89 See Clifton Power Corp. v. FERC, 294 F.3d 108, 110 (D.C. Cir. 2002).90 See 5 U.S.C. § 555(b) (“With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.”).91 See 5 U.S.C. § 706(1) (the reviewing court “shall . . . compel agency action unlawfully withheld or unreasonably delayed”).

33. See 5 U.S.C. § 555 (2012). 34.

You are permitted to be represented by counsel at every step of this process, including responding to the initial inquiry. See Administrative Procedure Act, 5 U.S.C. § 555. Even if you do not have coverage, serious consideration should be given to hiring an attorney to represent you at the first stage of this process.

Based on the nature of the statute administered, agencies should consider incorporating other standards under the Federal Rules of Evidence, including Rule 403. Agencies should make their rules of evidence and procedure easily accessible on their websites; andIn furtherance of the requirement contained in 5 U.S.C. Section 555(b), agencies should explicitly authorize the representation of regulated parties by legal counsel and in appropriate cases, by qualified representatives. Agencies should also take steps to avoid disadvantaging parties who are not represented by counsel, including by writing rules of evidence and procedure in plain language.

If EPA were to accept the Petition, EPA would publish a final rule and solicit public comment at the same time, and subsequently amend the rule in response to comments. EPA must respond to the Petition “within a reasonable time,” but has not responded as of April 7, 2020. 5 U.S.C § 555. The Petition underscores that enforcement waivers granted by EPA may be at risk of citizen suits from watchdog organizations.VII.

EPA’s Flexibility and Discretion in Responding to the PetitionAlthough the NGOs claim that EPA has unreasonably delayed in responding to its Petition and request for an “emergency” rulemaking proceeding, the Administrative Procedure Act requires only that EPA respond within a “reasonable time.” 5 U.S.C. §555(b). What is reasonable may be determined in light of the circumstances surrounding COVID-19.

The PTAB declined to institute trial because the petitioner failed to establish that the documents were “printed publications” under 35 U.S.C. § 102. Power Integrations filed petitions for mandamus with the Federal Circuit alleging that the Board’s ruling did not provide an adequate explanation for the decision under Section 6(d) of the A.P.A., 5 U.S.C. § 555(e). The Federal Circuit denied the requests for mandamus as an improper attempt to circumvent 35 U.S.C. § 314(d), which states that a “determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.”

By filing writs of mandamus, Power Integrations sought to sidestep the appeal prohibition in §314(d). Power Integrations asserted that writs of mandamus were appropriate under the Administrative Procedures Act because the PTAB had failed to satisfy the notice requirements of 5 U.S.C. §555(e) by providing a sufficiently detailed notice of its basis for denial of the petitions. The Court held that the PTAB, by issuing 15-20 page written decisions denying institution of the petitions, had satisfied §555(e)’s notice requirements.

The APA places a corresponding duty on agencies receiving such petitions to respond “within a reasonable time.” 5 U.S.C. § 555(b). If an agency fails to respond to a petition, a reviewing court may “compel agency action unlawfully withheld or unreasonably delayed.”

Indeed, Rule 192 falls far short of the requirements of the Administrative Procedure Act as explained by then Circuit Court Judge Ruth Bader Ginsberg:Section 4(e) of the Administrative Procedure Act, 5 U.S.C. § 553(e), commands that “[e]ach agency shall give an interested person the right to petition for the issuance … of a rule.” Section 6(a), 5 U.S.C. § 555(e), requires “prompt notice” in the event an agency denies such a petition. Further, section 6(a) directs that when a denial is not self-explanatory, “the notice shall be accompanied by a brief statement of the grounds for denial.”Ass’n of Investment Bankers v. Securities and Exchange Commission, 676 F.2d 857, 864 (1982).