Agency Delay: Congressional and Judicial Means to Expedite Agency Rulemaking
Released: 2018-10-05T00:00:00

Introduction

Administrative agencies have long been criticized by some for taking too long to issue and implement regulations. Of course, there are often justifiable reasons cited for agencies to take time before they act. Agencies are charged with administering complex statutory schemes. Rulemakings generally follow the Administrative Procedure Act's (APA's) notice-and-comment procedure, which entails soliciting input and marshaling information from the public, subject-matter experts, and other stakeholders. It takes time to analyze that information, balance competing interests, and draft appropriate regulatory language. Agencies may have limited resources, and there may be other, more pressing matters requiring their time and attention. Some delay is necessary for reasoned decisionmaking.

However, excessive delay by agencies can raise serious policy concerns. Delays in rulemaking may violate statutory directives when Congress has ordered an agency to regulate in a particular area. If the regulatory area concerns the environment or public health, for instance, delays can endanger the public by leaving known harms unaddressed. For regulated industries, excessive delay can create uncertainty, inhibit long-term planning, and cause economic harm. Habitual delays can undermine public trust in agency process. In addition, not all delays are justified by deliberative process. Agency delays may be the result of capture by special interests, administrative error, misplaced priorities, or simple mismanagement. Excessive agency delay can therefore undermine the effectiveness of the statutory regime created by Congress.

Congress has a number of tools that it can use to combat agency delay. To encourage agencies to act in a timely fashion, Congress may set nonbinding time frames or statutory deadlines for particular agency actions, or impose penalties on agencies should they fail to meet those deadlines. Even if Congress does not impose any specific timing requirements for a required agency action, the agency still must act within a "reasonable time" under the APA.

Persons alleging unreasonable delay by agencies may sue in court to compel agency action. However, the recourse such individuals will have, if any, depends on the statutory scheme and the severity of the delay. In the absence of specific deadlines, most courts employ a multifactor balancing test to determine whether the agency's delay is "unreasonable"; this test examines, among other things, the length of the delay, the importance of the regulation at issue, and the interests harmed by the delay. Courts are generally deferential to agencies in this analysis. In other situations, such as when Congress has imposed a specific statutory deadline, courts are more willing to compel agency action, with some courts holding that an order compelling agency action is mandatory whenever a statutory deadline is violated.

This report provides an overview of the various tools that Congress can use to encourage agencies to act within a particular time frame. It then analyzes how those tools inform judicial analysis of challenges to agency actions as "unreasonably delayed" or "unlawfully withheld" under the APA. The report concludes by noting that lawsuits are not the only way to force agencies to issue delayed regulations; Congress can also use political pressure, its oversight powers, or its power of the purse to encourage the agency to act.

Congressional Tools to Encourage Timely Agency Action Ex Ante

When drafting legislation granting agencies the power to engage in rulemaking, Congress can employ a variety of means that create incentives for the agency to issue regulations in a timely manner. At one end of the spectrum, Congress may decline to impose any timing requirements on the agency. In that case—presuming that the statute imposes some nondiscretionary duty to act —the agency will be subject only to the APA's general requirement that it complete its rulemaking within a "reasonable time." Courts have interpreted this requirement deferentially, requiring an "egregious" delay before they will compel an agency to issue a proposed or final rule.

If the APA's default rule of reasonableness is not enough, Congress may choose to impose more stringent timing requirements on the agency, such as a nonbinding time frame or an explicit statutory deadline. Courts are generally more willing to order the agency to act by a date certain when the agency is subject to a statutory time frame or deadline. If Congress considers a matter so important and time-sensitive that a deadline alone is insufficient, it may enact penalties that will ensue should the agency miss the deadline.

By imposing deadlines or other timing restraints on an agency, legislators face a potential tradeoff between timely action and deliberative process. If Congress dictates a deadline that is too constrained, it may decrease the thoroughness of agency decisionmaking and the quality of the final rule. Indeed, a principal reason that Congress may wish to delegate a matter to an agency is the complexity of the issue and the agency's expertise in a specialized area. Given its expertise, the agency is often in a better position to know how long it will take to investigate a matter, seek public comment and technical input, and develop a well-crafted rule on a particular issue. Perhaps for this reason, Congress declines to impose any specific statutory deadline for the vast majority of federal regulations. That said, given the potential costs of agency delay, Congress may not always want to leave the timing of regulations entirely up to the agency's discretion.

Nonbinding Time Frames

If Congress decides not to impose a firm deadline, but still wants to offer a general expectation of how much time is reasonable, it may impose a nonbinding time frame on the agency. For example, with respect to the processing of immigration benefit applications, a statute states that "[i]t is the sense of Congress that the processing" of such applications by the agency "should be completed not later than 180 days after the initial filing of the application." Several commentators support such nonbinding time frames—whether set by the agency itself or by Congress—as encouraging timely agency action without the "problematic" aspects of true deadlines, which are less flexible and can sometimes prove unrealistic in practice. Because congressionally established time frames are one of the factors that courts consider in determining whether to compel an agency to act, courts are generally more likely to compel agency action when a suggested time frame is violated than if no time frame was imposed by Congress. Nonbinding time frames thus offer a middle ground between imposing no timing guidance at all and a hard statutory deadline.

Statutory Deadlines

When Congress chooses to control the timing of agency action, the most common means is the statutory deadline: legislation explicitly requiring that an agency shall take a particular action by a certain time. Deadlines are frequently used with respect to environmental regulations and other public health matters. For example, as part of the 1990 amendments to the Clean Air Act, the Environmental Protection Agency (EPA) was given twelve months to issue regulatory guidance on motor vehicle inspection and maintenance requirements that states could use to comply with national air quality standards. Similarly, as part of the Oil Pollution Act of 1990 (passed in response to the Exxon Valdez oil tanker accident), Congress ordered the Coast Guard to issue regulatory standards for tank level and pressure monitoring devices within one year.

Deciding how long a particular deadline should be can be a complicated issue for Congress. On average, an administrative rulemaking takes somewhere between one and two years . However, there is significant variation in the length of rulemaking depending on the agency and the particular rule. Many statutory deadlines are roughly the length of an average rulemaking, that is, between 12 and 24 months. However, deadlines that are shorter or longer are common. In addition to (or in lieu of) setting a deadline for promulgation of a final rule, Congress may also enact separate deadlines for different stages of the rulemaking process. For example, Congress may set a deadline by which the agency must issue a proposed rule or specify a maximum length for the public comment period.

If speed is of paramount importance, Congress can exempt a particular rule from the usual procedural requirements of notice-and-comment rulemaking. This could have a cost in that the regulation might be formed with less deliberation and input from stakeholders and the public. Even absent an express congressional exemption, agencies may claim that a looming deadline constitutes "good cause" to forgo notice-and-comment under the APA. Although the mere existence of a statutory deadline will not suffice to establish good cause, courts have permitted deviations from standard notice-and-comment rulemaking procedures "where congressional deadlines are very tight and where the statute is particularly complicated."

Evidence of the practical effectiveness of statutory deadlines is mixed. Several studies have found that agencies miss statutory deadlines much more often than they meet them. However, there is empirical evidence showing that, other things being equal, the presence of a statutory deadline does correlate with faster agency rulemaking. This effect is fairly modest, though—on average, agencies act a few months faster when subject to a deadline. As discussed below, explicit statutory deadlines do make it significantly easier for litigants to obtain a court order compelling an agency to act.

Hammer Provisions

The most stringent means that Congress can use to encourage agency action are so-called "hammer provisions." These statutes not only set hard deadlines for an agency to act, but also impose a specific penalty (the "hammer") on the agency if it fails to meet the deadline. The particular penalty imposed varies, but often the hammer comes in the form of a specific alternative regulatory result. For example, the Hazardous and Solid Waste Amendments of 1984 provided that if regulations of certain waste disposal methods were not issued by the deadline, those disposal methods would simply be prohibited outright. Similarly, the Nutrition Labeling and Education Act of 1990 specified that if final rules regarding food labeling were not promulgated within 24 months, the agency's proposed regulations would be treated as the binding final regulations. The hammer imposed need not be regulatory in nature, however: one statute, for example, withheld a percentage of the budget for certain agency offices until the agency issued a final rule.

Hammer provisions, even more than statutory deadlines, appear to be fairly effective at encouraging agencies to accelerate their decisionmaking and place a matter foremost among the agency's priorities. However, especially if paired with a tight deadline and in the absence of additional resources for the agency, hammers can "distort[] the agency's other regulatory functions" and result in "hastily imposed rules." One case study of hammer provisions found that the hammers, although effective at encouraging the agency to act quickly, resulted in the "neglect" of other agency duties, "delegation of decisions to lower-level staff," and a rushed process with arguably "inadequate time to resolve certain scientific issues." In sum, although hammer provisions are often successful in forcing an agency to meet the deadline, they run the risk of short-circuiting the agency's usual deliberative process, curtailing opportunities for public input, and interfering with the agency's other regulatory priorities.

Judicial Treatment of Agency Delay

The statutory requirements imposed by Congress shape the scrutiny that courts use to determine whether an agency's delay is unreasonable. The APA authorizes suit by a person "suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." In the absence of a specific statutory time frame or deadline, the APA requires that "each agency shall proceed to conclude a matter presented to it" within "a reasonable time." Section 706(1) of the APA provides a remedy to enforce this requirement: reviewing courts shall "compel agency action unlawfully withheld or unreasonably delayed."

The APA thus creates a private right of action to compel an agency to issue a regulation or complete an adjudication that has been unreasonably delayed. However, an individual can only sue to compel discrete actions that the agency is required to take. Presuming that the agency is required to take a particular action, the plaintiff typically must show that the agency's delay is "unreasonable" under a multifactor balancing test. However, some courts will dispense with this balancing test when the agency has violated a statutory deadline.

Even if a litigant succeeds in proving that an agency has unreasonably delayed, judicial remedies are limited. Although courts can compel an agency to act in some situations, courts cannot "specify what the action must be." For example, a court may order an agency to issue a regulation when the agency has missed a statutory deadline, but it cannot dictate the content of that regulation. Essentially, the most that a court can do is order the agency to act promptly or impose a deadline on the agency.

Reviewability: Is the Agency Required to Act?70

Not all persons complaining of agency delay or inaction will be able to have their claims heard in court. Rather, as the Supreme Court has held, "a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take ." Thus, in addition to the usual justiciability requirements, such as standing, litigants under section 706(1) must show that the agency action sought to be compelled is both (i) discrete, and (ii) nondiscretionary.

For persons complaining of agency delay in the rulemaking context, the requirement of discreteness is not usually a difficult barrier. The "agency action" referenced in section 706(1) is explicitly defined in the APA to encompass any " agency rule , order, license, sanction, relief, of the equivalent or denial thereof, or failure to act ." Accordingly, it is well established that a failure to act on a petition for rulemaking, a denial of a petition for rulemaking, a failure to undertake a required rulemaking, or a failure to issue a final rule are all discrete agency actions subject to judicial review if unreasonably delayed.

However, a section 706(1) claim will lie only if the rule at issue is nondiscretionary, that is, a rule that the agency is legally required to promulgate. The necessity of a "mandatory duty" reflects the fact that "a delay cannot be unreasonable with respect to action that is not required." In general, this second requirement necessitates clear statutory or regulatory language mandating that an agency issue a rule in a specific area or take some other discrete action. For example, courts have held that language declaring that an agency "shall establish, by regulation, minimum standards" for certain devices within one year or that an agency "shall promulgate regulations" in certain areas of food safety will suffice to create a nondiscretionary duty to act.

In contrast, in Anglers Conservation Network v. Pritzker , the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) rejected a claim that the National Marine Fisheries Service (NMFS) failed to act to protect river herring and shad, which plaintiffs alleged were overfished in the mid-Atlantic region. The court held that the relevant statute did not impose a mandatory duty on NMFS because it only stated that the Secretary of Commerce (who oversees NMFS) " may " develop "a fishery management plan" if the relevant regional council failed to timely submit such a plan. A section 706(1) claim was therefore not viable because, in the court's view, the use of "may" in the statute implied that the Secretary was permitted to act, but not required to do so.

Similarly, in Center for Biological Diversity v. Zinke , the court held that it could not compel an agency to act despite a delay of more than six years. Following the Deepwater Horizon oil rig explosion, an independent presidential commission recommended reforms to the Department of the Interior's (DOI's) procedures for subjecting offshore oil and gas exploration to the National Environmental Policy Act (NEPA). DOI commenced a review of its NEPA procedures in October 2011, but then took no further action. In Zinke , the plaintiff sought to compel DOI to make a final decision on whether NEPA reforms were needed. The relevant law provided that the agency "shall continue to review their policies and procedures . . . to revise them as necessary to ensure full compliance with [NEPA]." Although the mandatory language "shall" was used, the court held that the agency only had a duty "to review" its NEPA procedures, which "does not plainly indicate that agencies must complete any such review."

Although explicit statutory language requiring that an agency shall issue a rule in a particular area is generally sufficient for a section 706(1), it is not always necessary. On occasion, courts have sometimes found mandatory duties created by more ambiguous statutory language. For example, In re A Community Voice concerned the Residential Lead-Based Paint Hazard Reduction Act of 1992 (the "Paint Hazard Act"), through which Congress delegated authority to EPA to establish national standards for dust-lead hazards. EPA issued initial rules in 2001, and subsequently granted a petition for rulemaking in 2009 to update its standards based on new evidence that lead exposure was more significantly dangerous to children than scientists had previously supposed. After eight years of inaction, advocacy groups sued EPA to compel the agency to issue a proposed rule. The Ninth Circuit held that EPA had a duty to update its dust-lead hazard regulations because (1) Congress was clear that the purpose of the Paint Hazard Act was to "eliminate lead-based paint hazards in all housing as expeditiously as possible"; and (2) the Toxic Substances Control Act made this directive an "ongoing duty" by stating that these regulations "may be amended from time to time as necessary."

Agency Delays with No Statutory Deadlines: The TRAC Factors

If the agency is subject to a nondiscretionary duty, the required action must be either "unreasonably delayed" or "unlawfully withheld" to be actionable. In this situation, most courts apply a six-factor test—known as the " TRAC test" or the " TRAC factors"—to determine whether a particular delay is unreasonable.

The TRAC factors are named after a 1984 decision of the D.C. Circuit in Telecommunications Research & Action Center v. FCC ( TRAC ). The plaintiffs in TRAC sought to compel the Federal Communications Commission (FCC) to determine whether AT&T was required to reimburse ratepayers for allegedly unlawful overcharges. The D.C. Circuit observed that it had never articulated a "single test" for when "the agency's delay is so egregious as to warrant mandamus." Distilling its prior case law, the court enumerated six considerations that form the "contours of a standard" to assess the reasonableness of agency delay:

(1) the time agencies take to make decisions must be governed by a "rule of reason";

(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;

(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and

(6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is "unreasonably delayed."

On the merits, the TRAC court held that the FCC's five-year delay did not warrant mandamus, relying primarily on the agency's assurance that "it is moving expeditiously" in resolving the matter.

Applications of this contextual, six-factor balancing test are highly fact-specific and often difficult to predict. The TRAC decision itself conceded that its standard "sometimes suffers from vagueness." The D.C. Circuit has "never attempted to explain the relationship between the [ TRAC ] factors . . . or if any factors are absolutely necessary or independently sufficient." As a result, one critic of the test asserts that "courts can use the TRAC analysis to support virtually any conclusion they want to reach." Other commentators, however, consider TRAC to be a "useful blueprint" to guide courts when they evaluate the reasonableness of agency delay.

The first TRAC factor—the length of the delay—is considered to be the most important factor. In the absence of specific congressional guidance, there is "no per se rule as to how long is too long" for an agency to delay. Nonetheless, a reasonable time for agency action is usually "counted in weeks or months, not years." One survey of judicial decisions in this area found that the line between reasonable delay and unreasonable delay is typically "several years," with courts often finding delays beyond two or three years to be unreasonable. Of course, as TRAC (which ruled for the agency despite a five-year delay) itself demonstrates, exceptions to this rule of thumb abound depending on the other TRAC factors.

The second factor, when applicable, informs the first factor: any indication by Congress of the expected timetable for agency action provides a yardstick for courts to assess the reasonableness of the delay. When there is no timetable or any "other indication of the speed with which [Congress] expects the agency to proceed," the second TRAC factor collapses into the first.

Another key consideration under TRAC is the third factor, which relates to the nature of the regulatory area. Courts are significantly more willing to compel agency action if the regulation impacts a matter of public health or welfare than if it involves purely economic interests. For example, in Public Citizen Health Research Group v. Auchter , the court held that a three-year delay for rules regulating workplace exposure to ethylene oxide (EtO) was unreasonable and ordered the agency to issue a proposed rule within 30 days. The court observed that three years is "simply too long given the significant risk of grave danger EtO poses to the lives of current workers and the lives and well-being of their offspring."

Courts often give less attention to the fourth, fifth, and sixth TRAC factors (respectively, the agency's other priorities, the interests harmed by the delay, and any agency impropriety). The fourth factor nearly always favors the agency, which can point to other important matters on its docket as justifying the delay. The fifth factor tends to overlap with the third: if the regulation affects public health (as opposed to economic matters), it follows that the "interests prejudiced by delay" will be more serious. The sixth TRAC factor is simply a statement that bad faith by the agency is not a necessary condition for a finding of unreasonable delay. If there is bad faith by the agency, such as utter indifference to a deadline, some courts have found that this strongly favors the plaintiff.

The D.C. Circuit case In re International Chemical Workers Union provides an example of how courts apply the TRAC factors. Chemical Workers concerned the Occupational Safety and Health Administration's (OSHA's) regulations for occupational exposure to cadmium, which had been delayed for almost six years. Applying the TRAC factors, the court found that six years was "an extraordinarily long time, in light of the admittedly serious health risks" associated with current, outdated cadmium standards." OSHA pointed to resource constraints and "deadlines imposed by Congress with respect to other rulemaking proceedings" to explain the delay. The court responded that it was "not unmindful" of the agency's other responsibilities, but the delay was "simply too lengthy" for any further extensions of time; accordingly, the court ordered the agency to issue a final rule within several months.

Agency Delays in Violation of a Statutory Deadline

When Congress imposes an express statutory deadline on the agency and the agency misses that deadline, courts are more receptive to claims to compel the agency to act. Indeed, some courts have taken the position that courts must issue an order compelling agency action whenever a court finds that an agency has violated a statutory deadline.

The leading case advancing that view is the Tenth Circuit's decision in Forest Guardians v. Babbitt , which concerned the Secretary of the Interior's delay in designating a critical habitat for the Rio Grande silvery minnow, an endangered species. Under the Endangered Species Act (ESA), a final rule designating critical habitat for the silvery minnow was due one year after the publication of the proposed rule to list the species as endangered. The Secretary acknowledged missing that deadline but argued that it was impossible to meet all of the ESA-imposed deadlines due to a backlog resulting from a 13-month spending moratorium imposed by Congress. The Secretary thus urged the court to employ its "equitable discretion" to decline to issue an order compelling it to act under the circumstances.

The Tenth Circuit held that it lacked discretion when a statutory deadline is violated because section 706(1) states that courts " shall . . . compel agency action unlawfully withheld," and, quite simply, "'shall' means shall." F orest Guardians thus drew a distinction between the two prongs of section 706(1), arguing that the "unlawfully withheld" prong applies to situations where the agency has missed a specific statutory deadline, whereas the "unreasonably delayed" prong applies to delays not governed by an explicit statutory deadline. Because Congress had already established the time by which the agency must act through a statutory deadline, Forest Guardians held that balancing the TRAC factors is inappropriate. The Ninth Circuit follows the Forest Guardians approach.

Courts in the D.C. Circuit, however, still apply the TRAC factors even when an agency has missed an explicit statutory deadline. In its view, the violation of a statutory deadline is relevant to the first and second TRAC factors, but not necessarily dispositive. These courts reason that the "shall" imperative of section 706(1) is "qualif[ied]" by section 702 of the APA, which states that "[n]othing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground." On this view, courts retain equitable discretion to decline to compel agency action even if the agency violates a statutory deadline.

In In re Barr Laboratories , for example, the Food and Drug Administration (FDA) conceded that it had "repeatedly violated" a 180-day deadline imposed by Congress for processing generic drug applications. The D.C. Circuit nonetheless found that equitable relief was not warranted after weighing the TRAC factors, placing particular emphasis on the effect that granting relief would have on other agency priorities. Because the FDA's delays were systematic—it was behind in processing all such applications—granting an order to expedite the plaintiff's application would only put the plaintiff at the "head of the queue" while "simply mov[ing] all others back one space," resulting in no net benefit for society.

Judicial Treatment of Hammer Provisions

Unlike statutory deadlines, hammer provisions are "self-enforcing" by their nature. The penalty prescribed in the statute simply goes into effect, by operation of law, should the agency fail to act by the deadline. Depending on the force of the penalty, the hammer provision may eliminate the need for a civil suit to compel agency action. Indeed, the penalty imposed by Congress through the hammer provision may well be more severe than any remedy that a court has the power to impose. As result, a section 706(1) suit is usually unnecessary in the context.

For this reason—in combination with the infrequent use of hammer provisions, and their effectiveness at compelling agencies to act by the deadline—there are no reported judicial decisions directly addressing challenges to compel agency action subject to hammer provisions. The few judicial decisions that reference hammer provisions at all do so only in passing.

Congressional Tools to Address Agency Delay Ex Post

As discussed above, Congress possesses a variety of means to reduce the likelihood of agency delay and influence the lawsuits under section 706(1) to compel agency action. In addition, Congress has a number of tools to address agency delays after they arise. If troubled by a particular agency's delay, Congress can use its oversight powers to put pressure on the agency to act. Individual Members may send letters to agencies expressing concern about delays that affect their constituents. Congressional committees can hold hearings, call agency leaders as witnesses to explain their inaction, and issue committee reports, all of which can bring public attention to the matter and put political pressure on the agency.

Perhaps the most potent weapon at Congress's disposal is the power of the purse, which Congress can use either as a carrot or a stick to motivate the agency to act. If there are systematic delays at an agency due to insufficient resources, Congress may appropriate money for that agency to hire new staff to clear a backlog. Alternatively, Congress may threaten to eliminate funding for an agency if it does not take action more quickly.

Finally, if Congress is concerned with agency delays more programmatically, it has the power to shape the procedures and requirements of agency rulemaking as a general matter. The APA is a statute; it can be reformed and amended like any other law. For example, the Regulatory Flexibility Act requires that agencies prepare an initial regulatory flexibility analysis of the regulation's impact on small business when the agency publishes a notice of proposed rulemaking under the APA. Congress could amend the APA to exempt more rules from notice-and-comment requirements or otherwise streamline agency pro cedures for rulemaking.