New Regulation

Scenario
You work for a midsized, private company that makes furniture and that is not accustomed to working with regulators. However, your company has just gotten wind that a federal agency may be about to start a process through which the agency will make a regulation.

• This new regulation will have a significant impact on the company, by banning use of a key ingredient in the production process for many of the company’s products, and for which it could not easily obtain a substitute.
• Company officials thus believe that the regulation would make it far more difficult, if not impossible, for the company to operate.
• A number of other companies in the industry would be in the same boat.

The potential regulation, which would apparently be undertaken by using an “informal rulemaking” process under the APA, would aim to ban a substance that has recently been linked, in the media and elsewhere, to an adverse environmental impact.

• Company officials believe that the science behind these links is ambiguous. Some scientific studies support the link, while some others do not.
• The officials also believe, at first glance, that the statute the agency may use to issue the regulation is unclear – it is written in very general terms and it is not immediately obvious to them that the agency has the power to regulate this substance, although it has already regulated other substances in the same general class.
• Finally, company officials have expressed concerns about process. The agency has recently gotten a reputation for regulating substances like the one at issue quite aggressively. They are concerned that key personnel in the agency have made up their minds to ban the substance even before beginning the rulemaking process.

The members of your company plan to consult legal counsel to learn more about their options.

• However, one of the executives at your company has also asked you to prepare a brief, four to six-page memo (double-spaced) explaining basic thoughts on the regulatory process that is about to unfold.
• The executive has asked you for a roadmap on:
  • What the regulatory process is likely to look like, and
  • Potential strategies the company might take in response.

Instructions

More specifically, you are asked you to do the following:
(1) Describe, in as straightforward and simple a way as possible:

• What the regulatory process is likely to look like
• Making sure to highlight key concepts that you think your company should be aware of;

(2) Explain the possible moments and ways in which your company might intervene or challenge any rule before, during, and after the regulatory process; and

(3) Offer your thoughts on the limitations and wisdom of any form of intervention.

Note: In writing your assignment, please make sure to add the following headings:

1. Description of Regulatory Process
2. Explanation of Possible Points of Intervention
3. Limitations and Wisdom of Possible Forms of Intervention

NOTE:

• You need not give elaborate, technical legal explanations; executives at your company are looking for commonsensical guidance written for non-lawyers.
• Again, your memo should be four to six pages, double-spaced, using 12-point type with times new roman or a similar font, and normal (1 inch) margins.
• You do not need to do any outside research for this assignment: it can be answered very well by using the lectures and assigned readings.
• Remember, though, that you should properly cite any material that you quote or use for the assignment.
• Your grade will be based on how well your answer shows that:
  • You understand the regulatory process, and
  • How well you substantiate your positions and arguments.
  • As always, professionalism, organization, and clarity will also affect your grade.