46530 Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Rules and Regulations 

§ 3185.10 What does this part do? 

This part adopts the Office of 

Management and Budget (OMB) 

guidance in Subparts A through I of 2 

CFR part 180, as supplemented by this 

part, as the Institute of Museum and 

Library Services (IMLS) policies and 

procedures for nonprocurement 

debarment and suspension. It thereby 

gives regulatory effect for IMLS to the 

OMB guidance as supplemented by this 

part. This part satisfies the requirements 

in section 3 of Executive Order 12549, 

‘‘Debarment and Suspension’’ (3 CFR 

1986 Comp., p. 189), Executive Order 

12689, ‘‘Debarment and Suspension’’ (3 

CFR 1989 Comp., p. 235) and 31 U.S.C. 

6101 note (Section 2455, Pub. L. 103–

355, 108 Stat. 3327). 

§ 3185.20 Does this part apply to me? 

This part and, through this part, 

pertinent portions of the OMB guidance 

in Subparts A through I of 2 CFR part 

180 (see table at 2 CFR 180.100(b)) 

apply to you if you are a—

(a) Participant or principal in a 

‘‘covered transaction’’ (see Subpart B of 

2 CFR part 180 and the definition of 

‘‘nonprocurement transaction’’ at 2 CFR 

180.970. 

(b) Respondent in an IMLS 

suspension or debarment action. 

(c) IMLS debarment or suspension 

official; 

(d) IMLS grants officer, agreements 

officer, or other official authorized to 

enter into any type of nonprocurement 

transaction that is a covered transaction. 

§ 3185.30 What policies and procedures 

must I follow? 

The IMLS policies and procedures 

that you must follow are the policies 

and procedures specified in each 

applicable section of the OMB guidance 

in Subparts A through I of 2 CFR part 

180, as that section is supplemented by 

the section in this part with the same 

section number. The contracts that are 

covered transactions, for example, are 

specified by section 220 of the OMB 

guidance (i.e., 2 CFR 180.220) as 

supplemented by section 220 in this 

part (i.e., § 3185.220). For any section of 

OMB guidance in Subparts A through I 

of 2 CFR 180 that has no corresponding 

section in this part, IMLS policies and 

procedures are those in the OMB 

guidance. 

Subpart A—General 

§ 3185.137 Who in the IMLS may grant an 

exception to let an excluded person 

participate in a covered transaction? 

The IMLS Director has the authority 

to grant an exception to let an excluded 

person participate in a covered 

transaction, as provided in the OMB 

guidance at 2 CFR 180.135. 

Subpart B—Covered Transactions 

§ 3185.220 What contracts and 

subcontracts, in addition to those listed in 

2 CFR 180.220, are covered transactions? 

Although the OMB guidance at 2 CFR 

180.220(c) allows a Federal agency to do 

so (also see optional lower-tier coverage 

in the figure in the Appendix to 2 CFR 

part 180), IMLS does not extend 

coverage of nonprocurement suspension 

and debarment requirements beyond 

first-tier procurement contracts under a 

covered nonprocurement transaction. 

Subpart C—Responsibilities of 

Participants Regarding Transactions 

§ 3185.332 What methods must I use to 

pass requirements down to participants at 

lower tiers with whom I intend to do 

business? 

You as a participant must include a 

term or condition in lower-tier 

transactions requiring lower-tier 

participants to comply with Subpart C 

of the OMB guidance in 2 CFR part 180, 

as supplemented by this subpart. 

Subpart D—Responsibilities of Federal 

Agency Officials Regarding 

Transactions 

§ 3185.437 What method do I use to 

communicate to a participant the 

requirements described in the OMB 

guidance at 2 CFR 180.435? 

To communicate to a participant the 

requirements described in 2 CFR 

180.435 of the OMB guidance, you must 

include a term or condition in the 

transaction that requires the 

participant’s compliance with subpart C 

of 2 CFR part 180, as supplemented by 

Subpart C of this part, and requires the 

participant to include a similar term or 

condition in lower-tier covered 

transactions. 

Subpart E–I—[Reserved] 

Title 45 Public Welfare 

Chapter XI—National Foundation for the 

Arts and the Humanities 

PART 1185—[REMOVED] 

■ 2. Under authority Sec. 2455, Public 

Law 103–355, 108 Stat. 3327 (31 U.S.C. 

6101 note); E.O. 12549 (3 CFR, 1986 

Comp., p. 189); E.O. 12689 (3 CFR, 1989 

Comp., p. 235) part 1185 is removed. 

Calvin D. Trowbridge III, 

Deputy General Counsel, Institute of Museum 

and Library Services. 

[FR Doc. E8–18207 Filed 8–8–08; 8:45 am] 

BILLING CODE 7036–01–P 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Part 351 

RIN 3206–AL64 

Competitive Area 

AGENCY: U.S. Office of Personnel 

Management. 

ACTION: Final rule. 

SUMMARY: The U.S. Office of Personnel 

Management (OPM) is issuing final 

regulations that provide agencies with 

the option of establishing a reduction in 

force (RIF) competitive area that only 

includes pay band positions. An agency 

has this option when a RIF competitive 

area otherwise includes pay band 

positions and other positions that are 

not covered by one or more pay bands. 

DATES: Effective Date: These regulations 

are effective August 11, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Thomas A. Glennon by telephone on 

202–606–0960, by Fax on 202–606–

2329, by TDD on 202–418–3134, or by 

e-mail at employ@opm.gov. 

SUPPLEMENTARY INFORMATION: On April 

15, 2008, OPM published proposed 

reduction in force (RIF) regulations in 

the Federal Register at 73 FR 20180. 

Interested parties could submit 

comments to OPM on the regulations 

through May 15, 2008. OPM received 

timely comments from three agencies, 

two unions, and two individuals on 

these proposed regulations. We 

considered all of the timely comments 

in publishing this final regulation. 

Below is a discussion of the specific 

comments. 

Discussion of Comments 

All three agencies concurred with the 

option of establishing a separate 

competitive area for pay band positions. 

One agency supported our proposed 

regulation without any additional 

comments or suggestions. 

Two agencies concurred, but had 

additional comments. One agency 

suggested that OPM further revise the 

RIF regulations to allow agencies the 

additional option of establishing 

separate competitive areas for 

individual pay band systems when a 

competitive area includes more than 

one pay band system. OPM did not 

adopt this suggestion. Because all pay 

band systems have common 

characteristics flowing from the 

consolidation of former graded positions 

into broad pay bands, we see no need 

to further allow agencies the additional 

option of establishing separate 

competitive areas for individual pay 


jlentini on PROD1PC65 with RULES
Federal Register / Vol. 73, No. 155 / Monday, August 11, 2008 / Rules and Regulations 46531 

bands when these individual pay bands 

would otherwise be included in the 

same competitive area. 

The other agency suggested that OPM 

include criteria for the agency to 

consider when deciding whether to 

define separate competitive areas under 

§ 351.402(e) for pay band and for nonpay band positions. The agency also 

suggested that OPM provide criteria on 

what types of documentation are 

appropriate under § 351.403(a)(2)(ii) to 

supplement an employee’s official 

position description for purposes of 

establishing one or more pay band 

competitive levels. OPM did not adopt 

either suggestion. Because each agencyspecific RIF situation is unique, OPM 

believes that the agency conducting the 

RIF has the best information to make 

RIF-related decisions, including the 

definition of what is an appropriate 

competitive area or competitive areas 

for its competing employees, and what 

documentation is appropriate to 

supplement the position descriptions of 

employees in pay band positions. 

Section 351.204 provides that each 

agency covered by 5 CFR part 351 is 

responsible for all decisions when 

following and applying the RIF 

regulations if the agency determines that 

a RIF is necessary. 

This agency also suggested that OPM 

revise the retention regulations to state 

that an agency retains the right to 

potentially redefine one or more 

competitive areas if the agency finds it 

necessary to conduct a subsequent RIF. 

OPM did not adopt this suggestion. 

Present § 351.201(c) provides that the 

agency’s RIF decisions must be uniform 

and consistent with 5 CFR part 351 in 

any one RIF (i.e., the agency may 

potentially make different decisions 

applying the 5 CFR part 351 regulations 

to a subsequent RIF). 

Finally, this agency suggested that 

OPM include definitions of 

‘‘competitive area’’ and ‘‘competitive 

level’’ in section 351.203 

(‘‘Definitions’’). OPM did not adopt this 

suggestion. Section 351.402 specifically 

covers RIF competitive areas while 

section 351.403 specifically covers RIF 

competitive levels. 

Regarding the two union comments, 

both unions commented that the 

proposed regulations would allow 

agencies to improperly target certain 

employees for RIF, while unfairly 

restricting the placement opportunities 

of these employees. OPM does not agree 

with this assertion. Agencies must apply 

the same level of objectivity and 

administrative probity in using these 

provisions as they do in making any 

personnel-related decision. An 

employee who believes that a 

competitive area is unlawfully 

constituted may, as applicable, contest 

the agency’s action. Further, the RIF 

competitive area is only one of many 

factors that impact an employee’s 

placement opportunities. Factors such 

as an individual’s veterans’ preference 

status, tenure (e.g., permanent v. 

temporary), performance appraisal (e.g., 

Exceptional v. Fully Successful), and 

years of service all play a part in an 

employee’s final outcome in a RIF 

scenario. 

One union, in objecting to the 

proposed regulation, commented that 

potential separate competitive areas in a 

pay band environment reduces the 

relative weight of seniority in RIF 

competition, which the union suggests 

is a hallmark of the RIF system. OPM 

disagrees. The proposed RIF regulation 

continues to assign the same relative 

weight to each of the four retention 

factors mandated in 5 U.S.C. 3502(a)(1)–

(4): (1) Tenure (i.e., type of 

appointment), (2) veterans’ preference, 

(3) total creditable civilian and 

uniformed service, and (4) additional 

retention service credit for performance. 

We note that although the RIF 

regulation, and the determining factors, 

have been modified through the years, 

the one true constant of the RIF system 

since 1876 has been protection based on 

an individual’s veterans’ preference 

status, not necessarily the retention of 

senior employees. 

This union also commented that our 

proposal to allow separate RIF 

competitive areas for pay band 

environments was based on an 

assumption that a unified competitive 

area might create difficulty for the 

agency facing a RIF. The union 

suggested that changes to 

governmentwide rules should be based 

on facts, not guesses. To clarify, from 

our review of demonstration projects we 

know that certain inconsistencies exist 

between pay band positions and 

positions covered by the General 

Schedule (GS) or Federal Wage System 

(FWS). For example, pay band positions 

are subject to different rules than other 

positions covered by traditional pay 

systems (i.e., GS and FWS positions): (1) 

Each pay band covers a wide salary 

range that encompass multiple GS or 

FWS grades, (2) pay band positions are 

generally covered by generic position 

descriptions while GS and FWS 

positions have specific position 

descriptions keyed in part to the 

classification of each position, and (3) 

pay band positions are generally more 

closely linked to performance incentives 

than GS and FWS positions. What we 

do not know is the size or scope of any 

one RIF an agency may be facing. RIFs 

involving large numbers of pay band 

and non-pay band positions will be 

more disruptive than those with few 

mixed-positions. This is why we stated 

in the supplementary information of the 

proposed regulation published on April 

15, 2008, at page 73 FR 20180, that 

significant inconsistencies ‘‘may’’ result 

when a RIF competitive area includes 

pay band positions and positions 

covered by the General Schedule (GS) or 

Federal Wage System (FWS). The new 

§ 351.402(e) is an agency option, not a 

requirement, to permit agencies to 

assess their situation and determine 

how best to apply the RIF regulations to 

suit their needs. On May 21, 2008, at 73 

FR 29387, OPM published a final 

regulation covering how an agency may 

conduct a RIF in a competitive area that 

includes pay band and other positions 

not covered by a pay band system if the 

agency chooses that option. 

Of the two individuals who 

commented, one individual suggested 

that OPM include a definition of ‘‘pay 

band’’ for purposes of the 5 CFR part 

351 regulations. OPM did not adopt this 

suggestion. Each pay band system 

includes a specific definition of pay 

band applicable to that pay band 

system. 

This individual also suggested that 

OPM provide criteria on what types of 

records may be considered under 

§ 351.403(a)(2)(ii) to supplement an 

employee’s official position description 

when establishing pay band competitive 

levels. OPM did not adopt this 

suggestion. As noted above in response 

to an agency’s similar suggestion, OPM 

believes that the agency conducting the 

RIF has the best information to make 

RIF-related decisions, including what 

records are appropriate to supplement 

the position descriptions of employees 

in pay band positions. 

The other individual is concerned 

about how a separate competitive area 

could restrict the potential retention 

rights of employees who are not covered 

by a pay band system. As noted above, 

OPM covered its rationale and 

justification for this option in the 

‘‘Explanation’’ material for the proposed 

regulations published on April 15, 2008, 

at page 73 FR 20180. One competitive 

area definition does not necessarily 

make an individual employee more or 

less subject to release by RIF than if the 

agency had retained or implemented a 

different competitive area definition. 

Revisions Made by Final Regulations 

OPM is adopting the proposed 

regulations without change. The final 

regulation makes the following changes 

to competitive area and competitive 

level that are summarized below. 


jlentini on PROD1PC65 with RULES
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. 


jlentini on PROD1PC65 with RULES