[Federal Register Volume 86, Number 208 (Monday, November 1, 2021)]
[Rules and Regulations]
[Pages 60166-60169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23639]


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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 for Personnel and 
Readiness, Department of Defense (DoD).

ACTION: Final rule.

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[[Page 60167]]

SUMMARY: As part of the continuing response to coronavirus disease 2019 
(COVID-19), DoD has revised the Code of Federal Regulations (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 final rule is effective on December 1, 2021.

FOR FURTHER INFORMATION CONTACT: CAPT Richard Howell, (703) 697-3837.

SUPPLEMENTARY INFORMATION: DoD's internal policy, DoD Directive 
1200.07, ``Screening the Ready Reserve'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/120007p.pdf) 
establishes requirements for Federal Government employers and the 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

    Title 10 U.S.C. 12302 authorizes the President to recall up to 1 
million reservists for up to 2 years in times of national emergency. 
Title 10 U.S.C. 10149, ``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 (IRR), and Inactive National Guard.
    The Selected Reserve are the first to be activated. Most reservists 
are in this category.
    The 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.
    Title 10 U.S.C.12302 also states recall consideration will be given 
to:
    (1) The length and nature of previous service, to assure such 
sharing of exposure to hazards as the national security and military 
requirements will reasonably allow;
    (2) family responsibilities; and
    (3) employment necessary to maintain the national health, safety, 
or interest.
    For example, if a health care professional can do society more good 
as a civilian, that individual may be exempted from recall. If 
reservists have 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, Executive Order 13912, National Emergency 
Authority To Order the Selected Reserve and Certain Members of the 
Individual Ready Reserve of the Armed Forces to Active Duty (available 
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) was issued. While other authorizations are 
available for recall of the Ready Reserve, this Executive order 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 (available 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 Finalized by This Rule

    DoD's revisions support military mobilization without diminishing 
the civilian national coronavirus response. The 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.

[[Page 60168]]

    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.

Comments and Responses

    On Monday, December 28, 2020 (85 FR 84237-84243), the DoD published 
an interim final rule titled ``Screening the Ready Reserve'' for a 60-
day public comment period. No public comments were received and this 
rule is being finalized with no changes from the published in interim 
final rule.

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. The final rule is not a significant regulatory action 
under Executive Order 12866 and has not been reviewed by the Office of 
Management and Budget.

Costs

    DoD believes the economic impact to civilian employers is minimal, 
estimating a cumulative total of $11K across all employers nationwide. 
Employers are already required to identify employees who are Ready 
Reserve members. 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 percent of the U.S. population is in the Reserve, including 
the National Guard, with 51 percent employed by the public [Federal (36 
percent), State (9 percent), or Local (6 percent)]. 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 percent 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 
percent 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 percent 
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 from 
each Military Service HR system of record); Percent of U.S. population 
in the Ready Reserve (Reserve/U.S. population): 0.0030947 or 0.3 
percent. Based on these data points, a projected 0.3 percent 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 percent of employers with 
Ready Reserve members (HR*0.3 percent) 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 percent; State government 9 percent; 
Local government 6 percent; Private/public company 43 percent; Non-
profit 3 percent; Self-employed 2 percent; and Family business/farm/
unemployed 1 percent. 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 60169]]



                              Screening Ready Reserve/National Guard Cost Analysis
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                                                                                                   2-hr at 0.3%
                                                                         %           Number of       planning
                                                                                     employees        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
                                                                 -----------------------------------------------
    Grand Total.................................................             100          48,882       11,095.24
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    Cost to the DoD. These estimates (0.3 percent 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.

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 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.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    The DoD certifies that this 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 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 (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 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. It is estimated this final rule will not 
have a substantial effect on State and local governments, where 9 
percent and 6 percent respectively employ Ready Reserve, including the 
National Guard, members.

List of Subjects in 32 CFR Part 44

    Armed forces reserves.

PART 44--SCREENING THE READY RESERVE

0
Accordingly, the interim final rule revising 32 CFR part 44, which 
published at 85 FR 84237 on December 28, 2020, is adopted as final 
without change.

    Dated: October 26, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-23639 Filed 10-29-21; 8:45 am]
BILLING CODE 5001-06-P