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I a rule, it is procedurally flawed for another reason. See Pet.
i Bro at 34 no37.
The issuance of rules that add substantive content to a
I statute, as this one undoubtedly does, must be preceded by publi-
cation of notice sufficient to inform interested parties of the
I action the agency proposes to take. 5 U.S.Co § 553(b); see
Fertilizer Insto v. EPA, 935 Fo2d 1303, 1307-08 (DEC. Cir. 1991)
(legislative rules _'create new law . o o"); McLouth Steel
I P__roducts Corp. Vo Thomas, 838 F.2d 1317, 1323 (DoC. Ciro 1988)
(case law indicates that notice must be "clear and to the
I point"). _I Yet neither the notice of proposed rule-making in
the MDMA matter nor the notice of hearing in this proceeding set
out the standard later adopted, or even indicated in general
terms that the standard would track the requirements for
interstate marketing approval° See Schedules of Controlled
S ubstances_ Proposed Placement of 3,4-Methylenedioxy__
m ethamphetamine Into Schedule I_ 49 Fed_ Reg. 30,210 (July 27s
1984)_ JoA. 814; Schedules of Controlled Substances; Hearing on
i Petition to Reschedule Marijuana and Its Components_ 51 Fed. Reg.
22_946 (June 24 s 1986), J_A. 812.
This Court in McLouth Steel Products held inadequate a
l notice that _'described the [model] generally in an early section
of the notice . . and even invited comments on the subjects j'
838 Fo2d at 1322_ but did not _Jalert a reader to the stakes."
i !/ McLouth Steel involved informal_ "notice and comment" rule-
making, while the Administrator here employed formal rule-making
procedures, as required by 21 U.SoC. § 811(a) o APA § 553(b) _
requiring publication of a notice of proposed rule-makings
applies to both types of rule-making procedures.
I - l0
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