[Federal Register Volume 85, Number 248 (Monday, December 28, 2020)]
[Rules and Regulations]
[Pages 84237-84243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28646]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 44
[Docket ID: DOD-2020-OS-0041]
RIN 0790-AL00
Screening the Ready Reserve
AGENCY: Office of the Under Secretary of Defense, Personnel & Readiness
(Manpower and Reserve Affairs), Department of Defense (DoD).
ACTION: Interim final rule.
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SUMMARY: In light of the Administration's continuing response to COVID-
19, DoD is amending the CFR to aid civilian employers in more quickly
identifying key employees so the Department can better understand the
capacity and capability available to support the response to the
current pandemic and to avoid military-civilian manpower conflicts in
future Declarations of National Emergency or in military mobilizations.
DATES: This rule is effective December 28, 2020. Comments must be
received by February 26, 2021.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) number and title, through the
Federal Rulemaking Portal at http://www.regulations.gov. Follow the
instructions for submitting comments. DoD cannot receive written
comments at this time due to the COVID-19 pandemic. The general policy
for comments and other submissions from members of the public is to
make these submissions available for public viewing as they are
received, without change, including any personal identifiers or contact
information.
FOR FURTHER INFORMATION CONTACT: CAPT Daryl P. Schaffer, 703-697-3837.
SUPPLEMENTARY INFORMATION: DoD's internal policy, DoD Directive 1200.7,
Screening the Ready Reserve, at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/120007p.pdf) establishes requirements for
federal government employers and this rule parallels those requirements
for application to non-federal employers, i.e., all employers not of
the federal government (state, local, non-profit, private, self-
employed, etc.), hereafter referred to as ``employer.''
Legal Authority
10 U.S. Code 12302 authorizes the President to recall up to one
million reservists for up to two years in times of national emergency
10 U.S.C. 10149,
[[Page 84238]]
``Ready Reserve: continuous screening'' requires the Secretary to
provide a system of continuous screening of units and members of the
Ready Reserve to ensure:
(1) No significant attrition of those members or units during a
mobilization.
(2) a proper balance of military skills.
(3) those with military skills for which there is an overriding
requirement, members having critical civilian skills are not retained
in numbers beyond the need for those skills.
(4) recognition will be given to participation in combat and
national security and military requirements.
(5) members whose mobilization in an emergency would result in an
extreme personal or community hardship are not retained in the Ready
Reserve.
Background
The Ready Reserve.is the category of reservists most often called
to active duty. It consists of three subcategories: Selected Reserve,
Individual Ready Reserve, and Inactive National Guard.
The Selected Reserve are the first to be activated. Most reservists
are in this category.
The Individual Ready Reserve (IRR) is made up mainly of those who
have had training and served in an active component.
The Inactive National Guard are those who leave active drilling
status in the Army National Guard before completing their enlistment
and will be put in this category unless they specifically request a
transfer to the IRR. Only the Army maintains an Inactive National
Guard.
If a reservist is unable to meet the requirements to be recalled,
the respective Military Service shall discharge, retire, or transfer
the member to the Standby Reserve. The Standby Reserve are reservists
who maintain their military affiliation but are not members of the
Ready Reserve. This may include reservists who fill key federal
positions as well as members whose civilian employers designate their
job as crucial to national security.
Recall consideration will include length and nature of previous
service, family responsibilities, and necessary national interest
employment.
For example, if a health care professional can do society more good
as a civilian, that individual may be exempted from recall. If
reservists has serious family responsibilities, they may be exempted.
The law may also exempt veterans with some disabilities, medical
conditions, or certain separation codes from any involuntary recall.
On March 27, 2020, the Administration issued E.O. 13912, National
Emergency Authority To Order the Selected Reserve and Certain Members
of the Individual Ready Reserve of the Armed Forces to Active Duty at
https://www.federalregister.gov/documents/2020/04/01/2020-06985/
national-emergency-authority-to-order-the-selected-reserve-and-certain-
members-of-the-individual. While other authorizations are available for
recall of the Ready Reserve, this E.O. was required to allow the
Secretary of Defense the maximum flexibility for this national
emergency to call up Ready Reserve members to help in the country's
response to COVID-19. On April 2, 2020, the Secretary of Defense issued
Guidance on Activating the National Guard, Reserve, and Individual
Ready Reserve for Coronavirus Disease Response, at https://prhome.defense.gov/Portals/52/Guidance%20on%20Activating%20the%20National%20Guard%20Reserve%20and%20IRR%20for%20COVID-19%20OSD003539-20%20RES%20Final%201.pdf describing how
the Military Services can activate the National Guard and the Ready
Reserve to support the domestic response to COVID-19.
Expected Impact of the Changes by This Interim Rule
DoD's revisions are meant to support military mobilization without
diminishing the civilian national coronavirus response. The publication
of this rule is meant to enhance civilian employer awareness of the
need to provide early identification of critical civilian positions
within their organizations and, in coordination with the Military
Services, allow the service member to be considered for service not as
a Ready Reserve member who is factored into military mobilization
planning.
This rule only discusses employee and employer actions before a
mobilization. After a mobilization is ordered, no deferment, delay, or
exemption from mobilization will be granted because of civilian
employment. The Uniformed Services Employment and Reemployment Rights
Act (USERRA), 1994 Public Law 103-353, as amended at 38 U.S.C. 4301-
4335, affords reservists and employers various rights and
responsibilities regarding reemployment of their civilian position.
Employers must ensure key position determinations are not undertaken in
a manner that would violate USERRA, its implementing regulations at 20
CFR part 1002, or other federal statutes and regulations.
Civilian employers, usually through their onboarding programs,
identify key employees to ensure the Military Services have an accurate
assessment of Ready Reserve members. This assessment of employees who
have a Ready Reserve affiliation is meant to preclude conflicts between
a member's mobilization requirements and non-Federal civilian
employment obligations during times of war or national emergency. Ready
Reserve members with critical civilian skills should work with their
employer before mobilization. The efforts of civilian employers and
their employees pre-mobilization will help identify employees who are
required for the ongoing civilian response to the pandemic. While Ready
Reserve members are already required to be screened by their respective
Military Service per 10 U.S.C. 10149 and to work with their employer to
ensure those with critical civilian skills are identified, these
updates to the CFR will ensure a more accurate accounting of capability
and capacity of the specialties required for COVID-19 response.
This rule updates the naming of current offices within the Office
of the Secretary of Defense (OSD), provides current information on
service points of contact, and removes previous language pertaining to
federal government employers to more succinctly clarify employer
responsibilities to petition the respective Military Service of Ready
Reserve members that may have a conflict with their employment prior to
a military mobilization. These changes highlight how a civilian
employer, based on their capability and capacity during either normal
or extenuating circumstances such as the ongoing COVID-19 response,
petitions a Military Service on behalf of a Ready Reserve employee who
occupies a key position within a company or occupies a position where
military mobilization would create an extreme personal or community
hardship. Employers are encouraged to assess the internal capabilities
of their own positions and the organic capacity to sustain emergency
manpower needs prior to a military mobilization which can produce an
accurate listing of what they consider key positions to their
organization.
DoD last modified this section of the CFR, Screening the Ready
Reserve on December 23, 1999 (64 FR 72027). Many of the changes support
a recommendation of the DoD Regulatory Reform Task Force to redact
parts related to Federal Employers as the current rule contains the
entire content of DoD's internal Directive which is unnecessary for
civilian employers. The
[[Page 84239]]
revisions remove all text not applicable to the public and the retained
text was updated or edited for clarity.
The following is a summary of changes by section:
Section 44.1 Purpose. Updated U.S. Code.
Section 44.2 Applicability. Removed all text and replaced with non-
Federal employers statement.
Section 44.3 Definitions. Removed ``Extreme personal hardship'' as
this request is submitted by the member, not the employer. Added
``Inactive National Guard.'' Removed all Federal implications in ``Key
position'' and retained only the first statement for non-Federal
applicability. Removed internal process text from ``Mobilization.''
Removed internal process text from ``Selected Reserve.'' Removed
``Standby Reserve'' as non-applicable to the public.
Section 44.4 Policy. Retained (a), merged (a)(1) and (a)(2),
renumbered (a)(3) to (a)(2). Renumbered (b) to (d) and removed internal
process text. Renumbered (f) to (b). Renumbered (g) to (c). Removed
(c), (d), (e), (h), (i), (j), and (k) as internal processes text and
non-applicable to the public.
Section 44.5 Responsibilities. Adjusted responsibilities based on
OSD restructure. Renamed (a) to USD(P&R) and retained text with edits
for clarity. Renamed (b) to ASD(M&RA), retained (b)(5) text with edits
for clarity, and removed (b)(1-4) as internal processes text and non-
applicable to the public. Retained (c), added USCG, retained (c)(2-4)
text with edits for clarity, removed (c)(1, 5-10) as internal processes
text and non-applicable to the public.
Appendix A to Part 44--Guidance. Adjusted title for public
applicability. Removed Deputy Secretary of Defense as internal
processes text and non-applicable to the public. Merged and renamed
with edits (a) and (b) to (a). Retained with edits for clarity and text
non-applicable to the public (a)(1) to (b). Retained (a)(1)(i) to
(b)(3) with edits for clarity and text non-applicable to the public.
Removed (a)(1)(ii) as internal processes and text non-applicable to the
public. Retained (a)(1)(iii) to (b)(1) with edits for clarity and text
non-applicable to the public. Retained (a)(1)(iv)(A-F) to (b)(2)(i-vi).
Removed (2). Retained (b) to (a). Retained (c) and merged ``List of . .
.'' into (c). Updated contact information and added website.
When this rule is published, DoD will also update and publish its
internal instruction--DoD Instruction 1200.07, ``Screening the Ready
Reserve''--for all applicable changes.
Costs
As this is an administrative update to an existing Rule, DoD
believes the economic impact to civilian employers is de minimis,
estimating a cumulative total of $11K across all employers nationwide.
Under the existing Rule, employers are already required to identify
employees who are Ready Reserve members and this rulemaking does not
alter that requirement. The cost to employers of screening is already
imbedded in their HR processes. The estimated costs if an employer
submits a petition to a Military Service is calculated below and will
vary based on the automation of human resource processes and the number
of employees of an organization who are Ready Reserve members with
critical skills. Ready Reserve members are already required to be
screened by their respective Military Service per 10 U.S.C. 10149 and
to work with their employers to address any concerns. The benefit of
screening to the employer is to ensure those with critical civilian
skills are identified in order to prevent conflicts between the
emergency manpower needs of civilian and military activities during a
mobilization.
The following describes how the estimated sum total of $11K was
derived using existing costs to project costs of a petition. Using data
from the U.S. Bureau of Labor Statistics, U.S. Census, DoD Total
Military Strength report, and the DoD Status of Forces survey, less
than 0.3% of the U.S. population is in the Reserve, including the
National Guard, with 51% employed by the public [Federal (36%), State
(9%), or Local (6%)]. There were 1,020,156 Military Service members in
the Ready Reserve as of March 2020 and over 782,000 of those members
are estimated to have civilian employment. Approximately 0.3% of the
782,000, or 2,346 members, may be identified as key civilian employees
and may require a petition. The 2019 median hourly wage for an HR
professional or manager is $34.92 an hour. The cost to screen one
employee as part of an onboarding process questionnaire or through an
annual recertification process, which is estimated at less than 10
minutes or $5.82, is already imbedded in their HR processes and thus
not included here. The cost to prepare a petition on one employee is
estimated at 2 hours, or $69.84. Applying a more appropriate and
realistic planning factor of 0.3% to reflect key positions in civilian
organizations reflects a projected annual cost, collectively from all
employers, of $11,095.
Cost Benefit Analysis Assumptions and Sources
It should be noted, not every Ready Reserve member in a company
would be considered in a ``key position'' and therefore, a petition
would not be needed on every member. The estimated cost presented
encompasses all 1,020,156 Ready Reserve members and a 0.3% planning
factor. Assumptions in cost calculation include: U.S. population:
329,648,880 (as of May 14, 2020, source: https://www.census.gov/);
Ready Reserve: 1,020,156 (as of March 31, 2020, source: Total Military
Strength report obtained from the Defense Manpower Data Center (DMDC)
from each Military Service HR system of record); Percent of U.S.
population in the Ready Reserve (Reserve/US population): 0.0030947 or
0.3%. Based on these data points, a projected 0.3% of employers in the
country employ a Ready Reserve member. The Bureau of Labor Statistics
at the end of March 2020 reported a U.S. working population of
155,167,000 with 16,294,000 working office/admin (human resources/HR).
Applying the projected 0.3% of employers with Ready Reserve members
(HR*0.3%) reflects 48,882 HR employees to address Ready Reserve members
for their employer. With a median salary for HR Manager/Specialist of
$34.92/hour, an annual screening is estimated to take 10 min (Rate/6)
or $5.82 and to prepare a petition package to take 2 hours (Rate*2) or
$69.84. Only the petition calculation is include as the annual
screening is already imbedded in HR processes.
Data from 2018 DoD Status of Forces Survey reflects the following
breakdown of principal civilian employment before most recent
activation: Federal Government 36%; State government 9%; Local
government 6%; Private/public company 43%; Non-profit 3%; Self-employed
2%; and Family business/farm/unemployed 1%. The below table reflects
the costs of the 48,882 HR employees who would be preparing petitions
on the Ready Reserve members in their organization.
[[Page 84240]]
Screening Ready Reserve/National Guard Cost Analysis
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2-hr at 0.3%
% # Employees planning
factor
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Private......................................................... 49 23,952 $5,018.46
Federal......................................................... 36 17,598 3,687.03
State........................................................... 9 4,399 921.76
Local........................................................... 6 2,933 614.51
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Grand Total................................................. 100 48,882 11,095.24
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Cost to the DoD. These estimates (0.3% of 782,000 Ready Reserve
members fill key positions) indicate the Military Services would
adjudicate approximately 2,346 members, a number well within the normal
processing by all Military Service Reserve centers and therefore would
not add additional costs.
Interim Final Rule Justification
DoD is issuing this rulemaking as an interim final rule and has
determined that, under the Administrative Procedure Act (APA), 5 U.S.C.
553(b)(B), it would be impracticable and contrary to the public
interest to delay a final regulation until a public notice and comment
process has been completed.
Since March 2020, DoD's response to the pandemic has grown from a
few thousand Ready Reserve members deployed primarily to states in the
northwest and northeast to currently over 40,000 members deployed
throughout the United States. The conclusion of a public notice and
comment period before the rule is finalized would be impracticable
because it would impede agile and timely execution of DoD's response to
current pandemic and ongoing natural disaster support. Requests for DoD
support to all states has evolved and grown over the last 7 months and
the Department anticipates it will continue through the development and
deployment of a vaccine over the next two years. Additionally, the
Military Services continue to support other domestic response actions
such as providing local protection during civil disturbances throughout
the country, supporting disaster response for wildfires and hurricanes
and continuing to support election requirements. Given these competing
requests and the length of time required for pandemic response
involving DoD personnel, the Department needs to continue to consider
the proper balance of a civilian employees responsibilities within
their communities for pandemic and disaster response and increasing
requests from States for additional DoD resources. Given the pandemic's
evolution and increasing request for DoD resources over the last seven
months, the effort to begin rulemaking in this area was delayed at the
start of the pandemic. The current requirements and the need to support
both the military and civilian response for the pandemic, natural
disasters, and social unrest has left DoD with insufficient time to
prepare and complete a full public notice and comment rulemaking
proceeding to timely complete a final rule.
Early in the response to pandemic, limited information from
employers regarding Ready Reserve members in key positions created an
initial delay in understanding true capacity and capability of civilian
medical providers who are also Ready Reserve members and could be
factored into military mobilization planning. The publication of the
rule will encourage the early identification of critical civilian
employees and, in coordination with the Military Services, allow the
service member to be counted in the Ready Reserve. Given the nature of
the COVID-19 pandemic and an anticipated requests for resources through
vaccine deployment, delaying this notice to employers through a
proposed rule may hinder DoD's ability to determine the size of medical
personnel available for deployment which would impede immediate action
to protect the public health.
For these reasons, DoD has determined that the public notice and
participation that the APA ordinarily requires would, in this case, be
impracticable, unnecessary, and contrary to the public interest and
that good cause exists for waiving proposed rulemaking and delaying its
solicitation of comments from the public until after it issues an
interim final rule. DoD will consider those comments received upon its
interim final rulemaking in a subsequent final rule. Additionally, and
for the same reasons discussed above, DoD has determined there is good
cause to make the rule effective immediately, pursuant to 5 U.S.C.
553(d)(3).
Regulatory Analysis
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated a significant regulatory
action, although, not determined to be economically significant, under
section 3(f) of Executive Order 12866. Accordingly, the rule has been
reviewed by the Office of Management and Budget (OMB) under the
requirements of these Executive Orders.
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs''
This interim final rule is not subject to the requirements of
Executive Order 13771 as its costs to Non-federal civilian employers
are de minimis.
Costs
Additional details on the cost of this rule are discussed in the
costs section of this preamble.
Benefits
Civilian Employer processes and military screening actions ensure
civilian employers and the Military Services have the appropriate
balance of civilian and military skills required for both parties in
case of a mobilization. The challenges faced today in communities as
well as in the DoD require dynamic and timely employment of our service
members while reducing the conflict of those members to meet both
military and or civilian requirements. Ultimately, the
[[Page 84241]]
response to military mobilization and civilian planning will be greatly
enhanced when the essential projected response needs have been
equitably calculated for a Ready Reserve member and employee. Military
Service annual screening provides a vital Ready Reserve force composed
of members who meet Military Service readiness standards of mental,
moral, professional, and physical fitness and possess the military
qualifications required in the various grades, ratings, and specialties
of their Military Service; and are available immediately for active
duty during a mobilization or as otherwise required by law. The tasking
of a Ready Reserve member who is known to be critical to civilian
response in a key position that was not previously adjudicated through
the Military Service could create a delay in the civilian response and
in turn create potential harm to the local community. The benefit of
this Rule fosters a partnership in the appropriate balance of civilian
and military assessments to meet needed requirements for a response
while not decrementing each other's capacity and capability.
Alternatives
If no action were taken to update the current rule, the ability to
identify medical employees with critical civilian skills needed for the
COVID-19 response and to petition those critical employees to the
Military Services for consideration would be reduced thus greatly
impacting both military and civilian responses and creating
inefficiencies in awareness and planning of medical capacity and
capability. Additionally, if no action were taken, the current names of
OSD officials with screening the Ready Reserve responsibilities would
not be communicated to employers. This lack of action is not preferred
as it would cause inefficiencies in providing medical capacity for
COVID-19 response and cause confusion for employers because the list of
offices to which petitions must be submitted is extremely outdated. The
results of this alternative are not preferred. The preferred
alternative is to publish this interim final rule for public comment.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The Department of Defense certifies that this interim final rule is
not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it
would not, if promulgated, have a significant economic impact creating
a substantial cost to a number of small entities. There are a small
percentage of defined critical employees in the civilian sector,
regardless of the national emergency, that are required to support
their civilian employer. As the response to the pandemic evolved, the
need for certain specialties in the response evolved. In the case of
COVID-19, the immediate need was for medical providers and the
situation evolved requiring additional specialties for support. In
other non-federal employment areas, a critical employee may stay
consistent, as in the example of a sole nuclear reactor chief within a
plant who should not be in the Ready Reserve as he or she would be
required to mobilize if called upon and not be able to perform the
critical civilian skill. Therefore, the Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. The DoD will submit a report containing
this rule and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States. A major rule cannot take effect until 60 days after it is
published in the Federal Register. This interim final rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies to assess anticipated costs and benefits
before issuing any rule whose mandates require spending in any 1 year
of $167 million in 2019 dollars, updated annually for inflation. It is
estimated this interim final rule will not substantially affect State,
local, or tribal governments and private sector costs any more than the
previous rule requirements.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that 32 CFR part 44 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act of 1995.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates an interim final rule (and
subsequent final rule) that imposes substantial direct requirement
costs on State and local governments, preempts State law, or otherwise
has Federalism implications. Like the current rule, it is estimated
this interim final rule will not have a substantial effect on State and
local governments, where 9% and 6% respectively employ Ready Reserve,
including the National Guard, members.
List of Subjects in 32 CFR Part 44
Armed forces reserves.
For the reasons stated in the preamble, the Department of Defense
revises 32 CFR part 44 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 for Employers of Ready Reservists
Authority: 10 U.S.C. 10149.
Sec. 44.1 Purpose.
This rule updates Department of Defense (DoD) policy and
responsibilities for the screening of Ready Reservists under 10 U.S.C.
10149.
Sec. 44.2 Applicability.
This rule applies to non-Federal employers of Ready Reservists
filling key positions.
Sec. 44.3 Definitions.
For purposes of this part, the following definitions apply:
Extreme community hardship. A situation that, because of a Reserve
member'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 will be made by the Reserve member and
must be supported by documentation, as required by the Secretary of the
Military Department concerned.
Inactive National Guard (ING). Members of the National Guard in an
inactive status in the Ready Reserve and attached to a specific
National Guard unit. These members do not participate in training
activities but mobilize with their unit of assignment or with other
units within their State on partial or full
[[Page 84242]]
mobilization. They are not subject to a call-up pursuant to 10 U.S.C.
12304.
Individual Ready Reserve (IRR). A manpower pool within the Ready
Reserve of each of the RCs consisting of individuals who have had some
training or who have served previously in the AC or in the Selected
Reserve, and may have some period of their MSO remaining pursuant to 10
U.S.C. 651. The IRR consists of members of the Ready Reserve who are
not in the Selected Reserve or the ING. Additionally, the IRR also
includes some personnel who are participating in officer training
programs or in the Armed Forces Health Professions Scholarship and
Financial Assistance Programs.
Key employee. Any non-federal employee occupying a key position
within an agency, company, local government, or organization.
Key position. A public or private civilian position, not a job
series, designated by the employer and approved by the Secretary of the
Military Department concerned) that cannot be vacated during war or
national emergency.
Mobilization. The process by which the Armed Forces of the United
States, or part of them, are brought to a state of readiness for war or
other national emergency.
Ready Reserve. The Selected Reserve and Individual Ready Reserve
liable for active duty as prescribed by law.
Selected Reserve. Those units and individuals within the Ready
Reserve designated by their respective Military Service and approved by
the Joint Chiefs of Staff as so essential to initial wartime missions
that they have priority over all other reserves.
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 readiness standards of mental, moral,
professional, and physical fitness and possess the military
qualifications required in the various ranks, ratings, and specialties.
(2) Are available immediately for active duty (AD) during a
mobilization or as otherwise required by law.
(b) Ready Reserve members 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.
(c) Ready Reserve members who occupy key positions shall be
transferred to the Standby Reserve or the Retired Reserve, or shall be
discharged, as appropriate.
(d) After a mobilization is ordered, no deferment, delay, or
exemption from mobilization will be granted to Ready Reserve members
because of their civilian employment.
Sec. 44.5 Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness
(USD(P&R)) adjudicates, before mobilization, conflicts the Ready
Reserve screening process has identified, but has not resolved, between
the mobilization manpower needs of the civilian sector and the Military
Services.
(b) The Assistant Secretary of Defense for Manpower and Reserve
Affairs (ASD(M&RA)), under the USD(P&R), coordinates resolution of
conflicts between the mobilization manpower needs of the civilian
sector and the Military Services identified but not resolved through
the Ready Reserve screening process.
(c) The Secretaries of the Military Departments and Commandant,
United States Coast Guard, ensure coordination with the ASD(M&RA) 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. They will review petitions
submitted by employers, take applicable action, and promptly transmit
the results of that determination to the reservist concerned and their
employer after making a determination in response to the petition.
Materials provided or produced with regard to the petition will be
retained by the Secretary Concerned.
Appendix A to Part 44--Guidance for Employers of Ready Reservists
(a) Employers of Ready Reserve members. Prior to any
mobilization action, employers of Ready Reserve members are
encouraged to adopt personnel management procedures designed to
prevent conflicts between the emergency manpower needs of civilian
and military activities that may occur during a military
mobilization requiring Ready Reserve participation. Employers are
encouraged to assess the internal capabilities of their own
positions and the organic capacity to sustain emergency manpower
needs prior to a military mobilization which can produce an accurate
listing of what they consider key positions to their organization.
Employers, via the head of or suitable designee within an agency,
company, local government, or organization, are encouraged to use
the below key position guidelines as a reference for considering
designations and, when applicable, petitioning the respective
Military Service if a Ready Reserve member fills a key position.
Nothing in this part shall reduce, limit, or eliminate in any manner
any right or benefit provided by USERRA. Employers must ensure that
key position determinations are not undertaken in a manner that
would violate USERRA.
(b) Key position guidelines:
(1) Designate individual positions that are essential in nature
to, and within, the organization as ``key positions,'' and require
they will not be filled by Ready Reserve members to prevent such
positions from being vacated during a mobilization.
(2) Consider the following questions to determine whether an
individual position should be designated as a key position:
(i) Can the position be filled in a reasonable time after
mobilization? (Note that this factor must not be the sole factor
relied on in making a key position determination.)
(ii) Does the position require technical or managerial skills
that are possessed uniquely by the incumbent employee?
(iii) Is the position associated directly with defense
mobilization?
(iv) Does the position include a mobilization or relocation
assignment in a federal agency that has emergency functions, as
designated by E.O. 12656?
(v) Is the position directly associated with industrial or
manpower mobilization, as designated in E.O.s 12656 and 12919?
(vi) Are there other factors related to the national defense,
health, or safety that will make the incumbent of the position
unavailable for mobilization? These factors should not be applied
more broadly than intended as to encompass an entire class of
workers, nor misapplied to conflict with USERRA, its implementing
regulations at 20 CFR part 1002, or other federal statutes and
regulations.
(3) Conduct an annual review of key positions and employees as
noted herein.
(4) Petition to the respective Military Service any findings for
adjudication of specific Ready Reserve members filling critical
positions, as needed.
(5) When employers consider a Ready Reserve member as filling a
key position within their organization, they should petition the
applicable Reserve personnel center for discussion and adjudication.
An employer may not take any employment action with regard to the
position for which approval is sought based upon an employee or
potential employee's military service until such time as the
petition for approval has been approved by the relevant Service
Secretary. Below is the list of Reserve personnel centers to which
petitions shall be forwarded:
Army Reserve: U.S. Army Human Resources, Command 1600 Spearhead
Division, Avenue ATTN: AHRC-ROR-PPA, Fort Knox, KY 40122-5100,
https://www.hrc.army.mil/
Navy Reserve: Commander, Naval Military Personnel Command (Pers 91),
5720 Integrity Drive, Millington, TN 38055-9100, https://www.public.navy.mil/bupers-npc/Pages/default.aspx
[[Page 84243]]
Marine Corps Reserve: Director, Marine Corps Individual Reserve
Support Activity (MCIRSA), 2000 Opelousas Ave., New Orleans, LA
70114, https://www.marforres.marines.mil/Major-Subordinate-Commands/Force-Headquarters-Group/Marine-Corps-Individual-Reserve-Support-Activity/
Air Force Reserve: Commander, Air Reserve Personnel Center/DPAM,
18420 E. Silver Creek Ave., Bldg. 390, MS 68, Buckley AFB, CO 80011,
https://www.arpc.afrc.af.mil/
Coast Guard Reserve: Commander (PSC-RPM), U. S. Coast Guard
Personnel Service Center, 2703 Martin Luther King Jr Ave. SE, Stop
7200, Washington, DC 20593-7200, https://www.dcms.uscg.mil/Our-Organization/Assistant-Commandant-for-Human-Resources-CG-1/Personnel-Service-Center-PSC/Reserve-Personnel-Management-PSC-RPM/
Army and Air National Guard: Submit petitions to the Adjutant
General of the appropriate State, Territory, or the District of
Columbia.
Dated: December 21, 2020.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-28646 Filed 12-22-20; 4:15 pm]
BILLING CODE 5001-06-P