dissenting:

Because I disagree with the majority’s conclusion that the Attorney General failed properly to subdelegate to the Administrator of the Drug Enforcement Agency (DEA) his authority to schedule dangerous, new, “designer” drugs temporarily, I dissent.

I do not share the majority’s narrow reading of the Attorney General’s authorization order for delegation of his duties to the DEA. 28 C.F.R. § 0.100 (b) (1986). Although the temporary scheduling procedure of section 811(h) was not part of the original 1970 Controlled Substances Act, it expressly amended the 1970 Act. 21 U.S. C. § 811(h) (1982 & Supp.1984). It would be a strained and unreasonable interpretation of the Attorney General’s authorization order to read it as invalidating all actions taken by the DEA’s Administrator under amendments to the 1970 Act. The 1973 subdelegation clearly contemplated the DEA’s assumption of the Attorney General’s permanent substance scheduling function. The 1984 Act amended the scheduling function to include temporary scheduling. 1

The majority, however, adopts wholesale the analysis of United States v. Spain, 825 F.2d 1426 (10th Cir.1987), and rules to the contrary. I believe Spain was premised on two false assumptions: (1) that whether the Attorney General had subdelegated his temporary scheduling authority depended on the degree of similarity between that process and the permanent scheduling process, and (2) that these two processes were wholly dissimilar. As for the second assertion, the Spain decision considered temporary scheduling to be fundamentally different from permanent scheduling. Id. at 1428 . The court stated that the DEA is a “technical group” incompetent to determine, under section 811(h)(1), whether temporary scheduling is necessary to avoid imminent danger to the public safety. Id. Spain found this general public safety decision to be within the Attorney General’s special expertise, and therefore it concluded that the Attorney General would not have intended the 1973 subdelegation to extend to temporary scheduling authority. Id.

However, in determining the threat to the public safety under section 811(h)(1), the substance’s “history and current pattern of abuse,” the “scope, duration, and significance of abuse,” and “risk ... to the public health” must be considered. 21 U.S.C. § 811 (c), (h)(3). These general public safety considerations are among those that must be considered when determining a substance’s “potential for abuse” for permanent scheduling under section 811(a)(1). See id. § 811(a)(1), (c). The Attorney General has entrusted the Administrator with determining a substance’s threat to the public safety when exercising permanent scheduling authority, and I do not believe he would consider the DEA incompetent to make essentially the same inquiry when temporarily scheduling a substance. 2

*550 I believe, therefore, that the temporary scheduling process is not so different from the permanent scheduling process. And even if it were, I do not think that would require a holding that subdelegation had not been perfected in this case. The court in Spain relied on the rule that ambiguous criminal statutes be read narrowly and with lenity in order to interpret the Attorney General’s 1973 delegation to the Administrator as not extending to temporary substance scheduling 825 F.2d at 1429 (citing United States v. Bass, 404 U.S. 336 , 92 S.Ct. 515 , 30 L.Ed.2d 488 (1971), and Bell v. United States, 349 U.S. 81 , 75 S.Ct. 620 , 99 L.Ed. 905 (1955)). Assuming, arguendo, that the rule of lenity applies to situations in which the criminal prohibition itself is clear but the authority to proscribe the activity is doubtful, 3 1 do not find the 1973 delegation to be ambiguous. The Attorney General in 1973 unquestionably delegated to the Administrator his functions under the Controlled Substances Act, and temporary scheduling is clearly one of the Attorney General’s functions under the Controlled Substances Act as amended. I decline to construe the 1973 delegation so strictly as to defeat the Attorney General’s obvious intention to permit the Administrator temporarily to schedule substances. Cf. Huddleston v. United States, 415 U.S. 814, 831 , 94 S.Ct. 1262, 1271 , 39 L.Ed.2d 782 (1974) (“Although penal laws are to be construed strictly, they ‘ought not be construed so strictly as to defeat the obvious intention of the legislature.’”) (quoting American Fur Co. v. United States, 27 U.S. (2 Pet.) 358, 367 , 7 L.Ed. 450 (1829)). This is not the case of a rogue agency usurping the Attorney General’s authority. If the Attorney General did not intend the Administrator to schedule substances temporarily under the 1973 delegation, I am confident he would have acted to reduce the Administrator’s authority.

I believe the plain intent of Congress was to establish an expedited system of review in order to criminalize the possession, manufacturing, and distribution of newly-developed “designer” drugs before they became public health hazards. The responsibility for this temporary scheduling process was vested sensibly in the DEA, through the Attorney General. The majority’s decision requires that when any amendment to a crime-fighting statute is adopted, no matter how technical or minor, a new trail of delegation and subdelegation be laid down, even when past delegation practice is clear and unambiguous. The majority’s decision vacates a criminal conviction because of an alleged lack of proper delegation of authority. I believe the majority demands too much of the government’s crime-fighting efforts in the face of an unambiguous delegation of responsibility by Congress.

I respectfully dissent.

. See Pub.L. No. 98-473, tit. II, § 508, 98 Stat. 2070 , 2071-72 (1984) ("21 U.S.C. 811 ... is amended by adding a new subsection (h) as follows_”). Temporary scheduling is one of the Attorney General's functions under the Controlled Substances Act, and is therefore delega-ble under 21 U.S.C. § 871 (a). Additionally, 28 U.S.C. § 510 generally permits the Attorney General to delegate to "any other officer, employee, or agency of the Department of Justice ... any function of the Attorney General.”

. The Spain decision also stated that the Attorney General would not intend to permit the Administrator to exercise the broad discretion involved in scheduling a substance temporarily. 825 F.2d at 1429 . The discretion given under section 811(h), however, is comparable to that given in permanently scheduling substances under section 811(a). For example, although the Secretary of Health and Human Services may not veto a temporary scheduling order, her recommendation must still be considered. 21 U.S. C. § 811(h)(1), (4). The Spain decision ob *550 served that temporary scheduling, unlike permanent scheduling, is not subject to the Administrative Procedure Act’s procedural protections. 825 F.2d at 1429 . I do not find this factor alone to be dispositive of the Attorney General’s intent underlying the 1973 order.

. The purpose of the rule is to ensure that “no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited.” Dunn v. United States, 442 U.S. 100, 112 , 99 S.Ct. 2190, 2197 , 60 L.Ed.2d 743 (1979). Here, the defendants were on notice that their conduct was prohibited: the Controlled Substances Act plainly prohibits distributing and conspiring to distribute controlled substances, and the Administrator had plainly scheduled MDMA as a controlled substance.