norml02 - Page 31

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 facing a specific enforcement action based on a previously-
 unpublished agency policy_
 Fina!ly_ even assuming a mere rulemaking participant could
 ever qualify as an "adversely affected" person within the meaning
 of the FOIA provision, petitioners have failed to demonstrate how
 they were adversely affected in this particular case. In fact,
 petitioners had actual and timely notice of the eight factor test
 applied in this case° The eight factor test was first published
 in the Federal Register on February 22, 1988, in a Final Order
 relating to the proposed scheduling of MDMA. 53 Fed. Reg. 5_156.
 Petitioners correctly state that the taking of evidence in the
 marijuana rescheduling hearing concluded on February 5, 1988o
 They fail to note, however_ that they did not file proposed
 findings of fact and conclusions of law until April 15, 1988,
 nearly two months after publication of the eight factor test.
 See Final Order I, 54 Fed. Reg. at 53,773_ They then filed
 rebuttal on June 3, 1988, presented oral argument on June I0,
 1988_ and filed exceptions to the ALJ_s recommended decision in
 the fall of 1988. Thus; although the taking of evidence had
 concluded at the time DEA published the eight factor test, the
 marijuana rescheduling proceeding was_ in fact, far from
 concluded. The petitioners had ample time to "plan their
 strategies accordinglyo _'_
 At no time in the nearly two years between the publication
 of the eight factor test and the Administrator's promulgation of
 Final Order I did the petitioners seek to reopen the evidentiary

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