[Federal Register Volume 63, Number 167 (Friday, August 28, 1998)]
[Proposed Rules]
[Pages 45975-45978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22746]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 44
RIN 0790-AF57
Screening the Ready Reserve
AGENCY: Department of Defense.
ACTION: Proposed rule.
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SUMMARY: This proposed rule codified guidance governing the screening
of Reserve component members of the United States Military Departments
relative to their civilian employment. The requirement for screening
the Ready Reserve is established in 10 U.S.C. 10149. The purpose of the
screening program is to ensure the 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.
DATES: Comments must be received by October 27, 1998.
ADDRESSES: Forward comments to Assistant Secretary of Defense for
Reserve Affairs, Attn: Manpower and Personnel (Mr. Dan Kohner), 1500
Defense Pentagon, Room 2D517, Washington, DC 20301-1500.
FOR FURTHER INFORMATION CONTACT: Mr. Daniel Kohner, 703-693-7479.
[[Page 45976]]
SUPPLEMENTARY INFORMATION:
Public Law 104-121
It has been certified that this is not a major rule under the
Congressional Review of Agency Rulemaking (Public Law 104-121).
Executive Order 12866
It has been determined that this proposed rule is not a significant
regulatory action. This rule indicates that it does not:
1. Have an annual effect on 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
Executive Order 12866.
Regulatory Flexibility Act
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (RFA) (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 than
procurement functions or import-export of non-defense articles].''
Paperwork Reduction Act
It has been certified that this rule does not impose reporting and
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C., Chapter 35). 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 proposed to be 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.
This part updates DoD policy and responsibilities for the screening
of Ready Reservists under 10 U.S.C. 10145 and E.O. 11190.
Sec. 44.2 Applicability.
This part applies to the Office of the Secretary of Defense and 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 term ``Military Departments,'' as
used herein, refers to the Departments of the Army, the Navy, and the
Air Force. The term ``Secretary concerned'' refers to the Secretaries
of the Military Departments (including the Secretary of Transportation
for the Coast Guard when it is not operating as a Military Service in
the Navy). The term ``Military Services,'' addressed herein, refers to
the Army, the Navy, the Air Force, the Marine Corps, and the Coast
Guard.
Sec. 44.3 Definitions.
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 and/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.
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. There are four categories of Federal key positions. 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:
(a) The Vice President of the United States or any official
specified in the order of presidential succession as in 3 U.S.C. 19.
(b) 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 (d) of this section.
(c) 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.
(d) Other Federal positions determined by the Federal Agency Heads,
or their designees, to be key positions in accordance with the
guidelines in Appendix A to this part.
Mobilization. Involuntary activation of Reserve component members
in accordance with 10 U.S.C. 12301, 12302, or 12304. That includes
selective mobilization (Presidential Selected Reserve Call-Up
Authority), partial mobilization, and full mobilization.
Ready reserve. Reserve unit members or individual Reserve and 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
designed 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
[[Page 45977]]
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
units. 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 at least
annually 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 AD during a mobilization or as
otherwise required by law.
(b) On mobilization under 10 U.S.C. 12301(a) or 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 Selected Reserve Call-Up Authority), the
Secretary of Defense, or designee, shall make a determination regarding
the continuation or cessation of 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 (f), (g), and (h) 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 discharged, as applicable.
(g) Ready Reservists who are designated key employees or who occupy
key positions, as defined in this part, shall be transferred to the
Standby Reserve or the Retired Reserve, or shall be discharged, as
appropriate.
(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 that
position.
(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 military 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 Assistant Secretary of Defense for Reserve Affairs, under
the Under Secretary of Defense for Personnel and Readiness shall:
(1) Manage and control the overall Ready Reserve screening program
in accordance with 10 U.S.C. 10149, E.O. 11190, and House
Appropriations Committee Report 95-451.
(2) Annually, provide Federal Agencies with a listing of all
Federal employee who are also Ready Reservists to assist them in
conducting employer screening activities required in FPC 11.
(3) Prepare an annual report on the status of Ready Reservists
employed by the Federal Government.
(4) Employ the guidance in enclosure 3 in coordinating the
screening program with employers of Ready Reservists.
(b) The Secretaries of the Military Departments shall:
(1) Screen, at least annually, all Ready Reservists under their
jurisdiction to ensure their immediate availability for AD.
(2) Ensure coordination with the Federal Emergency Management
Agency (FEMA) 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 and/or her employer.
(5) Transfer Ready Reservist 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
National Agency Check on file.
(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.
[[Page 45978]]
Appendix A to Part 44--Guidance
E3.1. FEMA In accordance with 44 CFR 333, the FEMA has the
authority to 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.
E3.2. Employers of Ready Reservists
E3.2.1. Federal Employers
E3.2.1.1. The FPC 11 promulgated policy for Ready Reserve
screening activities that shall be accomplished by Federal sector
employers. 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:
E3.2.1.1.1. Conduct annual screening program as provided for by
the Assistant Secretary of Defense for Reserve Affairs.
E3.2.1.1.2. Responses from Federal Agencies shall be reported
under Inter agency Report Control Number 0912-DoD-AN.
E3.2.1.1.3. Some Federal employees occupy key positions. Because
of the essential nature of those positions, the Federal Agency head,
or designee, concerned shall designate such positions 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. The Secretaries of the Military Departments 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. However, Reserve officers with a
remaining Military Service obligation at the time of their removal
from the Ready Reserve may be transferred only to the Standby
Reserve, Active Status List, in accordance with 10 U.S.C. 12645.
E3.2.1.1.4. 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:
E3.2.1.1.4.1. Can the position be filled in a reasonable time
after mobilization?
E3.2.1.1.4.2. Does the position require technical or managerial
skills that are possessed uniquely by the incumbent employee?
E3.2.1.1.4.3. Is the position associated directly with defense
mobilization?
E3.2.1.1.4.4. Does the position include a mobilization or
relocation assignment in an Agency having emergency functions, as
designated by E.O. 12656?
E3.2.1.1.4.5. Is the position directly associated with
industrial or manpower mobilization, as designated in E.O. 12656 and
12919?
E3.2.1.1.4.6. Are there other factors related to the national
defense, health, or safety that will make the incumbent of the
position unavailable for mobilization?
E3.2.2. Non-Federal Employers of Ready Reservists. Under 44 CFR
333, 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 enclosure for making their own key position designations
and, when applicable, for recommending key employees for removal
from the Ready Reserve.
E3.2.3. All employers who determine that a Ready Reservist is a
key employee, in accordance with the guidelines in this Directive,
should promptly report that determination, using the letter format
in section E3.4., to the applicable Reserve personnel center,
requesting the employee be removed from the Ready Reserve.
E3.3. Individual Ready Reservists
E3.3.1. 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).
E3.3.2. All Ready Reservists shall inform their employers of
their Reserve military obligation.
E3.4. 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 and/or her) civilian job and
cannot be mobilized with the Military Services in an emergency for
the following 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
E3.5. List of Reserve Personnel Centers to Which Reserve Screening
Determination and Removal Requests Shall be Forwarded
Army Reserve
Army Reserve Personnel Command, 9700 Page Ave., ATTN: ARPC-SFS-T,
St. Louis, MO 63132
Naval Reserve
Department of the Navy, Navy Personnel Command (Pers 91), NSA
Memphis, Millington, TN 38054
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/DSFA, 6760 E. Irvington Pl.
#4100, Denver, CO 80280-4100
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. SW., Washington, DC 20593
Dated: August 20, 1998.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-22746 Filed 8-27-98; 8:45 am]
BILLING CODE 5000-04-M
