46532 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Rules and Regulations 

Revisions to Competitive Area 

New § 351.402(e) provides that when 

an agency finds that a competitive area 

defined under § 351.402(b) includes pay 

band positions and positions not 

covered by a pay band, at its discretion 

the agency may define a competitive 

area otherwise consistent with § 351.402 

to include only pay band positions. 

Section 351.402(b) is also revised to 

include a reference to new § 351.402(e). 

Revisions to Competitive Level 

Section 351.403(a)(2) is renumbered 

as § 351.403(a)(2)(i) and revised to 

clarify that, except as provided in new 

§ 351.403(a)(2)(ii) for pay band 

positions, competitive level 

determinations are based on each 

employee’s official position of record 

(including the official position 

description), not the employee’s 

personal qualifications. 

New § 351.403(a)(2)(ii) provides that, 

to establish a competitive level 

comprised of pay band positions, an 

agency may supplement an employee’s 

official position with other applicable 

records that document the employee’s 

actual duties and responsibilities. Note 

that § 351.403(a)(2)(ii) also applies to 

RIF competition in a competitive area 

that includes pay band and other 

positions. 

Regulatory Flexibility Act 

I certify that this regulation will not 

have a significant economic impact on 

a substantial number of small entities 

because it affects only certain Federal 

employees. 

Executive Order 12866, Regulatory 

Review 

This rule has been reviewed by the 

Office of Management and Budget in 

accordance with Executive Order 12866. 

List of Subjects in 5 CFR Part 351 

Administrative practice and 

procedure, Government employees. 

U.S. Office of Personnel Management. 

Linda M. Springer, 

Director. 

■ Accordingly, OPM is amending part 

351 of title 5, Code of Federal 

Regulations, as follows: 

PART 351—REDUCTION IN FORCE 

■ 1. The authority citation for part 351 

continues to read as follows: 

Authority: 5 U.S.C. 1302, 3502, 3503; sec. 

351.801 also issued under E.O. 12828, 58 FR 

2965. 

■ 2. In § 351.402, paragraph (b) is 

revised, and paragraph (e) is added, to 

read as follows: 

§ 351.402 Competitive area. 

* * * * * 

(b) A competitive area must be 

defined solely in terms of the agency’s 

organizational unit(s) and geographical 

location and, except as provided in 

paragraph (e) of this section, it must 

include all employees within the 

competitive area so defined. A 

competitive area may consist of all or 

part of an agency. The minimum 

competitive area is a subdivision of the 

agency under separate administration 

within the local commuting area. 

* * * * * 

(e) When an agency finds that a 

competitive area defined under 

paragraph (b) of this section includes 

pay band positions and positions not 

covered by a pay band, the agency may, 

at its discretion, define a separate (and 

additional) competitive area, otherwise 

consistent with paragraph (b) of this 

section, to include only pay band 

positions. The original competitive area 

would then include only the remaining 

positions (i.e., those positions not 

covered by a pay band). 

■ 3. In § 351.403, paragraph (a)(2) is 

revised to read as follows: 

§ 351.403 Competitive level. 

(a) * * * 

(2)(i) Except as provided in paragraph 

(a)(2)(ii) of this section for pay band 

positions, competitive level 

determinations are based on each 

employee’s official position of record 

(including the official position 

description), not the employee’s 

personal qualifications. 

(ii) To establish a competitive level 

comprised of pay band positions, an 

agency may supplement an employee’s 

official position of record with other 

applicable records that document the 

employee’s actual duties and 

responsibilities. 

* * * * * 

[FR Doc. E8–18447 Filed 8–8–08; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Part 24 

[Docket ID OCC–2008–0010] 

RIN 1557–AD12 

Community and Economic 

Development Entities, Community 

Development Projects, and Other 

Public Welfare Investments 

AGENCY: Office of the Comptroller of the 

Currency, Treasury. 

ACTION: Interim final rule with request 

for comment. 

SUMMARY: On July 30, 2008, the 

President signed into law the Housing 

and Economic Recovery Act of 2008 

(HERA). Section 2503 of the HERA 

revises the community development 

investment authority in 12 U.S.C. 

24(Eleventh) to permit a national bank 

to make a broader range of investments 

designed primarily to promote the 

public welfare. This interim final rule 

implements the changes made to section 

24(Eleventh) by the HERA. 

DATES: Effective Date: This rule is 

effective on August 11, 2008. 

Comment Date: Comments must be 

received by September 10, 2008. 

ADDRESSES: Because paper mail in the 

Washington, DC area and at the OCC is 

subject to delay, commenters are 

encouraged to submit comments by email, if possible. Please use the title 

‘‘Community Development 

Investments’’ to facilitate the 

organization and distribution of the 

comments. You may submit comments 

by any of the following methods: 

• Federal eRulemaking Portal— 

‘‘Regulations.gov’’: Go to http:// 

www.regulations.gov, under the ‘‘More 

Search Options’’ tab click next to the 

‘‘Advanced Docket Search’’ option 

where indicated, select ‘‘Comptroller of 

the Currency’’ from the agency dropdown menu, then click ‘‘Submit.’’ In the 

‘‘Docket ID’’ column, select ‘‘OCC–

2008–0010’’ to submit or view public 

comments and to view supporting and 

related materials for this interim final 

rule. The ‘‘How to Use This Site’’ link 

on the Regulations.gov home page 

provides information on using 

Regulations.gov, including instructions 

for submitting or viewing public 

comments, viewing other supporting 

and related materials, and viewing the 

docket after the close of the comment 

period. 

• E-mail: regs.comments@occ. 

treas.gov. 


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Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Rules and Regulations 46533 

1Pub. L. 109–351, 120 Stat. 1966 (Oct. 13, 2006). 

2 12 CFR part 24 (2008). 

3Pub. L. 109–351, 120 Stat. 1966 (Oct. 13, 2006). 

4 72 FR 36559 (July 3, 2007). 

5Pub. L. 110–289, 122 Stat. 2654 (July 30, 2008). 

6 Id. 

• Mail: Office of the Comptroller of 

the Currency, 250 E Street, SW., Mail 

Stop 1–5, Washington, DC 20219. 

• Fax: (202) 874–4448. 

• Hand Delivery/Courier: 250 E 

Street, SW., Attn: Public Information 

Room, Mail Stop 1–5, Washington, DC 

20219. 

Instructions: You must include 

‘‘OCC’’ as the agency name and ‘‘Docket 

ID OCC–2008–0010’’ in your comment. 

In general, OCC will enter all comments 

received into the docket and publish 

them on the Regulations.gov Web site 

without change, including any business 

or personal information that you 

provide such as name and address 

information, e-mail addresses, or phone 

numbers. Comments received, including 

attachments and other supporting 

materials, are part of the public record 

and subject to public disclosure. Do not 

enclose any information in your 

comment or supporting materials that 

you consider confidential or 

inappropriate for public disclosure. 

You may review comments and other 

related materials that pertain to this 

interim final rule by any of the 

following methods: 

• Viewing Comments Electronically: 

Go to http://www.regulations.gov, under 

the ‘‘More Search Options’’ tab click 

next to the ‘‘Advanced Docket Search’’

option where indicated, select 

‘‘Comptroller of the Currency’’ from the 

agency drop-down menu, then click 

‘‘Submit.’’ In the ‘‘Docket ID’’ column, 

select ‘‘OCC–2008–0010’’ to view public 

comments for this rulemaking action. 

• Viewing Comments Personally: You 

may personally inspect and photocopy 

comments at the OCC’s Public 

Information Room, 250 E Street, SW., 

Washington, DC. For security reasons, 

the OCC requires that visitors make an 

appointment to inspect comments. You 

may do so by calling (202) 874–5043. 

Upon arrival, visitors will be required to 

present valid government-issued photo 

identification and submit to security 

screening in order to inspect and 

photocopy comments. 

• Docket: You may also view or 

request available background 

documents and project summaries using 

the methods described above. 

FOR FURTHER INFORMATION CONTACT: 

Steven VanMeter, Assistant Director, 

Community and Consumer Law 

Division, (202) 874–5750; Stuart E. 

Feldstein, Assistant Director, Legislative 

and Regulatory Activities, (202) 874–

5090; or Patrick T. Tierney, Senior 

Attorney, Legislative and Regulatory 

Activities, (202) 874–5090, Office of the 

Comptroller of the Currency, 250 E 

Street SW., Washington, DC 20219. 

SUPPLEMENTARY INFORMATION: 

Introduction 

The Financial Services Regulatory 

Relief Act of 2006 (FSRRA) 1 made a 

number of changes to 12 U.S.C. 

24(Eleventh), the authorizing statute for 

the Office of the Comptroller of the 

Currency’s (OCC) community 

development regulations.2 Prior to its 

amendment by the FSRRA, 12 U.S.C. 

24(Eleventh) authorized a national bank 

‘‘[t]o make investments designed 

primarily to promote the public welfare, 

including the welfare of low- and 

moderate-income communities or 

families (such as by providing housing, 

services, or jobs)’’ (the public welfare 

test). The FSRRA, among other things, 

narrowed the grant of authority in 

section 24(Eleventh) by providing that a 

national bank may ‘‘make investments 

directly or indirectly, each of which 

promotes the public welfare by 

benefiting primarily low- and moderateincome communities or families (such 

as by providing housing, services, or 

jobs).’’ (emphasis added) 3

On April 24, 2008, the OCC issued a 

final rule that implemented the 

FSRRA’s narrowing of the public 

welfare test. In the Notice of Proposed 

Rulemaking that preceded that final 

rule, the OCC noted that Congress was 

considering a bill that would change the 

language of the public welfare test back 

to the way it existed prior to the FSRRA 

changes.4

On July 30, 2008, the President signed 

into law the Housing and Economic 

Recovery Act of 2008 (HERA), which, in 

part, reinstated the pre-FSRRA wording 

of the public welfare test.5 Specifically, 

section 2503 of the HERA revised 

section 24(Eleventh) to provide that a 

national bank may ‘‘* * * make 

investments directly or indirectly, each 

of which is designed primarily to 

promote the public welfare, including 

the welfare of low- and moderateincome communities or families (such 

as by providing housing, services, or 

jobs)’’ (emphasis added).6 Under section 

2503 of the HERA and the revisions 

made by this interim final rule, national 

banks and their subsidiaries will now be 

able to make a broader range of 

investments. 

Description of the Interim Final Rule 

This interim final rule makes the 

following specific revisions to part 24 in 

order to implement the statutory 

changes to the public welfare test. 

Definition of ‘‘Community and 

Economic Development Entity’’ (CEDE) 

(§ 24.2(c)) 

The interim final rule amends the 

definition of a CEDE in § 24.2(c) to 

implement the HERA change to the 

public welfare test. The revised 

paragraph (c) defines a CEDE as ‘‘an 

entity that makes investments or 

conducts activities that primarily 

benefit low- and moderate-income 

individuals, low- and moderate-income 

areas, or other areas targeted by a 

governmental entity for redevelopment, 

or would receive consideration as 

‘‘qualified investments’’ under 12 CFR 

25.23.’’

Removing the Definition of ‘‘Benefiting 

Primarily Low- and Moderate-Income 

Areas or Individuals’’ (§ 24.2(g)) 

As indicated above, the FSRRA 

authorized a national bank and its 

subsidiaries to make investments that 

promote the public welfare by 

‘‘benefiting primarily’’ low- and 

moderate-income areas or individuals. 

OCC’s rule implementing the FSRRA 

added a definition for ‘‘benefiting 

primarily low and moderate-income 

areas or individuals.’’ The HERA 

revision removed the ‘‘benefiting 

primarily’’ language, thus, this 

definition is no longer needed and is 

removed by the interim final rule. 

Public Welfare Investments (§ 24.3) 

The interim final rule revises § 24.3, 

which contains the authorization to 

make investments pursuant to section 

24(Eleventh), to conform to the changes 

made by the HERA. 

Examples of Qualifying Public Welfare 

Investments (§ 24.6) 

Section 24.6 contains examples of 

qualifying public welfare investments. 

The interim final rule revises the 

introductory language in § 24.6 to reflect 

the changes made by section 2503 of the 

HERA. The interim final rule also adds 

back, where appropriate, references to 

investments in ‘‘targeted redevelopment 

areas.’’ These references had been 

removed by the FSRRA implementing 

regulation. 

Revision to Appendix 1 to Part 24, the 

CD–1 National Bank Community 

Development (Part 24) Investments 

Form 

The interim final rule also revises 

Appendix 1 to part 24, the CD–1 

National Bank Community Development 

(Part 24) Investments Form, to reflect 

the changes to the regulation. 


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46534 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Rules and Regulations 

7 5 U.S.C. 553(b)(B). 

8See section 2002 of the HERA, Pub. L. 110–289, 

122 Stat. 2654 (July 30, 2008). 

9 5 U.S.C. 601(2). 

10 5 U.S.C. 553(b)(B). 

Effective Date; Solicitation of Comments 

This interim final rule will become 

effective immediately upon publication 

in the Federal Register. Pursuant to the 

Administrative Procedure Act (APA), 

5 U.S.C. 553(b)(B), general notice and an 

opportunity for public comment are not 

required prior to the issuance of a final 

rule when an agency, for good cause, 

finds that notice and public procedure 

are ‘‘impracticable, unnecessary, or 

contrary to the public interest.’’ 7

Similarly, an agency may publish a final 

rule with an immediate effective date if 

the agency finds good cause and 

publishes such with the rule. 5 U.S.C. 

553(d)(3). 

Consistent with section 553(b)(B) of 

the APA, the OCC finds that good cause 

exists for a finding that notice and 

comment are impracticable and contrary 

to the public interest. In enacting the 

Foreclosure Prevention Act of 2008 (part 

of the HERA), which includes these 

changes to 12 U.S.C. 24(Eleventh), 

Congress stated that all provisions of 

that Act are designated as ‘‘emergency 

requirements and necessary to meet 

emergency needs.’’ 8 An interim final 

rule will allow national banks and their 

subsidiaries immediately to make a 

broader range of investments to promote 

the public welfare, including 

investments in distressed communities 

affected by rising foreclosures. 

Immediate issuance of this interim final 

rule furthers the public interest because 

it will provide national banks and their 

subsidiaries with additional flexibility 

to make public welfare investments in 

low- and moderate-income individuals 

or areas or targeted redevelopment 

areas, or that would receive 

consideration under the Community 

Reinvestment Act (12 U.S.C. 2901 et 

seq.) as ‘‘qualified investments.’’ For 

these same reasons, the OCC finds good 

cause to publish this rule with an 

immediate effective date. See 5 U.S.C. 

553(d)(3). 

Although notice and comment are not 

required prior to the effective date of 

this rule, the OCC invites comment on 

all aspects of this interim final rule, and 

intends to revise the interim final rule 

if necessary or appropriate in light of 

the comments received. 

Regulatory Analysis 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (Pub. 

L. 96–354, Sept. 19, 1980) (RFA) applies 

only to rules for which an agency 

publishes a general notice of proposed 

rulemaking pursuant to 5 U.S.C. 553(b).9

Pursuant to the Administrative 

Procedure Act (APA) at 5 U.S.C. 

553(b)(B), general notice and an 

opportunity for public comment are not 

required prior to the issuance of a final 

rule when an agency, for good cause, 

finds that ‘‘notice and public procedure 

thereon are impracticable, unnecessary, 

or contrary to the public interest.’’ 10

As discussed above, the OCC has 

determined for good cause that the APA 

does not require general notice and 

public comment on this interim final 

rule and, therefore, we are not 

publishing a general notice of proposed 

rulemaking. Thus, the RFA, pursuant to 

5 U.S.C. 601(2), does not apply to this 

interim final rule. 

Executive Order 12866 

The OCC has determined that this 

interim final rule is not a significant 

regulatory action under Executive Order 

12866. We have concluded that the 

changes made by this interim final rule 

will not have an annual effect on the 

economy of $100 million or more within 

the meaning of Executive Order 12866. 

The OCC further concludes that this 

interim final rule does not meet any of 

the other standards for a significant 

regulatory action set forth in Executive 

Order 12866. 

Paperwork Reduction Act 

In accordance with the requirements 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3506), we have reviewed the 

interim final rule to assess any 

information collections. There are no 

collections of information as defined by 

the Paperwork Reduction Act in the 

interim final rule. 

Unfunded Mandates Reform Act of 1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995, Public 

Law 104–4 (2 U.S.C. 1532) (Unfunded 

Mandates Act), requires that an agency 

prepare a budgetary impact statement 

before promulgating any rule likely to 

result in a Federal mandate that may 

result in the expenditure by State, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $100 million 

or more in any one year. If a budgetary 

impact statement is required, section 

205 of the Unfunded Mandates Act also 

requires an agency to identify and 

consider a reasonable number of 

regulatory alternatives before 

promulgating a rule. The OCC has 

determined that this interim final rule 

will not result in expenditures by State, 

local, and tribal governments, or by the 

private sector, of $100 million or more 

in any one year. Accordingly, the 

interim final rule is not subject to 

section 202 of the Unfunded Mandates 

Act. 

List of Subjects in 12 CFR Part 24 

Community development, Credit, 

Investments, Low and moderate income 

housing, National banks, Reporting and 

recordkeeping requirements, Rural 

areas, Small businesses. 

Authority and Issuance 

■ For the reasons set forth in the 

preamble, part 24 of chapter I of title 12 

of the Code of Federal Regulations is 

amended as follows: 

PART 24—COMMUNITY AND 

ECONOMIC DEVELOPMENT ENTITIES, 

COMMUNITY DEVELOPMENT 

PROJECTS, AND OTHER PUBLIC 

WELFARE INVESTMENTS 

■ 1. The authority citation for part 24 

continues to read as follows: 

Authority: 12 U.S.C. 24(Eleventh), 93a, 

481, and 1818. 

■ 2. Amend § 24.2 by: 

■ a. Revising the first sentence of 

paragraph (c); 

■ b. Removing paragraph (g); and 

■ c. Redesignating paragraphs (h) 

through (j) as paragraphs (g) through (i), 

respectively. 

The revision reads as follows: 

§ 24.2 Definitions. 

* * * * * 

(c) Community and economic 

development entity (CEDE) means an 

entity that makes investments or 

conducts activities that primarily 

benefit low- and moderate-income 

individuals, low- and moderate-income 

areas, or other areas targeted by a 

governmental entity for redevelopment, 

or would receive consideration as 

‘‘qualified investments’’ under 12 CFR 

25.23. * * * 

* * * * * 

■ 3. Revise § 24.3 to read as follows: 

§ 24.3 Public welfare investments. 

A national bank or national bank 

subsidiary may make an investment 

directly or indirectly under this part if 

the investment primarily benefits lowand moderate income individuals, lowand moderate income areas, or other 

areas targeted by a governmental entity 

for redevelopment, or the investment 

would receive consideration under 12 

CFR 25.23 as a ‘‘qualified investment.’’

■ 4. Amend § 24.6 by: 

■ a. Revising the introductory text; and 

■ b. Revising paragraphs (b)(1) through 

(4), (d)(1), and (d)(4). 


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Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Rules and Regulations 46535 

The revisions read as follows: 

§ 24.6 Examples of qualifying public 

welfare investments. 

Investments that primarily support 

the following types of activities are 

examples of investments that meet the 

requirements of § 24.3: 

* * * * * 

(b) * * * 

(1) Investments that finance small 

businesses (including equity or debt 

financing and investments in an entity 

that provides loan guarantees) that are 

located in low- and moderate-income 

areas or other targeted redevelopment 

areas or that produce or retain 

permanent jobs, the majority of which 

are held by low- and moderate-income 

individuals; 

(2) Investments that finance small 

businesses or small farms, including 

minority- and women-owned small 

businesses or small farms, that, although 

not located in low- and moderateincome areas or targeted redevelopment 

areas, create a significant number of 

permanent jobs for low- and moderateincome individuals; 

(3) Investments in an entity that 

acquires, develops, rehabilitates, 

manages, sells, or rents commercial or 

industrial property that is located in a 

low- and moderate-income area or 

targeted redevelopment area and 

occupied primarily by small businesses, 

or that is occupied primarily by small 

businesses that produce or retain 

permanent jobs, the majority of which 

are held by low- and moderate-income 

individuals; and 

(4) Investments in low- and moderateincome areas or targeted redevelopment 

areas that produce or retain permanent 

jobs, the majority of which are held by 

low- and moderate-income individuals; 

* * * * * 

(d) * * * 

(1) Investments that provide credit 

counseling, financial literacy, job 

training, community development 

research, and similar technical 

assistance for non-profit community 

development organizations, low- and 

moderate-income individuals or areas or 

targeted redevelopment areas, or small 

businesses, including minority- and 

women-owned small businesses, located 

in low- and moderate-income areas or 

that produce or retain permanent jobs, 

the majority of which are held by lowand moderate-income individuals; 

* * * * * 

(4) Investments in minority- and 

women-owned depository institutions 

that serve primarily low- and moderateincome individuals or low- and 

moderate-income areas or targeted 

redevelopment areas. 

■ 5. Revise appendix 1 to part 24 to read 

as follows: 

APPENDIX 1 TO PART 24—CD–1—

NATIONAL BANK COMMUNITY 

DEVELOPMENT (PART 24) 

INVESTMENTS 

BILLING CODE 4810–33–P 


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Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Rules and Regulations 46539 

Dated: August 5, 2008. 

John C. Dugan, 

Comptroller of the Currency. 

[FR Doc. E8–18410 Filed 8–8–08; 8:45 am] 

BILLING CODE 4810–33–C 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 25 

[Docket No. NM391; Special Conditions No. 

25–273–SC] 

Special Conditions: Embraer S.A., 

Model ERJ 190–100 ECJ Airplane; 

Flight-Accessible Class C Cargo 

Compartment 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final special conditions. 

SUMMARY: These special conditions are 

issued for the Embraer S.A. Model ERJ 

190–100 ECJ airplane. This airplane will 

have novel or unusual design features 

associated with access during flight of 

the main deck Class C cargo 

compartment. The applicable 

airworthiness regulations do not contain 

adequate or appropriate safety standards 

for this design feature. These special 

conditions contain the additional safety 

standards that the Administrator 

considers necessary to establish a level 

of safety equivalent to that established 

by the existing airworthiness standards. 

DATES: Effective Date: September 10, 

2008. 

FOR FURTHER INFORMATION CONTACT: 

Jayson Claar, FAA, Airframe/Cabin 

Safety Branch, ANM–115, Transport 

Airplane Directorate, Aircraft 

Certification Service, 1601 Lind 

Avenue, SW., Renton, Washington 

98057–3356; telephone 425–227–2194; 

facsimile 425–227–1232. 

SUPPLEMENTARY INFORMATION: 

Background 

Embraer S.A., made the original 

application for certification of the ERJ 

190 on May 20, 1999. The Embraer 

application includes six different 

models, the initial variant being 

designated as the ERJ 190–100. The 

application was submitted concurrently 

with that for the ERJ 170–100, which 

received an FAA type certificate (TC) on 

February 20, 2004. Although the 

applications were submitted as two 

distinct TCs, the airplanes share the 

same conceptual design and general 

configuration. On July 2, 2003, Embraer 

S.A., submitted a request for an 

extension of its original application for 

the Embraer S.A., Model ERJ 190 series, 

with a new application date of May 30, 

2001, for establishing the type 

certification basis. The FAA 

certification basis was adjusted to reflect 

this new reference date. In addition, 

Embraer has elected to voluntarily 

comply with certain 14 CFR part 25 

amendments introduced after the May 

30, 2001, application date. 

On May 30, 2001, Embraer S.A., 

amended the application to include the 

Embraer S.A., Model ERJ 190–100 ECJ. 

The Embraer S.A., Model ERJ 190–100 

ECJ is a derivative of the Embraer S.A., 


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