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ESSA: Negotiated Rulemaking

By Colleen Brooks, Title III EL Specialist, ESEA Programs Office
Thursday, April 7, 2016 - 3:32pm

The negotiated rulemaking process for the Every Student Succeeds Act (ESSA) officially began the week of March 21st when the Negotiating Committee met for the first time in Washington, D.C.  The negotiated rulemaking process enables the Department of Education (ED) to develop proposed regulations to implement a substantive policy or requirement, publish the proposed regulations for public comment, and based upon the comments, issue final regulations.  ED prepared for this process by accepting stakeholder comments through regional meetings held in January 2016, as well as soliciting written submissions of advice and recommendations.[1]  Based upon requirements within ESSA[2] and stakeholder input, the Negotiating Committee will address regulations in key areas of ESSA[3], including:

  • Title I, Part A: Assessments
  • Title I, Part A: Supplement Not Supplant requirements

Once the Negotiating Committee members – nominated by the public and selected by ED – reach consensus on the regulations, ED will issue the proposed regulations for public comment in the Federal Register.  However, if the Negotiating Committee is unable to reach consensus, ED will determine whether to proceed, and if so, the proposed regulations will be submitted to relevant congressional committees for comment and included in the Federal Register for public comment.[4]  ED will consider comments regarding proposed regulations, and then publish final regulations in the Federal Register, including an explanation of any changes made that differ from the proposed regulations.

The Negotiating Committee convened for the first session during March 21-23, 2016, and will meet for the second session during April 6-8, 2016.  The committee has the option to meet for a third session during April 18-19, 2016.  After the final session, the proposed regulations will be available for public comment, likely through June 2016.  ED will then review the comments and draft final regulations for publication, with final publication expected in October 2016.

In addition to the regulations created through the negotiated rulemaking process, ED has also indicated it will soon begin the regulatory process surrounding the following areas of ESSA[5]:

  • State Accountability Systems and Reporting
  • Submission of State Plans
  • Title I, Part B: Innovative Assessment Demonstration Authority

To review the session materials and updates regarding the negotiated rulemaking process, please visit:


[1] U.S. Department of Education, Rulemaking under ESEA, as amended by ESSA: An Overview (February 17, 2016)

[2] Every Student Succeeds Act, § 1601(b)(3)(A)

[3] U.S. Department of Education, Negotiated Rulemaking Committee; Negotiator Nominations and Schedule of Committee Meetings, 81 Fed. Reg. 5969-70 (February 4, 2016)

[4] U.S. Department of Education, The Negotiated Rulemaking Process for the Every Student Succeeds Act – Frequently Asked Questions (February 3, 2016)

[5] U.S. Department of Education, ESSA Update (April 1, 2016)