Federal Register / Vol. 63, No. 15 / Friday, January 23, 1998 / Rules and Regulations 3465

Substances Limitations

* * * * * * *

2,2′-(2,5-Thiophenediyl)-bis(5-tert-butylbenzoxazole) (CAS Reg. No.

7128–64–5).

For use as an optical brightener:

1. In all polymers at levels not to exceed 0.015 percent by weight of

the polymer. The finished articles are to contact food only under conditions of use A through H described in Table 2 of § 176.170(c) of

this chapter.

2. In all polymers at levels not to exceed 0.05 percent by weight of the

polymer. The finished articles shall contact foods only of the types

identified in Table 1 of § 176.170(c) of this chapter, under Categories

I, II, IV–B, VI–A, VI–B, VI–C, VII–B, and VIII under conditions of use

A through H described in Table 2 of § 176.170(c) of this chapter.

3. In adhesives complying with § 175.105 of this chapter and in pressure-sensitive adhesives complying with § 175.125 of this chapter.

* * * * * * *

Dated: January 5, 1998.

Fred R. Shank,

Director, Center for Food Safety and Applied

Nutrition.

[FR Doc. 98–1539 Filed 1–22–98; 8:45 am]

BILLING CODE 4160–01–F

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Food and Drug Administration

21 CFR Part 820

[Docket No. 90N–0172]

RIN 0910–AA09

Quality System Design Control; Open

Public Meeting

AGENCY: Food and Drug Administration,

HHS.

ACTION: Announcement of public

meeting.

SUMMARY: The Food and Drug

Administration (FDA) is announcing the

following meeting: Quality System

Design Control open public meeting.

The topic to be discussed is the

midcourse review of the new design

control requirements. This action is

being taken in accordance with the

current good manufacturing (CGMP)

final rule that appeared in the Federal

Register of October 7, 1996.

DATES: The meeting will be held on,

February 2, 1998, from 8:30 a.m. to 4:30

p.m. Written requests for oral

presentations by January 28, 1998.

ADDRESSES: The meeting will be held at

the National Institutes of Health (NIH),

Natcher Auditorium, 45 Center Dr.,

Bldg. 45, Bethesda, MD. Contact for any

changes: (1) Via Internet at http://

www.fda.gov/cdrh/gmp, or (2)

telephone toll-free at 1–800–638–2041.

FOR FURTHER INFORMATION CONTACT:

For information regarding

registration: Mary Ann Fitzgerald,

or

For information regarding the meeting

or requests for oral presentations:

Kimberly A. Trautman, Center for

Devices and Radiological Health

(HFZ–341), Food and Drug

Administration, 2094 Gaither Rd.,

Rockville, MD 20850, 301–594–

4648, FAX 301–594–4672.

SUPPLEMENTARY INFORMATION: In the

Federal Register of October 7, 1996 (61

FR 52602), FDA stated that it would

hold an open public meeting in early

1998 to discuss, and to further explore

any concerns industry might be having

in implementing the new design control

requirements. Specifically, the results of

the first several months of design

control inspections will be reviewed

and any adjustments to the designated

inspectional strategy of guidances will

be addressed. Also, FDA will evaluate

the information gathered at this point

and determine if design control

requirements, as written in the final

rule, are appropriate to obtain the goals

expressed in the preamble. Particular

attention will be paid to clarity of

information obtained, the

appropriateness of the information

collected with respect to the design

control requirements, the manner in

which the investigators are writing their

observations, and any requirements that

seem to be giving manufacturers a

problem or where there might be

misunderstandings as to what the

regulation requires. It is important to

note that only the requirements and

issues surrounding design controls

codified will be addressed.

Fax written requests for oral

presentations, (including name, title,

firm name, address, telephone, and fax

number), and an outline of your

presentation to the contact person listed

above by January 28, 1998. No

telephone requests will be accepted.

You will be notified by facsimile

whether or not the speaker’s list is full.

If you cannot be reached by facsimile,

please note that in your request.

If you need special accommodations

due to a disability, please contact

Georgette Smith, NIH Conference

Center, 301–496–9966, at least 7 days in

advance.

Dated: January 20, 1998.

Joseph A. Levitt,

Deputy Director for Regulations Policy, Center

for Devices and Radiological Health.

[FR Doc. 98–1822 Filed 1-21-98; 3:22 pm]

BILLING CODE 4160–01–F

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 104

[DoD Instruction 1205.12]

RIN 0790–AG52

Civilian Employment and

Reemployment Rights of Applicants

for, and Service Members and Former

Service Members of the Uniformed

Services

AGENCY: Department of Defense.

ACTION: Final rule.

SUMMARY: This part identifies DoD

guidelines for implementing policy,

assigns responsibilities, and prescribes

procedures for informing Service

members of their reemployment

protections. It updates, codifies, and

strengthens the civilian employment

rights and benefits of Service members

and individuals who apply for

uniformed service, and specifies the
3466 Federal Register / Vol. 63, No. 15 / Friday, January 23, 1998 / Rules and Regulations

obligations of Service members and

applicants for uniformed service.

DATES: This part is effective February 1,

1998. Comments must be received no

later than March 24, 1998.

FOR FURTHER INFORMATION CONTACT:

Colonel Rowan W. Bronson, OASD/RA

(M&P), (703) 693–7490.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ‘‘Regulatory

Planning and Review’’

It has been determined that 32 CFR

part 104 does not pertain to a military

or foreign affairs function of the United

States. It is not a significant regulatory

action. This final rule does not:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy; a section of the economy;

productivity; competition; jobs; the

environment; public health or safety; or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another Agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs, or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in this Executive Order.

Public Law 96–354, ‘‘Regulatory

Flexibility Act’’ (5 U.S.C. 601)

It has been determined that this rule

is not subject to the Regulatory

Flexibility Act (5 U.S.C. 601) because it

is related to a military or foreign affairs

function of the United States. It would

not, if promulgated, have a significant

economic impact on a substantial

number of small entities. The law

provides employment and

reemployment protections for Active

and Reserve Component members, as

well as individuals who apply to be

members of the Uniformed Services.

Public Law 96–511, ‘‘Paperwork

Reduction Act’’ (44 U.S.C. Chapter 35)

It has been determined that this part

does not impose any reporting or

recordkeeping requirements on the

public under the Paperwork Reduction

Act of 1995.

List of Subjects in 32 CFR Part 104

Government employees, Military

personnel.

Accordingly, Title 32, Chapter 1, 32

CFR part 104, is added to read as

follows:

PART 104—CIVILIAN EMPLOYMENT

AND REEMPLOYMENT RIGHTS OF

APPLICANTS FOR, AND SERVICE

MEMBERS AND FORMER SERVICE

MEMBERS OF THE UNIFORMED

SERVICES

Sec.

104.1 Purpose.

104.2 Applicability.

104.3 Definitions.

104.4 Policy.

104.5 Responsibilities.

104.6 Procedures.

Appendix A to part 104—Civilian

Employment And Reemployment Rights,

Benefits And Obligations For Applicants

For, And Service Members And Former

Service Members Of The Uniformed

Services

Appendix B to part 104—Sample Employer

Notification Of Uniformed Service

Authority: 10 U.S.C. 1161.

§ 104.1 Purpose.

This part:

(a) Updates implementation policy,

assigns responsibilities, and prescribes

procedures for informing Service

members who are covered by the

provisions of 38 U.S.C chapter 43 and

individuals who apply for uniformed

service, of their civilian employment

and reemployment rights, benefits and

obligations.

(b) Implements 38 U.S.C. chapter 43,

which updated, codified, and

strengthened the civilian employment

and reemployment rights and benefits of

Service members and individuals who

apply for uniformed service, and

specifies the obligations of Service

members and applicants for uniformed

service.

§ 104.2 Applicability.

This part applies to the Office of the

Secretary of Defense; the Military

Departments, including the Coast Guard

when it is not operating as a Military

Service in the Department of the Navy

by agreement with the Department of

Transportation; the Chairman of the

Joint Chiefs of Staff; and the Defense

Agencies (referred to collectively in this

part as ‘‘the DoD Components’’). The

term ‘‘Military Departments,’’ as used in

this part, refers to the Departments of

the Army, Navy, and Air Force. The

term ‘‘Secretary concerned’’ refers to the

Secretaries of the Military Departments

and the Secretary of Transportation with

respect to the Coast Guard when it is not

operating as a Service in the Department

of the Navy. The term ‘‘Military

Services’’ refers to the Army, the Navy,

the Air Force, the Marine Corps, and the

Coast Guard.

§ 104.3 Definitions.

Critical mission. An operational

mission that requires the skills or

resources available in a Reserve

component or components.

Critical requirement. A requirement

in which the incumbent possesses

unique knowledge, extensive

experience, and specialty skill training

to successfully fulfill the duties or

responsibilities in support of the

mission, operation or exercise. Also, a

requirement in which the incumbent

must gain the necessary experience to

qualify for key senior leadership

positions within his or her Reserve

component.

Escalator position. This is established

by the principle that the returning

Service member is entitled to the

position of civilian employment that he

or she would have attained had he or

she remained continuously employed

by that civilian employer. This may be

a position of greater or lesser

responsibilities, to include a layoff

status, when compared to the employees

of the same seniority and status

employed by the company.

Impossible or unreasonable. For the

purpose of determining when providing

advance notice of uniformed service to

an employer is impossible or

unreasonable, the unavailability of an

employer or employer representative to

whom notification can be given, an

order by competent military authority to

report for uniformed service within

forty-eight hours of notification, or other

circumstances that the Office of the

Assistant Secretary of Defense for

Reserve Affairs may determine are

impossible or unreasonable are

sufficient justification for not providing

advance notice of pending uniformed

service to an employer.

Military necessity. For the purpose of

determining when providing advance

notice of uniformed service is not

required, a mission, operation, exercise

or requirement that is classified, or a

pending or ongoing mission, operation,

exercise or requirement that may be

compromised or otherwise adversely

affected by public knowledge is

sufficient justification for not providing

advance notice to an employer.

Non-career service. The period of

active uniformed service required to

complete the initial uniformed service

obligation; a period of active duty or

full-time National Guard duty that is for

a specified purpose and duration with

no expressed or implied commitment

for continued active duty; or

participation in a Reserve component as

a member of the Ready Reserve

performing annual training, active duty

for training or inactive duty training.
Federal Register / Vol. 63, No. 15 / Friday, January 23, 1998 / Rules and Regulations 3467

Continuous or repeated active

uniformed service or full-time National

Guard duty that results in eligibility for

a regular retirement from the Armed

Forces is not considered non-career

service.

Officer. For determining those Service

officials authorized to provide advance

notice to a civilian employer of pending

uniformed service by a Service member

or an individual who has applied for

uniformed service, an officer shall

include all commissioned officers,

warrant officers, and non-commissioned

officers authorized by the Secretary

concerned to act in this capacity.

Uniformed service. Performance of

duty on a voluntary or involuntary basis

in the Army, the Navy, the Air Force,

the Marine Corps or the Coast Guard,

including their Reserve components,

when the Service member is engaged in

active duty, active duty for special

work, active duty for training, initial

active duty for training, inactive duty

training, annual training or full-time

National Guard duty, and, for purposes

of this part, a period for which a person

is absent from a position of employment

for the purpose of an examination to

determine the fitness of the person to

perform such duty.

§ 104.4 Policy.

It is DoD policy to support non-career

service by taking appropriate actions to

inform and assist uniformed Service

members and former Service members

who are covered by the provisions of 38

U.S.C. chapter 43, and individuals who

apply for uniformed service of their

rights, benefits, and obligations under

38 U.S.C. Chapter 43. Such actions

include:

(a) Advising non-career Service

members and individuals who apply for

uniformed service of their employment

and reemployment rights and benefits

provided in 38 U.S.C. chapter 43, as

implemented by this part, and the

obligations they must meet to exercise

those rights.

(b) Providing assistance to Service

members, former Service members and

individuals who apply for uniformed

service in exercising employment and

reemployment rights and benefits.

(c) Providing assistance to civilian

employers of non-career Service

members in addressing issues involving

uniformed service as it relates to

civilian employment or reemployment.

(d) Considering requests from civilian

employers of members of the National

Guard and Reserve to adjust a Service

member’s scheduled absence from

civilian employment because of

uniformed service or make other

accommodations to such requests, when

it is reasonable to do so.

(e) Documenting periods of uniformed

service that are exempt from a Service

member’s cumulative 5-year absence

from civilian employment to perform

uniformed service as provided in 38

U.S.C. chapter 43 and implemented by

this part.

(f) Providing, at the Service member’s

request, necessary documentation

concerning a period or periods of

service, or providing a written statement

that such documentation is not

available, that will assist the Service

member in establishing civilian

reemployment rights, benefits and

obligations.

§ 104.5 Responsibilities.

(a) The Assistant Secretary of Defense

for Reserve Affairs, under the Under

Secretary of Defense for Personnel and

Readiness, shall:

(1) In conjunction with the

Departments of Labor (DoL) and

Veterans Affairs, the Office of Personnel

Management (OPM), and other

appropriate Departments and activities

of the executive branch, determine

actions necessary to establish

procedures and provide information

concerning civilian employment and

reemployment rights, benefits and

obligations.

(2) Establish procedures and provide

guidance to the Secretaries concerned

about civilian employment and

reemployment rights, benefits and

obligations of Service members who are

covered by the provisions of 38 U.S.C.

chapter 43 and individuals who apply

for uniformed service as provided in 38

U.S.C. chapter 43. This responsibility

shall be carried out in coordination with

DoL, OPM, and the Federal Retirement

Thrift Investment Board.

(3) Monitor compliance with 38

U.S.C. chapter 43 and this part.

(4) Publish in the Federal Register,

DoD policies and procedures

established to implement 38 U.S.C.

chapter 43.

(b) The Secretaries of the Military

Departments and the Commandant of

the Coast Guard shall establish

procedures to:

(1) Ensure compliance with this part.

(2) Inform Service members who are

covered by the provisions of 38 U.S.C.

chapter 43 and individuals who apply

for uniformed service of the provisions

of 38 U.S.C. chapter 43 as implemented

by this part.

(3) Provide available documentation,

upon request from a Service member or

former Service member, that can be

used to establish reemployment rights of

the individual.

(4) Specify, as required, and

document those periods of active duty

that are exempt from the 5-year

cumulative service limitation that a

Service member may be absent from a

position of civilian employment while

retaining reemployment rights.

(5) Provide assistance to Service

members and former Service members

who are covered by the provisions of 38

U.S.C. chapter 43, and individuals who

apply for uniformed service in

exercising employment and

reemployment rights.

(6) Provide assistance, as appropriate,

to civilian employers of Service

members who are covered by the

provisions of 38 U.S.C. chapter 43 and

individuals who apply for uniformed

service.

(7) Cooperate with the DoL in

discharging its responsibilities to assist

persons with employment and

reemployment rights and benefits.

(8) Cooperate with OPM in carrying

out its placement responsibilities under

38 U.S.C. chapter 43.

§ 104.6 Procedures.

The Secretaries of the Military

Departments and the Commandant of

the Coast Guard shall:

(a) Inform individuals who apply for

uniformed service and members of a

Reserve component who perform or

participate on a voluntary or

involuntary basis in active duty, active

duty for special work, initial active duty

for training, active duty for training,

inactive duty training, annual training

and full-time National Guard duty, of

their employment and reemployment

rights, benefits, and obligations as

provided under 38 U.S.C. chapter 43

and described in Appendix A of this

part. Other appropriate materials may be

used to supplement the information

contained in Appendix A of this part.

(1) Persons who apply for uniformed

service shall be advised that DoD

strongly encourages applicants to

provide advance notice in writing to

their civilian employers of pending

uniformed service or any absence for the

purpose of an examination to determine

the person’s fitness to perform

uniformed service. Providing written

advance notice is preferable to verbal

advance notice since it is easier to

establish that this basic prerequisite to

retaining reemployment rights was

fulfilled. Regardless of the means of

providing advance notice, whether

verbal or written, it should be provided

as early as practicable.

(2) Annually and whenever called to

duty for a contingency operation, advise

Service members who are participating

in a Reserve component of:
3468 Federal Register / Vol. 63, No. 15 / Friday, January 23, 1998 / Rules and Regulations

(i) The requirement to provide

advance written or verbal notice to their

civilian employers for each period of

military training, active and inactive

duty, or full-time National Guard duty.

(A) Reserve component members shall

be advised that DoD strongly encourages

that they provide advance notice to their

civilian employers in writing for each

period of pending uniformed service.

Providing written advance notice is

preferable to verbal advance notice

since it easily establishes that this

prerequisite to retaining reemployment

rights was fulfilled.

(B) Regardless of the means of

providing advance notice, whether

written or verbal, it should be provided

as early as practicable. DoD strongly

recommends that advance notice to

civilian employers be provided at least

30 days prior to departure for uniformed

service when it is feasible to do so.

(C) The advance notice requirement

can be met by providing the employer

with a copy of the unit annual training

schedule or preparing a standardized

letter. The sample employer notification

letter in Appendix B of this part may be

used for this purpose.

(ii) The 5-year cumulative limit on

absences from their civilian

employment due to uniformed service

and exemptions to that limit.

(iii) The requirements for reporting or

submitting application to return to their

position of civilian employment.

(iv) Their general reemployment

rights and benefits.

(v) The option for continuing

employer provided health care, if the

employer provides such a benefit.

(vi) The opportunity to use accrued

leave in order to perform uniformed

service.

(vii) Who they may contact to obtain

assistance with employment and

reemployment questions and problems.

(b) Inform Service members who are

covered by the provisions of 38 U.S.C.

Chapter 43, upon completion of an

extended period of active duty and

before separation from active duty of

their employment and reemployment

rights, benefits, and obligations as

provided under 38 U.S.C. Chapter 43.

This shall, as a minimum, include

notification and reporting requirements

for returning to employment with their

civilian employer. While Appendix A of

this part provides the necessary

information to satisfy this requirement,

other appropriate materials may be used

to supplement this information.

(c) Issue orders that span the entire

period of service when ordering a

member of the National Guard or

Reserve to active duty for a mission or

requirement. Order modifications shall

be initiated, as required, to ensure

continuous active duty should the

period required to complete the mission

or requirement change.

(d) Document the length of a Service

member’s initial period of military

service obligation performed on active

duty.

(e) Determine and certify in writing

those additional training requirements

not already exempt for the 5-year

cumulative service limit which are

necessary for the professional

development, or skill training or

retraining for members of the National

Guard or Reserve. Once the Secretary

concerned certifies those training

requirements, performance of uniformed

service to complete a certified training

requirement is exempt from the 5-year

cumulative service limit.

(f) Determine those periods of active

duty when a Service member is ordered

to, or retained on, active duty (other

than for training) under any provision of

law because of a war or national

emergency declared by the President or

Congress. If the purpose of the order to,

or retention on, active duty is for the

direct or indirect support of the war or

national emergency, then the orders of

the Service member should be so

annotated, since that period of service is

exempt from the 5-year cumulative

service limit established in 38 U.S.C.

Chapter 43.

(g) Determine those periods of active

duty performed by a member of the

National Guard or Reserve that are

designated by the Secretary concerned

as a critical mission or critical

requirement, and for that reason are

exempt form the 5-year cumulative

service limit. The authority for

determining what constitutes a critical

mission or requirement shall not be

delegated below the Assistant Secretary

level or the Commandant of the Coast

Guard. The designation of a critical

requirement to gain the necessary

experience to qualify for key senior

leadership positions shall be used

judiciously, and the necessary

experience and projected key leadership

positions fully documented. This

authority shall not be used to grant

exemptions to avoid the cumulative 5-

year service limit established by 38

U.S.C. Chapter 43 or to extend

individuals in repeated statutory tours.

The Assistant Secretary of Defense for

Reserve Affairs shall be notified in

writing of all occasions in which a

Service member is granted more than

one exemption for a critical requirement

when the additional exemption(s)

extend the Service member beyond the

5-year cumulative service limit

established in 38 U.S.C. Chapter 43.

(h) When appropriate, ensure that

orders to active duty or orders retaining

members on active duty specify the

statutory or Secretarial authority for

those orders when such authority meets

one or more of the exemptions from the

5-year cumulative service limit

provided in 38 U.S.C. Chapter 43. If

circumstances arise that prevent placing

this authority on the orders, the

authority shall be included in a

separation document and retained in the

Service member’s personnel file.

(i) Ensure that appropriate documents

verifying any period of service exempt

from the 5-year cumulative service limit

are place in the Service member’s

personnel record or other appropriate

record.

(j) Document those circumstances that

prevent a Service member from

providing advance notification of

uniformed service to a civilian employer

because of military necessity or when

advance notification is otherwise

impossible or unreasonable, as defined

in § 104.3.

(k) Designate those officers, as defined

in § 104.3, who are authorized by the

Secretary concerned to provide advance

notification of service to a civilian

employer on behalf of a Service member

or applicant for uniformed service.

(l) Provide documentation, upon

request from a Service member or

former Service member, that may be

used to satisfy the Service member’s

entitlement to statutory reemployment

rights and benefits. Appropriate

documentation may include, as

necessary:

(1) The inclusive dates of the initial

period of military service obligation

performed on active duty.

(2) Any period of service during

which a Service member was required

to serve because he or she was unable

to obtain a release from active duty

though no fault of the Service member.

(3) The cumulative length of all

periods of active duty performed.

(4) The authority under which a

Service member was ordered to active

duty when such service was exempt

from the 5-year cumulative service

limit.

(5) The date the Service member was

last released from active duty, active

duty for special work, initial active duty

for training, active duty for training,

inactive duty training, annual training

or full-time National Guard duty. This

documentation establishes the

timeliness of reporting to, or submitting

application to return to, a position of

civilian employment.

(6) Whether service requirements

prevent providing a civilian employer
Federal Register / Vol. 63, No. 15 / Friday, January 23, 1998 / Rules and Regulations 3469

with advance notification of pending

service.

(7) That the Service member’s

entitlement to reemployment benefits

has not been terminated because of the

character of service as provided in 38

U.S.C. 4304.

(8) When appropriate, a statement that

sufficient documentation does not exist.

(m) Establish a central point of

contact at a headquarters or regional

command who can render assistance to

active duty Service members and

applicants for uniformed service about

employment and reemployment rights,

benefits and obligations.

(n) Establish points of contact in each

Reserve component headquarters or

Reserve regional command, and each

National Guard State headquarters who

can render assistance to:

(1) Members of the National Guard or

Reserve about employment and

reemployment rights, benefits and

obligations.

(2) Employers of National Guard and

Reserve members about duty or training

requirements arising from a member’s

uniformed service or service obligation.

(o) A designated Reserve component

representative shall consider, and

accommodate when it does not conflict

with military requirements, a request

from a civilian employer of a National

Guard and Reserve member to adjust a

Service member’s absence from civilian

employment due to uniformed service

when such service has an adverse

impact on the employer. The

representative may make arrangements

other than adjusting the period of

absence to accommodate such a request

when it serves the best interest of the

military and is reasonable to do so.

Appendix A to Part 104—Civilian

Employment and Reemployment

Rights, Benefits and Obligations for

Applicants for, and Service Members

and Former Service Members of the

Uniformed Services

A. Scope of Coverage

1. The Uniformed Services Employment

and Reemployment Rights Act (USERRA)

which is codified in 38 U.S.C. Chapter 43

provides protection to anyone absent from a

position of civilian employment because of

uniformed service if:

a. Advance written or verbal notice was

given to the civilian employer.

(1) Advance notice is not required if

precluded by military necessity, or is

otherwise unreasonable or impossible.

(2) DoD strongly encourages Service

members and or applicants for service to

provide advance notice to their civilian

employer in writing for each period of

pending uniformed service. Providing

written advance notice is preferable to verbal

advance notice since it easily establishes that

this prerequisite to retaining reemployment

rights was fulfilled. Regardless of the means

of providing advance notice, whether written

or verbal, it should be provided as early as

practicable. Also, DoD strongly recommends

that Reserve component members provide

advance notice to their civilian employers at

least 30 days in advance when it is feasible

to do so. The advance notice requirement can

be met by providing the employer with a

copy of the unit annual training schedule or

preparing a standardized letter. The sample

employer notification letter in Appendix B of

this part may be used for this purpose;

b. The cumulative length of absences does

not exceed 5 years;

c. The individual reports to, or submits an

application for reemployment, within the

specified period based on duration of

services as described in section D of this

Appendix; and,

d. The person’s character of service was

not disqualifying as described in paragraphs

A.2.d. and e. of this appendix.

2. A civilian employer is not required to

reemploy a person if:

a. The civilian employment was for a brief,

non-recurrent period and there was no

reasonable expectation that the employment

would continue indefinitely or for a

significant period.

b. The employer’s circumstances have so

changed as to make reemployment

impossible or unreasonable.

c. The reemployment imposes an undue

hardship on the employer in the case of an

individual who:

(1) Has incurred a service connected

disability; or,

(2) Is not qualified for the escalator

position or the position last held, and cannot

become qualified for any other position of

lesser status and pay after a reasonable effort

by the employer to qualify the person for

such positions.

d. The Service member or former Service

member was separated from a uniformed

service with a dishonorable or bad conduct

discharge, or separated from a uniformed

service under other than honorable

conditions.

e. An officer dismissed from any Armed

Force or dropped from the rolls of any Armed

Force as prescribed under 10 U.S.C. 1161.

f. The cumulative length of service exceeds

five years and no portion of the cumulative

five years of uniformed service falls within

the exceptions described in section C. of this

Appendix.

g. An employer asserting that he or she is

not required to reemploy an individual

because the employment was for a brief, nonrecurrent period, or reemployment is

impossible or unreasonable, or

reemployment imposes an undue hardship

on the employer, that employer has the

burden of proving his or her assertion.

3. Entitlement to protection under 38

U.S.C. Chapter 43 does not depend on the

timing, frequency, and duration of training or

uniformed service.

B. Prohibition Against Discrimination and

Acts of Reprisal

1. A person who is a member of, applies

to be a member of, has performed, applies to

perform, or has an obligation to perform

service in a uniformed service shall not be

denied initial employment, reemployment,

retention in employment, promotion, or any

employment benefit by an employer on the

basis of that membership, an application for

membership, performance of service, or an

obligation for service in the uniformed

services.

2. A person, including a non-Service

member, shall not be subject to employment

discrimination or any adverse employment

action because he or she has taken an action

to enforce a protection afforded a Service

member, has testified or made a statement in

or in connection with any proceeding

concerning employment and reemployment

rights of a service member, has assisted or

participated in an investigation, or has

otherwise exercised any right provided by 38

U.S.C. Chapter 43.

3. An employer shall be considered to have

engaged in an act of discrimination if an

individual’s membership, application for

membership, service, application for service,

or obligation for service in the uniformed

services is a motivating factor in the

employer’s action, unless the employer can

prove that the action would have been taken

in the absence of such membership,

application for membership, performance of

service, application for service or obligation.

C. Exceptions to the Maximum Period of

Service for Coverage

In order to retain reemployment rights and

benefits provided by 38 U.S.C. Chapter 43,

the cumulative length of absences from the

same employer cannot exceed 5 years. Not

counted toward this limit is:

1. Service beyond 5 years if required to

complete an initial service obligation;

2. Service during which an individual was

unable to obtain release orders before the

expiration of the 5-year cumulative service

limit through no fault of his or her own;

3. Inactive duty training; annual training;

ordered to active duty for unsatisfactory

participation; active duty by National

Guardsmen for encampments, maneuvers,

field operations or coastal defense; or to

fulfill additional training requirements, as

determined by the Secretary concerned, for

professional skill development, or to

complete skill training or retraining;

4. Involuntary order or call to active duty,

or retention on active duty;

5. Ordered to or retained on active duty

during a war or national emergency declared

by the President or Congress;

6. Ordered to active duty in support of an

operational mission for which personnel

have been involuntarily called to active duty;

7. Performing service in support of a

critical mission or requirement, as

determined by the Secretary concerned;

8. Performing service in the National Guard

when ordered to active duty by the President

to suppress an insurrection or rebellion, repel

an invasion, or execute laws of the United

States; and,

9. Voluntary recall to active duty of retired

regular Coast Guard officers or retired

enlisted Coast Guard members.
3470 Federal Register / Vol. 63, No. 15 / Friday, January 23, 1998 / Rules and Regulations

D. Applications for Reemployment

1. For service of 30 days or less, or for an

absence for an examination to determine the

individual’s fitness to perform uniformed

service, the Service member or applicant

must report to work not later than the

beginning of the first full regularly scheduled

work period on the first full calendar day

following the completion of service or the

examination, after allowing for an eight hour

rest period following safe transportation to

his or her residence.

2. For service of 31 days or more but less

that 181 days, the Service member must

submit an application for reemployment not

later than 14 days after completion of service,

or by the next full calendar day when

submitting an application within the 14 day

limit was impossible or unreasonable

through no fault of the Service member.

3. For service of 181 days or more, the

Service member must submit an application

for reemployment not later than 90 days after

the completion of service.

4. If hospitalized or convalescing from an

illness or injury incurred or aggravated

during service, the Service member must, at

the end of the period necessary for recovery,

follow the same procedures, based on length

of service, as described in sections D.1.

through D.3. of this appendix. The period of

hospitalization or convalescence may not

normally exceed 2 years.

5. Anyone who fails to report or apply for

reemployment within the specified period

shall not automatically forfeit entitlement to

reemployment rights and benefits, but is

subject to the rules of conduct, established

policies, general practices of the employer

pertaining to explanations and discipline

because of an absence from scheduled work.

E. Documentation Upon Return

1. If service is for 31 days or more, a

Service member must provide

documentation, upon request from the

employer, that establishes:

a. He or she made application to return to

work within the prescribed time period;

b. He or she has not exceeded the 5-year

cumulative service limit; and

c. His or her reemployment rights were not

terminated because of character of service as

described in paragraphs A.2.d. and e. of this

appendix.

2. Failure to provide documentation cannot

serve as a basis for denying reemployment to

the Service member, former Service member,

or applicant if documentation does not exist

or is not readily available at the time of the

employer’s request. However, if after

reemployment, documentation becomes

available that establishes that the Service

member or former Service member does not

meet one or more of the requirements

contained in section E.1. of this appendix,

the employer may immediately terminate the

employment.

F. Position To Which Entitled Upon

Reemployment

1. Reemployment position for service of 90

days or less:

a. The position the person would have

attained if continuously employed (the

‘‘escalator’’ position) and if qualified to

perform the duties; or,

b. The position in which the person was

employed in when he or she departed for

uniformed service, but only if the person is

not qualified to perform the duties of the

escalator position, despite the employer’s

reasonable efforts to qualify the person for

the escalator position.

2. Reemployment position for service of 91

days or more:

a. The escalator position, or a position of

like seniority, status and pay, the duties of

which the person is qualified to perform; or,

b. The position in which the person was

employed in when he or she departed for

uniformed service or a position of like

seniority, status and pay, the duties of which

the person is qualified to perform, but only

if the person is not qualified to perform the

duties of the escalator position after the

employer has made a reasonable effort to

qualify the person for the escalator position.

3. If a person cannot become qualified,

after reasonable efforts by the employer to

qualify the person, for either the escalator

position or the position formerly occupied by

the employee as provided in sections F.1.

and F.2. of this appendix, for any reason

(other than disability), the person must be

employed in any other position of lesser

status and pay that the person is qualified to

perform, with full seniority.

G. Position To Which Entitled if Disabled

If a person who is disabled because of

service cannot (after reasonable efforts by the

employer to accommodate the disability) be

employed in the escalator position, he or she

must be reemployed:

1. In any other position that is equivalent

to the escalator position in terms of seniority,

status, and pay that the person is qualified

or can become qualified to perform with

reasonable efforts by the employer; or,

2. In a position, consistent with the

person’s disability, that is the nearest

approximation to the position in terms of

seniority, status, and pay to the escalator or

equivalent position.

H. Reemployment by the Federal

Government

1. A person who was employed by a

Federal Executive Agency when he or she

departed for uniformed service must be

reemployed using the same order of priorities

as prescribed in sections F. and G. of this

appendix as appropriate. If the Director of

OPM determines that the Federal Executive

Agency that employed the person no longer

exists and the functions have not been

transferred to another Federal Executive

Agency, or it is impossible or unreasonable

for the agency to reemploy the person, the

Director of OPM shall identify a position of

like seniority, status, and pay at another

Federal Executive Agency that satisfies the

reemployment criteria established for private

sector employers, sections F. and G. of this

appendix, and for which the person is

qualified and ensure that the person is

offered such position.

2. If a person was employed by the Judicial

Branch or the Legislative Branch of the

Federal Government when he or she departed

for uniformed service, and the employer

determines that it is impossible or

unreasonable to reemploy the person, the

Director of OPM shall, upon application by

the person, ensure that an offer of

employment in a Federal Executive Agency

is made.

3. If the Adjutant General of a State

determines that it is impossible or

unreasonable to reemploy a person who was

employed as a National Guard technician, the

Director of OPM shall, upon application by

the person, ensure that an offer of

employment in a Federal Executive Agency

is made.

I. Reemployment by Certain Federal

Agencies

1. The heads of the Federal Bureau of

Investigation, the Central Intelligence

Agency, the Defense Intelligence Agency, the

National Imagery and Mapping Agency, the

National Security Agency, and, as

determined by the President, any Executive

Agency or unit thereof, the principal function

of which is to conduct foreign intelligence or

counterintelligence activities, shall prescribe

procedures for reemployment rights for their

agency that are similar to those prescribed for

private and other Federal agencies.

2. If an appropriate officer of an agency

referred to in subsection I.1. of this appendix

determines that reemployment of a person

who was an employee of that agency when

he or she departed for uniformed service is

impossible or unreasonable, the agency shall

notify the person and the Director of OPM.

The Director of OPM shall, upon application

by that person, ensure that the person is

offered employment in a position in a

Federal Executive Agency.

J. General Rights and Benefits

1. A person who is reemployed under 38

U.S.C. Chapter 43 is entitled to the seniority,

and other rights and benefits determined by

seniority that the person had upon

commencing uniformed service, and any

additional seniority, and rights and benefits

he or she would have attained if

continuously employed.

2. A person who is absent by reason of

uniformed service shall be deemed to be on

furlough or leave of absence from his or her

civilian employer and is entitled to such

other rights and benefits not determined by

seniority as generally provided by the

employer to employees on furlough or leave

of absence having similar seniority, status

and pay who are also on furlough or leave

of absence, as provided under a contract,

policy, agreement, practice or plan in effect

during the Service member’s absence because

of uniformed service.

3. The individual may be required to pay

the employee cost, if any, of any funded

benefit continued to the same extent other

employees on furlough or leave of absence

are required to pay.

K. Loss of Rights and Benefits

If, after being advised by his or her

employer of the specific rights and benefits

to be lost, a Service member, former Service

member or applicant of uniformed service

knowingly provided written notice of intent

not to seek reemployment after completion of

uniformed service, he or she is no longer

entitled to any non-seniority based rights and
Federal Register / Vol. 63, No. 15 / Friday, January 23, 1998 / Rules and Regulations 3471

benefits. This includes all non-seniority

based rights and benefits provided under any

contract, plan, agreement, or policy in effect

at the time of entry into uniformed service or

established while performing such service,

and are generally provided by the employer

to employees having similar seniority, status

and pay who are on furlough or leave of

absence.

L. Retention Rights

A person who is reemployed following

uniformed service cannot be discharged from

employment, except for cause:

1. Within 1 year after the date of

reemployment if that person’s service was

181 days or more; or,

2. Within 180 days after the date of

reemployment if such service was 31 days or

more but less than 181 days.

M. Accrued Leave

During any period of uniformed service, a

person may, upon request, use any vacation,

annual leave, or similar leave with pay

accrued before the commencement of that

period of service.

N. Health Plans

An employer who provides employee

health plan coverage, including group health

plans, must allow the Service member to

elect to continue personal coverage, and

coverage for his or her dependents under the

following circumstances:

1. The maximum period of coverage of a

person and the person’s dependents under

such an election shall be the lesser of:

a. The 18 month period beginning on the

date on which the person’s absence begins;

or

b. The day after the date on which the

person was required to apply for or return to

a position or employment as specified in

section D. of this appendix, and fails to do

so.

2. A person who elects to continue health

plan coverage may be required to pay up to

102 percent of the full premium under the

plan, except a person on active duty for 30

days or less cannot be required to pay more

than the employee’s share, if any, for the

coverage.

3. An exclusion or waiting period may not

be imposed in connection with the

reinstatement of coverage upon

reemployment if one would not have been

imposed had coverage not been terminated

because of service. However, an exclusion or

waiting period may be imposed for coverage

of any illness or injury determined by the

Secretary of Veterans Affairs to have been

incurred in, or aggravated during, the

performance of uniformed service.

O. Employee Pension Benefit Plans

1. This section applies to individuals

whose pension benefits are not provided by

the Federal Employees’ Retirement System

(FERS) or the Civil Service Retirement

System (CSRS), or a right provided under any

Federal or State law governing pension

benefits for governmental employees.

2. A person reemployed after uniformed

service shall be treated as if no break in

service occurred with the employer(s)

maintaining the employee’s pension benefit

plan. Each period of uniformed service, upon

reemployment, shall be deemed to constitute

service with the employer(s) for the purpose

of determining the nonforfeitability of

accrued benefits and accrual of benefits.

3. An employer reemploying a Service

member or former Service member under 38

U.S.C. Chapter 43 is liable to the plan for

funding any obligation attributable to the

employer of the employee’s pension benefit

plan that would have been paid to the plan

on behalf of that employee but for his or her

absence during a period of uniformed

service.

4. Upon reemployment, a person has three

times the period of military service, but not

to exceed five years after reemployment,

within which to contribute the amount he or

she would have contributed to the pension

benefit plan if he or she had not been absent

for uniformed service. He or she is entitled

to accrued benefits of the pension plan that

are contingent on the making of, or are

derived from, employee contributions or

elective deferrals only to the extent the

person makes payment to the plan.

P. Federal Employees’ Retirement System

(FERS)

1. Federal employees enrolled in FERS

who are reemployed with the Government

are allowed to make up contributions to the

Thrift Savings Fund over a period specified

by the employee. However, the makeup

period may not be shorter than two times nor

longer than four times the period of absence

for uniformed service.

2. Employees covered by the FERS are

entitled to have contributions made to the

Thrift Savings Fund on their behalf by the

employing agency for their period of absence

in an amount equal to one percent of the

employee’s basic pay. If an employee covered

by FERS makes contributions, the employing

agency must make matching contributions on

the employee’s behalf.

3. The employee shall be credited with a

period of civilian service equal to the period

of uniformed service, and the employee may

elect, for certain purposes, to have his or her

separation treated as if it had never occurred.

4. This benefit applies to any employee

whose release from uniformed service,

discharge from hospitalization, or other

similar event make him or her eligible to seek

reemployment under 38 U.S.C. Chapter 43 on

or after August 2, 1990.

5. Additional information about Thrift

Saving Plan (TSP) benefits is available in TSP

Bulletins 95–13 and 95–20. A fact sheet is

included in TSP Bulletin 95–20 which

describes benefits and procedures for eligible

employees. Eligible employees should

contact their personnel office for information

and assistance.

Q. Civil Service Retirement System (CSRS)

1. Employees covered by CSRS may make

up contributions to the TSP, as in section P.1.

of this appendix. However, no employer

contributions are made to the TSP account of

CSRS employees.

2. This benefit applies to any employee

whose release from uniformed service,

discharge from hospitalization, or other

similar event makes him or her eligible to

seek reemployment under 38 U.S.C. Chapter

43 on or after August 2, 1990.

3. Additional information about TSP

benefits is available in TSP Bulletins 95–13

and 95–20. A fact sheet is included in TSP

Bulletin 95–20 which describes benefits and

procedures for eligible employees. Eligible

employees should contact their personnel

office for information and assistance.

R. Information and Assistance

Information and informal assistance

concerning civilian employment and

reemployment is available through the

National Committee for Employer Support of

the Guard and Reserve (NCESGR). NCESGR

representatives can be contacted by calling

1–800–336–4590.

S. Assistance in Asserting Claims

1. A person may file a complaint with the

Secretary of Labor if an employer, including

any Federal Executive Agency or OPM, has

failed or refused, or is about to fail or refuse,

to comply with employment or

reemployment rights and benefits. The

complaint must be in writing, and include

the name and address of the employer, and

a summary of the allegation(s).

2. The Secretary of Labor shall investigate

each complaint and, if it is determined that

the allegation(s) occurred, make reasonable

efforts to ensure compliance. If these efforts

are unsuccessful, the Secretary of Labor shall

notify the complainant of the results and

advise the complainant of his or her

entitlement to pursue enforcement.

3. The Secretary of Labor shall, upon

request, provide technical assistance to a

claimant and, when appropriate, to the

claimant’s employer.

T. Enforcement

1. State or Private Employers.

a. A person may request that the Secretary

of Labor refer a complaint to the Department

of Justice. If the Department of Justice is

reasonably satisfied that the person is

entitled to the rights or benefits sought, the

Department of Justice may appear on behalf

of, and act as attorney for, the complainant,

and commence an action for appropriate

relief, or the individual may commence an

action on his or her own behalf in the

appropriate Federal district court.

b. The district court hearing the complaint

can require the employer to:

(1) Comply with the law;

(2) Compensate the person for any loss of

wages or benefits suffered; and

(3) If the court determines that the

employer willfully failed to comply with the

law, pay the person an amount equal to the

amount of lost wages or benefits as liquidated

damages.

c. A person may file a private suit against

an employer without the Secretary of Labor’s

assistance if he or she:

(1) Has chosen not to seek the Secretary’s

assistance;

(2) Has chosen not to request that the

Secretary refer the complaint to the

Department of Justice; or

(3) Has refused the Department of Justice’s

representation of his or her complaint.

d. No fees or court costs shall be charged

or taxed against any person filing a claim.
3472 Federal Register / Vol. 63, No. 15 / Friday, January 23, 1998 / Rules and Regulations

The court may award the person who

prevails reasonable attorney fees, expert

witness fees, and other litigation expenses.

2. Federal Government as the Employer.

a. The same general enforcement

procedures established for private employers

are applied to Federal Executive Agencies as

an employer; however, if unable to resolve

the complaint, the Secretary of Labor shall

refer the complaint to the Office of Special

Counsel, which shall represent the

individual in a hearing before the Merit

Systems Protection Board if reasonably

satisfied that the individual is entitled to the

rights and benefits sought. The claimant also

has the option of directly filing a complaint

with the Merit Systems Protection Board on

his or her own behalf.

b. A person who is adversely affected or

aggrieved by a final order or decision of the

Merit Systems Protection Board may petition

the United States Court of Appeals for the

Federal Circuit to review the final order or

decision.

3. Federal Intelligence Agency as the

Employer. An individual employed by a

Federal Intelligence Agency listed in

subparagraph I.1. of this appendix, may

submit a claim to the inspector general of the

agency.

Appendix B to Part 104—Sample Employer

Notification of Uniformed Service

This is to inform you that (insert applicant

or Service member’s name) must report for

military training or duty on (insert date). My

last period of work will be on (insert date),

which will allow me sufficient time to report

for military duty. I will be absent from my

position of civilian employment for

approximately (enter expected duration of

duty as specified on your orders, and include

the applicable period you have to return or

submit notification of your return to work)

while performing military training or duty

unless extended by competent military

authority or delayed by circumstances

beyond my control. I otherwise expect to

return to work on (insert date).

lllllllllllllllllllll

Signature and date

lllllllllllllllllllll

Employer acknowledgment and date

Dated: January 16, 1998.

L.M. Bynum,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 98–1583 Filed 1–22–98; 8:45 am]

BILLING CODE 5000–04–M

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 270

RIN 0790–AG43

Compensation of Certain Former

Operatives Incarcerated by the

Democratic Republic of Vietnam

AGENCY: Office of Under Secretary of

Defense for Personnel and Readiness,

DoD.

ACTION: Final rule.

SUMMARY: This part implements section

657 of the National Defense

Authorization Act for Fiscal Year 1997,

which authorizes the Secretary of

Defense to make payments to persons

captured and incarcerated by the

Democratic Republic of Vietnam. This

part establishes policy and procedures

concerning the payments to these

persons.

EFFECTIVE DATE: This rule is effective

May 15, 1997.

FOR FURTHER INFORMATION CONTACT:

Alan Ridenour (703) 604–0821 or David

Pronchick (703) 693–1066, Directorate

of Compensation, Office of the Secretary

of Defense, 4000 Defense Pentagon,

Washington, D.C., 20301–4000.

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ‘‘Regulatory

Planning and Review’’

It has been determined that this is not

a significant rule as defined under

section 3(f)(1) through 3(f)(4) of

Executive Order 12866.

Public Law 96–354, ‘‘Regulatory

Flexibility Act’’ (5 U.S.C. 601)

It has been determined that this rule

will not have a significant economic

impact on a substantial number of small

entities because it affects only a limited

number of Vietnamese Commandos who

were incarcerated in North Vietnam,

and as such, does not affect small

entities.

Public Law 96–511, ‘‘Paperwork

Reduction Act’’ (44 U.S.C. Chapter 35)

It has been certified that this rule does

not impose reporting and recordkeeping

requirements under the Paperwork

Reduction Act of 1995. The reporting

and recordkeeping requirements are

exempt from this Act, as it directly

involves active litigation in which the

U.S. is a party. The specific exemption

from the Paperwork Reduction Act is

found in 5 CFR part 1320. The

information collection in this final rule

is exempt from OMB approval under

Sec. 1320.4(a)(2), ‘‘Controlling

Paperwork Burdens on the Public;

Regulatory Changes Reflecting

Recodification of the Paperwork

Reduction Act’’.

Public Law 104–4, ‘‘Unfunded

Mandates Report Act of 1995 (UMRA)’’

It has been determined that this rule

does not contain a federal mandate that

may result in expenditures of $100

million or more for state, local, and

tribal governments, in the aggregate, or

the private sector in any one year.

List of Subjects in 32 CFR Part 270

Military personnel, Payments,

Prisoners of war, Vietnam.

Accordingly, 32 CFR part 270 is

revised to read as follows:

PART 270—COMPENSATION OF

CERTAIN FORMER OPERATIVES

INCARCERATED BY THE

DEMOCRATIC REPUBLIC OF VIETNAM

Subpart A—General

Sec.

270.1 Purpose.

270.2 Definitions.

270.3 Effective date.

Subpart B—Commission

270.4 Membership.

270.5 Staff.

Subpart C—Standards and Verification of

Eligibility

270.6 Standards of eligibility.

270.7 Verification of eligibility.

Subpart D—Payment

270.8 Authorization of payment.

270.9 Amount of payment.

270.10 Time limitations.

270.11 Limitation on disbursements.

270.12 Payment in full satisfaction of all

claims against the United States.

270.13 No right to judicial review or legal

cause of action.

270.14 Limitation on attorneys fees.

270.15 Waiver of notary requirement.

Subpart E—Appeal Procedures

270.16 Notice of the Commission’s

determinations.

270.17 Procedures for filing petitions for

reconsideration.

270.18 Action on reconsideration.

Subpart F—Reports to Congress

270.19 Reports to Congress.

Appendix A to Part 270—Application for

Compensation of Vietnamese Commandos

Authority: Sec. 657, Pub. L. 104–201, 110

Stat. 2422.

Subpart A—General

§ 270.1 Purpose.

The purpose of this part is to

implement section 657 of the National

Defense Authorization Act for Fiscal

Year 1997 (Pub. L. 104–201), which

authorizes the Secretary of Defense to

make payments to persons who

demonstrate to the satisfaction of the

Secretary of Defense that the persons

were captured and incarcerated by the

Democratic Republic of Vietnam as a

result of the participation by the persons

in certain operations conducted by the

Republic of Vietnam.

§ 270.2 Definitions.

(a) Applicant. A person applying for

payments under this part.