Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Rules and Regulations 15221 

(66) * * * 

(i) * * * 

(A) * * * 

(4) Nevada Revised Statutes (NRS) 

(2003), chapter 445B, section 445B.310 

(‘‘Limitations on enforcement of federal 

and state regulations concerning 

indirect sources’’). 

* * * * * 

[FR Doc. E9–7428 Filed 4–2–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 440 

[CMS–2232–F2] 

RIN 0938–AP72 

Medicaid Program; State Flexibility for 

Medicaid Benefit Packages 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule; delay of effective 

date and reopening of comment period. 

SUMMARY: This action temporarily 

delays the effective date of the 

December 3, 2008 final rule entitled, 

‘‘Medicaid Program: State Flexibility for 

Medicaid Benefit Packages’’ (73 FR 

73694) until December 31, 2009. In 

addition, this action reopens the 

comment period on the policies set out 

in the December 3, 2008 final rule, and 

specifically solicits comments on the 

effect of certain provisions of the 

Children’s Health Insurance Program 

Reauthorization Act of 2009. 

DATES: Effective Date: This action is 

effective April 2, 2009. The effective 

date of the rule amending 42 CFR part 

440 published in the December 3, 2008, 

Federal Register (73 FR 73694), delayed 

February 2, 2009 (74 FR 5808), is further 

delayed until December 31, 2009. 

Comment Period: To be assured 

consideration, comments must be 

received at one of the addresses 

provided below, no later than 5 p.m. on 

May 4, 2009. 

ADDRESSES: In commenting, please refer 

to file code CMS–2232–F2. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the instructions for ‘‘Comment or 

Submission’’ and enter the file code to 

find the document accepting comments. 

2. By regular mail. You may mail 

written comments (one original and two 

copies) to the following address ONLY: 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Attention: CMS–2232– 

F2, P.O. Box 8016, Baltimore, MD 

21244–8016. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments (one 

original and two copies) to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–2232–F2, Mail Stop C4–26–05, 

7500 Security Boulevard, Baltimore, MD 

21244–8010. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments (one original 

and two copies) before the close of the 

comment period to either of the 

following addresses: a. Room 445–G, 

Hubert H. Humphrey Building, 200 

Independence Avenue, SW., 

Washington, DC 20201. 

(Because access to the interior of the 

HHH Building is not readily available to 

persons without Federal Government 

identification, commenters are 

encouraged to leave their comments in 

the CMS drop slots located in the main 

lobby of the building. A stamp-in clock 

is available for persons wishing to retain 

a proof of filing by stamping in and 

retaining an extra copy of the comments 

being filed.) b. 7500 Security Boulevard, 

Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786– 

7195 in advance to schedule your 

arrival with one of our staff members. 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period. 

FOR FURTHER INFORMATION CONTACT: 

Christine Gerhardt, (410) 786–0693. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Regulatory History 

On December 3, 2008, we published 

a final rule in the Federal Register 

entitled ‘‘Medicaid Program; State 

Flexibility for Medicaid Benefit’’ (73 FR 

73694). The December 2008 final rule 

implements provisions of section 6044 

of the Deficit Reduction Act (DRA) of 

2005, (Pub. L. 109–171), enacted on 

February 8, 2006, which amends the 

Social Security Act by adding a new 

section 1937 related to the coverage of 

medical assistance under approved 

State plans. The final rule also provides 

States increased flexibility under an 

approved State plan to define the scope 

of covered medical assistance by 

offering coverage of benchmark or 

benchmark-equivalent benefit packages 

to certain Medicaid recipients. In 

addition, the final rule responds to 

public comments on the February 22, 

2008, proposed rule that pertain to the 

State Medicaid benefit package 

provisions. 

Subsequent to the publication of the 

December 3, 2008 final rule, in 

accordance with the memorandum of 

January 20, 2009 from the Assistant to 

the President and the Chief of Staff, 

entitled ‘‘Regulatory Review,’’ we 

published an interim final rule with 

comment period in the Federal Register 

to temporarily delay for 60 days the 

effective date of the December 3, 2008 

final rule entitled, ‘‘Medicaid Program; 

State Flexibility for Medicaid Benefit 

Packages’’ (February 2, 2009, 74 FR 

5808). The interim final rule also 

reopened the comment period on the 

policies set out in the December 3, 2008 

final rule. We received nine public 

comments in response to the February 2, 

2009 interim final rule. 

B. New Legislation 

On February 4, 2009, the Children’s 

Health Insurance Program 

Reauthorization Act (CHIPRA) of 2009 

(Pub. L. 111–3) was enacted. Certain 

provisions of the CHIPRA affect current 

regulations regarding State Flexibility 

for Medicaid Benefit Packages, 

including the December 3, 2008 final 

rule. Specifically, section 611(a)(1)(C) 

and section 611(a)(3) of CHIPRA 

amends section 1937 of the Act, to 

require States to assure that children 

under the age of 21, rather than those 

under 19 as specified in the DRA of 

2005, who are included in benchmark or 

benchmark-equivalent plans, have 

access to the Early Periodic Screening, 

Diagnosis, and Treatment (EPSDT) 

services. EPSDT services may be 

provided through a benchmark or 

benchmark-equivalent plan or as a 

wrap-around benefit to those plans. 

Section 611(a)(1)(A)(i) of CHIPRA 

amends section 1937 of the Act by 

changing the language 

‘‘Notwithstanding any other provision 

of this title * * *’’ to read 

‘‘Notwithstanding section 1902(a)(1) 

(relating to statewideness), section 

1902(a)(10)(B) (relating to 

comparability), and any other provision 

of this title which would be directly 

contrary to the authority * * *’’ 


tjames on PRODPC75 with RULES
15222 Federal Register / Vol. 74, No. 63 / Friday, April 3, 2009 / Rules and Regulations 

II. Provisions of the Final Rule 

This action delays the effective date of 

the December 3, 2008 final rule. The 

effective date of that rule, which would 

have been February 2, 2009, was 

delayed until April 3, 2009 (74 FR 5808) 

and is now delayed until December 31, 

2009. Upon review and consideration of 

the new provisions of CHIPRA and the 

public comments we received during 

the reopened comment period, we 

believe that it may be necessary to 

revise a substantial portion of the 

December 3, 2008 final rule. Therefore, 

to inform future rulemaking on this 

issue, we are delaying the effective date 

a second time to give the public an 

additional opportunity to submit 

additional comments on the policy set 

forth in the December 3, 2008 final rule 

as well as the provisions of CHIPRA, 

discussed above. We anticipate that this 

time period will allow sufficient time 

for CMS to consider such comments and 

develop appropriate revisions to the 

delayed rule. 

IV. Waiver of Proposed Rulemaking 

and Delay in Effective Date 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register to provide a period for public 

comment before the provisions of a 

notice such as this take effect, in 

accordance with section 553(b) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(b)). We also ordinarily 

provide a 30-day delay in the effective 

date of the provisions of a notice in 

accordance with section 553(d) of the 

APA (5 U.S.C. 553(d)). However, we can 

waive both the notice and comment 

procedure and the 30-day delay in 

effective date if the Secretary finds, for 

good cause, that it is impracticable, 

unnecessary or contrary to the public 

interest to follow the notice and 

comment procedure or to comply with 

the 30-day delay in the effective date, 

and incorporates a statement of the 

finding and the reasons in the notice. 

This final rule delays the effective 

date of the December 3, 2008 final rule 

that was promulgated through notice 

and comment rulemaking, and does not 

make substantive changes to that final 

rule. Delay in the effective date and 

reopening of the comment period is 

necessary to ensure that the final rule, 

when effective, fully takes into account 

public comments, and conforms to 

recently enacted legislation. We do not 

believe that there will be any adverse 

impact or effect on the public from this 

delay in the effective date. Moreover, it 

would not be in the public interest for 

the underlying rule to go into effect, or 

to have uncertainty about whether it is 

in effect, when the underlying rule does 

not conform to statutory requirements. 

In addition, it is not in the public 

interest to put into effect a rule that we 

intend to revise in a reasonable time 

frame after fully taking into account 

public comment and statutory changes. 

For the reasons stated above, we find 

that both notice and comment 

procedures and the 30-day delay in 

effective date for this final rule are 

unnecessary and contrary to the public 

interest. Therefore, we find there is good 

cause to waive notice and comment 

procedures and the 30-day delay in 

effective date for this final rule. 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

Dated: March 25, 2009. 

Charlene Frizzera, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: March 30, 2009. 

Charles E. Johnson, 

Acting Secretary. 

[FR Doc. E9–7505 Filed 4–2–09; 8:45 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Parts 23 and 26 

[Docket No. DOT–OST–2009–0074] 

RIN 2105–AD79 

Disadvantaged Business Enterprise 

Program; Inflationary Adjustment 

AGENCY: Office of the Secretary, DOT. 

ACTION: Final rule. 

SUMMARY: Under the statutes governing 

the Department’s Disadvantaged 

Business Enterprise (DBE) Program, 

firms are not considered small business 

concerns and are therefore ineligible as 

DBEs once their average annual receipts 

over the preceding three fiscal years 

reach specified dollar limits. The 

Department of Transportation is 

amending the size limits or gross 

receipts caps to ensure that the 

opportunity of small businesses to 

participate in the Department’s DBE 

programs remains unchanged after 

taking inflation into account. This final 

rule provides 2009 inflation adjustment 

of size limits on small businesses 

participating in the DOT’s 

Disadvantaged Business Enterprise 

programs. 

DATES: This rule is effective April 3, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Robert C. Ashby, Deputy Assistant 

General Counsel for Regulation and 

Enforcement, Department of 

Transportation, 1200 New Jersey 

Avenue, SE., W94–302, Washington, DC 

20590, phone numbers (202) 366–9310 

(voice), (202) 366–9313 (fax), (202) 755– 

7687 (TTY), bob.ashby@dot.gov (e-mail). 

SUPPLEMENTARY INFORMATION: 

Background 

On April 2, 2007, the Department 

published a final rule revising 49 CFR 

part 23, the regulation governing the 

airport concessions disadvantaged 

business enterprise (ACDBE) program, 

to require that the Department adjust the 

general ACDBE gross receipts cap for 

inflation. That rule also adjusted the 

gross receipts cap for the Department’s 

financial assistance programs in 49 CFR 

part 26. This final rule updates the gross 

receipts cap for the ACDBE program and 

the Department’s financial assistance 

program for 2009. 

The DBE Airport Concession and 

Contracting Programs 

The DOT-assisted contracts DBE rule 

and airport concessions DBE rule are 

based on different statutes. Each statute 

applies to a distinct type of business 

that may seek DOT financial assistance. 

The ACDBE program is designed to give 

business opportunities to certain small 

business concerns that operate at 

airports and that are owned and 

controlled by socially and economically 

disadvantaged individuals. The ACDBE 

program is mandated by 49 U.S.C. 

47107(e), originally enacted in 1987 and 

amended in 1992. 

The DBE program for DOT-assisted 

contracts is a statutory program 

intended to ensure nondiscriminatory 

contracting opportunities for small 

business concerns owned and 

controlled by socially and economically 

disadvantaged individuals in the 

Department’s highway, mass transit and 

airport financial assistance programs. 

The statutory provision governing the 

DBE program in the highway and mass 

transit financial assistance programs is 

1101(b) of the Safe, Accountable, 

Flexible, Efficient Transportation Equity 

Act: A Legacy for Users (SAFETEA–LU), 

Public Law 109–59, August 10, 2005. 

The statutory provision governing the 

DBE program as it relates to the airport 

financial assistance programs is 49 

U.S.C. 47113. 

ACDBE Gross Receipts Size Standards 

Under the current DOT rule, if the 

airport concessions firm’s annual gross 

receipts average over the preceding 

three fiscal years exceed $47,780,000, 


tjames on PRODPC75 with RULES