Comment Submitted by Laurence Zieff

[This is an update to 2 prior submissions I provided on October 14, 2011, please disregard the previous submissions] Section 4601.101(d)(2) of the proposed regulation places an undue burden on DHS employees who are members of the National Guard. This section states as follows: "Outside employment as used in this part means any form of non-Federal employment, activity, or business relationship involving the provision of personal services by the employee." This definition of “outside employment” is unduly restrictive for the reasons discussed below. Hundreds, if not thousands, of DHS employees are members of the Army and Air National Guard. These military organizations are unique in that they have dual missions, both Federal and state. Although, generally speaking, the majority of a unit member’s time in the National Guard is in a federal status, either under Title 10 or Title 32 of the U.S. Code, during state emergencies, they can also be called to “State Active Duty,” under the command of the Governor and paid by the state. Such duty is not within the definition of 4601.101(d)(2), since it is “non-Federal.” However, it would be untenable to require DHS employees to request permission to serve in the National Guard since it also is a Reserve component of the Federal government; the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) prohibits any discrimination based on military service. Section 4601.101(d)(2) needs to recognize this unique situation. Accordingly, I recommend revising the last sentence of Section 4601.101(d)(2) to read as follows: “It does not, however, include participation in the National Guard of any State, the District of Columbia, Puerto Rico, Guam, or the United States Virgin Islands, or activities of a nonprofit charitable, religious, professional, social. . ."