[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
----------------------------------------------------------------------------------------------------------------
                                                                                                   2-hr at  0.3%
                                                                         %          # Employees      planning
                                                                                                      factor
----------------------------------------------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------

    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