Regulations.gov glitch prevents comments from reaching agencies

An outage at Regulations.gov, the federal Web site that collects feedback from citizens on proposed rules, prevented more than 100 public comments from reaching more than 10 agencies. But the service disruption, which happened in July, only came to light on Wednesday after the Centers for Medicare and Medicaid Services published a Federal Register notice asking respondents to resubmit their comments on proposed payment policies.

Long-criticized for its cumbersome navigation and obtuse wording, Regulations.gov underwent an aesthetic redesign this summer to the delight of many users. But the malfunctions that surfaced a month after they occurred highlight a failure to respond appropriately and alert the public to technical problems, open government activists said.

"A minor software problem resulted in the nontransmittal of some public comments from July 26, 2009, through July 30, 2009," stated an Aug. 26 request for resubmission of comments from the Centers for Medicare and Medicaid Services. The comments involved two proposed rules -- one to change Medicare payment policies under the physician fee schedule, and the other affecting hospital outpatient and ambulatory surgical center payment systems and rates. The deadline for comments on the two measures has been extended to Aug. 31, according to the announcement.

The Environmental Protection Agency, which runs Regulations.gov, is missing four comments on two items, said Skip Anderson, a spokesman for the department. One was a proposal to change the lexicon for limits on crop pesticides. The other was a notice about a petition for EPA to ban the manufacture of lead wheel-balancing weights.

A technical support contractor on July 30 detected and corrected a software glitch that blended comments whenever two were submitted simultaneously, according to Anderson. On Aug. 4, Regulations.gov discovered and fixed a second defect that affected only one agency's comment form. The problems affected nine departments and two independent agencies, including parts of EPA, the departments of Agriculture, Commerce, Defense, Education, Health and Human Services, Homeland Security, Interior, Transportation, and Treasury, as well as the Office of Management and Budget and the U.S. Trade Representative.

Following the mishaps, Regulations.gov brought in an information technology forensic team to recover information and identify the underlying problems, instituted quality control measures and modified software testing processes. Regulations.gov also established a review board to assess software coding.

Regulations.gov "notified agencies of the affected comments and the regulations and nonregulatory actions on which they were submitted," Anderson said. "It's up to the individual agencies on how they contact the impacted submitter."

Regulations.gov officials would not provide the names of the specific rule-making actions affected outside EPA, saying they cannot speak for other departments.

Transparency advocates said site officials should have told the public about the malfunctions when they were discovered.

"They weren't as forthcoming with acknowledging the problem as they could have been," said Rick Melberth, the director of regulatory policy for OMB Watch, a government accountability group. "If [CMS officials] are just now putting a notice in the Federal Register about this, most people are out of town." Melberth was part of an American Bar Association task force that released a 2008 report recommending an overhaul of Regulations.gov and e-rulemaking.

The people who entered comments on Regulations.gov might not read the Federal Register every day, added Matt Madia, an OMB Watch regulatory policy analyst. Melberth and Madia were unaware of the July service interruptions until contacted by Nextgov on Aug. 26.

Melberth noted that the proactive measures Regulations.gov has since instituted after the slip-up seem reasonable and responsive.

Jerry Brito, a senior research fellow who specializes in government transparency at George Mason University's Mercatus Center, said he understands why Regulations.gov would look to the agencies to inform the public about the problem. People were trying to communicate with the agencies, not the platform, he said. But the platform is also responsible for helping its users, Brito added.

"If you have users and you care about them . . . [you] see it as a responsibility to let them know that something happened," he said. "They had a software glitch that affected their users. At the very least they had a responsibility to alert their users that they had a glitch."

He suggested the site add a status bar, such as those featured on commercial social networking sites, to flag system changes. Brito operates an unofficial e-rulemaking site, OpenRegs.com, which helps stakeholders traverse the complicated regulatory process.

"I don't think it's for lack of will" that the word did not get out to citizens, Brito added. Regulations.gov maintained a blog to interact with the public during the redesign and could always bring it back to communicate more effectively with users, Brito noted.

OpenRegs.com has a blog dubbed "Open for Comment." "If anything were to go wrong, that's where I would put it," Brito said.

"EPA, as managing partner of Regulations.gov, takes its responsibilities very seriously," Anderson said. "While this impacted fewer than 1 percent of the message volume for this period of time, we welcome feedback on the design and functionality of regulations.gov, and are committed to continually improving the site to meet public needs."