DEA Hypothetical – Administrative Law

Scenario: You work for the Drug Enforcement Administration (DEA). You have been assigned to draft a proposed rule allowing qualified practitioners to dispense and prescribe to narcotic dependent persons certain controlled drugs that are approved by the FDA for detoxification treatment. What type of rule will you be drafting? Explain. What specific issues might you wish to include in the rule?

Assume your supervisor has also directed you to investigate whether the DEA can use negotiated rule-making. Using the list of factors from page 141 of your text, analyze whether you feel negotiated rule-making would be appropriate. Draft a memo to your supervisor with your conclusions. Include any assumptions you need to make to address each factor.

Factors for negotiated rule-making;
1. Is there a need for a rule?
2. Are there a limited number of parties that will significantly affected by the rule?
3. Can a committee be formed that will adequately represent those with a significant interest? Will these parties negotiate in good faith?
4. Is it reasonable likely that the committee will reach a consensus?
5. Does the agency have, and will it commit, the necessary resources to permit the committee to do its work?
6. Will the process unnecessarily delay the rule-making process?
7. Is the agency willing to use the rule that it negotiated?

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