Negotiated Rulemaking: In Brief

April 12, 2021 R46756

Negotiated Rulemaking: In Brief
April 12, 2021
Negotiated rulemaking is a process sometimes used by federal agencies to develop proposed
rules. In negotiated rulemaking, an agency convenes a committee of stakeholders with the goal of
Maeve P. Carey
reaching a consensus outcome on the text of a proposed rule. If the committee is able to reach a
Specialist in Government
consensus outcome, thus achieving buy-in from stakeholders, the rule may be easier to
Organization and
implement and less likely to be subject to litigation.
Management

Congress passed the Negotiated Rulemaking Act (NRA) in 1990 to endorse the use of negotiated
rulemaking and establish a procedural framework. The NRA was intended in part to clarify that

agencies had the authority to use negotiated rulemaking voluntarily, encourage agencies to use it,
and make clear that it was meant to be a supplement—not substitute—for the notice-and-comment rulemaking procedures in
the Administrative Procedure Act (APA). Generally, when agencies undertake negotiated rulemaking, whether voluntarily or
pursuant to a statutory mandate, they are to follow the procedures established in the NRA.
Congress contemplated that negotiated rulemaking would be appropriate for some, but not all, regulations. Accordingly, the
NRA lists several factors an agency head shall take into consideration when determining whether to use negotiated
rulemaking, including whether a limited number of interests that will be significantly affected by the rule can be identified ,
whether a committee with balanced representation could be convened, and whether there is a “reasonable likelihood” that a
committee would be able to reach a consensus on the proposed rule within a fixed period of time .
In addition, at times, Congress has enacted specific requirements for agencies to use negotiated rulemaking, sometimes with
additional considerations or procedures. For example, Section 492 of the Higher Education Act requires the Secretary of
Education to conduct negotiated rulemaking in certain circumstances and obtain advice and recommendations from specified
individuals and groups.
Under the NRA, if an agency decides or is required to engage in negotiated rulemaking, the agency must announce in the
Federal Register its intention to establish a negotiated rulemaking committee, and the committee is generally subject to the
requirements of the Federal Advisory Committee Act (FACA). The goal of the committee is to develop and reach consensus
on the text of a proposed rule. If the committee reaches consensus, it is to transmit to the agency a report containing the
proposed rule, as well as certain records required under the NRA and FACA. If the committee does not reach consensus, it
may transmit to the agency a report specifying areas where it reached partial consensus as well as other relevant information,
recommendations, or materials . Individual committee members may also transmit materials to the agency as desired. Even if
a committee does not reach full consensus on a proposed rule, consensus on some elements of a proposed rule or other
information and materials may still be useful to the agency. The committee’s consensus proposal is not binding on the
agency, and the agency is still required to go through the notice-and-comment procedures of the APA. However, if the
committee does reach consensus, it may be unlikely that an agency would propose a different rule than the rule developed by
the committee.
For a variety of reasons, the practice of negotiated rulemaking has waned in recent years. A number of factors that have been
identified include the resource-intensiveness of the process for agencies and participating stakeholders as well as a perceived
lack of buy-in for negotiated rulemaking from the Office of Information and Regulatory Affairs, the entity within the Office
of Management and Budget (OMB) that plays a key role in agency rulemaking.
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Negotiated Rulemaking: In Brief

When issuing federal regulations, agencies sometimes engage in a practice cal ed negotiated
rulemaking. Negotiated rulemaking is intended to encourage agencies to involve stakeholders
early in the rulemaking process—specifical y, in the drafting of proposed rule text. If used
successfully, negotiated rulemaking can lead to buy-in from stakeholders, potential y leading to
easier implementation and less litigation once the rules are finalized. To encourage and structure
agencies’ use of negotiated rulemaking, Congress passed the Negotiated Rulemaking Act (NRA)
in 1990, endorsing the use of negotiated rulemaking and establishing a set of procedures for
agencies to follow.
This report provides a brief overview of negotiated rulemaking by offering (1) a background and
overview of negotiated rulemaking, including a discussion of the NRA and its procedures; (2)
examples of statutory provisions requiring negotiated rulemaking; and (3) examples of recently
issued final rules in which agencies used negotiated rulemaking.
Negotiated Rulemaking: Background and Overview
History of Negotiated Rulemaking
The negotiated rulemaking process was developed primarily in the 1980s and fleshed out in
recommendations by the Administrative Conference of the United States (ACUS).1 In the early
1980s, observers identified a number of perceived flaws in the federal rulemaking process that, in
their view, negotiated rulemaking could assist with—primarily the adversarial nature of the
relationships between agencies and stakeholders.2 For example, one administrative law scholar
suggested an approach to rulemaking in which differences were acknowledged and resolved
through face-to-face negotiations, and he laid out a series of principles that could make those
negotiations successful.3 In 1982, ACUS also suggested, “Experience indicates that if the parties
in interest were to work together to negotiate the text of a proposed rule, they might be able in
some circumstances to identify the major issues, gauge their importance to the respective parties,
identify the information and data necessary to resolve the issues, and develop a rule that is
acceptable to the respective interests, al within the contours of the substantive statute.”4 ACUS
issued recommendations as to what a “regulatory negotiation” or “reg-neg” could look like, and a
smal number of agencies began to engage in negotiated rulemaking.5 In 1985, ACUS published a
supplemental set of recommendations after three agencies used negotiated rulemaking in four

1 See ACUS, “Procedures for Negotiating Proposed Regulations (Recommendation 82-4),” 47 Federal Register 30708,
July 15, 1982; and ACUS, “ Procedures for Negotiating Proposed Regulations (Recommendation 85-5),” 50 Federal
Register 52895, December 27, 1985. ACUS is an independent federal agency charged with convening experts from the
public and private sectors to study and make recommendations for the improvement of government processes,
including administrative processes such as rulemaking. See https://www.acus.gov/.
2 T he basic structure of the federal rulemaking process, sometimes referred to as notice-and-comment rulemaking, was
established in the Administrative Procedure Act (APA) of 1946. Over time, Congress and Presidents have created
various additional procedures, including the NRA and others, but the fundamental steps of the APA’s notice -and-
comment rulemaking have remained largely consistent over time. T hus, in the 1980s, when such conversations were
occurring about the promise of negotiated rulemaking, the backdrop was largely notice -and-comment rulemaking.
3 Philip J. Harter, “Negotiating Regulations: A Cure for Malaise,” Georgetown Law Journal, vol. 71 (1982), pp. 1-118.
4 47 Federal Register 30708.
5 47 Federal Register 30709.
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instances, addressing some of the concerns that had been raised by the agencies based upon these
early experiences.6
Congress demonstrated some interest in the topic of negotiated rulemaking during the 1980s as
wel . In 1980, the Senate Select Committee on Smal Business and the Subcommittee on
Oversight of Government Management of the Committee on Governmental Affairs held a joint
hearing on negotiated rulemaking.7 Negotiated rulemaking was seen primarily as a process that
could potential y reduce regulatory delays and decrease the incidence of judicial chal enges to
regulations.8 Through the 1980s, as interest increased in negotiated rulemaking, Congress enacted
a handful of requirements for agencies to conduct negotiated rulemaking in specific instances,
such as in the Elementary and Secondary School Improvement Act of 1988 and others. S. 3039
After having observed the experiences of some agencies pursuant to these ad hoc requirements,
Congress decided to avoid the “confusing multiplicity of procedures with uneven results” through
“passage of a negotiated rulemaking statute.”10 In 1990, Congress passed the NRA, endorsing the
use of the process and creating a voluntary negotiated rulemaking framework.11
Objectives of Negotiated Rulemaking
Negotiated rulemaking is intended to provide a means through which agencies and stakeholders
can reach a consensus outcome prior to issuing a notice of proposed rulemaking. By enacting the
NRA, Congress intended to endorse agencies’ use of negotiated rulemaking, make clear that
agencies had the authority to engage in it voluntarily, and establish a common set of procedures
for agencies to use.12 As the Senate report to accompany the NRA stated, “An authorizing statute
would remove any doubt agencies may have about their authority, and also would serve as
Congress’ endorsement of the process. The bil would further encourage agency use of the
process by presenting key [regulatory negotiation] information in one, easily accessible statute,
with the major procedural issues resolved.”13 The Senate report also made it clear that Congress
intended for the statute to be flexible, recognizing that “negotiated rulemaking is not appropriate
in every or even most rulemaking situations” and that “one of the key strengths of negotiated
rulemaking is its flexibility and adaptability to the exigencies of particular rulemakings.”14

6 50 Federal Register 52895.
7 U.S. Congress, Joint Hearings Before the Senate Select Committee on Small Business and the Senate Committee on
Governmental Affairs, Subcommittee on Oversight of Governm ent Management, Regulatory Negotiation, 96th Cong.,
2nd sess., July 29, 1980 (Washington: GPO, 1980).
8 Ibid.
9 P.L. 100-297. Also in 1988, the Committee on Governmental Affairs held a hearing on a predecessor to the NRA. See
U.S. Congress, Senate Committee on Governmental Affairs, Negotiated Rulem aking Act of 1989, report to accompany,
101st Cong., 1st sess., August 1, 1989, S.Rept. 101-97 (Washington: GPO, 1989), pp. 5-8. For an examination of the
legislative history of the NRA and other legislation related to negotiated rulemaking, see Cary Coglianese, “Assessing
Consensus: T he Promise and Performance of Negotiated Rulemaking,” Duke Law Journal, vol. 46, no. 6 (April 1997).
10 U.S. Congress, Senate Committee on Governmental Affairs, Negotiated Rulemaking Act of 1989, report to
accompany S. 303, 101st Cong., 1st sess., August 1, 1989, S.Rept. 101-97 (Washington: GPO, 1989), p. 5.
11 P.L. 101-648; 5 U.S.C. §§561-570.
12 U.S. Congress, Senate Committee on Governmental Affairs, Negotiated Rulemaking Act of 1989, report to
accompany S. 303, 101st Cong., 1st sess., August 1, 1989, S.Rept. 101-97 (Washington: GPO, 1989), p. 7.
13 Ibid.
14 Ibid., p. 9.
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Negotiated Rulemaking: In Brief

At its core, the negotiated rulemaking process involves convening a committee of balanced and
representational interests that strives to reach consensus on the content of the rule.15 The ultimate
goal of negotiated rulemaking is to make the rulemaking process more efficient and less
adversarial, as subsequent litigation on the rule may be less likely, and to create “objectively
better rules.”16
The NRA was intended in part to clarify for agencies that negotiated rulemaking was meant to
supplement the notice-and-comment procedures in the Administrative Procedure Act (APA)—not
substitute for those procedures.17 The APA general y requires agencies to publish a proposed rule
in the Federal Register, provide an opportunity for public comment on the proposed rule, and
issue a final rule after considering the comments received.18 Under regular notice-and-comment
rulemaking procedures, the agency writes the proposed rule and has discretion over whether and
how much to involve interested parties at this key initial phase. If the agency does involve outside
parties at this first stage, those interactions are often informal and unstructured.19 When engaging
in negotiated rulemaking, however, the agency involves stakeholders in the initial drafting of the
proposed rule and then proceeds with the usual APA procedures. This process is represented
below in Figure 1.
Figure 1. Negotiated Rulemaking in the Federal Rulemaking Process

Source: CRS.
Notes: The Negotiated Rulemaking Act is Title 5, Sections 561-570, of the U.S. Code. In negotiated rulemaking,
the goal is to reach consensus on proposed rule text through negotiations of a committee of representational
and balanced interests. This process is to be conducted in addition to the notice-and-comment procedures of
the Administrative Procedure Act (APA)—once the committee reaches consensus, the agency would likely (but

15 For an overview and discussion of negotiated rulemaking, see David M. Pritzker and Deborah S. Dalton, Negotiated
Rulem aking Sourcebook, ACUS, September 1995, https://www.acus.gov/publication/negotiated-rulemaking-
sourcebook; and Cheryl Blake and Reeve T . Bull, Negotiated Rulem aking, report written for ACUS, June 5, 2017,
https://www.acus.gov/sites/default/files/documents/
Negotiated%20Rulemaking_Final%20Report_June%205%202017.pdf . Following consideration of this report and its
recommendations in 2017, ACUS adopted a number of updated recommendations on negotiated rulemaking. See
ACUS, “Adoption of Recommendations,” 82 Federal Register 31039-31042, July 5, 2017.
16 Pritzker and Dalton, Negotiated Rulemaking Sourcebook, p. xiii.
17 See Pritzker and Dalton, Negotiated Rulemaking Sourcebook, p. 69: “So long as the agency complies with the APA’s
basic notice and comment requirements and the agency retains discretion to determine the content of the final rule,
there should be no conflict with the requirements of the APA.”
18 T he APA also provides several exceptions to these requirements. For more information on APA rulemaking
procedures, see CRS In Focus IF10003, An Overview of Federal Regulations and the Rulem aking Process, by Maeve
P. Carey; CRS Report RL32240, The Federal Rulem aking Process: An Overview, coordinated by Maeve P. Carey;
CRS Report R41546, A Brief Overview of Rulem aking and Judicial Review, by T odd Garvey; and CRS Report R46673,
Agency Rescissions of Legislative Rules, by Kate R. Bowers and Daniel J. Sheffner.
19 Jeffrey S. Lubbers, A Guide to Federal Agency Rulemaking, 6th ed. (Chicago: American Bar Association Section of
Administrative Law and Regulatory Practice, 2018), p. 218.
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is not required to) proceed with the consensus rule as the proposed rule under the APA. Other APA
requirements, including the requirements for public comment, stil apply.
As mentioned, the goal of negotiated rulemaking is to reach consensus on regulatory text for the
proposed rule. Even if a committee does not reach consensus on the precise text, however,
consensus on some elements of a proposed rule or other information and materials provided by
the committee members could stil be useful to the agency in developing the proposed rule.
Negotiated Rulemaking Act Overview
When an agency engages in negotiated rulemaking, whether voluntarily or pursuant to a statutory
mandate, the agency is to follow the procedures established in the NRA.
When to Initiate
Congress contemplated that negotiated rulemaking would be appropriate for some, but not al ,
regulations—particularly those in which the nature of the proposed rulemaking could lend itself
to a successful negotiation.20 The NRA lists several factors an agency head shal take into
consideration when determining whether to use negotiated rulemaking, including whether
 a limited number of interests that wil be significantly affected by the rule can be
identified,
 a committee with balanced representation would be able to be convened,
 there is a “reasonable likelihood” that a committee would be able to reach a
consensus on the proposed rule within a fixed period of time,
 using negotiated rulemaking would not unreasonably delay the issuance of a
proposed rule, and
 the agency can commit to using the consensus of the committee as the proposed
rule.21
Establishing the Committee
If the agency decides or is required to engage in negotiated rulemaking, the NRA provides that
the agency must announce in the Federal Register its intention to establish a negotiated
rulemaking committee.22 The notice must contain certain information about the intended
proceedings, including the subject and scope of the rule to be developed, a proposed agenda and
schedule for the committee to complete its work, a solicitation for comments on the proposal to
establish the committee, and an explanation of how a person may apply or nominate another
individual to serve on the committee.23 Interested persons may then apply to serve on the

20 T ask Force on Federal Regulation of Higher Education, Recalibrating Regulation of Colleges and Universities, 2015,
p. 90, https://www.help.senate.gov/imo/media/Regulations_T ask_Force_Report_2015_FINAL.pdf.
21 5 U.S.C. §563(a). In instances where negotiated rulemaking is required by statute, these considerations would likely
not apply.
22 5 U.S.C. §564(a). See, for example, Department of the Interior, Bureau of Indian Affairs, “Bureau of Indian
Education Standards, Assessments, and Accountability System Negotiated Rulemaking Committee Establishment;
Nominations,” 82 Federal Register 43199, September 14, 2017.
23 5 U.S.C. §564(a).
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committee or nominate another person to serve.24 The period during which applications and
comments may be submitted must be at least 30 days.25
The NRA also authorizes, but does not require, the agency to use a convener to assist the agency
in identifying persons who would be significantly affected by the proposed rule and ascertain
whether the establishment of a negotiated rulemaking committee is feasible and appropriate.26
The convener would report findings from any exploratory work, including any discussions with
persons who are expected to be significantly affected by a rule, and may make recommendations
to the agency pertaining to matters such as what persons are wil ing and qualified to serve on the
committee.27
The NRA states that a negotiated rulemaking committee wil general y be subject to the
requirements of the Federal Advisory Committee Act (FACA), unless otherwise specified, and
limits committees to 25 members unless a greater number is necessary.28 The committee may
choose to have a facilitator, either from the agency or outside the agency, to chair the meetings.29
The facilitator is to chair the meetings in an impartial manner, ensuring that al parties have the
opportunity to share their viewpoints and relevant information.30
The committee may adopt its own procedures for operation, such as general rules of conduct,
attendance, participation, and establishing a target deadline for the committee’s work.31
Reaching Consensus
The goal of the committee is to reach consensus on a proposed rule. Consensus under the NRA
means “unanimous concurrence among the interests represented on a negotiated rulemaking
committee,” unless the committee agrees on another definition.32 Negotiated rulemaking
committees have sometimes used other definitions. For example, in a 1995 rule issued by the
Health Care Financing Administration in the Department of Health and Human Services (now the
Centers for Medicare and Medicaid Services), the committee defined consensus as “even if
elements of the agreement were not the choice of individual committee members, al committee
members could live with the agreement, considered as a whole.”33 In January 2020, the
Department of Transportation published a proposed rule in which the negotiated rulemaking
committee agreed to define consensus as “no more than two negative votes in each issue area.”34

24 5 U.S.C. §564(b).
25 5 U.S.C. §564(c).
26 5 U.S.C. §563(b)(1).
27 5 U.S.C. §563(b)(2).
28 5 U.S.C. §565. For an overview of FACA, see CRS Report R44253, Federal Advisory Committees: An Introduction
and Overview, by Meghan M. Stuessy. In specific instances where Congress has mandated the use of negotiated
rulemaking, it has waived the applicability of FACA. See, for example, 20 U.S.C. §1098a(c).
29 5 U.S.C. §566(c).
30 5 U.S.C. §566(d).
31 5 U.S.C. §566(e).
32 5 U.S.C. §562(2).
33 Department of Health and Human Services, Health Care Financing Administration, “Medicare Program; Notice
Containing the Statement Drafted by the Committee Established to Negotiate the Wage Index to be Used to Adjust
Hospice Payment Rates Under Medicare,” 60 Federal Register 61264, November 29, 1995.
34 Department of T ransportation, Office of the Secretary, “Accessible Lavatories on Single-Aisle Aircraft: Part 1,” 85
Federal Register 27, January 2, 2020. See also Department of T ransportation, “ ACCESS Committee Ground Rules,”
https://www.transportation.gov/office-general-counsel/negotiated-regulations/access-committee-ground-rules.
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If the committee reaches consensus, it is to transmit to the agency a report containing the
proposed rule as wel as certain records required under the NRA and FACA.35 If the committee
does not reach consensus, it may transmit to the agency a report specifying any areas where it
reached partial consensus as wel as any other information, recommendations, or materials that
the committee would like to share with the agency. Individual committee members may also
transmit materials to the agency as desired.36
The committee’s consensus proposal, if one is reached, is not binding on the agency, and the
agency is stil required to go through the notice-and-comment procedures of the APA.37 The
agency retains discretion over what is in the final version of the rule: It may propose the
consensus rule in its entirety, only choose to use part of it, or publish its own version of the rule.38
However, if the committee reached consensus, it may be unlikely that an agency would propose a
different version of the rule than the consensus outcome, as such a choice could open the agency
up to criticism from committee members and possible litigation.
Negotiated Rulemaking in Practice
Negotiated rulemaking was somewhat popular among agencies in the 1990s, but its use has
waned since then.39 That agencies have chosen not to use negotiated rulemaking as much as its
advocates had initial y hoped is likely due to a variety of factors.40
One issue that is often identified as a limiting factor for the use of negotiated rulemaking is its
resource-intensiveness. This resource strain is arguably short-term, as negotiated rulemaking is
intended to be an up-front investment that can conserve resources over the more long-term
development and post-finalization phases of a rule. However, agencies may see the up-front cost
of negotiated rulemaking as prohibitive, even though long-term costs may be lower.41 Relatedly,
some have suggested that the transparency and procedural requirements associated with FACA
may discourage some agencies from using negotiated rulemaking.42
A setback for agencies’ use of negotiated rulemaking occurred when ACUS was defunded in
1995. ACUS had been a major influence in the adoption of negotiated rulemaking and the NRA,
and Congress gave ACUS a number of responsibilities pertaining to negotiated rulemaking in the
act: compiling data, serving as a clearinghouse of information, reporting to Congress, and even
paying some expenses for agencies.43 ACUS was re-established in 2010, but by that point, the use

35 5 U.S.C. §566(f) and §566(g).
36 5 U.S.C. §566(f).
37 5 U.S.C. §553.
38 See Pritzker and Dalton, Negotiated Rulemaking Sourcebook, p. 69.
39 T he practice appears to have been used increasingly in state governments. See Lubbers, A Guide to Federal Agency
Rulem aking, p. 222.
40 See Jeffrey S. Lubbers, “Achieving Policymaking Consensus: T he (Unfortunate) Waning of Negotiated
Rulemaking,” South Texas Law Review, vol. 49, no. 4 (Summer 2008), pp. 987-1017.
41 Pritzker and Dalton, Negotiated Rulemaking Sourcebook, p. 5.
42 Lubbers, “Achieving Policymaking Consensus,” p. 1001; and Coglianese, “Assessing Consensus,” p. 1277.
For an overview of these FACA requirements, see CRS Report R44253, Federal Advisory Com m ittees: An
Introduction and Overview, by Meghan M. Stuessy.
43 Lubbers, “Achieving Policymaking Consensus,” pp. 996-997.
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of negotiated rulemaking had waned, Congress had amended the act to assign these duties
elsewhere, and no other entity had been fully empowered to take on a similar role.44
Some have suggested a lack of buy-in for negotiated rulemaking from the Office of Information
and Regulatory Affairs (OIRA), the entity within the White House that plays a key role in agency
rulemaking.45 OIRA exercises a potential y significant amount of influence over agency
regulations by reviewing regulations prior to when they are issued as proposed and final rules,
seeking to ensure that regulations are consistent with the President’s priorities.46 The development
of a consensus rule by a negotiated rulemaking committee may make it harder for OIRA to seek
changes to an agency’s rule, provided the committee has already agreed upon the text of a rule
and the agency is expected to move forward with that agreed-upon text. Furthermore, negotiated
rulemaking could potential y result in a loss of control for OIRA and, by extension, the
President.47 As one scholar noted, “Rulemaking is one means by which the executive branch
implements not only statutory mandates, but also presidential policy; any sitting President would
be loathe to delegate his authority to a collaborative panel.”48 Nevertheless, President Clinton
encouraged agencies to use “consensual mechanisms for developing regulations, including
negotiated rulemaking” in his executive order on centralized regulatory review, which is stil in
effect.49
Additional y, some have suggested that the two primary goals of negotiated rulemaking—
reducing the time it takes to issue a rule and cutting down on litigation over the rule—have not
come to fruition to the degree that had been hoped for initial y.50 Agencies may not be so
interested in engaging in a practice that is not likely to result in the purported benefits,
particularly if the process may be resource and time intensive.
For these and possibly other reasons, under current practice, few agencies appear to engage in
negotiated rulemaking voluntarily. Some, however, are required to engage in it and stil do.
Examples of Statutory Requirements for Negotiated
Rulemaking
Although the NRA itself does not require agencies to conduct negotiated rulemaking, Congress
has enacted various statutory requirements for agencies to conduct negotiated rulemaking in
specific instances. Perhaps most prominently, Congress has required the Department of Education

44 Lubbers, “Achieving Policymaking Consensus,” pp. 996-997; Blake and Bull, Negotiated Rulemaking, p. 7.
45 See Donald R. Arbuckle, “Collaborative Governance Meets Presidential Regulatory Review,” Journal of Dispute
Resolution, vol. 2009, no. 2 (2009), pp. 343 -359.
46 For a more detailed discussion of the role of OIRA in agency rulemaking, see CRS Report RL32397, Federal
Rulem aking: The Role of the Office of Inform ation and Regulatory Affairs, coordinated by Maeve P. Carey; and CRS
Report RS21665, Office of Managem ent and Budget (OMB): An Overview, coordinated by T aylor N. Riccard.
47 Arbuckle, “Collaborative Governance Meets Presidential Regulatory Review.”
48 Arbuckle, “Collaborative Governance Meets Presidential Regulatory Review,” p. 344.
49 Executive Order 12866, “Regulatory Planning and Review,” 58 Federal Register 51735 (October 4, 1993).
50 See Coglianese, “Assessing Consensus,” p. 1309: “In light of the two outcomes negotiated rulemaking has achieved
in terms of its two main goals, such infrequent reliance on negotiated rulemaking would seem to make sense.
Negotiated rulemaking saves no appreciable amount of time nor reduces the rate of litigation .” But see also Philip J.
Harter, “Assessing the Assessors: T he Actual Performance of Negotiated Rulemaking,” New York University
Environm ental Law Journal, vol. 9, no. 1 (2000), pp. 32-59, arguing that negotiated rulemaking was more successful
than Coglianese’s research concluded.
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to conduct negotiated rulemaking in several policy areas—but a number of other agencies have
been required to use it as wel .51 Examples include the following:
 Various sections of the Higher Education Act require the Secretary of Education
to conduct negotiated rulemaking on rules related to teacher quality enhancement
and student financial assistance programs (e.g., federal student loans).52
 For purposes of the Title I-A program authorized by the Elementary and
Secondary Education Act, the Secretary of Education is required to conduct
negotiated rulemaking on standards, assessments, and federal funds to be used
“to supplement, and not supplant, State and local funds.”53 In addition, the
Secretary of the Interior is required to use negotiated rulemaking to develop
regulations that define the standards, assessments, and accountability system,
consistent with Section 1111 of Title I-A, for schools funded by the Bureau of
Indian Education.54
 The Patient Protection and Affordable Care Act required the Secretary of Health
and Human Services (HHS) to use negotiated rulemaking to establish
methodology and criteria for designating medical y underserved populations and
health professions shortage areas.55
 The Health Insurance Portability and Accountability Act required the Secretary of
HHS to use negotiated rulemaking to develop “standards relating to the exception
for risk-sharing arrangements to the anti-kickback penalties described in section
1128B(b)(3)(F) of the Social Security Act.”56
 The Mandatory Price Reporting Act of 2010 required the Secretary of Agriculture
to use negotiated rulemaking for regulations related to the price reporting of
wholesale pork cuts.57
 Various sections of the Social Security Act, as amended, required the Secretary of
HHS to use negotiated rulemaking in developing a fee schedule for payment for

51 See T ask Force on Federal Regulation of Higher Education, Recalibrating Regulation of Colleges and Universities,
February 2015, Appendix IV, https://www.help.senate.gov/imo/media/
Regulations_T ask_Force_Report_2015_FINAL.pdf.
52 20 U.S.C. §1022f; 20 U.S.C. §1098a. Under T itle 20, Section 1098a, of the U.S. Code, the Secretary is authorized to
waive the requirement for negotiated rulemaking if he or she “ determines that applying such a requirement with respect
to given regulations is impracticable, unnecessary, or contrary to the public interest (within the meaning of section
553(b)(3)(B) of [the APA]), and publishes the basis for such determination in the Federal Register at the same time as
the proposed regulations in question are first published.” 20 U.S.C. §1098a(b)(2).
Information on the Department of Education’s negotiated rulemaking activities is available on the department’s website
at https://www2.ed.gov/policy/highered/reg/hearulemaking/2018/index.html and https://www2.ed.gov/policy/highered/
reg/hearulemaking/hea08/neg-reg-faq.html.
53 20 U.S.C. §6571. T his provision allows the Secretary to waive the negotiated rulemaking requirement, however, and
instead provide notice directly to Congress of a propo sed rule at least 15 days prior to its publication in the Federal
Register. T he notice must contain a copy of the rule and specified information, such as the anticipated costs and
benefits from the rule, and the department must “ include and seek to address all comments submitted by Congress in
the public rulemaking record.” See 20 U.S.C. §6571(c).
54 20 U.S.C. §7824(c).
55 42 U.S.C. §254b note.
56 42 U.S.C. §1320a-7b note.
57 7 U.S.C. §1635k note.
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ambulance services,58 national coverage and administrative policies for clinical
diagnostic laboratory tests under Part B of Title XVIII of the Social Security
Act,59 and solvency standards for provider-sponsored organizations.60
 The Fixing America’s Surface Transportation (FAST) Act required the Secretary
of Transportation to conduct negotiated rulemaking or issue an advanced notice
of proposed rulemaking (ANPRM) when issuing a regulation on commercial
motor vehicle safety but only if the proposed rule “is likely to lead to the
promulgation of a major rule.”61
Additional Procedural Requirements for Specific Rulemakings
In certain situations, Congress has included considerations or procedural requirements in addition
to those contained in the NRA, such as specific consultations or timelines by which agencies have
to complete steps in the process. Examples include the following:
 Section 492 of the Higher Education Act requires the Secretary of Education to
obtain, prior to conducting negotiated rulemaking,
advice of and recommendations from individuals and representatives of the groups
involved in student financial assistance programs under this subchapter, such as
students, legal assistance organizations that represent students, institutions of higher
education, State student grant agencies, guaranty agencies, lenders, secondary
markets, loan servicers, guaranty agency servicers, and collection agencies.62
This has general y been interpreted to mean that the department must engage in
“pre-reg-neg” public hearings before beginning a negotiated rulemaking
process.63
 The Health Insurance Portability and Accountability Act of 1996 required the
Secretary of HHS to conduct negotiated rulemaking, and the rest of the
rulemaking process, under specified timelines. The statute included a timeline for
the selection of the negotiated rulemaking committee, a timeline for completion
of the committee’s business, and a “target date” for publication of the rule.64
 The Mandatory Price Reporting Act of 2010’s requirement for the Secretary of
Agriculture to conduct negotiated rulemaking identified specific categories of
interests that were to be given representation on the committee:
Any negotiated rulemaking committee established by the Secretary of Agriculture
pursuant to paragraph (2) shall include representatives from - (i) organizations
representing swine producers; (ii) organizations representing packers of pork,
processors of pork, retailers of pork, and buyers of wholesale pork; (iii) the

58 42 U.S.C. §1395m(l).
59 42 U.S.C. §1395u note.
60 42 U.S.C. §1395w-26.
61 49 U.S.C. §31136(g). An ANPRM is essentially a notice to the public announcing that the agency intends to
undertake a rulemaking. T his provision in the FAST Act allows the Secretary to either issue an ANPRM or use
negotiated rulemaking, and it also includes a “ good cause” exception that allows the Secretary to issue a rule without
first issuing an ANPRM or using negotiated rulemaking.
62 20 U.S.C. §1098a(a).
63 T ask Force on Federal Regulation of Higher Education, Recalibrating Regulation of Colleges and Universities, p. 94.
64 42 U.S.C. §1320a-7b note.
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Negotiated Rulemaking: In Brief

Department of Agriculture; and (iv) among interested parties that participate in swine
or pork production.65
The act also required that “any recommendation for a proposed rule or report” be
provided to the Secretary within 180 days of enactment.66
Examples of Final Rules in Which Agencies Used
Negotiated Rulemaking
The bulleted list below identifies examples of instances in which agencies issued final rules after
having used negotiated rulemaking.
 In September 2019, pursuant to a requirement in the Higher Education Act, the
Department of Education issued a rule entitled “Student Assistance General
Provisions, Federal Family Education Loan Program, and Wil iam D. Ford
Federal Direct Loan Program”—also referred to as the “borrower defense” rule—
after conducting negotiated rulemaking.67 The 2019 rule replaced a rule that had
been issued in 2016 under the Obama Administration.68 In the preamble to the
2019 rule, the department stated that the negotiated rulemaking committee did
not reach consensus.69
 In November 2016, the Department of Housing and Urban Development issued a
rule entitled “Native American Housing Assistance and Self-Determination Act;
Revisions to the Indian Housing Block Grant Program Formula” after conducting
negotiated rulemaking70 pursuant to a requirement in the Native American
Housing Assistance and Self-Determination Act of 1996.71 In the preamble to the
final rule, the department stated that the negotiated rulemaking process had been
successful, and the negotiated rulemaking committee did reach consensus.72
 In August 2012, the Department of Agriculture’s Agricultural Marketing Service
issued a rule entitled “Livestock Mandatory Reporting Program; Establishment
of the Reporting Regulation for Wholesale Pork” after conducting negotiated
rulemaking.73 The department engaged in negotiated rulemaking pursuant to a

65 7 U.S.C. §1635k note.
66 7 U.S.C. §1635k note.
67 Department of Education, “Student Assistance General Provisions, Federal Family Education Loan Program, and
William D. Ford Federal Direct Loan Program,” 84 Federal Register 49788, September 23, 2019.
68 Department of Education, “ Federal Perkins Loan Program, Federal Family Education Loan Program, William D.
Ford Federal Direct Loan Program, and T eacher Education Assistance for College and Higher Education Grant
Program,” 81 Federal Register 75926, November 1, 2016.
69 Department of Education, “Student Assistance General Provisions, Federal Family Education Loan Program, and
William D. Ford Federal Direct Loan Program,” 84 Federal Register 49789, September 23, 2019.
70 Department of Housing and Urban Development, “Native American Housing Assistance and Self -Determination
Act; Revisions to the Indian Housing Block Grant Program Formula,” 81 Federal Register 83674, November 22, 2016.
71 25 U.S.C. §4116.
72 Department of Housing and Urban Development, “Native American Housing Assistance and Self -Determination
Act; Revisions to the Indian Housing Block Grant Program Formula,” 81 Federal Register 83678, November 22, 2016.
73 Department of Agriculture, Agricultural Marketing Service, “Livestock Mandatory Reporting Program;
Establishment of the Reporting Regulation for Wh olesale Pork,” 77 Federal Register 50561, August 22, 2012.
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Negotiated Rulemaking: In Brief

 requirement in the Mandatory Price Reporting Act of 2010.74 In the preamble to
the final rule, the department indicated that the negotiated rulemaking process
had been successful, and the final rule text was based upon the consensus reached
by the committee.75

Author Information

Maeve P. Carey

Specialist in Government Organization and
Management

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74 P.L. 111-239, 124 Stat. 2501, 7 U.S.C. §1635k.
75 Department of Agriculture, Agricultural Marketing Service, “Livestock Mandatory Reporting Program;
Establishment of the Reporting Regulation for Wholesale Pork,” 77 Federal Register 50561, August 22, 2012.
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