[Federal Register Volume 64, Number 246 (Thursday, December 23, 1999)]
[Rules and Regulations]
[Pages 72027-72030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32307]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 44
[DoD Directive 1200.7]
RIN 0790-AF57
Screening the Ready Reserve
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This rule provides guidance governing screening of Reserve
component members of the U.S. military departments relative to their
civilian employment. The purpose of the screening program is to ensure
availability of Ready Reserve members for military mobilization
purposes. The intended effect of the screening is to preclude conflicts
between Reserve mobilization obligations and Federal civilian
employment requirements during times of war or national emergency.
EFFECTIVE DATE: November 18, 1999.
FOR FURTHER INFORMATION CONTACT: Dan Kohner, (703) 693-7479.
SUPPLEMENTARY INFORMATION:
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that this is not a significant regulatory
action. The rule does not:
1. Have an annual effect to the economy of $100 million or more, or
otherwise have material adverse economic effects.
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency.
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or,
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601). The Department of Defense is
not subject to the RFA when making rules related to a ``military or
foreign affairs function of the United States'' or to Executive Order
12866 for those regulations that ``pertain to a military or foreign
affairs function of the United States [other that procurement functions
or import-export of non-defense articles].''
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
It has been certified that this part does not impose any reporting
or recordkeeping requirements under the Paperwork Reduction Act of
1995. Interagency Report Control Number 0192-DOD-AN remains in effect,
with a current expiration date of September 30, 1998.
List of Subjects in 32 CFR Part 44
Armed forces reserves.
Accordingly, 32 CFR part 44 is revised to read as follows:
PART 44--SCREENING THE READY RESERVE
Sec.
44.1 Purpose.
44.2 Applicability.
44.3 Definitions.
44.4 Policy.
44.5 Responsibilities.
Appendix A to Part 44--Guidance
Authority: 10 U.S.C. 10145.
Sec. 44.1 Purpose.
Updates DoD policy and responsibilities for the screening of Ready
Reservists under 10 U.S.C. 1003, 1005, and 1209.
Sec. 44.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments (including the Coast Guard, when it is not
operating as a Military Service in the Navy by agreement with the
Department of Transportation), the Chairman of the Joint Chiefs of
Staff, the Combatant Commands, the Inspector General of the Department
of Defense, the Defense Agencies, the DoD Field Activities and all
other organizational entities within the Department of Defense
(hereafter referred to collectively as the ``DoD Components''). The
term ``Military Services'' as used in this part, refers to the Army,
the Navy, the Air Force and the Marine Corps.
[[Page 72028]]
Sec. 44.3 Definitions.
For purposes of this part, the following definitions apply:
Extreme community hardship. A situation that, because of a
Reservist's mobilization, may have a substantially adverse effect on
the health, safety, or welfare of the community. Any request for a
determination of such hardship shall be made by the Reservist and must
be supported by documentation, as required by the Secretary concerned.
Extreme personal hardship. An adverse impact on a Reservist's
dependents resulting from his or her mobilization. Any request for a
determination of such hardship shall be made by the Reservist and must
be supported by documentation, as required by the Secretary concerned.
Individual Ready Reserve. Within the Ready Reserve of each of the
Reserve Components there is an Individual Ready Reserve. The Individual
Ready Reserve consists of members of the Ready Reserve who are not in
the Selected Reserve or the Inactive National Guard.
Key employee. Any Federal employee occupying a key position.
Key position. A Federal position that shall not be vacated during a
national emergency or mobilization without SERIOUSLY impairing the
capability of the parent Federal Agency or office to function
effectively. The four categories of Federal key positions are set out
in this paragraph. The first three categories are, by definition, key
positions. However, the third category, Article III Judges, provides
for exceptions on a case-by-case basis. The fourth category requires a
case-by-case determination and designation as described in the
following:
(1) The Vice President of the United States or any official
specified in the order of presidential succession as in 3 U.S.C. 19.
(2) The members of the Congress and the heads of the Federal
Agencies appointed by the President with the consent of the Senate. For
this part, the term ``the heads of the Federal Agencies'' does not-
include any person appointed by the President with the consent of the
Senate to a Federal Agency as a member of a multimember board or
commission. Such positions may be designated as key positions only in
accordance with paragraph (4) of this definition.
(3) Article III Judges. However, each Article III Judge, who is a
member of the Ready Reserve and desires to remain in the Ready Reserve,
must have his or her position reviewed by the Chief Judge of the
affected Judge's Circuit. If the Chief Judge determines that
mobilization of the Article III Judge concerned will not seriously
impair the capability of the Judge's court to function effectively, the
Chief Judge will provide a certification to that effect to the
Secretary of the Military Department concerned. Concurrently, the
affected Judge will provide a statement to the Secretary concerned
requesting continued service in the Ready Reserve and acknowledging
that he or she may be involuntarily called to active duty (AD) under
the laws of the United States and the Directives and Regulations of the
Department of Defense and pledging not to seek to be excused from such
orders based upon his or her judicial duties.
(4) Other Federal positions determined by the Federal Agency heads,
or their designees, to be key positions in accordance with the
guidelines in the appendix to this part.
Mobilization. Involuntary call-up of Reserve component members in
accordance with 10 U.S.C. 12301, 12302, or 12304. That includes full
mobilization, partial mobilization and, selective mobilization
(Presidential Reserve Call-Up Authority).
Ready reserve. Reserve unit members or individual Reserve and
National Guard members, or both, liable for AD, as provided in 10
U.S.C. 12301, 12302, and, for some members, 10 U.S.C. 12304. It
consists of the Selected Reserve, the Individual Ready Reserve, and the
Inactive National Guard.
Selected reserve. A category of the Ready Reserve in each of the
Reserve components. The Selected Reserve consists of units, and, as
designated by the Secretary concerned, of individual Reserve members,
trained as prescribed in 10 U.S.C. 10147(a)(1) or 32 U.S.C. 502(a), as
appropriate.
Standby reserve. The Standby Reserve consists of those units or
members, or both, of the Reserve components, other than those in the
Ready Reserve or the Retired Reserve, who are liable for active duty
only as provided for in 10 U.S.C. 12301 and 12306. The Standby Reserve
consists of personnel who are maintaining their military affiliation
without being in the Ready Reserve, but have been designated ``key
civilian employees,'' or have a temporary hardship or disability. Those
individuals are not required to perform training and are not part of
the Ready Reserve. The Standby Reserve is a pool of trained individuals
who may be mobilized as needed to fill manpower needs in specific
skills. The Standby Reserve consists of the active status list and the
inactive status list categories.
Sec. 44.4 Policy.
It is DoD policy that:
(a) Members of the Ready Reserve shall be screened (see the
appendix to this part for specific screening guidance) at least
annually to meet the provisions of 10 U.S.C. 10149 and to provide a
Ready Reserve force composed of members who:
(1) Meet Military Service wartime standards of mental, moral,
professional, and physical fitness.
(2) Possess the military qualifications required in the various
ranks, ratings, and specialties.
(3) Are available immediately for active duty (AD) during a
mobilization or as otherwise required by law.
(b) On mobilization under 10 U.S.C. 12301(a) or 10 U.S.C. 12302,
all personnel actions relating to the screening program shall be held
in abeyance, and all members remaining in the Ready Reserve shall be
considered immediately available for AD service. After such a
mobilization is ordered, no deferment, delay, or exemption from
mobilization shall be granted to Ready Reservists because of their
civilian employment. On involuntary activation of Reserve members under
10 U.S.C. 12304 (Presidential Reserve Call-Up Authority), the Secretary
of Defense, or designee, shall make a determination regarding the
continuation or cessation of personnel actions related to the screening
program.
(c) All Ready Reservists shall be retained in the Ready Reserve for
the entire period of their statutory obligation or voluntary contract.
Exceptions to that policy are made in paragraphs (g), (h), and (i) of
this section, or may be made by the Secretaries concerned, in
accordance with 10 U.S.C. 10145 and 10146.
(d) A member of the Army National Guard of the United States or the
Air National Guard of the United States may be transferred to the
Standby Reserve only with the consent of the governor or other
applicable authority of the State, commonwealth, or territory concerned
(including the District of Columbia) in accordance with 10 U.S.C.
10146.
(e) Any eligible member of the Standby Reserve may be transferred
back to the Ready Reserve when the reason for the member's transfer to
the Standby Reserve no longer exists in accordance with 10 U.S.C. 10150
and DoD Instruction 1200.15.1
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\1\ Copies may be obtained at http://web7.whs.osd.mil/
corres.htm.
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(f) Ready Reservists whose immediate recall to AD during an
emergency would create an extreme personal or community hardship shall
be transferred to the Standby Reserve or the Retired Reserve, or shall
be
[[Page 72029]]
discharged, as applicable, except as specified in paragraph (b) of this
section.
(g) Ready Reservists who are designated key employees or who occupy
key positions, as defined in this section, shall be transferred to the
Standby Reserve or the Retired Reserve, or shall be discharged, as
appropriate, except as specified in paragraph (b) of this section.
(h) Ready Reservists who are also DoD civilian employees may not
hold a mobilization assignment to the same positions that they fill as
civilian employees. Those Ready Reservists shall be reassigned or
transferred, as applicable. Reserve component military technicians
(dual status), as members of Reserve units, are excluded from this
provision.
(i) Ready Reservists who are preparing for the ministry in an
accredited theology or divinity school cannot be involuntarily called
to AD or required to participate in inactive duty training (IDT) in
accordance with 10 U.S.C. 12317. Accordingly, such Ready Reservists
(other than those participating in a military Chaplain Candidate or
Theology Student Program) shall be transferred to the Standby Reserve
(active status list) for the duration of their ministerial studies and
duties at accredited theology or divinity schools. Ready Reservists
participating in a military Chaplain Candidate or Theology Student
Program may continue their Ready Reserve affiliation and engage in AD
and IDT.
(j) Ready Reservists may not be transferred from the Ready Reserve
solely because they are students, interns, residents, or fellows in the
healthcare professions. On mobilization, they either shall be deferred
or shall be mobilized in a student, intern, resident, or fellow status
until qualified in the applicable medical specialty, as prescribed by
the Secretaries of the Military Departments.
(k) The Secretaries concerned, or their designees, shall make
determinations for mobilization availability on a case-by-case basis,
consistent with this part, and not by class or group determinations.
Sec. 44.5 Responsibilities.
(a) The Deputy Secretary of Defense shall adjudicate, before
mobilization, conflicts between the mobilization manpower needs of the
civilian sector and the military that the Ready Reserve Screening
process has identified, but has not resolved.
(b) The Assistant Secretary of Defense for Reserve Affairs, under
the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Provide oversight and policy support to the overall Ready
Reserve screening program, and manage and control the Federal sector
screening program in accordance with 10 U.S.C. 10149, Executive Order
11190, and pp. 63-66 of House Appropriations Committee Report 95-451,
which is available from the Government Printing Office, Washington, DC
20401.
(2) Annually, provide Federal Agencies with a listing of all
Federal employees who are also Ready Reservists to assist them in
conducting employer screening activities.
(3) Prepare an annual report on the status of Ready Reservists
employed by the Federal Government.
(4) Employ the guidance in appendix A of this part in coordinating
the screening program with employers of Ready Reservists.
(5) Coordinate conflicts between the mobilization manpower needs of
the civilian sector and the military identified but not resolved
through the Ready Reserve Screening process.
(c) The Secretaries of the Military Departments shall:
(1) Screen, at least annually, all Ready Reservists under their
jurisdiction to ensure their immediate availability for active duty
(AD) and to ensure compliance with 10 U.S.C. 10149.
(2) Ensure coordination with the Assistant Secretary of Defense for
Reserve Affairs to resolve conflicts (identified, but not resolved
through the Ready Reserve screening process) between the mobilization
manpower needs of the civilian sector and the military.
(3) Review recommendations for removal of both Federal and other
civilian employees from the Ready Reserve submitted by employers and
take applicable action.
(4) After making a removal determination in response to a petition
for such action, promptly transmit the results of that determination to
the Ready Reservist concerned and his/her employer.
(5) Transfer Ready Reservists identified as occupying key positions
to the Standby Reserve or the Retired Reserve, or discharge them, as
applicable.
(6) Ensure that Ready Reservists not on AD are examined as to
physical fitness in accordance with DoD Directive 1332.18.2
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\2\ See footnote 1 to Sec. 44.4(e).
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(7) Process members of the Ready Reserve who do not participate
satisfactorily in accordance with DoD Instruction 1200.15 and DoD
Directive 1215.13.3
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\3\ See footnote 1 to Sec. 44.4(e).
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(8) Ensure that all Ready Reservists have a favorably completed
background check for military service suitability on file (e.g.,
Entrance National Agency Check (ENTNAC), NAC).
(9) Ensure that personnel records systems incorporate information
on any factors that limit the mobilization availability of a Ready
Reservist.
(10) Develop and maintain current information pertaining to the
mobilization availability of Ready Reservists.
Appendix A to Part 44--Guidance
Deputy Secretary of Defense
The Deputy Secretary of Defense shall adjudicate, before
mobilization, conflicts between the mobilization manpower needs of
the civilian sector and the military that the Ready Reserve
screening process has identified, but has not resolved.
Employers of Ready Reservists
(a) Federal Employers
(1) To ensure that Federal employees essential to the continuity
of the Federal Government are not retained as members of the Ready
Reserve, the following guidance is provided:
(i) Conduct annual screening program as provided for by the
Assistant Secretary of Defense for Reserve Affairs.
(ii) Responses from Federal Agencies shall be reported under
Interagency Report Control Number 0912-DoD-AN, ``Ready Reservists in
the Federal Government,'' in accordance with DoD 8910.1-
M.4
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\4\ See footnote 1 to Sec. 44.4(e).
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(iii) Federal Agency heads, or their designees, concerned shall
designate those positions that are of essential nature to, and
within, the organization as ``key positions,'' and shall require
that they shall NOT be filled by Ready Reservists to preclude such
positions from being vacated during a mobilization. Upon request
from Federal Agencies, Secretaries of the Military Departments shall
verify the essential nature of the positions being designated as
``key,'' and shall transfer Ready Reservists occupying key positions
to the Standby Reserve or the Retired Reserve or shall discharge
them, as applicable, under 10 U.S.C. 10149, except as specified in
Sec. 44.4 (b).
(iv) In determining whether or not a position should be
designated as a ``key position,'' the following questions should be
considered by the Federal Agency concerned:
(A) Can the position be filled in a reasonable time after
mobilization?
(B) Does the position require technical or managerial skills
that are possessed uniquely by the incumbent employee?
(C) Is the position associated directly with defense
mobilization?
(D) Does the position include a mobilization or relocation
assignment in an
[[Page 72030]]
Agency having emergency functions, as designated by Executive Order
12656?
(E) Is the position directly associated with industrial or
manpower mobilization, as designated in Executive Orders 12656 and
12919?
(F) Are there other factors related to the national defense,
health, or safety that will make the incumbent of the position
unavailable for mobilization?
(2) [Reserved]
(b) Non-Federal Employers of Ready Reservists. Non-Federal
employers of Ready Reservists, particularly in the fields of public
health and safety and defense support industries, are encouraged to
adopt personnel management procedures designed to preclude conflicts
between the emergency manpower needs of civilian activities and the
military during a mobilization. Employers also are encouraged to use
the Federal key position guidelines contained in this appendix for
making their own key position designations and, when applicable, for
recommending key employees for removal from the Ready Reserve.
(c) All employers who determine that a Ready Reservist is a key
employee, in accordance with the guidelines in this appendix, should
promptly report that determination, using the letter format at the
end of this appendix, to the applicable Reserve personnel center,
requesting the employee be removed from the Ready Reserve.
Individual Ready Reservists
(a) Each Ready Reservist who is not a member of the Selected
Reserve is obligated to notify the Secretary concerned of any change
of address, marital status, number of dependents, or civilian
employment and any other change that would prevent a member from
meeting mobilization standards prescribed by the Military Service
concerned (10 U.S.C. 10205).
(b) All Ready Reservists shall inform their employers of their
Reserve military obligation.
List of Reserve Personnel Centers to Which Reserve Screening
Determination and Removal Requests Shall be Forwarded
Army Reserve
Army Reserve Personnel Command
1 Reserve Way
ATTN: ARPC-PSP-T
St. Louis, MO 63132
Naval Reserve
Commander
Navy Personnel Command (Pers 91)
5720 Integrity Drive
Millington, TN 38055-9100
Marine Corps Reserve
Commanding General
Marine Corps Reserve Support Command
ATTN: IRR Division
15303 Andrews Road
Kansas City, MO 64147-1207
Air Force Reserve
Commander
Air Reserve Personnel Center/DPAF
6760 E. Irvington Pl. #2600
Denver, CO 80280-2600
Army and Air National Guard
Submit requests to the adjutant general of the applicable State,
commonwealth, or territory (including the District of Columbia).
Coast Guard Reserve
Commander (CGPC-RPM)
U.S. Coast Guard Personnel Command
2100 Second St. S.W.
Washington, DC 20593
Letter Format to Reserve Personnel Centers Requesting That Employee be
Removed From the Ready Reserve
From: (Employer-Agency or Company)
To: (Appropriate Reserve Personnel Center)
Subject: Request for Employee to Be Removed from the Ready Reserve
This is to certify that the employee identified below is vital
to the nation's defense efforts in (his or her) civilian job and
cannot be mobilized with the Military Services in an emergency for
the following reasons: [STATE REASONS]
Therefore, I request that (he/she) be removed from the Ready
Reserve and that you advise me accordingly when this action has been
completed.
The employee is:
1. Name of employee (last, first, M.I.):
2. Military grade and Reserve component:
3. Social security number:
4. Current home address (street, city, State, and ZIP code):
5. Military unit to which assigned (location and unit number):
6. Title of employee's civilian position:
7. Grade or salary level of civilian position:
8. Date (YYMMDD) hired or assigned to position:
Signature and Title of Agency or Company Official.
Dated: December 9, 1999.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 99-32307 Filed 12-22-99; 8:45 am]
BILLING CODE 5000-10-P
