The Negotiated Rulemaking Process for the Every Student Succeeds Act –

Frequently Asked Questions

1. What is negotiated rulemaking, and why does the Department of Education conduct this 

process?

Typically, the Department of Education (the Department) develops and obtains public comment 

on proposed regulations by publishing them in the Federal Register. The published document is 

known as a Notice of Proposed Rulemaking, or NPRM. Under negotiated rulemaking, before 

issuing an NPRM, the Department works to develop the proposed regulations in collaboration 

with representatives of constituencies that are significantly affected by the topics proposed for

negotiations. This is done through a series of meetings during which these representatives, 

referred to as negotiators, work with the Department to come to consensus on the Department’s 

proposed regulations. These meetings are facilitated by a neutral third-party. Following the 

negotiations, the Department publishes the NPRM in the Federal Register and the public may 

comment on the NPRM at that time. 

Under the Elementary and Secondary Education Act (ESEA) of 1965, as amended by the Every 

Student Succeeds Act (ESSA), the Department must use negotiated rulemaking if it chooses to 

develop proposed regulations regarding standards, assessments under section 1111(b)(2) of 

ESEA, and the requirement under section 1118 of ESEA that Federal funds be used to 

supplement, and not supplant, State and local funds. 

2. How are the issues to be negotiated determined?

On December 22, 2015, the Department published a request for information and notice of 

meetings (RFI) in the Federal Register (80 FR 79528), seeking advice and recommendations on 

regulatory issues under title I of the ESEA, and providing notice of regional meetings at which 

stakeholders were able to provide such advice and recommendations. Those meetings were 

held on January 11, 2016, in Washington, DC, and on January 19, 2016, in Los Angeles, 

California. The Department also solicited written submissions of advice and recommendations 

through that RFI. Those written submissions can be found at www.regulations.gov.

On February 4, 2016, the Department published a Notice in the Federal Register announcing its 

intent to conduct negotiated rulemaking and identifying the areas in which it intends to develop 

or amend regulations. As stated in that Notice, after considering the advice and 

recommendations provided at the regional meetings and through written comments, the 

Department decided to establish a negotiating committee to address assessments and the 

supplement not supplant requirement, as follows: 

(1) Prepare proposed regulations that would update existing assessment regulations to 

reflect changes to section 1111(b)(2) of the ESEA, including:

a. Locally selected nationally recognized high school assessments, under section 

1111(b)(2)(H);

b. The exception for advanced mathematics assessments in 8th grade, under 

section 1111(b)(2)(C);

c. Inclusion of students with disabilities in academic assessments, including 

alternate assessments based on alternate academic achievement standards for 

students with the most significant cognitive disabilities, subject to a cap of 1.0% 

of students assessed for a subject;
d. Inclusion of English learners in academic assessments and English language 

proficiency assessments; and

e. Computer-adaptive assessments.

(2) Prepare proposed regulations related to the requirement under section 1118(b) of the 

ESEA that title I, part A funds be used to supplement, and not supplant, non-Federal funds, 

specifically:

a. Regarding the methodology a local educational agency uses to allocate State 

and local funds to each title I school to ensure compliance with the supplement 

not supplant requirement; and

b. The timeline for compliance.

These topics are tentative. Topics may be added or removed as the process continues. When 

the negotiating committee first meets, members may suggest additional issues that may be 

added to the agenda, subject to the full committee’s approval.

3. Who is eligible to be a negotiator, and how are negotiators selected?

Negotiators are nominated by the public, and selected by the Department. In the same Federal 

Register Notice that announces the Department’s intent to conduct negotiated rulemaking, the 

Department solicits nominations for negotiators to represent the constituencies that will be 

significantly affected by the topics proposed for negotiations. The Department identifies in the 

Notice the constituencies it believes will be significantly affected. 

As described in the February 4th Notice, the Department will include on the negotiating 

committee representatives from the following constituencies: Federal, State, and local education 

administrators; tribal leadership; parents and students, including historically underrepresented 

students; teachers; principals; other school leaders (including charter school leaders);

paraprofessionals; members of State and local boards of education; the civil rights community, 

including representatives of students with disabilities, English learners, and other historically 

underserved students; and the business community.

The Department selects negotiators for a committee from the list of nominees with the goal of 

providing adequate representation for the affected parties while keeping the size of the 

committee manageable. Section 1601(b)(3)(B) of the ESEA requires that negotiators be selected 

from among individuals or groups that provided advice and recommendations in response to the 

RFI published on December 22, 2015 (e.g., if a member of an organization provided a response 

to the RFI, then another member of that organization can be nominated and selected for the 

negotiating committee). By law, a Federal agency must limit membership on a negotiated 

rulemaking committee to 25 members unless the agency head determines that a greater number 

of members is necessary for the functioning of the committee, or to achieve balanced 

membership. Typically, the Department convenes committees of 12 to 15 negotiators, as well as 

alternates to ease attendance concerns for negotiations consisting of multiple sessions. Each 

committee includes at least one Department representative.

4. How may individuals not selected as negotiators participate in the negotiated rulemaking 

process?

Individuals who are not selected as negotiators but who will be affected by the regulations may 

still participate in the process in several ways. They can contact the individuals representing 

their constituency to express their views, and may be able to participate in informal working 

groups on issues between meetings. Of course, individuals who are not selected as negotiators 

can always submit comments in response to the published NPRM.
Additionally, members of the public may observe meetings of the negotiating committee.

Caucuses (i.e., meetings of smaller groups of negotiators) are open to the public at the discretion 

of the negotiating committee.

The committee protocols usually address how the negotiators may interact with the media.

5. How is the negotiated rulemaking process structured and what is the time commitment 

for a negotiator?

The negotiating committee will meet for two sessions of three days each (March 21-23 and April 

6-8, 2016), with an optional third session (April 18-April 19, 2016) at the discretion of the 

negotiating committee. The first order of business for a negotiating committee is to finalize the 

agenda and protocols, which are agreed upon by consensus of the committee. Once the agenda 

and protocols are finalized and agreed upon, the committee begins its negotiations of the issues 

on the agenda.

During the time between sessions, the Department drafts or amends the proposed regulatory 

language based on committee discussions and on any tentative agreements reached on the 

issues. The Department provides this draft regulatory language to the negotiators prior to the 

subsequent session. Subcommittees formed by the negotiators may meet during this time to 

work on specific issues. The subcommittees bring the results of their discussions to the full 

committee when it reconvenes. 

A nominator should confirm that a potential nominee can and will make the necessary time 

commitment to the process before nominating an individual to participate.

6. How is consensus defined for purposes of negotiated rulemaking?

Consensus generally means that there is no dissent by any member of the negotiating 

committee although the committee may decide on a different definition at the first meeting. 

Under this general definition, no member can be outvoted. The absence or silence of a member 

at the time the final consensus vote is taken is equivalent to not dissenting. All agreements 

reached during the negotiations are assumed to be tentative agreements until members of the 

committee formally vote on the proposed regulations language for a particular topic (e.g., 

supplement not supplant). If final consensus is achieved, committee members may not withdraw 

their consensus for that particular topic and the Department will use this consensus-based 

regulatory language in its NPRM. Only under very limited circumstances may the Department 

depart from this language.

7. What happens after the negotiations have concluded?

If consensus is achieved, the Department uses that regulatory language in its NPRM. If 

consensus is not achieved, the Department determines whether to proceed with regulations. If 

the Department decides to proceed with regulations, it may use regulatory language developed 

during the negotiations as the basis for its NPRM, or develop new regulatory language for all or 

a portion of its NPRM. If consensus is not reached, the Department must submit the proposed 

regulations, not less than 15 business days prior to issuing an NPRM in the Federal Register, to 

the Committee on Health, Education, Labor, and Pensions of the Senate, the Committee on 

Education and the Workforce in the House of Representatives, and other relevant congressional 

committees. During this period, Congress may provide comments on the proposed regulations, 

and the Department will include and seek to address these comments in the public rulemaking 

record for the NPRM.
In addition to the text of proposed regulations, the Department drafts the preamble language (the 

portion of the NPRM that explains the proposed regulatory text). If consensus was reached, the 

Department usually shares the preamble language with the negotiators who may review it for 

accuracy. Although the preamble language is not negotiated, the Department may agree during 

the negotiations to include in the preamble explanations of certain issues. If the committee did 

not reach consensus, the preamble language is not shared with the negotiators.

When the NPRM is published in the Federal Register, it contains a request for public comments 

and a deadline for submitting those comments. If consensus was reached, negotiators and, if 

applicable, their employing organizations may not comment negatively on the consensus-based 

regulatory language. The Department considers the comments received by the close of the 

comment period in developing final regulations. The final regulations published in the Federal 

Register contain the regulations with which affected parties must comply and the date by which 

they must do so. The preamble of the final regulations includes a summary of the comments 

received, the Department’s response to the comments, and an explanation of any changes 

made to the regulations that differ from the proposed regulations.