It is Kelly who mistakes the record. I will highlight three of his errors. First, Kelly claims that negotiated rulemaking saves time because, in his estimation, EPA has completed the average negotiated rule in fewer calendar days than other rules. Even if one accepted Kelly's rosy numbers, they fail to address the amount of staff time and resources it takes to conduct a negotiated rulemaking. Here the evidence is undisputed.
Negotiated rules demand consistently more time, effort and resources.
Even the study that Kelly approvingly cites found that negotiated rulemaking consumed nearly twice the organizational resources as did traditional rulemaking. The fact is that EPA did negotiate the farm worker protection rule even though it failed to achieve full consensus. Including the rule in my study followed both appropriate standards for empirical research and EPA's own classification of the rule. In at least eight separate Federal Register notices published from the late 1980s through the 1990s, EPA explicitly classified the farm worker protection rule as a negotiated rulemaking. Only in the face of results that he finds less than complimentar does Kelly, a longtime proponent of negotiated rulemaking who oversees regulatory management at EPA, seek to reclassify the farm worker protection rule.