Regulatory Rulemaking: Legislation's Other Half

The Law Congress Does Not Write

In any given year, Congress passes a few hundred laws. Federal agencies, meanwhile, issue roughly 3,000 to 4,000 new rules. These regulations carry the force of law — violating an EPA emission standard or an SEC disclosure requirement has the same legal consequences as violating a statute. Regulations are the detailed instructions that make legislation operational.

When Congress passes a clean air law, it typically sets broad goals — reduce carbon emissions by 40% by 2030 — and delegates the technical details to the Environmental Protection Agency. What counts as a regulated emission? Which industries are covered? What monitoring and enforcement mechanisms apply? These questions, answered in regulations, often matter more to businesses and citizens than the original statute. This delegation of authority is both practically necessary (Congress lacks technical expertise) and democratically concerning (unelected bureaucrats making binding rules).

The Notice-and-Comment Process

In the US, the Administrative Procedure Act of 1946 established the 'notice-and-comment' process that governs most federal rulemaking. An agency must publish a proposed rule in the Federal Register, allow a public comment period (usually 30-90 days), consider and respond to significant comments, and then publish the final rule with a preamble explaining its reasoning.

This process can be remarkably participatory. The FCC's 2015 net neutrality rule generated over 4 million public comments. Major EPA rules routinely receive tens of thousands. However, research shows that industry comments are far more likely to produce changes in final rules than individual citizen comments — agencies respond to technical detail and legal arguments, which well-resourced organizations are better positioned to provide.

Regulation Beyond the US

The EU's regulatory process operates through delegated acts and implementing acts, where the European Commission writes technical rules to implement legislation passed by the Parliament and Council. The EU has become a global regulatory superpower — its standards on data privacy (GDPR), chemical safety (REACH), and product safety are adopted worldwide because companies find it easier to comply with one strict standard than to maintain different products for different markets. This phenomenon, called the 'Brussels Effect,' means EU regulations effectively become global regulations.

In the UK, regulatory powers are delegated through 'statutory instruments' — secondary legislation that ministers can issue under powers granted by primary Acts of Parliament. The volume is staggering: roughly 3,000 statutory instruments are issued per year, compared to about 25-35 Acts of Parliament.

Worked Example: Four Million Comments on Net Neutrality

The notice-and-comment process can turn an obscure rulemaking into a national event. In 2014-2015, the Federal Communications Commission proposed rules on 'net neutrality' — whether internet providers must treat all online traffic equally.

• Notice: The FCC published its proposed rule and opened a public comment period, as administrative law requires.
• Comment: The docket drew a record-shattering response — roughly four million comments from ordinary citizens, companies, and advocacy groups, so many that the agency's website briefly buckled.
• Response: By law the agency had to consider the significant comments; the final 2015 Open Internet Order reclassified broadband to impose net-neutrality rules and explained its reasoning in a lengthy preamble.
• Aftermath: The rule was challenged in court, upheld, and then reversed by the FCC in 2017 — proof that rules, unlike statutes, can be undone by the next administration through the very same process.

No vote in Congress was involved, yet the outcome bound the entire broadband industry. That is the quiet, enormous power of regulatory rulemaking — legislation's other half.