holding that the NRC’s decision to reconsider in 1988 a policy that was initially promulgated in 1985 reopened the statutory period for seeking review, and commenting that “[t]he evidence of reopening is ... much stronger than required by our prior cases, for the Commission did not merely implicitly reexamine its former choice; it did so explicitly”
How later courts described this case
- holding that the NRC’s decision to reconsider in 1988 a policy that was initially promulgated in 1985 reopened the statutory period for seeking review, and commenting that “[t]he evidence of reopening is ... much stronger than required by our prior cases, for the Commission did not merely implicitly reexamine its former choice; it did so explicitly”
- holding that the Nuclear Regulatory Commission had reopened the notice and comment period where it “reconsidered [ ] the wisdom of its earlier, final rulemaking,” it had “reconsidered and reinstated its original policy,” thereby creating the opportunity for renewed comment
- holding that an agency can be said to have reopened a decision to judicial review when it “reiterates a rule or policy in such a way as to render the rule or policy subject to renewed challenge on any substantive grounds”
- holding that agency's decision to reconsider a rule three years after it was first promulgated prompted a new period for judicial review
Written by the judges who cited it.
The opinion
WILLIAMS, Circuit Judge,
concurring in the denial of the suggestions for rehearing en banc: The Court here takes a statute directing the Commission to “promulgate regulations [, or other appropriate Commission regulatory guidance]” for various purposes, and produces something quite different, completely shorn of the bracketed language. I would call for rehearing en banc, but the statute appears unique and, perhaps more important, it seems to me not beyond the reach of agency expertise to devise “regulations” that preserve most if not all of the flexibility the Commission sought and, correctly I think, believes lawful. Certainly other agencies have done so. See, e.g., Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 , 72 S.Ct. 329 , 96 L.Ed. 367 (1952).