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The Final Order discards the earlier formulation and up- 1. The FOL4 Ctaim
plies a new five-part test for determining whether a drug is in Secgon 552(a)(t) of FOIA provides in relevant part:
"currently accepted medical use":
Each agency shall separately state and currently publish
(1) The drug's chemistry must be known and repr. oduci- in the Federal Register for the guidance of the public--
(2) there must be adequate safety studies; ...
(3) there must be adequate and well-controlled studies (D) .._ statements of general policy or interpretations
pro_4ng efficacy; of general applicability formulated and adopted by the
(4) the drag must be accepted by qualified experts; and agency ....
(5) the scientific evidence must be widely available.
57 Fed. l_eg_ at 10_506. None of these criteria is im_ssible
for a Schedule I drug tv meet; in fact_ petitioners concede in Except to the extent that a person has actual and timely
their briefs that the new standard has corrected the flaws we notice of the terms thereof, a person may not in any
identified in ACT. manner ... be adversely q_ected by a matter _vquired
to be published in the Federal Register _Jnd no_ so
B. Petitioners' Other Arguments published_
Petitioners make two additional arguments: (1) They as- 5 U.S.C. § 552(a)(1) (emphasis added). TNs provision r(_-
sort that they were deprived of the opportunity to conform quires agencies to set out in advance the legal standards that
their ex_dentiary submissions to the governing legal standard _11 be applied so that "actions can be guided, and strategies
be. cause the previous Administrator had fulled to publish the planned." Northern Calif P_rr. Agency v. Mor_on_ 396 F_
eight-factor test on which he relied, as required by the Supp. 1187, 1191 (D.D.C.), ej.fd mere. sub_ non_. Norther_
Freedom of Information Act ("FOIA'), 5 U.S.C. Ccdi_£ Pwr. Agency v. Kleppe, 539 Fo2d ,243 (D.C. Cir. 19767.
§ 552(a)(t)(D): until two weeks after the close of the evidence To establish a claim under _e statute, however, the litigant
in the reseheduling proceeding; and (2)they claim that the must show that _he was adversely affected by a lack of
Adm_Nstrator's ruling was not the product of reasoned deci- publication or that he would have been able to pursue an
sionmaking because he was Nased and ignored the record, alternative course of conduct" had the information been pub-
lished. Zaharakis _a Heckh, r, 744 F.2d 711, 714 (9th Cir.
While Alliance and NORML had apparently raised these 1984)o
issues in ACT, we did hog expressly address them; nor did we
decide them by necessary implication because our limited Petitioners argue that the Administrator violated the s_.at-
remand in ACT could have reflected a decision _ postpone ate by using the eight-factor test to evaluate the e_4dence
consideration of these remaining arguments° Accordingly, we presented in the marijuana rescheduling petNono As the test
conclude that ACT did not establish the law of the case as to was not published until 17 days after the close of the eva-
these issues. See Bouchet v. Na_'_ Urban League, 730 F.2d donee, they contend that they were "adversely affected" by
799, 806 (D.C. Cir. 198_) ("[O]nly when an issue not expressly the Administrator's reliance on the test because they had no
addressed must have been decided by 'necessary implication' opportunity to tailor their evidence to meet its requirements.
wilt the [law of the ease] doctrine be applied .... ")o Accordingly, they ask us to remand the case to the Adminis-
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