dissenting.
I am unable to agree with the majority opinion in any respect. It has misconstrued the federal statutes and relied on authority that is not only irrelevant but is contrary to the position taken by the majority.
I start with the principle enunciated in Board of Trustees v. United States, 289 U.S. 48, 53 S.Ct. 509, 77 L.Ed. 1025 (1933), in which the Court described the power of the federal government over foreign commerce under U.S. Const, art. I, § 8, cl. 3, as follows:
The words of the Constitution “comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other, to which this power does not extend.” [Citations omitted.] It is an essential attribute of the power that it is exclusive and plenary. As an exclusive power, its exercise may not be limited, qualified, or impeded to any extent by state action.
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The principle of duality in our system of government does not touch the authority of the Congress in the regulation of foreign commerce.
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The control of importation does not rest with the state but with the Congress.
Id. at 56-59, 53 S.Ct. at 509-510, 77 L.Ed. at 1028-29.1
Next, let us look to the nature of the regulation being attempted by Arizona. There can be no doubt that it is a direct regulation of foreign commerce when the state prohibits the importation of certain drugs. Where does Arizona get the power to directly regulate the importation of foreign goods? I believe that art. I, § 8, cl. 3 and Board of Trustees v. United' States, supra, make it clear that the states have no reserved power under the tenth amendment to the United States Constitution to directly regulate foreign commerce. The word “direct,” I believe, is of utmost importance in this case.
To begin, comment is necessary on the authority relied upon by the majority. It cites Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) and Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960), for the proposition that “[s]tate regulation of foreign commerce is permissible if it is even handed, effectuates a legitimate public interest, and is not preempted by federal action.” (Emphasis added.) These cases deal only with the regulation of interstate commerce and not with foreign commerce. More importantly, as demonstrated by the quote in the majority opinion from Huron, these cases stand for the proposition that the interstate commerce clause did not withdraw from the states the power to legislate with respect to local concerns even though such legislation may indirectly and incidentally affect interstate commerce and those persons engaged in it. The majority has failed to cite any authority for the proposition that the states have the power to directly regulate interstate or, in this case, foreign commerce.
While the commerce clause of the United States Constitution confers upon Congress the power to regulate interstate commerce and commerce with foreign nations, the Supreme Court has recognized differences in the scope of those powers. As the Court stated in Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448-49 n. 13, 99 S.Ct. 1813, 1821-22 n. 13, 60 L.Ed.2d 336, 348 n. 13 (1979):
*513In National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), [overruled, Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985)] the Court noted that Congress’ power to regulate interstate commerce may be restricted by considerations of federalism and state sovereignty. It has never been suggested that Congress’ power to regulate foreign commerce could be so limited.
The Court concluded that “[fjoreign commerce is pre-eminently a matter of national concern” and citing prior decisions, reiterated “the need for uniformity in treating with other nations, ...” Id. at 448, 99 S.Ct. at 1821, 60 L.Ed.2d at 347-48. The need for uniformity is clear in this case, given the federal government’s obligation to comply with international conventions on controlled substances and the federal act’s recognition of that obligation. See 21 U.S.C. §§ 811 and 812.
Turning to the Comprehensive Drug Control Act, the majority’s construction ignores the clear congressional intent. Importation of controlled substances into this country is prohibited under 21 U.S.C. § 952. This statute was enacted as part of Public Law 91-513, the Comprehensive Drug Abuse Prevention and Control Act of 1970. See Historical Note to 21 U.S.C. § 801. The bulk of the act is codified in Chapter 13 of Title 21, which in turn is divided into two subchapters. Subchapter I, entitled “Control and Enforcement,” establishes five schedules of controlled substances and confers upon the attorney general the authority to add or delete substances from those schedules in accordance with procedures established by the statutes and consistent with United States’ obligations under certain international conventions. 21 U.S.C. §§ 811 and 812. This subchapter also provides for registration of manufacturers, distributors and dispensers of controlled substances (21 U.S.C. §§ 821-830), prohibits the creation, manufacture and distribution and possession of controlled substances other than in accordance with the requirements of Subchapter I (21 U.S.C. §§ 841-852) and provides for the administration and enforcement of the provisions set forth in this subchapter (21 U.S.C. §§ 871-886). Finally, Subchapter I contains several general provisions pertaining to severability, savings and applicability of state law, which will be discussed below.
Subchapter II, entitled “Import and Export,” regulates the importation and exportation of controlled substances and the manufacture and distribution of controlled substances on board vessels. 21 U.S.C. §§ 951-955a. This subchapter also creates registration requirements for importers and exporters of controlled substances, and establishes penalties for persons importing or exporting such substances other than in compliance with the requirements of the subchapter.
The general provisions of Subchapter I include 21 U.S.C. § 903, which provides:
No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.
(Emphasis added.) No similar provision is found in Subchapter II. I do not believe that this omission was inadvertent, nor that Congress misspoke in using the words “this subchapter” in § 903. The savings provision found in the immediately preceding § 902, and the severability provisions of § 901 both refer specifically to “this chapter.” Moreover, while the administration and enforcement provisions of Sub-chapter I are expressly made applicable to Subchapter II by § 965, no other provision is made in Subchapter II for the carryover of the provisions of Subchapter I.
Why is the language of § 903 not in Subchapter II? Surely Congress knew how to include it if it wanted to. The federal act is not ambiguous. Congress has expressed its intent by the language of *514§ 903 which by clear implication means that Congress did intend to occupy the field of regulating importation, a field which the states have never historically regulated and which the states have no power to regulate directly.
The Supreme Court has long recognized the “broad power of a State to regulate the narcotic drugs traffic within its borders____” Robinson v. California, 370 U.S. 660, 664, 82 S.Ct. 1417, 1419, 8 L.Ed.2d 758, 761 (1962). This recognition is the reason for § 903 of the act. However, neither the Supreme Court nor Congress has ever recognized the power of a state to regulate the importation of products from foreign countries. That is why Congress specifically limited the language of § 903 to Subchapter I. No similar provision was necessary in Subchapter II because preemption is implicit by virtue of the subject matter. The “express statement” or “clear statement” rule does not apply when a federal statute deals with an activity not historically regulated by the states. See Texas v. United States, 730 F.2d 339 (5th Cir.1984); see also Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947).
Assuming, arguendo, that the state does have jurisdiction, my final criticism is the majority’s conclusion that no conflict exists between Arizona and federal law. The majority admits that Arizona law is harsher because probation is available under federal law but not under Arizona law. The cases relied upon by the majority to conclude that this is not a greater burden have nothing whatsoever to do with the issues in this case. The question is whether or not the Arizona statute conflicts with the federal statute. It does. Suppose the Arizona statute provided for a life sentence? Would the majority still contend that there is no conflict?
In summary, the thrust of the majority’s argument is the necessity of the state to control the drug problem. It already has the tools to do this by charging the defendant with possession or transportation of the drug.
I would reverse the conviction and dismiss the indictment.
. In Williams v. Finley, 71 Ariz. 27, 222 P.2d 997 (1950), our court relied on this case to hold that the Arizona statutes governing the inspection of livestock were not applicable to cattle entering the State of Arizona at the international border line where the cattle were being held in pens pending placement on board Southern Pacific cattle cars for shipment out of the state.