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 The Final Order discards the earlier formulation and ap- 1. The FOIA Claim
 plies a new five-part test for determining whether a drug is in Section 552(a)(i) of FOIA provides in relevant part:
 "currently accepted medical use":
 Each agency shah separately state and curre_dy pubEsh
 (1) The drug's chemistry must be knmvn and reproduei- in the Federal Register for the guidance of the publie--
 (2) there must be adequate safety studies; ...
 (3) there must be adequate and well-tin,trolled studies (D) ... statements of general'policy or interpretations
 proving efficacy; of general applicability formulated and adopted by the
 (4) the drug must be accepted by qualified experts; and agency ....
 (5) the scientific evidence must be widely available.
 57 Ped_ Reg. at 10,506. None of these criteria is impossible
 for a Schedule I drug to 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 ma?¢ not i_,, an?/
 identified in ACT, man_er ... be adversdy @cted by['] a matter reTdred
 to be published in th, e Federal Register a)_d _?og s¢)
 B. Petitioners' Other Arguments publ£_hed.
 Petitioners make two additional arguments: (1) They as- 5 U°S.C. § 552(a)(1) (emphasis added). This prevision re-
 sort that tats" were deprived of the opportunity to conform quires agencies to se_ out in advance the legal standards that
 their evidentiary submissions to the governing legal standard will be applied so that "actions can be guided, and strategies
 because the previous Administrator had failed to publish the planned." No._her_z Csl{f P_ew. Agenet; v. M'or_o_7, 3% F.
 eight-factor test on which he relied, as required by the Supp. 1187, 119! (D.D.C.), a_(fd moth., sub. no_n. No_;_er?;
 Freedom of information Act CFOIA"), 5 U.S.C. Caiif P_,_.r. Ag, encg v. Kleppe, 539 F.2d 24a (D.C. Cir. 1976).
 § 552(a)(1)(D), until two weeks after the close of the evidence To establish a claim under the statute, however, the litigant
 in the reseheduting proceeding; a_;d (2)they etaim that the must show that "he was adversely affected by a lack of
 Administrator's ruling was not the product of reasoned deei- publication or that he would have been able to pursue an
 sionmaking because he was biased and ignored the record, alternative course of conduct" had the information been pub-
 lished° Za,harak{s v. Ire&let, 744 F,2d 711, 714 (gth Cir.
 Vv%ile Alliance and NORML had apparently raised these 1984),
 issues in ACT, we did not expressly address them; nor did we
 decide them by necessary implication because our limited Petitioners argue that the Administrator violated the star-
 remand in ACT could have reflected a decision to postpone ute by using the eight-factor test to evahmte the evidence
 consideration of these remaining arguments. Accordingly, we presented in the marijuana rescheduling petition. 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 evi-
 these issues. See Bouchet v. Nat't Urban Leag_ze, %0 F.2d deuce, they contend that they were "adversely affected" by
 799, 806 (D.C. Cir. 1984) C[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.
 will the [law of the ease] doctrine be applied .... "). Accordingly, they ask us to remand the ease to the Adminis-

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