June 3, 2011 – Federal Register Recent Federal Regulation Documents

This notice provides the adjusted Federal Medical Assistance Percentage (FMAP) rates for the second and third quarters of Fiscal Year 2011 (FY11) as required under Section 5001 of the American Recovery and Reinvestment Act of 2009 (ARRA). Section 5001 of the ARRA provides for temporary increases in the FMAP rates to provide fiscal relief to states and to protect and maintain state Medicaid and certain other assistance programs in a period of economic downturn. The increased FMAP rates apply during a recession adjustment period that was originally defined in ARRA as the period beginning October 1, 2008 and ending December 31, 2010. Public Law 111-226 amended ARRA to extend the recession adjustment period to June 30, 2011 and to extend the hold harmless provision that prevents a state's FMAP rate from decreasing due to a lower unemployment rate from the calendar quarter ending before July 1, 2010 to the calendar quarter ending before January 1, 2011. Public Law 111-226 also provided for a phase-down of the general FMAP increase in the last two quarters of the extended recession adjustment period, and changed the look back period for calculating the unemployment adjustment for those quarters.

The U.S. Small Business Administration (SBA) is proposing the retraction of a class waiver from the non-manufacturer rule for PSC 9130, Liquid Propellants, Petroleum Base, NAICS code 324110.

Notice is hereby given that the Bureau of Land Management (BLM) will hold two public meetings in connection with a proposed withdrawal published April 21, 2011, in the Federal Register [77 FR 22414]. The first meeting will be held Wednesday, July 6, 2011, from 6 p.m. to 8 p.m. at the BLM Southern Nevada District Office, 4701 North Torrey Pines Drive, Las Vegas, Nevada 89130. A second meeting will be held Thursday, July 7, 2011, from 6 p.m. to 8 p.m. at The Ambassador Hotel Victorville, 15494 Palmdale Road, Victorville, California 92392. The public will have an opportunity to provide oral and written comments at these meetings.

In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the Bureau of Land Management (BLM) Wyoming Resource Advisory Council (RAC) will meet as indicated below.

The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

The FAA has decided that it is in the best interests of the United States Government and the general public to modify Section 9 of the June 1, 2006 MOA for Industry Access to Aircraft Situation Display (ASDI) and National Airspace System Status Information (NASSI) data, between the FAA and Direct Subscribers to ASDI and NASSI data-feeds. In recognition of the fact that the Privacy Act does not protect general aviation operators and on-demand air charter aircraft operating under 14 CFR part 135 (``on-demand aircraft'') from public knowledge of their flight information, the FAA will require Direct Subscribers (as a condition of signing the MOA) and Indirect Subscribers (as a condition of signing agreements with Direct Subscribers) to block from ASDI and NASSI data-feeds available to the public any general aviation aircraft or on-demand aircraft the registration number for which a Certified Security Concern has been provided to the FAA by electronic mail at CertifiedSecurityConcern@faa.gov or by regular mail at FAA Certified Security Concern, ATO System Operations Services; Room 1002, 800 Independence Avenue, SW., Washington, DC 20591. The FAA will no longer accommodate any ASDI- or NASSI-related security or privacy requests, except such Certified Security Concern.

This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request that the Office of Management and Budget (OMB) approve the proposed information collection project: ``Using Nursing Home Antibiograms to Improve Antibiotic Prescribing and Delivery.'' In accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521, AHRQ invites the public to comment on this proposed information collection. This proposed information collection was previously published in the Federal Register on March 25th, 2011 and allowed 60 days for public comment. No comments were received. The purpose of this notice is to allow an additional 30 days for public comment.

In March 2011, the GSA requested public input on how it can best implement the goals of Executive Order (E.O.) 13563, ``Improving Regulation and Regulatory Review.'' E.O. 13563 was signed by President Obama on January 18, 2011, and calls for an improvement in the creation and review of regulations and better opportunities for the public to be part of this process. Through comments received as well as internal input, GSA has created a retrospective review plan that is now available for comment. The plan is located at https://www.gsa.gov/open.

In Graves v. Department of Veterans Affairs, 114 M.S.P.R. 245 (2010), and Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209 (2010), which involved appeals filed under the Veterans Employment Opportunities Act of 1998 (VEOA), the Board held that the agency's use of veterans' preference status as a ``tie-breaker'' in making selections for excepted service ``hybrid'' positions under 38 U.S.C. 7401(3), which includes the Medical Records Technician (MRT) positions at issue in these cases, was inadequate, and that the agency must comply with the competitive service veterans' preference requirements set forth in title 5 of the United States Code. The Board reasoned that although title 5 provisions such as those relating to veterans' preference rights do not apply to appointments listed under 38 U.S.C. 7401(1) (physicians, dentists, etc.) because those appointments are made ``without regard to civil-service requirements,'' ``hybrid'' employees retain many title 5 rights, including the adverse action and reduction in force (RIF) rights mentioned in 38 U.S.C. 7403(f)(3). The Board noted that section 7403(f)(2) provides that ``[i]n using such authority to appoint individuals to such positions, the Secretary shall apply the principles of preference for the hiring of veterans and other persons established in subchapter I of chapter 33 of title 5,'' and that section 7403(f)(3) provides that ``the applicability of the principles of preference referred to in paragraph (2) * * * shall be resolved under the provisions of title 5 as though such individuals had been appointed under that title.'' Based on its reading of these two provisions, the Board concluded that title 5 competitive service veterans' preference requirements apply to appointments made to 38 U.S.C. 7401(3) positions such as MRTs. The Board also suggested in Graves, 114 M.S.P.R. 209, ]] 12-15, that the agency violated veterans' preference requirements set forth in the Office of Personnel Management's Delegated Examining Operations Handbook and VetGuide, and that corrective action was therefore warranted. The Graves cases are now before the Board on petition for review after remand. The agency has raised several arguments regarding the above findings. The agency asserts that 38 U.S.C. 7403(f)(3) does not address the appointment of individuals because its plain language refers multiple times to individuals who have already been appointed. Thus, the agency contends that the Board's decisions do not give effect to the word ``appointed'' in section 7403(f)(3), and under the statutory construction maxim noscitur a sociis (a word is defined by the company it keeps), the reference in section 7403(f)(3) to ``matters relating to * * * the applicability of the principles of preference referred to in paragraph (2)'' should mean matters relating to veterans' preference principles that apply to individuals who have already been appointed, like ``matters relating to'' adverse actions, RIFs, part-time employees, disciplinary actions, and grievance procedures. The agency also contends that the legislative history for 5 U.S.C. 7403(f)(2)-(3) indicates that a Senate committee specifically intended for the agency to apply a tie-breaker principle to ``hybrid'' applicants, and that Congress did not intend to require the agency to apply title 5 rights to applicants for employment. The agency further asserts that in 1984 it provided notice in the Federal Register that it would be implementing the ``principles of preference'' requirement in the statute through an internal circular that called for the use of the ``tie-breaker'' principle that has been in effect from 1984 through the Board's decisions in Graves. We also note that while section 7403(f)(2) calls for applying ``the principles of preference for the hiring of veterans and other persons established in subchapter I of chapter 33 of title 5,'' such application appears to relate to the use of ``such authority,'' i.e., the ``authority'' mentioned in 38 U.S.C. 7403(a), which in turn calls for appointments to be made ``without regard to civil-service requirements.'' See Scarnati v. Department of Veterans Affairs, 344 F.3d 1246, 1248 (Fed. Cir. 2003) (under 38 U.S.C. 7403(a), title 5 provisions, including those regarding veterans' preference rights, do not apply to appointments made ``without regard to civil service requirements''). Further, deference is generally given to an agency's consistent, long-standing regulatory interpretation of an ambiguous statute as long as it is reasonable, Rosete v. Office of Personnel Management, 48 F.3d 514, 518-19 (Fed. Cir. 1995), and Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it adopts a new law incorporating sections of a prior law without change, Fitzgerald v. Department of Defense, 80 M.S.P.R. 1, 14 (1998). The Graves cases thus present the following legal issues: (1) Does 38 U.S.C. 7403(f)(2) require the agency to apply title 5 veterans' preference provisions, including but not limited to 5 U.S.C. 3305(b) and 5 CFR 332.311(a), which the Board found the agency violated in not accepting the appellant's late-filed application, see Graves, 114 M.S.P.R. 245, ]] 12-15, in filling ``hybrid'' positions under 38 U.S.C. 7401(3); (2) does the legislative history for the applicable statutory provisions offer guidance regarding how those provisions should be interpreted; (3) are the Delegated Examining Operations Handbook and VetGuide ``statute[s] or regulation[s]'' relating to veterans' preference within the meaning of 5 U.S.C. 3330a(a)(1)(A), such that a violation of a provision in those documents would constitute a violation under VEOA; (4) does the law of the case doctrine apply to the Board's rulings in these cases; and (5) if so, is there a basis for finding that the ``clearly erroneous'' exception to that doctrine has been met? In addition, we note that the resolution of the above issues may affect whether the Board has jurisdiction over VEOA appeals filed by ``hybrid'' applicants. Interested parties may submit amicus briefs or other comments on these issues no later than June 30, 2011. Amicus briefs must be filed with the Clerk of the Board. Briefs shall not exceed 30 pages in length. The text shall be double-spaced, except for quotations and footnotes, and the briefs shall be on 8\1/2\ by 11 inch paper with one inch margins on all four sides.

The Office of Personnel Management (OPM) is providing notice of adjusted present value factors applicable to retirees under the Civil Service Retirement System (CSRS) who elect to provide survivor annuity benefits to a spouse based on post-retirement marriage and to retiring employees who elect the alternative form of annuity, owe certain redeposits based on refunds of contributions for service before March 1, 1991, or elect to credit certain service with nonappropriated fund instrumentalities. This notice is necessary to conform the present value factors to changes in the economic assumptions adopted by the Board of Actuaries of the Civil Service Retirement System.

EPA issued a notice in the Federal Register of April 15, 2011, concerning certain new chemicals, receipt and status information, premanufacture notices. This document is being issued to correct typographical errors.