norml23 - Page 70

 Imposition of Penalties" 1970 Washington U.L.Q. 2'.65 r 266 (1970). There
 the Supreme Court upheld the conviction of the defendants for grazing
 sheep on forest [ands in violation of regulations adopted by the
 Secretary of Agriculture, pursuant to a statute which permitted the
 Secretary to regulate the occupancy and use of forest reservations, in
 order to preserve them from destruction. Bn reaching its holding, the
 court said:
 IT]he authority to make administrative rules
 is not a delegation of legislative power, nor are
 such rules raised from an administrative to a
 legislative character because the violation thereof
 is punished as a public offense.
 ,,.a violation of reasonable rules regulating the use
 and occupancy of the property is made a crime, not by
 the Secretary, but by Congress. The statute, not the
 Secretary, fixes the pena[tyo
 ...the Secretary did not exercise the legislative power
 of declaring the penalty fixing the punishment for
 grazing sheep without a permit, but the punishment is
 imposed by the act itself.
 Id. at 521, 523.
 This is, the Supreme Court stressed two crucial features of the
 statute and the delegation of power which saved Grimaud from
 constitutional infirmity: First, the rule-making power granted to the
 administrative agency was for the purpose of implementing a vaiid
 federal regulatory function; second, the Supreme Court specifically
 noted at two different places in its opinion that the Secretary did not
 have the power under the statute to fix the penalty for the violation
 of such rules as he would adopt. Thus, wherever it turns out that the
 purpose of a statute is not primarily regulatory, or, in the
 alternative, wherever the federal agency to whom power is delegated may
 not only define the eiements of a crime, out also fix the penalty for
 its violation, a different result might obtain.
 Again, defendant submits that although this a:nalysis subjects the
 CSA to a constitutional attack, it is open to the court to engage in
 "saving interpretation," and narrowly construe the statute to avoid