norml02 - Page 29

 U that marijuana had no currently accepted medical use on an eight
 factor test (later reduced to five factors in accordance with
 this court's mandate in ACT v. DEA) first adopted in a scheduling
 I decision with respect to another drugs MDMAo See 54 Fed. Reg.
 5,156. According to petitioners_ this eight factor (and now five
 I factor) test is an _'interpretation[] of general applicability"
 i that the Freedom of Information Act (FOIA) requires to be
 published in the Federal Register° See 5 UoS.C. 552(a) (I) (D).
 J FOIA goes on provide persons may "adversely
 to
 that
 not
 be
 affected _' by unpublished matters that were required to be
 published. Ibid.
 The initial flaw in petitioners _ argument :is that the eight
 factor test was published in the Federal Register, both at the
 I time of the MDMA scheduling decision and at the time of the
 scheduling decision in this case° Petitioners _ claim therefore
 must be that the Administrator was legally precluded from issuing
 i a general interpretation of the statutory standard in connection
 with a case-specific application of that: standard. There is no
 I support for such an illogical proposition. Federal agencies,
 like courts, must interpret statutory standards in order to apply
 them.
 When the Administrator makes a scheduling decision, he is
 engaging in a rulemaking proceeding. See 21 UoS.C. 811(a)
 (treating scheduling decisions as "ru/es_') _ By definitions the
 Administrator is entitled in such a proceeding to prescribe
 '_sta




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