would not be in the national inter\xc2\xad\nest. There would be no objection to extending to the\nExport Administration Act the prohibition now contained\nin the [International] Emergency Economic Powers\nAct\xe2\x80\x94-section 203(b)(2) of Public Law 95-223\xe2\x80\x94against\ncontrolling donations of articles, such as food, clothing,\nand medicine, intended to be used to relieve human suffer\xc2\xad\ning, except to the extent that the President determines\nthat such donations are in response to coercion against the\nproposed recipient or donor.\nExtension and Revision of the Export Administration Act of 1969:\nHearings and Markup on H.R. 2539 Before the Subcomm. on Intema811\n\n\x0ctional Economic Policy and Trade of the House Comm, on Foreign\nAffairs, 96th Cong., 1st Sess. 648 (1979) (hereinafter cited as Hearings).\nRemarks made during the markup session also support the interpreta\xc2\xad\ntion that \xc2\xa7 6(0 was intended to impose an absolute exclusion from\ncontrols. Representative Lagomarsino of California offered an amend\xc2\xad\nment to strike the \xc2\xa7 6(0 exclusion because he was concerned with the\neffect of the subsection on existing embargoes which included food,\nmedicine, and medical supplies. But he was also concerned because he\n\xe2\x80\x9c[did] not think that we should be saying that under no circumstances\nunder this act should we have a total solution or a total prohibition\nabout embargoes on food, medicine, and medical supplies.\xe2\x80\x9d Hearings at\n774. Subcommittee Chairman Bingham of New York suggested that the\namendment be considered in connection with an amendment proposed\nto eliminate the next subsection of the Act which provided that a total\ntrade embargo was not authorized. Chairman Bingham explained:\nFirst of all, I think it is pretty clear this does not affect\nthe existing embargoes against Cuba, Vietnam, Cambodia,\nand so on. They are authorized by other legislation. These\nparagraphs say this section does not authorize export con\xc2\xad\ntrols of food, medicine, and so on. Basically it is my view\nthat a total embargo is such an extreme measure that it\nought to be specifically authorized by the Congress and\nnot imposed by the administration, even though it may be\nsubject to later veto by the Congress. That applies to a\ntotal embargo, and that applies to export controls on food,\nmedicine, or medical supplies. These are extreme meas\xc2\xad\nures. Export controls on food and medicine are surely of\nthe gravest importance, close to an act of economic war\xc2\xad\nfare, and therefore it is my view that such action should\nbe imposed by the Congress by law.\n*\n\n*\n\n*\n\n*\n\n*\n\nSo leaving these two paragraphs in does not change the\nlaw. It simply clarifies the law. This does not change any\nexisting controls on food and medicine or medical sup\xc2\xad\nplies. We simply say in effect that under this act the\nPresident cannot impose total embargo and he cannot\nimpose economic controls of that character.\nId. at 774-75. Representative Bonker of Washington agreed:\n\nI would like to associate myself with the chairman\xe2\x80\x99s\nremarks, and retain for Congress the right to have full\nauthority over controls. . . .\n. . . [TJhere are many situations where we disagree to\xc2\xad\ntally with the political makeup of the government for\n812\n\n\x0cwhatever reasons, but yet this does not totally preclude\nour humanitarian commitment. I think in Southeast Asia,\nfor instance, the Red Cross is supplying medical assistance\nand certain items for relief and for humanitarian purposes.\nSo I think that the proposed change would impose unwar\xc2\xad\nranted restrictions on our humanitarian commitment, even\nthough we may disagree totally with the political makeup\nof particular countries. For these reasons I would have to\noppose the amendment.\nId. at 775.\n\nAt this point, Director Root again explained the Administration\xe2\x80\x99s\nposition:\nMr. Chairman, as you know, the administration op\xc2\xad\nposed both subsections (0 and (g) in testimony before\nyour subcommittee earlier this month, largely for the rea\xc2\xad\nsons which Mr. Lagomarsino presented. With respect to\nsubsection 6(0 we did indicate, and this addresses Mr.\nBonker\xe2\x80\x99s point on humanitarian shipments, that we could\naccept language which was comparable to that now ap\xc2\xad\npearing in the International Emergency Economic Powers\nAct, which would read somewhat along the following\nlines:\nThis section does not authorize export controls on dona\xc2\xad\ntions of articles such as food, clothing, and medicine,\nintended to be used to relieve human suffering, except to\nthe extent that the President determines that such dona\xc2\xad\ntions are in response to coercion against the proposed\nrecipient or donor.\nId. at 775. Again, it is clear that \xc2\xa7 6(0 was understood to exclude\n\nentirely medicine and medical supplies, and, at the time, food, from\ncontrols under the Export Administration Act. The only change sought\nand obtained was express recognition that the President\xe2\x80\x99s emergency\npowers continued.\nWe recognize that our interpretation that the second sentence of\n\xc2\xa7 6(0 explains but does not limit the first is not without its own\ndifficulties. If an absolute exclusion results from the first sentence,\nCongress did not have to specify its intent in the second sentence.\nMoreover, if an absolute exclusion results, Congress did not have to\nspecify the situation in which controls would be precluded, that is,\nwhen the principal effect of the exports would be to help meet basic\nhuman needs. But the tension noted above between the first and second\nsentences of \xc2\xa7 6(0 precludes an interpretation free of all difficulties; and\non balance we find that the problems with interpreting the second\nsentence as an explanation are less significant than are the problems\n813\n\n\x0cwith interpreting it as a limitation. First, as to the consequence that the\nstatement of intent in the second sentence is rendered superfluous, the\nalternative would render superfluous the first sentence or at least its\nseemingly absolute character. If we must choose between the two, we\nshould choose an interpretation that preserves that operative language\nof the statute even though it sacrifices the language of general intent.\nSecond, as to the consequence that the second sentence would require a\ndetermination of the principal effect of the export that is irrelevant if no\ncontrols on medicine or medical supplies are authorized, we would\noffer the following saving interpretation.\nII. By Whom Are the Determinations of Exclusion To Be Made\n\nInitially, we should say in answer to your third question, namely,\nwho is to make the determinations of exclusion, that \xc2\xa7 6(0 confers upon\nthe President the authority to make the determinations required under\nthe subsection; or he may delegate his power, authority, and discretion\nunder \xc2\xa7 6(0 in accordance with the delegation provisions of \xc2\xa7 4(e) of\nthe Act, 50 U.S.C. App. \xc2\xa7 2403(e). Because of our interpretation that\n\xc2\xa7 6(0 imposes an absolute exclusion from controls on medicine and\nmedical supplies, it remains to be discussed just what determinations\n\xc2\xa7 6(0 requires or allows the President or his delegate to make.\nIII. The Meaning of the Exclusion\n\nAs we have interpreted \xc2\xa7 6(f), medicine and medical supplies are\nabsolutely excluded from controls on the ground that they are neces\xc2\xad\nsary to help meet basic human needs or at least that Congress thought\nso. A finding that the two standards are coterminous, however, leads to\nthe further conclusion that the discretion conferred upon the President\nunder \xc2\xa7 6(0, although literally phrased as the determination whether\nthe principal effect of exports would be to help meet basic human\nneeds, is in fact the discretion to determine whether the exports are\nmedicines or medical supplies. This interpretation avoids so far as\npossible a construction of the second sentence of \xc2\xa7 6(0 as conferring\ndiscretion that cannot be exercised while at the same time not validat\xc2\xad\ning the exercise of discretion where it was not intended. The interpreta\xc2\xad\ntion has the additional benefit of changing the definitional focus from\nthe vague concept of \xe2\x80\x9chelp[ing to] meet basic human needs\xe2\x80\x9d to the\nmore concrete categories of \xe2\x80\x9cmedicine or medical supplies.\xe2\x80\x9d\nThis brings us to your second question. In the event that we found\nthe scope of the exclusion limited by the standard of basic human\nneeds, you asked what was meant by that phrase. In light of our\nconclusion that the exclusion is not so limited, the question is no longer\npertinent. Instead, the appropriate standard of reference is \xe2\x80\x9cmedicine or\nmedical supplies.\xe2\x80\x9d\n814\n\n\x0cAs noted above, the Act does not define \xe2\x80\x9cmedicine or medical\nsupplies\xe2\x80\x9d; nor does the legislative history provide any guidance, except\nthe general humanitarian sentiments expressed. But we have previously\nrecognized that the Act provides the President great discretion and\nflexibility. In the absence of a definition specifically confining this\ngeneral authority, the President may utilize his authority to the utmost\nextent and identify the contours of the exclusion subject only to the\nlimitations imposed by humanitarianism suggested by the concept of\nbasic human needs.1\nL eo n U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n1\nIn a m em orandum opinion o f today\'s date for the D eputy Counsel to the President, w e conclude\nthat the exem ption o f exports from dom estic standards under the Federal F ood, D rug, and C osm etic\nA ct, 21 U.S.C. \xc2\xa7 381(dXO* and o th e r statutes controlling hazardous substances does not preclude the\nimposition o f export controls for foreign policy purposes. In light o f that conclusion, the scope o f the\nexclusion for \xe2\x80\x9c m edicine o r m edical supplies\xe2\x80\x99* need not be defined by reference to the reach of\nregulatory authority under the Food, D rug, and C osm etic A ct. Indeed, w e note that in the pursuit o f\nhealth and safety under that A ct, a regulatory scope significantly bro ader than a standard o f "basic\nhum an needs\xe2\x80\x9d might be appropriate. [ N o t e : T h e text o f the M em orandum O pinion for the D eputy\nCounsel to the President im m ediately precedes this opinion, at p. 802. Ed.]\n\n815\n\n\x0c'