2422 Federal Register / Vol. 76, No. 9 / Thursday, January 13, 2011 / Notices 

III. Current Actions 

The Department of Labor seeks 

approval for the extension of this 

currently approved information 

collection in order to determine if a 

rehabilitation plan should be approved 

and payment of any related expenses 

authorized. 

Type of Review: Extension. 

Agency: Office of Workers’ 

Compensation Programs. 

Title: Rehabilitation Plan and Award. 

OMB Number: 1240–0045. 

Agency Number: OWCP–16. 

Affected Public: Individual or 

households; Businesses or other forprofit. 

Total Respondents: 5,500. 

Total Responses: 5,500. 

Time per Response: 30 minutes. 

Estimated Total Burden Hours: 2,750. 

Total Burden Cost (capital/startup): 

$0. 

Total Burden Cost (operating/ 

maintenance): $2,585. 

Comments submitted in response to 

this notice will be summarized and/or 

included in the request for Office of 

Management and Budget approval of the 

information collection request; they will 

also become a matter of public record. 

Dated: January 7, 2011. 

Vincent Alvarez, 

Agency Clearance Officer, Office of Workers’ 

Compensation Programs, U.S. Department of 

Labor. 

[FR Doc. 2011–631 Filed 1–12–11; 8:45 am] 

BILLING CODE 4510–CR–P 

MERIT SYSTEMS PROTECTION 

BOARD 

Merit Systems Protection Board 

(MSPB) Provides Notice of Opportunity 

To File Amicus Briefs in the Matter of 

Jeffrey Denton v. Department of 

Agriculture, MSPB Docket Number 

DC–3330–09–0696–I–1 

AGENCY: Merit Systems Protection 

Board. 

ACTION: Notice. 

SUMMARY: Pursuant to 5 U.S.C. 

1204(e)(1)(A), the MSPB has requested 

an advisory opinion from the Director of 

the Office of Personnel Management 

(OPM) concerning an appeal currently 

pending before the Board, Jeffrey Denton 

v. Department of Agriculture, MSPB 

Docket Number DC–3330–09–0696–I–1. 

The MSPB is also providing an 

opportunity to other interested parties 

to file amicus briefs concerning the 

appeal. The legal questions set forth in 

the Denton appeal, which were posed in 

the request for an advisory opinion to 

the Director of OPM, are set forth below. 

The agency employs the appellant in 

the position of Animal Health Program 

Assistant, GS–5. The agency announced 

the position of Veterinary Program 

Assistant (‘‘VPA’’), GS–0303–5/6/7, 

under both case exam (announcement 

24VS–2009–0130) and merit promotion 

(announcement 6VS–2009–0132) 

procedures. The appellant applied 

under both vacancy announcements and 

submitted his DD–214, showing his 

eligibility for veterans’ preference. The 

appellant made the certificate at the GS– 

7 level on the case exam announcement. 

The maximum score an applicant could 

receive was 100, except when veterans’ 

preference points were added. The 

appellant had 10 points added to his 

score of 99.68 to reflect his veterans’ 

preference, and he was thus listed on 

the top of the certificate of 6 candidates 

with a score of 109.68 as ‘‘CPS,’’ which 

is a 30% or more disabled veteran. The 

appellant also made the GS–6 level on 

the merit promotion certificate, and he 

was referred to the selecting official. 

The agency made no selection from 

either the case exam or merit promotion 

certificate. Rather, the agency cancelled 

both vacancy announcements and filled 

the VPA position through an alternative 

hiring authority, the Student Career 

Experience Program (SCEP). 

The appellant filed a complaint with 

the Department of Labor (DOL) alleging 

that his rights to veterans’ preference as 

a 30% disabled veteran were violated 

because the agency filled the position 

through SCEP instead of filling the 

position from either the merit 

promotion or case exam certificate. The 

DOL informed the appellant that it had 

completed its investigation into the 

appellant’s claim and had determined 

that the evidence did not support a 

finding that the appellant’s veterans’ 

preference rights were violated. The 

DOL provided the appellant with notice 

of appeal rights to the MSPB. 

After exhausting his remedy with 

DOL, the appellant timely filed an 

appeal with the MSPB pursuant to the 

Veterans Employment Opportunities 

Act (VEOA) alleging that his veterans’ 

preference rights were violated when 

the agency used SCEP to fill the VPA 

position and did not select him for that 

position. The appellant essentially 

argued that the agency had engaged in 

a sham. The assigned administrative 

judge determined that the MSPB has 

VEOA jurisdiction over the appeal, but 

issued an initial decision on the merits 

finding that the appellant did not 

establish a VEOA violation. 

The appellant filed a petition for 

review with the MSPB challenging the 

initial decision of the administrative 

judge. This appeal raises significant 

issues regarding whether the agency’s 

use of SCEP improperly circumvented 

the competitive examination process, 

allowing the agency to avoid its 

obligations regarding veterans’ 

preference and a veteran’s right to 

compete for positions. The material 

issues are similar in many respects to 

the issues raised regarding the Federal 

Career Intern Program (FCIP) in the 

MSPB’s recent decisions in the appeals 

of Dean v. Office of Personnel 

Management, AT–3330–10–0534–I–1 

and Evans v. Department of Veterans 

Affairs, AT–3330–09–0953–I–1, 2010 

MSPB 213 (November 2, 2010). The 

Board determined that appellants Dean 

and Evans had established the FCIP 

program as conducted violated their 

veterans’ preference rights because FCIP 

was inconsistent with 5 U.S.C. 3302(1) 

by: (1) Allowing agencies to invoke an 

appointing authority reserved for 

positions for which it is not practicable 

to hold a competitive examination after 

holding a competitive examination 

yielding highly-qualified preferenceeligible candidates; and (2) not requiring 

agencies to justify placement of 

positions in the excepted service. 

The SCEP program is covered by 

OPM’s regulations at 5 CFR 213.3202(b) 

and is authorized by Executive Order 

12015 (as amended by Executive Order 

13024). The FCIP positions are also 

Schedule B, excepted-service positions 

but are addressed at 5 CFR 213.3202(o) 

and Executive Order 13162. The SCEP 

allows agencies to hire students 

currently enrolled in specified 

educational programs in Schedule B, 

excepted-service positions, and 

noncompetitively convert them to term, 

career or career-conditional 

appointments upon satisfactory 

completion of the educational program 

and accumulation of 640 hours of 

agency work experience. 

Questions to be resolved: 

1. Does the SCEP program violate 

veterans’ preference rights because it 

allows agencies to invoke an appointing 

authority reserved for positions for 

which it is not practicable to hold a 

competitive examination after holding a 

competitive examination yielding 

highly-qualified preference-eligible 

candidates? 

2. Does the SCEP program violate 

veterans’ preference rights because it 

does not require agencies to justify 

placement of positions in Schedule B of 

the excepted service? 

3. What impact, if any, does the 

Executive Order dated December 27, 

2010, entitled ‘‘Recruiting and Hiring 

Students and Recent Graduates,’’ have 

on the appellant’s appeal or any other 

appeals based on the SCEP hiring 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 76, No. 9 / Thursday, January 13, 2011 / Notices 2423 

occurring before Executive Order 12015 

is revoked? 

DATES: All briefs submitted in response 

to this notice shall be filed with the 

Clerk of the Board on or before February 

7, 2011. 

ADDRESSES: All briefs shall be captioned 

‘‘Jeffrey Denton v. Department of 

Agriculture,’’ and entitled ‘‘Amicus 

Brief.’’ Only one copy of the brief need 

be submitted. Briefs must be filed with 

the Office of the Clerk of the Board, 

Merit Systems Protection Board, 1615 M 

Street, NW., Washington, DC 20419. 

FOR FURTHER INFORMATION CONTACT: 

Matthew Shannon, Merit Systems 

Protection Board, Office of the Clerk of 

the Board, 1615 M Street, NW., 

Washington, DC 20419; (202) 653–7200; 

mspb@mspb.gov. 

William D. Spencer, 

Clerk of the Board. 

[FR Doc. 2011–633 Filed 1–12–11; 8:45 am] 

BILLING CODE 7400–01–P 

MILLENNIUM CHALLENGE 

CORPORATION 

[MCC FR 11–01] 

Report on the Selection of Eligible 

Countries for Fiscal Year 2011 

AGENCY: Millennium Challenge 

Corporation. 

ACTION: Notice. 

SUMMARY: This report is provided in 

accordance with section 608(d)(1) of the 

Millennium Challenge Act of 2003, 

Public Law 108–199, Division D, (the 

‘‘Act’’), 22 U.S.C. 7708(d)(1). 

Report on the Selection of Eligible 

Countries for Fiscal Year 2011 

Summary 

This report is provided in accordance 

with section 608(d)(1) of the 

Millennium Challenge Act of 2003, 

Public Law 108–199, Division D, (the 

‘‘Act’’) (22 U.S.C. 7707(d)(1)). 

The Act authorizes the provision of 

Millennium Challenge Account (‘‘MCA’’) 

assistance under section 605 of the Act 

(22 U.S.C. 7704) to countries that enter 

into compacts with the United States to 

support policies and programs that 

advance the progress of such countries 

in achieving lasting economic growth 

and poverty reduction, and are in 

furtherance of the Act. The Act requires 

the Millennium Challenge Corporation 

(‘‘MCC’’) to determine the countries that 

will be eligible to receive MCA 

assistance during the fiscal year, based 

on their demonstrated commitment to 

just and democratic governance, 

economic freedom, and investing in 

their people, as well as on the 

opportunity to reduce poverty and 

generate economic growth in the 

country. The Act also requires the 

submission of reports to appropriate 

congressional committees and the 

publication of notices in the Federal 

Register that identify, among other 

things: 

1. The countries that are ‘‘candidate 

countries’’ for MCA assistance during 

fiscal year 2011 (‘‘FY11’’) based on their 

per-capita income levels and their 

eligibility to receive assistance under 

U.S. law, and countries that would be 

candidate countries but for specified 

legal prohibitions on assistance (section 

608(a) of the Act (22 U.S.C. 7707(a))); 

2. The criteria and methodology that 

the Board of Directors of MCC (the 

‘‘Board’’) will use to measure and 

evaluate the policy performance of the 

‘‘candidate countries’’ consistent with 

the requirements of section 607 of the 

Act in order to select ‘‘MCA eligible 

countries’’ from among the ‘‘candidate 

countries’’ (section 608(b) of the Act (22 

U.S.C. 7707(b))); and 

3. The list of countries determined by 

the Board to be ‘‘MCA eligible countries’’ 

for FY11, with justification for 

eligibility determination and selection 

for compact negotiation, including with 

which of the MCA eligible countries the 

Board will seek to enter into MCA 

compacts (section 608(d) of the Act (22 

U.S.C. 7707(d))). 

This is the third of the abovedescribed reports by MCC for FY11. It 

identifies countries determined by the 

Board to be eligible under section 607 

of the Act (22 U.S.C. 7706) for FY11 and 

countries with which the Board will 

seek to enter into compacts under 

section 609 of the Act (22 U.S.C. 7708), 

as well as the justification for such 

decisions. 

Eligible Countries 

The Board met on January 5, 2011, to 

select countries that will be eligible for 

MCA compact assistance under section 

607 of the Act (22 U.S.C. 7706) for 

FY11. The Board selected the following 

countries as eligible for such assistance 

for FY11: Cape Verde, Georgia, Ghana, 

Indonesia, Malawi, and Zambia. 

In accordance with the Act and with 

the ‘‘Report on the Criteria and 

Methodology for Determining the 

Eligibility of Candidate Countries for 

Millennium Challenge Account 

Assistance in Fiscal Year 2011’’ formally 

submitted to the Congress on September 

30, 2010, selection was based primarily 

on a country’s overall performance in 

three broad policy categories: Ruling 

Justly, Encouraging Economic Freedom, 

and Investing in People. As a basis for 

determining which countries would be 

eligible for MCA compact assistance, the 

Board relied, to the maximum extent 

possible, upon 17 transparent and 

independent indicators to assess 

countries’ policy performance and 

demonstrated commitment in these 

three broad policy areas. The Board 

compared countries’ performance on the 

indicators relative to their income-level 

peers, evaluating them in comparison to 

either the group of low income 

countries (‘‘LIC’’) or the group of lowermiddle income countries (‘‘LMIC’’). In 

particular, the Board considered if a 

country performed above the median in 

relation to its peers on at least three 

indicators in each of the Ruling Justly, 

Investing in People, and Encouraging 

Economic Freedom policy categories, 

and above the median on the Control of 

Corruption indicator. Scorecards 

reflecting each country’s performance 

on the indicators are available on MCC’s 

Web site at http://www.mcc.gov. 

The Board also considered whether 

any adjustments should be made for 

data gaps, data lags, or recent events 

since the indicators were published, as 

well as strengths or weaknesses in 

particular indicators. Where 

appropriate, the Board took into account 

additional quantitative and qualitative 

information, such as evidence of a 

country’s commitment to fighting 

corruption and promoting democratic 

governance, and its effective protection 

of human rights. For countries that 

graduated from the LIC group to the 

LMIC group within the last two years, 

due to an increase in their per capita 

gross national income, the Board also 

took into account supplemental 

information that showed how the new 

LMIC countries would have performed 

in comparison to the LIC group. This is 

consistent with a 2009 congressional 

decision to allow MCC to fund as LICs 

a set of countries that had recently 

transitioned to the LMIC category. 

Finally, the Board considered the 

opportunity to reduce poverty and 

promote economic growth in a country, 

in light of the overall context of the 

information available, as well as the 

availability of appropriated funds. 

This was the second year the Board 

considered the eligibility of countries 

for subsequent compacts, as permitted 

under section 609(k) of the Act (22 

U.S.C. 7708(k)). In determining 

subsequent compact eligibility, the 

Board considered—in addition to the 

criteria outlined above—the country’s 

performance implementing its first 

compact, including the nature of the 

country partnership with MCC, the 

degree to which the country has 


srobinson on DSKHWCL6B1PROD with NOTICES