An administrative process used by the Executive Branch and its federal agencies during which a proposed rule is debated and developed by relevant interest groups and agency representatives.
Best Thing Since Sliced Bread
The concept of a negotiated rulemaking, colloquially known as “neg reg,” was hatched in the 1970s when John Dunlop, Secretary of Labor from 1975-76, proposed that the people, parties, and industries that would be most affected should be directly involved in the creation of new federal regulations. Congress formally codified the process into statute
with the Negotiated Rulemaking Act in 1990.
Devil in the Details
To develop a regulation using neg reg, the agency selects a 12- to 25-member committee that typically meets once a month for several months. The process involves negotiation among industry representatives and public and private interest groups, ideally
allowing the negotiators to resolve concerns and reach consensus before the agency begins its standard notice and comment rulemaking procedure.
Neg reg has been used across the Executive Branch, including by the Departments of Agriculture, Education, and Transportation, and the National Parks Service, the Environmental Protection Agency, the Nuclear Regulatory Commission, and the Occupational
Safety and Health Administration, among others. The Bush Administration used neg reg to set minimum standards for state-issued driver’s licenses, while the Obama Administration used it to implement new regulations on mandatory pork price reporting.
That’s a Wrap
Prior to the COVID-19 pandemic, negotiated rulemaking meetings would nearly always occur in person. Since 2020, the process transitioned and remains in a virtual format, largely to the detriment of a process built on face-to-face negotiations and interactions.
In a 2006 report evaluating negotiated rulemaking as an agency tool, the Congressional Research Service found that one
of the most beneficial effects was the cooperative relationships created between the agency and relevant public stakeholders. Emphasizing the importance of in-person collaboration, in the words of Jillian Klein, two-time non-federal negotiator for
the U.S. Department of Education’s neg reg process: “Consensus is reached in the hallways, not at the negotiating table.”
The U.S. Department of Education is generally required to use neg reg to promulgate regulations related to federal Title IV financial aid programs authorized by the Higher Education Act. The Biden Administration is currently conducting neg regs related
to student loan forgiveness, program integrity and institutional quality, and federal TRIO programs. Transcripts and recordings, background materials, and draft regulatory language relevant to these ongoing neg regs are available here.