196 F.3d 1271 (D.C. Cir. 1999)
National Whistleblower Center, Petitionerv.Nuclear Regulatory Commission and United States of America, RespondentsBaltimore Gas and Electric Company, Intervenor
No. 99-1002 Consolidated with 99-1043
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed November 22, 1999

Before:  Edwards, Chief Judge, and Williams, Circuit  Judge.
A concurring statement of Chief Judge Edwards is attached.
O R D E R
Per Curiam
It is ORDERED, by the Court, on its own motion, that the  majority opinion and the judgment filed herein on November  12, 1999, be, and the same hereby are, vacated.


1
A future order will schedule further briefing and rehearing  after a member of the Court is randomly selected to replace  former Circuit Judge Wald as the third member of the panel.

Edwards, Chief Judge, concurring:

2
I concur in the Order  vacating the opinion and judgment issued on November 12,  1999, because, in retrospect, I fear that the original (now  vacated) majority opinion fails to address some critical issues  in this case.  These issues were not the focus of the arguments during the first hearing before the court, so it is  unsurprising that they were lost in our haste to issue an  opinion before our colleague, Judge Wald, departed from the  court.  However, in my view, the issues are too important to  ignore once uncovered;  thus, I feel that this case must be  reheard.


3
The now vacated majority opinion is founded on the view  that petitioners were prejudiced by the Commission's abrogation of a substantive rule.  After considering this matter  further, I find that there is good reason to believe that we  were mistaken in assuming that the Commission acted pursuant to a substantive, as opposed to a procedural, rule.


4
On August 5, 1998, the Commission published a statement  of Policy on Conduct of Adjudicatory Proceedings ("Policy")  in which it stated that licensing boards should grant extensions of time "only when warranted by unavoidable and  extreme circumstances."  63 Fed. Reg. 41,872, 41,874 (Aug. 5,  1998).  The Commission subsequently invoked this new rule  in an order referring a petition filed by the National Whistleblower Center ("Center") to the Atomic Safety and Licensing  Board, stating that extensions of time should only be granted  if the petitioner can demonstrate "unavoidable and extreme  circumstances."  Order Referring Petition for Intervention  and Request for Hearing to Atomic Safety and Licensing  Board Panel, CLI 98-14, reprinted in Joint Appendix ("J.A.")  23, 28 (Aug. 19, 1998).


5
There can be no doubt that the Commission's August 5,  1998, Policy adopted a new standard to govern requests for  extensions of time in proceedings of the sort here at issue.  It  also seems clear that the new standard was intended to  modify the standards previously enunciated in 10 C.F.R.   2.711(a) and  2.714(b)(1).  And it is undisputed that the  Center had notice of the new standard for granting extensions of time.  The Center additionally understood the thrust  of the Policy, for they objected to the new standard on the ground that it was contrary to the "good cause" standard  contained in 10 C.F.R.  2.711(a).  See Memorandum and  Order, CLI 98-15 (Aug. 26, 1998) reprinted in J.A. 60 (characterizing the Center's objections to the new standard as  articulated in the Commission's Aug. 19, 1998 referral order).


6
Given that the Commission adopted a new standard to be  applied in cases of this sort and that the Center had notice of  the new standard before the advent of the procedures here in  dispute, it matters a great deal whether the standard is  viewed as a new "substantive" or "procedural" rule.  If, as  appears to be the case, the new standard is a procedural rule,  then it is exempt from the requirements of notice and comment under the Administrative Procedure Act, 5 U.S.C.   553(b)(A).  See JEM Broad. Co. v. FEC, 22 F.3d 320 (D.C.  Cir. 1994).


7
It is no answer to say that the Commission was wrong to  construe "good cause" as "unavoidable and extreme circumstances."  If this is a procedural rule, and if it does not  transcend the bounds of due process or violate some clear  statutory mandate, then the Commission is entitled to define  "good cause" as it sees fit.  See Vermont Yankee Nuclear  Power Corp. v. NRDC, 435 U.S. 519 (1978).  Given that  latitude, it would be an oxymoron to say that "unavoidable  and extreme circumstances" is outside the realm of acceptable understandings of "good cause."


8
These issues were not properly aired during the first round  of briefs and arguments before this court.  We would be  remiss, I think, to issue the mandate in this case without  considering the questions that are now apparent.  I do not  believe that the Commission has waived the right to argue  the procedural/substantive issue, because the agency could  not have reasonably anticipated the position reached in the  first majority opinion.  In short, the case must be reheard,  with a proper focus on the issues at hand.

