	Introduction

Administrative agencies have long been criticized by some for taking too long to issue and implement regulations. Some delay is necessary for reasoned decisionmaking. Habitual delays can undermine public trust in agency process. 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. 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. 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. 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. Deadlines are frequently used with respect to environmental regulations and other public health matters. However, an individual can only sue to compel discrete actions that the agency is required to take. However, some courts will dispense with this balancing test when the agency has violated a statutory deadline. 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." 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. . . compel agency action unlawfully withheld," and, quite simply, "'shall' means shall." 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. 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. 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. Alternatively, Congress may threaten to eliminate funding for an agency if it does not take action more quickly.
Agencies are sometimes criticized for taking too long to promulgate regulations and issue decisions. Some amount of time, of course, is necessary for reasoned decisionmaking. However, unjustified delays have significant costs for regulated entities and the public at large. At the extreme, agency delays can undermine public trust in agencies and frustrate the implementation of the regulatory regime created by Congress.
Congress has a number of means at its disposal to reduce the likelihood of agency delays in rulemaking. Even if Congress does not impose any specific timing requirements for an agency to act, the Administrative Procedure Act's (APA's) default rule requires that the agency act "within a reasonable time." If Congress wishes to impose more stringent requirements, it can enact nonbinding time frames or hard statutory deadlines for particular agency rulemakings. Finally, if timing is of primary importance, Congress may impose statutory penalties on the agency should it fail to meet deadlines.
The particular statutory tools that Congress uses to encourage timely agency action will greatly influence the scope of subsequent judicial review. The APA grants persons affected by agency delay the right to sue to compel certain discrete agency actions. Lawsuits are available only with respect to required agency actions; if Congress has committed the decision to regulate to an agency's discretion, courts will dismiss a suit to compel the agency to act on that matter. For agency actions that are required, courts will compel the agency to engage in rulemaking only if the delay is unreasonable or the action is unlawfully withheld.
If Congress has not imposed a time frame or deadline, courts are usually deferential to the agencies and hesitant to compel agency action. Most courts employ a multifactor balancing test in this situation, looking to the length of the delay, the interests harmed by the delay, the agency's other priorities, and any bad faith by the agency. If Congress imposes a nonbinding time frame (i.e., a suggested sense of how long an action should take), that will be considered as an additional factor in the balancing analysis. If Congress imposes a statutory deadline, however, some courts will routinely order the agency to act if it misses the deadline, without the need to balance the various factors. Other courts still use the balancing test, but consider the missed deadline as a factor weighing against the agency. If Congress has imposed a statutory penalty for missing a deadline, lawsuits to compel agency action are usually unnecessary because the penalty spurs the agency to act.
Although lawsuits by affected individuals are the primary means to remedy agency delay, Congress may also use its oversight powers to address agency delay after it arises. Members may write letters to agencies on behalf of their constituents. Congressional committees may hold hearings and ask agency directors to account for the delay. Finally, Congress may use its power of the purse as a carrot or a stick to compel agency action, either by granting agencies additional resources to remedy the delay, or by threatening an agency's funding should it not take timely action.