[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