Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 84237 

Second Edition, May 1999; Errata April 

2007; reaffirmed October 2013; 

incorporated by reference at § 250.1202; 

* * * * * 

(20) API MPMS Chapter 5—Metering, 

Section 2—Measurement of Liquid 

Hydrocarbons by Displacement Meters, 

Third Edition, September 2005; 

reaffirmed July 2015; incorporated by 

reference at § 250.1202; 

(21) API MPMS Chapter 5—Metering, 

Section 3—Measurement of Liquid 

Hydrocarbons by Turbine Meters, Fifth 

Edition, September 2005; reaffirmed 

August 1, 2014; incorporated by 

reference at § 250.1202; 

(22) API MPMS Chapter 5—Metering, 

Section 4—Accessory Equipment for 

Liquid Meters, Fourth Edition, 

September 2005; reaffirmed August 

2015; incorporated by reference at 

§ 250.1202; 

(23) API MPMS Chapter 5—Metering, 

Section 5—Fidelity and Security of 

Flow Measurement Pulsed-Data 

Transmission Systems, Second Edition, 

August 2005; reaffirmed August 2015; 

incorporated by reference at § 250.1202; 

(24) API MPMS Chapter 5—Metering, 

Section 6—Measurement of Liquid 

Hydrocarbons by Coriolis Meters; First 

Edition, October 2002; reaffirmed 

November 2013; incorporated by 

reference at § 250.1202; 

* * * * * 

(26) API MPMS Chapter 6—Metering 

Assemblies, Section 1—Lease 

Automatic Custody Transfer (LACT) 

Systems, Second Edition, May 1991; 

reaffirmed May 2012; incorporated by 

reference at § 250.1202; 

(27) API MPMS Chapter 6—Metering 

Assemblies, Section 6—Pipeline 

Metering Systems, Second Edition, May 

1991; reaffirmed December 2017; 

incorporated by reference at § 250.1202; 

(28) API MPMS Chapter 6—Metering 

Assemblies, Section 7—Metering 

Viscous Hydrocarbons, Second Edition, 

May 1991; reaffirmed March 2018; 

incorporated by reference at § 250.1202; 

* * * * * 

(34) API MPMS Chapter 10— 

Sediment and Water, Section 1— 

Standard Test Method for Sediment in 

Crude Oils and Fuel Oils by the 

Extraction Method, Third Edition, 

November 2007; reaffirmed October 

2012; incorporated by reference at 

§ 250.1202; 

* * * * * 

(43) API MPMS, Chapter 12— 

Calculation of Petroleum Quantities, 

Section 2—Calculation of Petroleum 

Quantities Using Dynamic Measurement 

Methods and Volumetric Correction 

Factors, Part 1—Introduction, Second 

Edition, May 1995; reaffirmed March 

2014; incorporated by reference at 

§ 250.1202; 

(44) API MPMS, Chapter 12— 

Calculation of Petroleum Quantities, 

Section 2—Calculation of Petroleum 

Quantities Using Dynamic Measurement 

Methods and Volumetric Correction 

Factors, Part 2—Measurement Tickets, 

Third Edition, June 2003; reaffirmed 

February 2016; incorporated by 

reference at § 250.1202; 

(45) API MPMS Chapter 12— 

Calculation of Petroleum Quantities, 

Section 2—Calculation of Petroleum 

Quantities Using Dynamic Measurement 

Methods and Volumetric Correction 

Factors, Part 3—Proving Reports; First 

Edition, October 1998, reaffirmed March 

2014; incorporated by reference at 

§ 250.1202(a) and (g); 

(46) API MPMS Chapter 12— 

Calculation of Petroleum Quantities, 

Section 2—Calculation of Petroleum 

Quantities Using Dynamic Measurement 

Methods and Volumetric Correction 

Factors, Part 4—Calculation of Base 

Prover Volumes by the Waterdraw 

Method, First Edition, December 1997; 

reaffirmed September 2014; 

incorporated by reference at 

§ 250.1202(a), (f), and (g); 

* * * * * 

(50) API MPMS, Chapter 14.5/GPA 

Standard 2172–09; Calculation of Gross 

Heating Value, Relative Density, 

Compressibility and Theoretical 

Hydrocarbon Liquid Content for Natural 

Gas Mixtures for Custody Transfer; 

Third Edition, January 2009; reaffirmed 

February 2014; incorporated by 

reference at § 250.1203; 

* * * * * 

(55) API MPMS Chapter 21—Flow 

Measurement Using Electronic Metering 

Systems, Section 2—Electronic Liquid 

Volume Measurement Using Positive 

Displacement and Turbine Meters; First 

Edition, June 1998; reaffirmed October 

2016; incorporated by reference at 

§ 250.1202(a); 

* * * * * 

Subpart L—Oil and Gas Production 

Measurement, Surface Commingling, 

and Security 

§ 250.1203 [AMENDED] 

■ 3. In § 250.1203(b)(4), at the end of the 

last sentence, add ‘‘(incorporated by 

reference as specified in § 250.198)’’. 

[FR Doc. 2020–27238 Filed 12–23–20; 8:45 am] 

BILLING CODE 4310–VH–P 

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. 

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, 


tkelley on DSKBCP9HB2PROD with RULES
84238 Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 

‘‘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-orderthe-selected-reserve-and-certainmembers-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%20COVID19%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 nonFederal 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 


tkelley on DSKBCP9HB2PROD with RULES
Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 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 nonFederal 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 nonapplicable 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. 


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84240 Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 

SCREENING READY RESERVE/NATIONAL GUARD COST ANALYSIS

% # Employees 

2-hr at 

0.3% 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 


tkelley on DSKBCP9HB2PROD with RULES
Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 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. 

§ 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. 

§ 44.2 Applicability. 

This rule applies to non-Federal 

employers of Ready Reservists filling 

key positions. 

§ 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 


tkelley on DSKBCP9HB2PROD with RULES
84242 Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 

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. 

§ 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. 

§ 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/bupersnpc/Pages/default.aspx 


tkelley on DSKBCP9HB2PROD with RULES
Federal Register / Vol. 85, No. 248 / Monday, December 28, 2020 / Rules and Regulations 84243 

1Public Law 115–264, 132 Stat. 3676 (2018). 

2As permitted under the MMA, the Office 

designated a digital licensee coordinator (‘‘DLC’’) to 

represent licensees in proceedings before the 

Copyright Royalty Judges (‘‘CRJs’’) and the Office, 

to serve as a non-voting member of the MLC, and 

to carry out other functions. 17 U.S.C. 115(d)(5)(B); 

84 FR 32274 (July 8, 2019); see also 17 U.S.C. 

115(d)(3)(D)(i)(IV), (d)(5)(C). 

3 85 FR 58114 (Sept. 17, 2020). 

4 37 CFR 210.24(b)(8), 210.25(b)(6), 210.27(c)(5), 

210.28(c)(5). 

5 84 FR 49966 (Sept. 24, 2019). 

6 85 FR 22518 (Apr. 22, 2020). 

7 Guidelines for ex parte communications, along 

with records of such communications, including 

those referenced herein, are available at https://

www.copyright.gov/rulemaking/mmaimplementation/ex-parte-communications.html. All 

rulemaking activity, including public comments, as 

well as educational material regarding the Music 

Modernization Act, can currently be accessed via 

navigation from https://www.copyright.gov/musicmodernization/. 

8See DLC Ex Parte Letter Nov. 10, 2020 at 4–7. 

Marine Corps Reserve: Director, Marine 

Corps Individual Reserve Support Activity 

(MCIRSA), 2000 Opelousas Ave., New 

Orleans, LA 70114, https://

www.marforres.marines.mil/MajorSubordinate-Commands/ForceHeadquarters-Group/Marine-CorpsIndividual-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/OurOrganization/Assistant-Commandant-forHuman-Resources-CG–1/PersonnelService-Center-PSC/Reserve-PersonnelManagement-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 

LIBRARY OF CONGRESS 

U.S. Copyright Office 

37 CFR Part 210 

[Docket No. 2020–5] 

Music Modernization Act Notices of 

License, Notices of Nonblanket 

Activity, Data Collection and Delivery 

Efforts, and Reports of Usage and 

Payment 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Supplemental interim rule with 

request for comments. 

SUMMARY: The U.S. Copyright Office is 

amending its regulations governing 

certain reporting requirements of digital 

music providers and significant 

nonblanket licensees pursuant to title I 

of the Orrin G. Hatch-Bob Goodlatte 

Music Modernization Act. This 

amendment will create a temporary 

exception to certain provisions 

concerning the reporting of information 

about permanent download passthrough licenses in light of recent 

requests that an accommodation to 

current reporting rules be made to avoid 

potential market disruption. Based on 

these requests received following the 

adoption of the current requirements, 

the Copyright Office has determined 

that there is a legitimate need to make 

this amendment effective immediately 

to govern these matters while it 

considers further potential adjustments. 

The Copyright Office solicits public 

comment on how, or whether, it should 

further adjust these particular reporting 

requirements. 

DATES: The supplemental interim rule is 

effective December 28, 2020. Written 

comments must be received no later 

than 11:59 p.m. Eastern Time on 

January 27, 2021. 

ADDRESSES: For reasons of Government 

efficiency, the Copyright Office is using 

the regulations.gov system for the 

submission and posting of public 

comments in this proceeding. All 

comments are therefore to be submitted 

electronically through regulations.gov. 

Specific instructions for submitting 

comments are available on the 

Copyright Office’s website at https://

www.copyright.gov/rulemaking/mmanotices-reports/. If electronic 

submission of comments is not feasible 

due to lack of access to a computer and/ 

or the internet, please contact the 

Copyright Office using the contact 

information below for special 

instructions. 

FOR FURTHER INFORMATION CONTACT: 

Regan A. Smith, General Counsel and 

Associate Register of Copyrights, by 

email at regans@copyright.gov, Jason E. 

Sloan, Assistant General Counsel, by 

email at jslo@copyright.gov, or 

Cassandra G. Sciortino, AttorneyAdvisor, by email at csciortino@

copyright.gov. Each can be contacted by 

telephone by calling (202) 707–8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On October 11, 2018, the President 

signed into law the Orrin G. Hatch-Bob 

Goodlatte Music Modernization Act 

(‘‘MMA’’) which, among other things, 

substantially modifies the compulsory 

‘‘mechanical’’ license for making and 

distributing phonorecords of 

nondramatic musical works under 17 

U.S.C. 115.1 It does so by switching 

from a song-by-song licensing system to 

a blanket licensing regime that will 

become available on January 1, 2021 

(the ‘‘license availability date’’), and 

will be administered by a mechanical 

licensing collective (‘‘MLC’’) designated 

by the Copyright Office (the ‘‘Office’’). 

Digital music providers (‘‘DMPs’’) will 

be able to obtain the new compulsory 

blanket license to make digital 

phonorecord deliveries (‘‘DPDs’’) of 

musical works, including in the form of 

permanent downloads, limited 

downloads, or interactive streams 

(referred to in the statute as ‘‘covered 

activity’’ where such activity qualifies 

for a compulsory license), subject to 

compliance with various requirements, 

including reporting obligations.2 DMPs 

may also continue to engage in those 

activities solely through voluntary, or 

direct, licensing with copyright owners, 

in which case the DMP may be 

considered a significant nonblanket 

licensee (‘‘SNBL’’) under the statute, 

subject to separate reporting obligations. 

On September 17, 2020, the Office 

issued an interim rule adopting 

regulations concerning certain types of 

reporting required under the statute 

after the license availability date: 

Notices of license and reports of usage 

by DMPs, and notices of nonblanket 

activity and reports of usage by SNBLs.3

Those interim regulations include 

requirements to report certain 

information about certain permanent 

download licenses.4 They were adopted 

to help ensure that the MLC receives 

sufficient information to be able to 

fulfill its statutory obligations, including 

under section 115(d)(3)(G)(i)(I)(bb), and 

to effectuate the reporting requirements 

of section 115(d)(4)(A)(ii)(II). The Office 

assumes familiarity with the interim 

rule and all related Federal Register 

documents. 

After the adoption of these rules, 

which involved multiple rounds of 

public comments through a notification 

of inquiry,5 notice of proposed 

rulemaking,6 and an ex parte 

communications process,7 the DLC 

raised a new concern with respect to the 

applicability of these particular 

reporting provisions to ‘‘pass-through’’ 

licenses for permanent downloads.8 The 

DLC explained that ‘‘all [DMPs 

operating] download stores operate 

exclusively under so-called ‘passthrough’ licenses received from record 

labels, where the label obtains the 


tkelley on DSKBCP9HB2PROD with RULES