When our agency is considering rules, we are required by the Administrative Procedure Act to give the public notice and opportunity to comment. If we change fundamentally the ideas we put out for comment, due process requires us to re-propose the rule so the public can comment on these major changes.
With respect to the public database vote last week, the majority did not take this approach. Instead the majority simply dismissed due process with the hollow statement, in the preamble to the rule, that “due process is a flexible concept.” Brushed aside were facts: the definitions of who can submit complaints disregarded the public comments we had received and fundamentally changed a core definition; the posting of materially inaccurate information was fundamentally changed from what had been proposed. No comment was sought on these major changes.
When it comes to due process, that’s not flexibility. That’s inexcusability. It’s regulation by surprise.