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 I medical use in treatment_ '_ 21 U.SoC. § 812(b) (1) (B) (emphasis
 i added); see Pet. Bro at 37=38.
 DEA responds by pointing out that the Administrator's
 I standard was published in the Federal Register -- a fact that
 Petitioners did not dispute and indeed affirmatively stated°
 Resp. Bro at 23; see Peto Br. at 35. Respondent further asserts
 i that Petitioners had C'actual and timely notice '_ of the original
 eight-factor MDMA tests because it was published prior to the
 I conclusion of the proceedings before the ALJ. But the salient
 fact is that the evidentiary record had closed before the
 I standard was announced_ as Respondent admits_ Respo Br. at 25_
 i Contrary to Respondent6s suggestion (see ido), the ability to
 characterize an existing record in terms of a later-disclosed
 g standard in argument and proposed findings and conclusions is no
 substitute for the ability to create a record designed to satisfy
 I a standard known in advance. Here, DEA has announced two
 different standards since the record closed -_ the MDMA standard
 later applied in this proceeding and the _clarified _' version of
 I that standard announced in the decision now under review.
 Petitioners have not be permitted to submit evidence to meet
 I either of these standards°
 i Respondent argues that the Administrator was engaged in
 rule-making and thus was entitled to "prescribe Ustatement[s] of
 I general or particular applicability and future effect. ;'_ Respo
 Br. at 23_24 (quoting 5 U.SoC. § 551(4) (definition of _ruleV')).
 If by this Respondent means that the Administratores standard is
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