### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT March 31,

2004 THOMAS K. KAHN CLERK

* Honorable Adrian G. Duplantier, United States District Judge for the Ea stern District of Louisiana, sitting by

designation. [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE EL EVENTH C IRCUIT

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_______ No. 03-14 265

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_______ D. C. Docket No. 03- 00062-C R-3-LAC UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus BARRY L. BROWN, Defenda nt-Appell ant.

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_______ Appeal from the United States D istrict Court for the N orthern D istrict of Florida

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________ (March31, 2004) Before MARCUS and WIL SON, Circ uit Judges, and DUPLANTIER * , District Judge. MARCUS, Circuit Judge: Barry L. Bro wn appea ls his three misde mean or convicti ons for viol ating National Park Se rvice traffic regulations within a nati onal seasho re. Th ese2

convictions resulted in impos ition of a on e-ye ar term of probati on and a total of $775 in fines. On appeal, he argues that the regulations under which he was convicted are facially unconstitutional and violate the separation-of-powers principle, pursuant to the nondelegation doctrine, because the regulations were promulgated b y the Secretary of the In terior (“Secretary”) and not Cong ress. We review questi ons of con stituti onal law de novo . See Nichols v. Hopper , 173 F.3d 820, 822 (11th Cir . 1999); Pleasant -El v. O il Recove ry Co. , 148 F.3 d 1300, 1301 ( 11th Cir. 1998); see also St. Francis Hosp. Ctr. v. H eckler , 714 F.2 d 872, 873 (7t

h Cir. 198 3) (“ Deference to adm inistrativ e experti se does not e xtend to judging the constitutionality of a statute or regulatory scheme .”). A facial challenge to a legisl ative act

“is, of course , the most diffic ult challe nge to m ount successf ully, since the c hallenger must e stablish tha

t no set of c ircum stances e xists under which the [a]ct would be valid.” United St ates v. S alerno , 481 U. S. 739, 745, 107 S. Ct. 2095, 2100, 95 L . Ed. 2 d 697 (1987); see also Jacobs v. The Florida Bar , 50 F.3d

901, 906 n. 20 (11th Cir . 1995) (“ [W] hen a plain tiff atta cks a law fac ially, the plainti ff bear s the burde n of proving t hat the law

could never

be constit utional ly applied.” ).1 Section 4.23, which prohibits the operation of a motor vehicle while under the influence

of alcohol or drugs, provides the following, inter alia :

(a) Ope rating or being in actua l phy sical co ntrol of a

motor veh

icle is prohibited while: (1) Under the influence of alcohol, or a drug, or drugs, or any

combination thereof, to a degree that r enders the operator incapable of sa fe operation; or (2) The alcohol concentration in the operator' s blood or breath is 0.08 grams or more of alcohol per 100 milliliters of blood or 0.08 grams or more of a lcohol per 210 li ters of b reath. Pr

ovided ho wever, that if Sta te law tha t applies t o operating a motor vehicle while under the influe nce of alcohol establishes more restrictive limits of alcohol concentration in the operator's blood or br eath, those limits supersede the limits specified in this paragraph. (b) The provisions of paragraph ( a) of this section also apply to a n operator who is or has been l egally ent itle d to u se alco hol o r anot her dru g. (c) Tes ts. (1) At the request or direction of an

authorize d person w

ho has pro

bable ca use to believe that an operator of a motor vehicle within a par k area has violated a 3 Based on our

plenary review of the re cord and c areful c onsiderati on of the parties’ briefs a

nd oral pre sentations, we concl ude that the

challenge d regulati ons

are no t fa cia ll y un con st it ut io nal and acc ord in gl y aff irm. The facts relevant to the purely legal issue raised in this appeal are undisputed a

nd may be stated b riefly . By

inform ation, Br

own was c harged w ith violating thr

ee m isdem eanor Na

tional Par k Service trafficregulatio ns within a national se ashore: ( 1) unlawf ully operating a m

otor vehicl e while un der the influence of alcohol , to a degr

ee that r endered him inca pable of sa fe opera

tion, in violation of

36 C.F. R. § 4.23 1 (“C ount I”); ( 2) refusing to submit to a test of hisprovision of paragraph (a) of this section, the operator shall submit to one or more tests of the blood, breath, saliva or urine for the purpose of determining blood alc ohol and d

rug co ntent. 36 C.F.R. § 4.23.

2 Section 4.21, which establishes speed limits for vehicles in various parts of national parks, forests, and public property , provides the following, inter alia :

(a) Par k area s peed limit s are as

follows: (1) 15 mile s per hour : within all school zone s, campg

rounds, p icnic ar

eas, parking areas, utility

areas, business or reside

ntial are as, other

places o f public assembla ge and at emerg ency

scenes. (2) 25 miles per hour: upon sections of park road under re pair or construction. (3) 45 mile s per hour : upon all o ther par k roads. (b) The superintendent may designate a different speed limit upon any park road when a speed limit set forth in paragra ph (a) of this section is determined to be unreasonable, unsafe or inconsistent with the purposes for w hich the park area w as estab lished. Spe ed limits sh all be pos ted by using sta ndard tr affic control d evices. (c) Operating a vehicle a

t a speed in excess of the speed limit is prohibited. (d) An authorized person may utilize radiomicrowaves or other electrical devices to determine the speed of a vehicle on a park road. Signs indicating that vehicle speed is determined by the use of radiomicrowaves or other electrical devices are not require d. 36 C.F.R. § 4.21. 4 breath fo r the purpo se of dete rmining blood alco hol or drug c ontent, in violation of 36 C.F.R. § 4.2 3(c) (“Count II”); and (3) spe eding, in violatio n of 36 C.F.R. § 4.21 2 (“Count III”).3 Title 16 U.S.C., section 459h-4 provides that the Secretary shall administer Gulf Islands National Seashore in accordance with Sections 1 and 2 to 4 of T itle 16 and “may utilize such statutory authorities available to him for the conservation and management of wildlife a nd natural resources as he deems appr opriate.”

4 Section 1. 3, which e

numerat es penal ties for v iolating the Park Sy

stem’s tr affic regulat ions , prov ides t he fol lowi ng: (a) A pe rson conv icted of violating a provisi on of the r

egulat ions conta

ined in Par

ts 1 through 7, 12 and 13 of this chapter, within a park are a not covered in paragra phs (b) or (c) of this section, shall be punished by a fine as provided by

law, or by imprisonment not exceedin g 6 months , or both, a

nd shall be

adjudg ed to pay

all costs o f the pro ceeding s. (b) A person who knowingly and willfully violates any provision of the regulations contained in parts 1 through 5, 7 and 12 of this chapter, within any national military park, battlefield site, national monument, or miscellaneous memorial transferred to the jurisdiction of the Secretary of the Interior from that of the Secretary of War by Executive Order No. 6166, June 10, 1933, and enumerated in Executive Order No. 6228, July 28, 1933, shall be punished by a fine as provided by law , or by imprisonment for not more than 3 months, or by both. (c) A pe rson conv icted of violating any provision

of the re gulatio ns contai

ned in par ts 1 through 7 of this chapter, within a park area established pursuant to the Act of August 21, 1935, 49 Stat. 666, shall be punished by a fine a s provided by law a nd shall be adjudged to pay all costs of the proc eedings. 16 U.S.C. 462. (d) Notwithstanding the provisions of paragra phs (a), (b) and (c) of this section, a person 5 At a bench trial before the magistrate judge, the government presented evidence that after Brown was stopped by a park ra nger for driving 52 miles per hour in a 35-mile-per-hour zone within the Gulf Islands National Seashore, 3 the ranger determined, based on his observations during three field sobriety tests, that Brown was dri ving unde r the i nflu ence o f alco hol. B rown r efuse d the range r’s request to submit

to a brea thalyz er. Th e ma gistrate j udge found B rown guilt y of all three offenses and sentenc ed him pursuant to 36 C.F. R. § 1.3. 4 On Count I,convicted of violating § 2.23 of this chapter shall be punished by a fine as provided by law. 16 U.S.C. 460. 36 C.F.R. § 1.3.

6 Brown w as sentenc ed to a one- year term of probati on, and, as to all c ounts, he was ordered to complete DUI school, perform 50 hours of com munity service work, and to pay a total of $7 75 in fin es. On appea l to the distr

ict court, Brown ar

gued that the

federal regulatio ns he had been charged with violating were unconstitutional because they were promu lgated purs uant to an im proper de legation of

legislativ e authorit

y and in violation of the separation-of-powers doctrine. The district court affirm ed Brown’s conv ictions . This appeal followed. In this Cour

t, Brow n again cont ends that th e regulat ions are f acially unconstituti onal beca

use they violate the

nondelegat

ion doctrine

in that Cong

ress has unlawfully delegated to the Secretary the power to define crimes and set punish ments for thos e crimes, a power that is inheren tly legislat ive in nat ure. Brown’ s argum ent is twof old. Fir st, he ar

gues that, in delegat

ing authorit

y to the Secreta ry, Congress f

ailed to pr

ovide suffi cient guida

nce, or a n “inte lligible principle,” for the exercise of the Secretary ’s discretion. Second, he asserts that Congress could not delegate to the Secretary the authority to enumerate, and set7

punishm ents for, prohibited behavior w ithin the Pa rk Sy stem. Because

we find in this case t hat Congre ss, and not the Secretary , provided the punishm

ent for violations of the Secretary’s regulations, and because Congress set standards that are suff iciently specific to guide theSecret ary w hen prom ulgating re gulations which are “ne cessary

and proper

for the use , preser

vation, a nd man agem ent of the national pa

rks, monumen

ts and reservations of

the Unite d States, ” as required by 16 U.S.C. § 3, we reject b oth aspec ts of Brown’s arg ument. Article I, section 1 of the Constitution provides that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States . . . .” U .S. Const. ar t. I, § 1 . In Mistretta v. United States , 488 U. S. 361, 1 09 S. Ct. 647, 102 L. Ed. 2d 714 (1989) , the Supr eme Court rei terated t

he long-est ablished pr

inciple that “ ‘the int egrity

and ma intenance of the sy stem of governm ent ordaine d by the Constitution ’ m andate tha t Congress generall

y cann ot delegat e its legisl ative power to another Branch.” Id. at 371-72, 109 S. Ct. at 654 (quoting Field v. Clark , 143 U.S. 649, 692, 1 2 S. Ct. 495, 504, 3 6 L. Ed . 294 (1892) ); see also Loving v. United States , 517 U. S. 748, 7 58, 116 S. Ct. 1737, 1744, 135 L . Ed. 2 d 36 (1996) (“T he fundam

ental pre cept of the

delegatio n doctrine is that the lawm aking function be longs to Congress, U. S. Const. , Art. I, § 1, a nd may not be conve yed to another branch or entity.”).5 In Mistretta , the Cour t upheld th

is deleg ation bec ause Cong ress spe cified: ( 1) the g oals for which the Commission must aim; (2) the final product of the delegation; (3) specific factors the Commission must consider; and (4) limits on the Commission’s power. Id. at 372-76 , 109 S. Ct. at 655- 57. Other

factor s the Court

has ident ified whe n determ ining wh ether de legati on is proper are: (1) the availability of judicial review, see Carlson v. Landon , 342 U.S. 524, 542-44, 72 S. Ct. 525, 535-36, 96 L. Ed. 547 (1952); (2) the rapidity of changes in the matter being regulated, see Yakus v. United States , 321 U.S. 414, 432, 64 S. Ct. 660, 671, 88 L. Ed. 834 (1944); (3) the complexity of the fie ld, see Mistretta , 488 U.S. at 372, 109 S. Ct. at 655; and (4) the existence of “well-known and gener ally acc eptable standards” in the field being reg ulated, see Fahey v. Mallonee , 332 U.S. 245, 250, 67 S. Ct. 1552, 1554, 91 L. Ed. 2030 (1947). 8 The nondel egation doc trine, ho wever, does not pre vent Congre ss from delegating to others “at least some authority that it could exercise itself.” Loving , 517 U.S. at 758, 116 S. Ct. at 1744; see also Mistretta , 488 U. S. at 372, 109 S. Ct. at 654 (em

phasizing th at the Cons titution does not prohibit Congress f rom obtaining as sistance f

rom c oordinate b ranches) . Thus, Congress m ay del egate authority to a coordinate bran ch when it lays “ down by

legislativ e act an intelligibl e principl e to which th e person or body au thorized t o [exerc ise the delegated authority] is directed to conform . . . .” Mistretta , 488 U.S. at 372, 109 S. Ct. at 655 (altera

tion in original) (em

phasis adde d) (citing J.W. Hampton, Jr., & Co. v. United States , 276 U.S. 394, 4 09, 48 S. Ct. 34 8, 352, 72 L. Ed. 6 24 (1928 )). Mistretta concerne d the consti tutionality of Congre ss’s del egation of the power to p romul gate the F ederal S entencing G uidelines t o the Fede ral Sent encing Comm ission. 5 T he Suprem

e Court sum

mari zed the “ intelligibl e principl e” test in these ter ms: a delegatio n of legisla

tive powe r will be

“cons titutionall

y suff icient if9

Congress c learly

delineate s [1] the

general p olicy, [2] the

public age ncy w

hich is to apply it, and [3] the boundaries of this delegated authority.” Id. at 372-73, 109 S. Ct. at 655 (internal quotat ion ma rks om itted). In Mistretta , the Court repeated the often- quoted obser

vation of C hief Justic e Taft, writing in J.W. Ham pton : “In determ ining what [Congress ] m ay do in seeking as sistance f

rom a nother bra

nch, the extent and chara cter of t

hat assista

nce m ust be fixe d according to com mon sense and the inherent necessities of the governmental co-ordination.” 276 U.S. at 406, 48 S. Ct. at 35 1. “ The gover nment does not bea

r an onero us burden in demonstrating the existence of an intelligible principle.” South Carolina Med. Ass’n v . Thom

pson , 327 F.3d 34 6, 350 (4t h Cir.), cert. denied , 124 S. C t. 464, 157 L. Ed. 2d 371 (2 003). Applying the “intelligible principle” test, the Suprem e Court has given Congress w ide latitud e in delega ting its pow ers. With the exc eption of tw o 1935 cases inv alidatin g statut es as unco nstitut ional del egations of power, see Pan ama Refining Co. v. Ryan , 293 U. S. 388, 5 5 S. Ct. 241, 79 L. Ed. 446 ( 1935), and A.L.A. S chechter Poultry Corp. v. U nited States , 295 U.S. 495, 5 5 S. Ct. 837, 79 L. Ed. 1570 (1935), the Court has upheld every challenge to a congressional delegatio n of power th at has been presented to it. See Mistretta , 488 U. S. at 373, 109 S. Ct. at 655. “ In the histo ry of the Court w e have fou

nd the requi site6 Decisions of the Fifth Circuit rendered on or befor e September 30, 1981, are binding precedent in the Eleventh Circuit. Bonner v. City of Pricha rd , 661 F.2d 1206, 1209 (11th Cir. 1981) ( en banc ). 10 ‘intell igible prin ciple’ lacking in o nly tw o statutes, one of whi ch [ Pan ama Refining ] provide d literal ly no gui dance for the exerc ise of disc retion, a nd the other of w

hich [ Schechter Poultry ] conferred authority to regulate the entire

eco no my on th e ba si s o f no more pre cis e a s tan dar d t han st imu lat in g t he e con omy by assuring ‘fair com

petition.’” Whitman v. A m. Trucking Ass’ ns, Inc. , 531 U.S. 457, 474, 121 S. Ct. 903, 913, 149 L. Ed. 2d 1 (2001). Interpreting the nondelegation doctrine, we have held that Congressional legislatio n “w

hich presc ribes essential stand ards and ba sic legisla tive policy

and delegate s to an adm

inistrator authority for prom ulgation of rules and r

egulations i s constitution ally permiss ible, pro vided the st andards a re ‘suf ficiently definite a

nd precise t o enable C ongress, t he courts a

nd the public to ascer

tain whet her the Administrator . . . has conformed to those standards.’” United St ates v. S ans , 731 F.2d 1521, 1527-28 (11t

h Cir. 198 4) (quoting United States v. Wom ack , 654 F.2 d 1034, 1037 (5th Cir. Unit B 1981)). 6 In Brown’s case, the first two prongs of the Mistretta test -- the general policy and the public agency that is to apply the delegated authority -- are essential ly undis puted. First, Cong ress clea rly spe cified a general p olicy a nd the11

goals for which the delegatee must aim when it created the National Park Service and instruc ted it, und er the direction of t he Depar tment of the Int erior, to promote and regulate the use of the Federal area s known as national parks, monuments, and reservations . . . by such m eans and measures as confor m to the fundam ental purpo se of the sa id parks, monum

ents, and reser vations, w

hich purpose

is to conser

ve the sce nery a

nd the natural a nd historic objects and the wi ld life the rein and to provide fo r the enjoy ment o f the sam

e in such m

anner and by such

mea ns as will leave the m unim

paired fo r the enj oym ent of futu re generations. 16 U.S. C. § 1; see also 16 U.S.C. § 461 (“ It is declared that it is a national policy to preserve for public use historic sites, buildings, and objects of national signifi cance for the inspirat ion and b enefit of th e people o f the United States.”). We wo uld be hard- pressed to find that th e foregoing policy is too broad

to pass constitutional muster under Mistretta ’s first pron g. Cf. Nat’l Broad. C o. v. United States , 319 U. S. 190, 2 16-17, 63 S . Ct. 997 , 1009-10, 87 L. E d. 1344 (1943) (uph olding deleg ation to Fe deral Com munic ations Com

missio n to ma

ke regulation s “in t

he public int erest”) ; Yakus , 321 U. S. at 422- 23, 64 S. Ct. at 66 6- 67 (upholding d elegation to adm inistrator to fix com

modity prices tha

t would be “fa ir and equi table”); New York Cent. Secs. Corp. v. United States , 287 U. S. 12, 24-25, 53 S . Ct. 45, 48, 77 L. Ed. 138 ( 1932) (uphold ing delegat

ion to Inter state Comm erce Comm

ission to authorize mergers of railroad com panies if it finds them “in the public inte rest”); see also Lichter v. United States , 334 U.S. 742, 778, 68 S.12

Ct. 1294, 1313, 92 L . Ed. 1 694 (1948) ( upholding dele gation under Renegotia

tion Act to det ermi

ne whethe r private

parties e arned “ excessive profits” d

uring wartime). Second, Congress un ambig uously ha s designate d the public agency which is

to a ppl y thi s po lic y: [t]he S ecretar

y of th e Interi or shall m

ake and publ ish such rul es and regulation s as he may dee m nec essary or proper for the use

and mana geme nt of the pa

rks, monumen

ts, and re servations under the jurisdic tion of the N ational Pa rk Servic e, and an

y viola tion of any

of the rules a nd regula tions au thorized by [this secti on and sec tions 1, 2 and 4 of this title] shall be pun ished by a fine of not mor e than $500 or im prisonm ent for not

exceedin g six mo nths, or bot h, and be adjudged to pay a

ll cost[s] of the proc eedings. 16 U.S. C. § 3; see also 16 U.S. C. § 462(k) (providing t hat Secretary , “f

or the purpose of e ffectua

ting the polic y expressed in [s ection 461 of this title] ,” has the power to “

make such rules and regula

tions not inco nsistent w ith [secti ons 461 to 467 of this ti tle] as may

be necess ary a

nd proper t o carry

out the prov isions thereof. Any person violati ng any o f the rule s and regul ations autho rized by said sections shall be punished by a fine of not more than $500 and be adjudged to pay all cost[s] of the proceedings.”). It is to thethird Mistretta prong -- Congress’s delineation of the boundaries of the Sec retary ’s dele gated autho rity - - that the crux of Br own’s a rgument is13

directed in this appe al. The

Secret ary, through the National Park Se rvice, i s empowered to “

promote and regulate” national parks, but must do so in a m anner that “conform[s] to th e fundamental p urpose of the said p arks.” 16 U.S.C. § 1

. Again, t hat congre ssionally -enum erated f undamental purpose

is “to conservethe scenery and the nat

ural and hi storic obj ects and th e wild lif e therein and to provi de for the e njoym

ent of the s ame in such m anner and by such mea ns as will leave them unimpaired f

or the enjoym ent of future generations.” Id. In order to promu lgate a r egulation, pursuant to1 6 U.S. C. § 3’ s grant of a uthority , the Secreta ry is r equired to deem

the regula

tion “n ecessar

y and pr oper for t he use and management of the park s.” 16 U.S.C. § 3. Here, the Secr

etary did just th at when he

promulgated thetrafficsafety regulation s, which are codified in Part 4 of Title 36 of the Code of Federal Regulation s, and made them uniform ly appl icable to a

ll national

parks. When th e Secretary passed these regulations, he noted that the National Park Service admin isters 337 p ark area s, which include som

e 8,000 m iles of roads within th e National Par k System. See 52 Fed. R eg. at 10, 670. “Although vis itors to the National Park Sy stem use a vari ety of access m ethods, the

vast m ajority

continue to rely on moto r vehicle s and roadw ays to reach pa rk areas and to circulate wit hin them. Consequently, t

he NPS ha s maj or progra m re sponsibilitie s in the ar eas of14

road construction and maintenance, traffic safety and traffic law enforcement.” Id. Since m otor vehicl es are th e prefer red m ode of tra

nsportation

to access and tour the park system, and in light of traffic and safety concerns related to the regular use of car s in the par

ks, it is pl ain that the

prohibition o f both operating a m otor vehicle w hile under the influe nce of alc ohol and spee ding in the na tional par ks is altogether consistent with and promotes the relevant, clearly enumerated national policies

. While t he NPS vehicle and t

raffic safety

regulatio ns genera lly ado pt state motor vehicle c odes as thelaw gover ning the oper

ation of ve hicles wi thin the national parks, in promulgating the regulatory schem e, the Secretary explained that Service wide trafficregulatio ns were necessar y: “ NPS re gulations supplem enting [sta

te motor vehicle ] codes are lim ited to ones that arenecessar y to resolve visitor safety and/or resource protection concerns that cannot be satisfied on a Servicewi de basis b y applying and en forcing St ate vehicl e code prov isions.” Id. at 10,678. Moreover , the Se cretary determ ined that th e roads in n ational pa rks are altogether different in character from roads in the surrounding areas, in which state vehi cle code p rovisions co ntrol: the p arks’ r oads are d esigned to bl end into surroundings and enhanc e a visitor ’s enj oym ent of the p ark while non-park r

oads are primarily design ed to get t ravelers fro m one place to an other. Id. at 10,670. In15

short, the national pol icy C ongress has pronounced in § 1 of Ti tle 16 denote s the Secreta ry’ s objective in passing regulati ons -- to co nserve sc enery , historic objects, and wildli fe in the na tional par ks, and to p rovide for

use of the parks in a manner that will not impair enjoyment for fu ture genera tions. See 16 U.S.C. § 1. The stand ard set out

in § 3, “ necessar y and pr oper for t he use and m

anagem ent of the parks, ” defines the boundar ies of the Secreta

ry’ s regulati on- and rul e-ma king authorit y. See 16 U.S.C. § 3. Moreover , while Brown lik ens his cas e to the only two case s in which t

he Supreme Court has found a violation of the nondelegation doctrine, those cases are readily distinguisha

ble. Al though both Panam a Refinin g and Schechter Poultry involved del egations of

authority to crim inalize a ctivity , in Panam a Refinin g the delegating statute did not declare any policy regardin g the trans portation of excess petroleum

production, did not qualif y the P resident’ s delegate d authority , and did not establi sh any c riterion “ to govern the

Presiden t’s cour se.” 293 U .S. at

415, 55 S. Ct. at 246. A

nd in Schechter Poultry , the dele gating stat ute faile d to establi sh any standards for the de legated le gislative c onduct, 295 U.S. at 541-42, 55 S. Ct. at 848. By con trast, here, Cong

ress has de lineated b oth a gener al policy and the public agen cy w

hich is to ap ply it. Moreover , Congre ss has provid ed the16

Secreta ry w ith suffic ient standa

rds for the

legislate d authority

by instr ucting the National Park Service, acting through the Secretary , to “promote and regulate” national parks “by such means and measures as to conform to the fundamental purpose of t

he said par

ks.” 16 U .S.C. § 1. The

fundam ental purpo se, again, is

enume rated as follows: “

to conserve

the scene ry and

the natura

l and histor

ic objects and the wild li fe therein an d to prov ide for the enjoyment of the same . . . as will leave them unim

paired for the enjoyment of future generations.” Id. In sum , Congre ss has state d the legisl ative obj ective, has presc ribed the metho d of achie ving that obj ective, and has lai d down stand ards to guide the Secreta ry’ s determ

ination of t

he occasi ons for the

exercise of his rule - and regulatio n-making auth ority. According ly, Mistretta ’s intel ligible-pr inciple standard is satisfied in this case. We now turn to Brown’s a

rgument that bec ause Congress has del egated the authority to define the contours of criminal conduct, it m ust satisfy a standard higher than the intelligible-principle standard. To the extent Brown suggests that Congress c annot deleg ate the pow er to def ine what c onduct is cr

iminal, we f

ind his argument to be ove rstated. As the Su prem e Court ha s plainly

held, “ [t]her

e is no absolute r

ule . . . against Co ngress’ delegatio n of [the] authority to define criminal punishments.” Loving , 517 U.S. at 768, 116 S.Ct. at 1748. Ra ther,17

Congress may delegate the power to define by regulation what conduct is crim inal “so lon g as Congre ss makes the viola tion of reg

ulations a c riminal offen se and fixes the p unishment, and the regulatio ns ‘conf

in[e] t hemse lves within the field covered by the statute.’” Id. (quoting United St ates v. G rima ud , 220 U. S. 506, 5 18, 31 S.Ct. 480, 483, 5 5 L. Ed . 563 (1911) and citing Touby v. United States , 500 U.S. 160, 111 S.Ct. 1752, 114 L. E d. 2d 219 (1991)). Here, Brown challenges Regulation s 4.21 and 4. 23, alleg ing that only the legisla

ture has th e authorit

y to criminalize c onduct, an d, that the Secret ary, by set

ting forth p rohibited behavior and providing the punishment, unlawfully “le gislated.” We disagree. In support of

his argum

ent, Bro wn relie s on statem ents in Mistretta

and Fahey , that cha

racteri ze the sta

tutes at iss ue in Schechter Poultry and Pan ama Refining as delegating power to make “ federal crimes of ac ts that never had been such before,” Fahey , 332 U.S. at 249, 67 S. Ct. a t 1554, and to create “new crim es in unchar ted fields ,” see Mistretta , 488 U.S. at 373 n.7, 109 S. Ct at 655 n.7. However, the point of those statements was not that a higher constitutional standard a

pplies to re gulations w ith penal c onsequence s, but rat her that th e delegation s at issue in those cas es were unconstituti onal prec isely because “Congress had failed to articulate any policy or standar

d that woul d serve to18

confine th e discreti on of the au thoritie s to whom Congr ess had de legated p ower.” Mistretta , 488 U.S. at 373 n.7 (emphasis ad ded). In Yakus , the Cour

t upheld a de legation of

authority to fix m aximu

m

comm odity pr ices and rents even t

hough violatio n of the re gulations w as a criminal offense: The esse ntials of th e legislat ive functi on are the

determ ination of t

he legislative policy and its formulation and promulgation as a defined and binding rule of conduct--here the [Office of Price Administratio n’s] rule, with pena l sanctions , that pr ices shall not be greater than those fixed by ma ximum price

regulations which conform to standards and will tend to further the policy which Congress has established.” 321 U.S. at 424, 64 S . Ct. a t 667(em phasis adde d). The re was n o suggestion in Yakus that a more stringent standard for delegation applied. Indeed, as the Court observed lo ng ago in J.W. Ham pton , Congre ss freque ntly f inds it nece ssary , in order “ to secure the exact effect intended by

its acts of

legislatio n,” to del egate authority to and vest d

iscretion in executi ve officers “t o make regulatio ns directing the detail s of its [th e legislat ion’s] executi on, even to theextent of p roviding for penalizing

a breac h of such re gulations .” 276 U. S. at 406, 48 S. Ct. 351 (em phasis added); see also Samora v. United State s , 406 F.2d 1095, 1098 (5th Cir. 1969) (“It long has bee n establishe d that Congress ma y valid ly prov ide a cri minal

sanction19

for the vio lation of r

ules or re gulations w

hich it has e mpow ered the P resident o r an administrative agency to enact. ”). In the seminal n ondelega tion case, Grim aud , the Supreme Court upheld an administrative regulation made and prom ulgated by the Secretary

of Agriculture under the authorit y conferred upo n him by the Forest Re serve Acts. See Grim aud , 220 U.S. at 522-23, 31 S.Ct. at 485. T hose Acts authorize d the Secr etary of Agricult ure to “ make such rules and regula

tions and est ablish such s ervice a s will insure theobjects of such re servations ; name ly, t o regulate their occ upancy

and use, and t o preserv e the for ests there on from destructi on,” and pr

ovided that “ any violation of

the provisi ons of this a ct or such r ules and re gulations shall be punished” by a fine of not more than $500 and im prisonment for not more than twelve months , or both. Id. at 515, 31 S . Ct. a t 482. Und er the aut

hority of these Acts, t he Secre tary of Agric ulture pro mulga ted regula

tions proscr

ibing the grazing of stock u pon a fores t reservati on withou t a permit. See id. at 514-15, 31 S. Ct. at 481. The defendants in Grim aud were in dicted for

grazing st ock on a for

est

reserva tion without

the neces sary perm it from the Secr etary of Agric ulture and challenged the validity of the act of Congress making it an offense to violate a regulation

promulgated by

the Secr etary of Agric ulture, o n the grounds that the20

codification constituted an unconstitutional delegation of legisl ative power to an administrati ve agency. See id. at 514, 31 S . Ct. a t 482. The

Court uphel d the validity of the dele gation, st ating: From the beginning of the Government, various acts have been passed conferring upon executive officers power to make rules and regula

tions -- not

for the gov ernm ent of their departm ents, but for adm

inistering the laws w

hich did gove rn. None

of these statutes could confer legislative power. But when Congress had legislate d and indica

ted its wi ll, it coul d give to those who were to act under such gener

al provision s ‘powe r to fill up the detail s’ by the establ ishment of adminis trative ru les and reg ulation s, the violation of

which cou ld be punishe d by fine or im prisonm ent fixed by Congress, or by p enalties f ixed by Congress , or measured by the injury done. Id. at 517, 31 S . Ct. a

t 483 (em phasis adde d). Inde ed, as the Court obse rved, to deny th e legislat

ure the ab ility t o delegate its power to agencie s to fill in t

he details of a legislative mandate would “ stop the wheels of government.” Id. at 520, 31 S. Ct. at 48 4. The C ourt thus ru led that vio lation of th e stock-gr azing regulation

was m ade a cr

ime no t by the

Secretary of

Agricult ure, but r ather by those acts of Congre ss which pr ovided that v iolations of

such regul ations woul d be crim inally punishable. Thus, the

Court conc luded, the re was n o unlawful delegatio n of legis lative po wer. See id. Similarly , here, it is not the Secretary but Congress that has prohibited violations of

the Park Service

regulatio ns:21

The Sec retary

of the Int erior sha ll ma

ke and publis h such rule s and regulation s as he may dee m nec essary or proper for the use

and mana geme nt of the pa

rks, monumen

ts, and re servations under the jurisdic tion of the N ational Pa rk Servic e, and any vio lation of a ny of the rule s and regul ations autho rized by this sectio n and secti ons 1, 2 and 4 of this title shall be punished by a fine of not more than $500 or im

prisonm ent for not

exceedin g six mo nths, or bot h, and be adjudg ed to pay

all cost[ s] of the

proceedings . 16 U.S. C. § 3 (e mphas is added); see also United States v. Grace , 778 F.2 d 818, 822-23 (D.C. Cir. 1985) (“ categorically” reje cting argument that National Park Service regulatio ns, passed

pursuant to 16 U.S. C. § 3, vi olated sepa ration of powers; “[i] t is not the Park Service but the Congress that has criminalized violations of

the Park Service

regulatio ns.”). Indeed, the Secr etary ’s author

ity to define by regulatio n what con duct is criminal in the natio nal parks a

nd forests , pursuant to delegat ed author ity, has been up held in a v ariety of circumstan ces. See, e .g. , Grace , 778 F.2 d at 820-21 ( upholding Sec retary ’s prom ulgation of regulation

permitting plac emen

t of presid ential sea

l on reviewing stand for presidenti al inaugura

tion on Wh ite House

sidewalk , but prohi

biting placement o f stationar y signs o n same

sidewalk ); see also United St ates v. H ym ans , 463 F.2 d 615, 616 (10 th Cir. 19 72) (upholding Secre tary of Agric ulture’ s prom ulgation, pursuant to d elegated

authority , of reg

ulations pro hibiting inde cent conduc t in national f orests); McMichael v. United States , 355 F.2 d 283, 286 (9 th Cir. 19 65)22

(upholding D epartment of Agr iculture’ s regulati ons ma

king it a m

isdem eanor to operate motorized vehicles in certain areas of national forests). In sum , in Titl e 16, Congr ess delega

ted to the S ecretar

y the a uthority to promulgate rules and regulations that were necessary and proper to effect Congress’ s stated goal of prese rving and m anaging nat

ional parks . Prote ction of the parks, wildlife , and visit ors by p rohibiting un safe and d runk driving

does not exceed the legislative grant of authority conferred in 16 U.S.C . § 3. Congress set out the Sec retary ’s powe rs and dutie s, announc ed intellig ible princ iples, an d created the penalt

ies to be im

posed for vi olations of the Secretary ’s rule s and regulations. Accordingly, we can f ind no unconstitutional delegation in this case. AFFIRMED.