A Rare Proposal: NHTSA Announces Negotiated Rulemakings to Update Longstanding Safety Standards

The National Highway Traffic Safety Administration (NHTSA) recently announced two negotiated rulemakings to update federal safety standards for vehicle headlights and tires.  Negotiated rulemaking is a rarely used regulatory process that gives nongovernmental stakeholders a direct role in shaping regulations.  NHTSA appears to be turning to this approach to accelerate long-awaited updates to its safety standards.

Negotiated Rulemaking as a Regulatory Tool

Negotiated rulemaking is a process in which a federal agency convenes a committee of affected stakeholders to try to reach consensus on a proposed rule before it is published for public comment.

Negotiated federal rulemakings emerged in the 1980s, and Congress formalized the process with the Negotiated Rulemaking Act of 1990 (the “Act”).  Under the Act, an agency may establish a negotiated rulemaking committee to negotiate and develop a rule if the agency determines that doing so would be in the public interest.  That determination in turn considers a number of factors, including whether “there are a limited number of identifiable interests that will be significantly affected by the rule,” and “there is a reasonable likelihood that a committee can be convened with a balanced representation of persons who … can adequately represent” those interests.

Once established, the rulemaking committee “shall consider the matter proposed by the agency for consideration and shall attempt to reach a consensus concerning a proposed rule.”  If it does reach a consensus, the committee transmits to the agency a report with the proposed rule.  If it cannot reach a consensus, the committee may issue a report “specifying any areas in which the committee reached a consensus,” as well as any other “information, recommendations, or materials that the committee considers appropriate.”  Individual committee members may also “include as an addendum to the report additional information, recommendations, or materials.”

Importantly, the use of a negotiated rulemaking committee does not obviate the requirements of the Administrative Procedure Act.  A proposed rule that comes out of a negotiated rulemaking committee still must undergo the standard notice-and-comment process and is still subject to judicial review.

Though not a common process in the federal government, especially in the last quarter century, negotiated rulemaking has been occasionally employed by other federal agencies, including the Departments of Education, Energy, Health and Human Services, Agriculture, the Environmental Protection Agency (EPA), and the Occupational Safety and Health Administration (OSHA)—sometimes in response to statutory mandates specifically requiring it.

Negotiated rulemaking has several potential benefits: it gives affected stakeholders up-front involvement in the conception and drafting of the rule; it can help build consensus at the outset of the rulemaking process; it may encourage creative solutions through group interaction; and it can potentially do more to address and resolve objections to a rulemaking early in the process.  But the evidence on whether the promises of negotiated rulemaking are borne out in practice is mixed: one study found that the EPA negotiated rulemakings took at least as long as conventional rulemakings, despite the extensive up-front efforts, and that negotiated rules were not less likely to be challenged in court.  Other scholarship has challenged these conclusions.

The NHTSA Proposals

In a speech in January 2026, NHTSA’s Administrator previewed that the agency was considering using negotiated rulemaking.

On October 8, NHTSA released a notice of intent to establish a Negotiated Rulemaking Advisory Committee for Vehicle Lighting.  NHTSA’s lighting standards, set forth in Federal Motor Vehicle Safety Standard (FMVSS) No. 108, have not kept pace with recent advances in automotive lighting technology.  Headlight glare is a common complaint, as modern vehicles increasingly employ LED and xenon headlights that are brighter than the halogen lights used in older models.  Glare has been cited as a factor in at least some crashes, although the magnitude of its effects is less evident.

On October 27, NHTSA followed up with a notice of intent to establish a Negotiated Rulemaking Advisory Committee for Tire Safety.  Several existing FMVSS set tire safety standards.  NHTSA explained that the agency has been considering updates to those tire standards since 2018, and that this would be the “first major overhaul in more than 20 years.”  In particular, the rulemaking would consider updating testing methods and setting rules for new designs such as airless tires.

Both negotiated rulemaking announcements proposed similar committee memberships:

• Four representatives from equipment manufacturers or retailers;
• Two representatives from national motor vehicle manufacturers;
• Four representatives from national motor vehicle or motor vehicle equipment manufacturing associations;
• Two representatives from national motor vehicle or motor vehicle equipment safety organizations;
• Three representatives from educational or research institutions, or testing organizations within the United States; and
• Three representatives from national professional engineering associations or standard-setting associations.

The two announcements also provided for similar procedures.  Committee members would be nominated and appointed in accordance with the Federal Advisory Committee Act (FACA).  The rulemaking committee would meet publicly approximately four times per year.  The committee would be tasked with “developing a detailed term sheet consisting of consensus recommendations to inform the agency’s rulemaking proposal.”  NHTSA then would publish a notice of proposed rulemaking “promptly after the committee submits its consensus recommendations, the Secretary approves them either as submitted or in modified form, and after appropriate consultation with the Office of Information and Regulatory Affairs.”  Each committee’s charter would expire after two years, unless the Secretary of Transportation renews it.

Takeaways:

• As the saying goes, if you’re not at the table, you’re on the menu. Parties interested in the outcome of these proposals should make every effort to have a voice in the negotiated rulemaking process, either directly or through trade associations or other representatives.  Stakeholders not represented on the committee would still have an opportunity to comment on the proposed rules, although committee members would likely have considerably greater influence over their development.
• These negotiated rulemakings amount to something of an experiment for an agency that has not deployed the method in decades. In some ways, the subject matter of the proposed actions may be well suited to negotiated rulemaking: the lighting and tire standards are highly technical rules that would benefit from outside expertise and the number of regulated parties—primarily manufacturers of vehicles and equipment—is limited.

The timeline for these rulemakings is unclear.  Both proposals indicated that NHTSA expects the committee to “finalize its deliberations and provide its detailed term sheet within the active period of its charter”—namely, two years, though in principle the committees could complete their work more quickly.  But following the completion of the term sheet, the agency would then need to draft and publish the actual notice of proposed rulemaking, followed by a public comment period and then completion of the final rule.  And there is normally substantial lead time between the publication of an updated FMVSS and the actual compliance date for manufacturers.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.