[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