Proposed Rule2024-02402
Bar to Appointment of Persons Who Fail To Register Under Selective Service Law
Primary source
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Published
February 7, 2024
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is proposing to revise the procedures for determining whether an individual's failure to register with the Selective Service System (SSS) was knowing and willful. These changes are intended to ensure that individuals in these circumstances have an opportunity to fully explain their failure to register and that the determination is based on a more complete record. In addition, the rule proposes to enable Federal agencies to make initial determinations as to whether an individual's failure to register with the SSS was knowing and willful.
Full Text
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<title>Federal Register, Volume 89 Issue 26 (Wednesday, February 7, 2024)</title>
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[Federal Register Volume 89, Number 26 (Wednesday, February 7, 2024)]
[Proposed Rules]
[Pages 8352-8360]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02402]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 89, No. 26 / Wednesday, February 7, 2024 /
Proposed Rules
[[Page 8352]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PART 300
[Docket ID: OPM-2023-0014]
RIN 3206-AO37
Bar to Appointment of Persons Who Fail To Register Under
Selective Service Law
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is proposing to
revise the procedures for determining whether an individual's failure
to register with the Selective Service System (SSS) was knowing and
willful. These changes are intended to ensure that individuals in these
circumstances have an opportunity to fully explain their failure to
register and that the determination is based on a more complete record.
In addition, the rule proposes to enable Federal agencies to make
initial determinations as to whether an individual's failure to
register with the SSS was knowing and willful.
DATES: Comments must be received on or before April 8, 2024.
ADDRESSES: You may submit comments, identified by the docket number or
Regulation Identifier Number (RIN) for this proposed rulemaking, by the
following method:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for sending comments.
All submissions must include the agency name and docket number or
RIN for this rulemaking. Please identify your comments on the
regulatory text by subpart and section number; if your comments relate
to the supplementary information, please refer to the heading and page
number of this proposed rule. All comments received will be posted
without change, including any personal information provided. Please
ensure your comments are submitted within the specified open comment
period. Before finalizing this rule, OPM will consider all comments we
receive on or before the closing date for comments. OPM may make
changes to the final rule in light of the comments we receive.
FOR FURTHER INFORMATION CONTACT: Michael Mahoney at
<a href="/cdn-cgi/l/email-protection#076a6e6c62296a666f6869627e4768776a29606871"><span class="__cf_email__" data-cfemail="385551535d1655595057565d4178574855165f574e">[email protected]</span></a>, by fax at (202) 606-4430, TDD at (202) 418-3134,
or by email at <a href="/cdn-cgi/l/email-protection#e88d8598848791a8879885c68f879e"><span class="__cf_email__" data-cfemail="76131b061a190f3619061b58111900">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: OPM proposes to change its procedures for
determining whether an individual's failure to register with the SSS
was knowing and willful. Specifically, OPM is proposing to clarify the
applicable standard used to determine what constitutes ``knowing and
willful,'' to establish new procedures for individuals to submit
evidence in support of their non-registration, and to allow Executive
agencies to make the initial determination as to whether an
individual's failure to register with the SSS was knowing and willful.
OPM is proposing these changes to ensure that individuals in these
circumstances have an opportunity to fully explain their failure to
register and that the determination is based on a more complete record.
OPM's proposal to allow Executive agencies to conduct the initial
adjudication should alleviate Federal agencies' having to delay the
recruitment process to send cases to OPM for adjudication. In its March
2021 report,\1\ the National Academy of Public Administration (NAPA)
recommended that OPM adopt a more decentralized and risk-based approach
to executing its transactional approval and oversight responsibilities.
Specifically, NAPA recommended that OPM delegate, to the maximum extent
possible, decision-making authorities to agencies, and conduct cyclical
reviews to verify that appropriate actions were taken. NAPA's Rec. 2.5
was incorporated into OPM's Strategic Plan as Objective 4.2, which
reads as follows: ``Increase focus on Governmentwide policy work by
shifting more low-risk delegations of authorities to agencies.'' OPM's
proposal is consistent with NAPA's recommendation to decentralize and
to allow agencies to conduct more decision making.
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\1\ National Academy of Public Administration. ``Elevating Human
Capital: Reframing the U.S. Office of Personnel Management's
Leadership Imperative'' <a href="https://www.volckeralliance.org/sites/default/files/attachments/OPM-Final-Report-National-Academy-of-Public-Administration.pdf">https://www.volckeralliance.org/sites/default/files/attachments/OPM-Final-Report-National-Academy-of-Public-Administration.pdf</a>.
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Background
Under the Military Selective Service Act of 1948, as amended
(hereafter referred to as ``the Act''), all male citizens and every
other male person residing in the U.S. between the ages of 18 and 26
who were born after December 31, 1959, are required to register with
the SSS, unless the Act exempts them. (50 U.S.C. 3802). In addition,
the Act establishes that ``[e]very person shall be deemed to have
notice of the requirements of this chapter upon publication by the
President of a proclamation or other public notice fixing a time for
any registration under section 3802 of this title.'' (50 U.S.C. 3813).
In 1980, President Carter issued such a proclamation (Proclamation No.
4771, July 2, 1980), which required that registration begin on July 21,
1980. That proclamation, as amended, remains in effect. Every covered
male is now deemed to have had notice of these requirements by virtue
of that Act and Proclamation 4771, as amended.
In 1985, Congress enacted 5 U.S.C. 3328, which provides that men
who are born in 1960 or later and who are required to, but did not,
register under section 3 of the Act (now codified at 50 U.S.C. 3802)
generally are ineligible for Federal service. Section 3328 provides
that an individual born after 1959 and required to register and ``who
is not so registered or knowingly and willfully did not so register
before the requirement terminated or became inapplicable to the
individual, shall be ineligible for appointment to a position in an
Executive agency,'' unless the individual can establish ``by a
preponderance of the evidence that the failure to register was neither
knowing nor willful.'' Section 3328 also provides that OPM, ``in
consultation with the Director of the Selective Service System, shall
prescribe regulations to carry out'' section 3328, including
``provisions prescribing procedures for the adjudication of
determinations of whether a failure to register was knowing and
willful.'' In 1987, Congress amended section 3328 to allow OPM to
establish decision-making authority with agencies through rulemaking
(Pub.
[[Page 8353]]
L. 100-180, 101 Stat. 1019, December 4, 1987).
As noted above, section 3328 applies only to males who are (or
were) required to register. Certain individuals may be (or may have
been) exempt from registration as provided by sections 3 and 6(a) of
the Act (50 U.S.C. 3802 and 3806(a)) or by Presidential proclamation.
Examples of individuals who may be so excluded are: (1) Certain non-
immigrant aliens who are residing in the United States temporarily,
such as those on visitor or student visas; (2) individuals who are
unable to register due to circumstances beyond their control, such as
being hospitalized, institutionalized, or incarcerated; and (3) members
of the Armed Forces on full-time active duty, as well as cadets and
midshipmen at the United States service academies.
An individual covered by the Act who has not registered can do so
at any time before reaching age 26. Once the individual is age 26, he
may no longer register and is no longer able to correct his failure to
register. Consequently, as a general rule, these cases arise only when
an applicant fails to register prior to a temporary offer of
employment, or during an employee's employment tenure, and the
applicant or employee is age 26 or older and the possibility of
registration is precluded. The current regulations, promulgated in
1987, establish that agencies should ``request a written statement of
Selective Service registration status from each covered individual at
an appropriate time during the employment consideration process.'' (5
CFR 300.704(a)). Accordingly, OPM is called upon to adjudicate a case
involving failure to register only if registration is precluded due to
the covered individual's age.
In 2011, OPM issued a notice of proposed rulemaking that was
substantively similar to this proposed rule. 76 FR 73521, November 29,
2011 (``2011 proposed rule''). OPM did not finalize the 2011 proposed
rule due to competing priorities (RIN 3206-AM06 withdrawn March 20,
2017). Although this proposed rule largely renews the 2011 proposal,
OPM considered prior comments in formulating this proposed rule. (See
the discussion in ``Agency Adjudication'' and the discussion regarding
Sec. 300.705 in ``Proposed Changes in this Rule.'')
The Applicable Standard
The statute OPM is required to implement contains an ambiguity with
respect to an individual who was required to register and failed to do
so. Certain provisions of section 3328 (e.g., subsection (a)(2))
indicate that a failure to register that is both knowing and willful is
necessary to make the individual ineligible for Federal employment. The
third sentence of subsection (b) of section 3328, however, states that
OPM's procedures must require that a determination that a failure to
register was knowing and willful ``may not be made if the individual
concerned shows by a preponderance of the evidence that the failure to
register was neither knowing nor willful.'' This provision suggests
that a failure to register that is either knowing or willful would
suffice to make the individual ineligible for employment.
There is substantial case law, under the Act and in other contexts,
concerning the meaning of the terms ``knowing'' and ``willful.''
Although OPM acknowledges that the terms have substantial overlap, it
is possible, at least theoretically, that a failure to register could
be knowing but not willful or the reverse. Accordingly, OPM believes
that there are divergent potential interpretations of the statute,
either of which could be reasonable constructions, and that this
ambiguity should be resolved.
Summary of Major Provisions in This Proposed Rule
OPM's Interpretation of Knowing and Willful
OPM proposes to resolve the ambiguity in 5 U.S.C. 3328 by amending
5 CFR part 300 to provide that a failure to register is not a bar to
appointment unless such failure was both knowing and willful. In other
words, the applicant or employee could establish eligibility under the
Act by demonstrating, by a preponderance of the evidence (i.e., the
degree of relevant evidence that a reasonable person, considering the
record as a whole, would accept as sufficient to support a conclusion
that the matter asserted is more likely to be true than not true--see
proposed 5 CFR 300.703 Definitions), that a failure to register was
either not knowing or not willful. This is consistent with the text of
Section 3328(a)(2) which makes an individual who is no longer able to
register ineligible only if he ``knowingly and willfully did not so
register before the requirement terminated or became inapplicable to
the individual.'' \2\ It is also consistent with the text of Section
3328(b), which requires OPM to ``prescrib[e] procedures for the
adjudication of determinations of whether a failure to register was
knowing and willful.'' (emphasis added). This interpretation is
supported by Congress's stated concern that a person should not be
ineligible for Federal service unless his failure to register is
determined to be both knowing and willful. See H.R. Conf. Rept. No. 99-
235 at 517, July 29, 1985 (noting adoption of Senate provision with
House amendment requiring that non-registration must be ``knowing and
willful''). This interpretation is also more consistent with the
statutory scheme as a whole. Under 50 U.S.C. 3813, ``[e]very person
shall be deemed to have notice of the requirements'' of SSS
registration after July 2, 1980. So, if a showing of knowledge alone
were sufficient to make a person ineligible for Federal employment, it
would be virtually impossible for an applicant or employee ever to
prevail, because the law presumes he has knowledge of the requirement
to register. Moreover, the legislative history, which indicates that
Congress was concerned with draft eligible males who ``refused'' to
register, is also consistent with this interpretation. See House Rept.
No. 99-81, May 10, 1985. The reference to ``refusal'' in the
legislative history implies that the individual has taken affirmative
steps or acts to decline to do something.
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\2\ Section 3328(a) also renders ineligible one ``who is not
registered'' (emphasis added). Because this refers to covered
individuals under the age of 26, such individuals may remedy the
failure by registering. Thus, there is no need to adjudicate these
cases, as the covered individual becomes eligible upon registration.
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OPM's proposed interpretation is consistent with OPM's longstanding
practice in adjudicating eligibility for Federal employment.
Accordingly, if this interpretation is finalized and codified in Code
of Federal Regulations, no prior decisions regarding eligibility would
be impacted by this rulemaking.
New Procedures To Submit and Assess Evidence
This proposed rule also establishes new procedures for submitting
evidence to be used by the decisionmaker in undertaking the inquiry
required by section 3328. The existing procedures (5 CFR 300.705(d))
provide only for the submission of a request for an OPM determination
together with any explanation or other documentation the covered
individual chooses to furnish. It has been difficult for an individual
to establish, through these limited procedures, that his failure to
register was either not knowing or not willful. The more robust
procedures that OPM is proposing would expressly require an individual
to submit a sworn statement in support of his claim and make himself
available to be interviewed by the adjudicator or provide testimony
[[Page 8354]]
concerning his explanation for his failure to register.
OPM believes that the proposed procedures would provide an
individual with a more meaningful opportunity to explain why his
failure to register meets the statutory and regulatory standard of
proof. These procedures would also provide the adjudicator a more
complete record on which to base his or her determination. These
proposed procedures are discussed below.
Agency Adjudication
OPM proposes to modify 5 CFR part 300 to allow Executive agencies
the authority to make the initial determination as to whether an
individual's failure to register with the SSS was knowing and willful
based on OPM's proposed interpretation. This will permit agencies to
make faster decisions and reduce paperwork after consideration of an
applicant's experience and qualifications prior to the completion of
the Optional Form (OF) 306, Declaration for Federal Employment. In
response to the 2011 proposed rule, some agencies expressed concern
that they lacked the experience to adjudicate these eligibility issues;
however, OPM would provide training and reference materials to assist
agencies in making these determinations. Some agencies also expressed
concern that they lack resources to adjudicate eligibility. Based on
these comments received in response to the 2011 proposed rule, OPM
proposes to allow agencies either to request that OPM provide initial
adjudication or to leverage initial determinations made by another
agency.
OPM's Authority
This proposed rule, however, also provides that OPM reserves
reconsideration authority for itself so that an individual may seek
review, by an OPM official designated by the Director, of an agency's
initial determination that a failure to register was knowing and
willful. OPM may also initiate reconsideration on its own initiative.
OPM is also proposing that an OPM decision on reconsideration is final
and no further adjudication by any agency is available.
This proposed rule also authorizes OPM to audit and oversee
agencies' performance of this function, and to revoke the authority
from any particular agency if the agency fails to carry out the
function in accordance with applicable law. If OPM revokes the
authority of a particular agency, the Director of OPM must designate an
OPM official who will make the initial determinations on adjudication
requests arising from that agency.
OPM considered the merits of allowing each agency to adjudicate
cases even when another agency has already made a determination of an
applicant's or employee's eligibility. OPM considered the implications
of two agencies reaching different conclusions or outcomes on the
hiring process, and on the individual involved. OPM also considered
what role OPM should play where one agency finds an individual to be
ineligible and a subsequent agency finds the individual to be eligible.
OPM has considered several options for OPM's role where a second agency
adjudicates the case and reaches a different result from the first
agency. One option would be to require the second agency to request
OPM's review of the case. OPM's decision could be treated as a decision
on reconsideration and binding on all agencies. Another option would be
to require the second agency to notify OPM and provide its finding and
rationale for reaching a different conclusion. The agency could move
forward with the hiring action unless OPM took the case up for
reconsideration on its own (as allowed by the regulations). Because the
primary purpose in OPM extending authority to conduct initial
adjudications to agencies is to promote efficiency, OPM seeks to avoid
a process that will hinder agency review. Conversely, agencies
generally would not be expected to reach different results, so OPM
believes that some oversight of those cases is needed. As described
previously, to reduce the potential burden on agencies, OPM is
proposing that an agency must rely on a determination of eligibility
(or ineligibility) made by another agency, except in situations in
which the second agency has documentary evidence showing the agency
making that determination either erred or did not have complete
information when making its determination. In these situations, the
second agency may present the documentary evidence along with the case
file to OPM for reconsideration. OPM reconsideration for these purposes
would work in a manner similar to the current reconsideration process:
OPM would review the information and render a final decision on whether
an individual's failure to register was knowing and willful and this
decision would be binding on all agencies. OPM welcomes comment on
these various considerations and options.
OPM is also considering whether OPM's initial decisions should be
treated with more deference than other agency decisions. Because OPM
has extensive experience adjudicating these cases and has the ultimate
administrative decision-making authority, it would be less likely that
an agency should reach a different result than a prior OPM initial
decision. Nonetheless, OPM does not want to institute procedures that
would discourage agencies from reviewing an individual's case--
particularly since the proposed process would provide increased
opportunity for an individual to provide information to support his
case.
As noted above OPM is proposing that an agency decision is binding
on subsequent agencies unless a subsequent agency has documentary
evidence showing the initial agency erred or was not privy to the
documentary evidence when making its determination. In such instances,
an agency could request OPM reconsideration of another agency's
decision. OPM requests comments regarding what oversight OPM should
provide for agency decisions to promote efficiency and avoid
unnecessary duplication of effort.
Consultation With the Selective Service System
Individuals covered by the Act who have not registered, and who are
seeking to become employed or remain employed by the Federal
Government, must demonstrate by a preponderance of the evidence that
their failure to register was not knowing and willful. In acting on
individual cases, agencies may consult with the SSS. The Selective
Service website provides easy and immediate access to verify
individuals' registration status, and agencies can request relevant
documents from the SSS.
Elimination of ``Applicant's Statement of Selective Service
Registration Status''
OPM's current regulations contain a self-certification statement of
Selective Service registration to be completed by applicants and
employees. Historically, agencies reproduced this statement on a
separate form, as agencies could transpose the self-certification
statement from 5 CFR 300.704. That statement was approved for use under
OMB Control Number 3206-0166, which expired in 1995. OPM has
streamlined the application process and reduced paperwork for Federal
agencies by eliminating the need for a separate self-certification
statement. A question on Selective Service registration is now part of
OF 306, Declaration for Federal Employment, which is used to determine
an applicant's acceptability and suitability for Federal positions.
[[Page 8355]]
Therefore, the Applicant's Statement of Selective Service Registration
Status is no longer needed, and we are proposing to remove it from
OPM's regulations.
Proposed Changes in This Rule
To accomplish the objectives described in the previous section,
this rule proposes to make specific changes in subpart G of 5 CFR part
300. The revised Sec. 300.701 would replace the relevant statutory
text that is repeated in the current Sec. 300.701 with a concise
statement of the purpose of subpart G, which is to implement the
statutory bar on employment in an Executive agency of an individual who
was required to register with the SSS, but who knowingly and willfully
failed to register before reaching age 26.
The discussion of coverage in Sec. 300.702 would be revised to
include a shorter and clearer statement on applicability. The revised
section clarifies that the subpart applies to all appointments in
Executive agencies, as defined in 5 U.S.C. 105.
In Sec. 300.703, which defines terms used in subpart G, OPM is
proposing to add ``authorized agency official'' as a defined term to
refer to an official designated by the head of an Executive agency to
be responsible for determinations as to whether the failure of an
applicant or employee covered by subpart G to register with the SSS was
knowing and willful. The head of an Executive agency may delegate this
authority to the agency's Chief Human Capital Officer (CHCO) or
equivalent. OPM welcomes comment regarding whether an Executive agency
should be authorized to delegate to another official at the agency's
headquarters level. The definition for ``authorized agency official''
also captures the fact that an agency may request that OPM conduct the
initial adjudication, in which case the ``authorized agency official''
will be an OPM official designated by the OPM Director.
OPM proposes several revisions to the definition for ``covered
individual.'' First, OPM proposes to remove the reference to ``or
becomes 18 following appointment'' because those individuals become
covered by the statutory requirement to register. Second, OPM proposes
to remove paragraph (c) of the current definition, which explains that
the term ``covered individual'' includes U.S. citizens and aliens
(including parolees and refugees and those who are lawfully admitted to
the United States for permanent residence and for asylum), and
paragraph (d) of the current definition, which explains that certain
nonimmigrant aliens, such as those admitted on visitor or student
visas, are exempt from the registration requirement. As described in
the Background section of this notice, the statute specifies which
individuals are subject to the registration requirement. The proposed
definition explains the individuals required to register in terms of
the statute. Although there are several groups (such as those admitted
on visitor or student visas) who are exempt from the registration
requirement either by statute or Presidential Proclamation, the current
regulatory text only identifies one of those exceptions. OPM proposes
to remove this additional text and to define coverage using the
statute.
This proposed rule revises the remaining sections of subpart G to
clarify the responsibilities of agencies regarding job applicants and
employees who are required to register with the SSS. The proposed rule
also sets forth the procedures for determinations by agencies, and
subsequent reconsideration of those determinations by OPM, concerning
whether a covered individual's failure to register was knowing and
willful.
Section 300.704 of this proposed rule requires a Federal agency,
before hiring a job applicant who is required to register with the SSS,
to determine the Selective Service status of that individual. If the
individual provides proof that he has registered, the agency may
continue to consider him for appointment. If an agency fails to make
the required determination prior to appointment, the agency must take
steps to make the determination as soon as the omission is discovered.
Section 300.705 of this proposed rule concerns acceptable proof of
registration status. The agency must require the individual to complete
and sign OF 306 (Declaration for Federal Employment) (available at:
<a href="https://www.opm.gov/media/dxrbwvmb/declaration-for-federal-employment-optional-form-august-2023.pdf">https://www.opm.gov/media/dxrbwvmb/declaration-for-federal-employment-optional-form-august-2023.pdf</a>) or another similar form \3\ provided by
the agency documenting his registration status. An agency must also
allow the individual to provide a copy of his Selective Service
acknowledgement card or other proof of registration or exemption that
the SSS furnishes. Furthermore, in accordance with the Fair Chance Act
and unless permitted by law, an agency may not ask applicants to answer
the questions on the OF 306 that address criminal history information
until the agency has made a conditional offer of employment to the
applicant.
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\3\ An agency that uses a similar form provided by the agency
must comply with the Paperwork Reduction Act for that form.
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In the 2011 proposed rule, OPM proposed to allow an agency to
accept either the form or the documentation from the Selective Service;
however, comments from agencies recommended that all covered
individuals be required to provide a standardized form self-certifying
registration status. OPM is interested in comments on whether the
completed self-certification should be required in all cases.
Generally, an applicant or employee must provide the self-
certification within 7 business days of the request by the agency,
although an agency may specify another reasonable time. If the covered
individual is a current or former Federal appointee and the agency is
able to confirm that his official personnel folder contains evidence of
his eligibility for appointment under the Selective Service law, then
the agency is not required to inquire about his registration status.
An applicant who fails to comply with this section cannot be given
any further consideration for employment. If an applicant provides
documentation indicating that he has not registered, then the agency
must comply with the requirements detailed in Sec. 300.706 before the
agency can proceed with the appointment. If an employee fails to
provide acceptable documentation and there is nothing in his Official
Personnel Folder indicating his registration status has been resolved
previously, then the agency must comply with the requirements detailed
in Sec. 300.706.
Section 300.706 of this proposed rule sets forth an agency's
responsibility concerning applicants who are required to register with
the SSS but have not done so. In the case of any such person who is
under age 26, the agency must provide him with a written notice
advising him to register and including specific information about how
to do so, the proof of registration he must provide to the agency (and
the agency deadline for doing so, in order for the agency to continue
to consider the individual), and a statement describing the
consequences of failing to comply.
The agency must also provide notice to an individual whose failure
to register was not detected by the agency until after the time of
appointment and who may still register. The agency must notify such an
individual that unless he registers promptly (and the agency should
provide a reasonable deadline for compliance) he will no longer be
eligible for retention in his position and will thus be subject to
termination. (In light of the congressional intent to encourage
compliance with the registration requirement, we encourage agencies
also to advise individuals for
[[Page 8356]]
whom the obligation to register has not arisen at the time of
appointment that a future failure to register between the ages of 18
and 26 will preclude any subsequent appointment in the civil service).
In the case of an individual who is over age 26, the agency must
inform him that it will deem him ineligible for appointment (for an
applicant) or retention in his position (for a current employee) unless
he provides evidence that his failure to register was not knowing and
willful. The agency must inform the individual as to how to request a
determination that his failure to register was not knowing and willful,
establish a reasonable deadline for his doing so, and inform him that
his failure to seek such a determination within a reasonable time will
result in the elimination of the individual from further consideration
for appointment (applicant) or termination of his employment by the
agency (current employee).
Because the above-referenced obligations are owed solely to
Congress to fulfill the purpose of the underlying statute, i.e., to
encourage registration with the Selective Service, any failure by the
agency to comply with any of these obligations must not be interpreted
to give rise to any defense or claim by an individual that his failure
to register was the fault of the agency.
Section 300.707 of this proposed rule outlines the procedure for
determining whether the individual's failure to register was knowing
and willful. An individual who asks an agency to determine that his
failure to register was not knowing and willful must submit a sworn
statement to the agency explaining why he did not register, along with
any other supporting documents. The burden of proof is on the
individual to demonstrate, by a preponderance of the evidence, that his
failure to register was not knowing and willful. The agency would first
have to determine whether OPM or another agency had previously made a
determination in the individual's case; if so the hiring agency must
rely on the previously made determination unless the hiring agency has
documentary evidence showing the initial agency erred or was not privy
to the documentary evidence when making its determination. In such
instances, the hiring agency could request OPM reconsideration of
another agency's decision. OPM expects that agencies will be able to
verify this information through an automated system. OPM would provide
additional guidance and instructions upon development of this resource.
An agency may also check with OPM or other agencies directly. As a
reminder to agencies, prior OPM decisions are added to an individual's
Official Personnel File (OPF) and the electronic OPF. If the matter had
previously been adjudicated by OPM pursuant to a reconsideration
request under Sec. 300.708, that determination would be final.
If there was no record of a prior determination by OPM, and no
record of a prior determination by another agency, for an applicant,
the agency would have to investigate and adjudicate the matter or
request that OPM do so if the agency wanted to proceed with the
selected applicant. (There is no obligation for an agency to
investigate and adjudicate the matter for an applicant if the agency
determines not to proceed with that applicant.) For a current employee,
the agency must investigate and adjudicate the matter or request that
OPM do so. This could include consulting with the SSS and questioning
the individual and any others who submitted sworn statements on his
behalf. The agency would be required to inform the individual in
writing of its decision and inform him of his right to ask OPM to
reconsider the agency's decision within 30 days after the date of the
individual's receipt of the agency's decision.
The proposed regulatory text sets forth a process by which, if
there was no decision upon reconsideration by OPM but another agency,
including OPM in an initial decision, had previously adjudicated the
matter, the current agency must rely on the determination made by the
other agency unless the current agency had documentary evidence not
previously considered or which indicated the initial agency's decision
was made in error. If the current agency does have such documentary
evidence, the agency may request OPM reconsideration of the matter. An
OPM decision in these circumstances becomes binding on all agencies.
and issue a decision on reconsideration to permit a different outcome.
As a reminder, a hiring agency always has the option of disqualifying
an unregistered applicant from further consideration and selecting
another individual who is eligible and within reach for appointment. As
noted in the ``OPM's authority'' discussion, OPM is considering other
options and welcomes comments on this process.
Proposed Sec. 300.708 provides for reconsideration by OPM of an
agency determination that an individual's failure to register with the
SSS was knowing and willful. OPM may do so either when it receives a
request from an agency pursuant to proposed Sec. 300.707, the affected
individual or on its own initiative. A reconsideration decision is made
by the Director of OPM or by another official authorized by the
Director to make such decisions. A reconsideration decision by OPM is
final and there is no further right to administrative review. If OPM
affirms the agency's determination, the individual will no longer be
eligible for Federal employment. If he is currently employed by the
agency, the agency must terminate his employment promptly on the
grounds that his appointment was not lawfully made.
Proposed Sec. 300.709 describes two methods by which OPM will
provide oversight for adjudication of employment eligibility due to
Selective Service violations. First, OPM would maintain a database of
agency determinations under subpart G. Second, OPM may audit agency
decisions and suspend or revoke an agency's authority to adjudicate if
the agency is not carrying out its responsibilities under this subpart
in accordance with applicable law and regulations. In such a case, OPM
would resume initial adjudication of cases for that agency.
Expected Impact of This Rule
A. Statement of Need
OPM proposes to codify its interpretation of the statutory
prohibition against employing an individual whose failure to register
with the SSS was knowing and willful. OPM also proposes to change its
procedures for determining whether an individual's failure to register
with the SSS was knowing and willful. In addition, the proposed rule
would authorize Federal agencies to make initial determinations as to
whether an individual's failure to register with the SSS was knowing
and willful. Establishing this authority directly with the hiring
agency will facilitate more efficient decisions and reduce paperwork
for Federal agencies.
B. Impact
This proposed rule would change the procedures for determining
whether an individual's failure to register with the SSS was knowing
and willful. The impact of this proposed rule is twofold:
<bullet> The proposed changes will ensure that individuals who
failed to register with SSS and have applied for positions within the
Federal Government or are currently Federal Government employees have
an opportunity to fully explain their failure to register, and that the
determination is based on a more complete record. For cases received by
OPM to adjudicate, approximately one
[[Page 8357]]
percent of these individuals are removed or denied employment per year
on average over the past three years.
<bullet> OPM believes that authorizing Federal agencies to
adjudicate eligibility will facilitate more efficient decisions and
eliminate administrative burden on agencies by reducing the amount of
paperwork inherent in the current process and by shortening the length
of time it takes to render a decision. Because the proposed rule allows
for a decision by one agency to be leveraged and applied by another
agency, this process will facilitate shorter adjudication processing
times across government. We envision this flexibility will lead to
communities of practice and greater sharing of knowledge with respect
to this process, which will result in economies of scale across Federal
agencies.
C. Costs
The costs associated with the proposed rule include: the costs
associated with the resources agencies will need in order to make an
initial determination as to whether an individual's failure to register
was knowing and willful, and the usual learning curve of implementing a
regulatory change. These costs are best measured or described in terms
of their short-term impact. (OPM expects the proposed changes to yield
economies of scale within and across agencies in the long-term.) In the
short-term, agencies must develop the expertise and comfort level for
making adjudications of initial decisions and have the proper
delegations of authority in place to govern operational day-to-day
processing of this casework. To help agencies minimize costs associated
with this process, OPM intends to provide technical assistance upon
request to any agency that may require such assistance. In addition,
OPM would issue supplemental explanatory guidance based on agency
feedback not long after the effective date of the final rule.
OPM estimates that adjudication of Selective Service registration
cases can be performed by agency human resource (HR) specialists at the
General Schedule (GS) or equivalent 11 through 14 grade levels, with
appropriate supervision. In terms of annual salary rates, this range
falls between $78,592 for a GS 11 step 1 HR specialist and $172,075 for
a GS 14 step 10 level HR specialist (based on January 2023 pay tables
for the Pay Area of Washington-Baltimore-Arlington, DC-MD-VA-WV-PA
areas; see <a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB.pdf">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB.pdf</a>). In addition, we
estimate agency review of an internal recommendation to be performed by
a Headquarters level management official at the GS 15 grade level with
a salary range of $155,700 to $183,500, and the final approval and
authorization executed by the agency's CHCO or designee at the GS 15 or
Senior Executive Service (SES) levels with a salary range of $155,700
through $183,500 for GS 15 level employees and a range of $172,100
through $235,600 for SES level IV through level I employees (based on
January 2023 Executive pay tables; see <a href="https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/EX.pdf">https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/EX.pdf</a>).
The amount of time spent by all agency employees involved in the
review, preparation, and authorization of adjudication actions will
vary within and across agencies depending on the volume of cases and
level of expertise within each individual agency. OPM expects the non-
managerial grade level needed to perform this function will decrease
over time as a result of institutional experience gained by agencies,
knowledge sharing, the development of communities of practice, and the
leveraging of decisions made by other agencies. As a reference point,
OPM found that performing the function for the first time (little to no
training and no prior agency expertise) required approximately 4 to 6
hours, including drafting and review. After developing in-house
expertise, OPM has found that the function can be performed by a lower-
graded employee in 2-4 hours with roughly 30 minutes of review. Because
OPM plans to share the expertise it has developed over the years,
agencies will benefit from OPM training and examples.
In terms of long-term impact, providing initial adjudication may
represent an increased workload burden for some agencies. OPM processes
approximately 200 cases per year from all Federal agencies. Under this
proposed rule, any individual agency would be responsible for
adjudicating a small fraction of those cases in a given year.
OPM does not expect the proposed rule to result in higher costs for
job applicants and current employees. Currently, job applicants and
current employees send any requested additional information via email
or through the U.S. Postal Service or alternative mail delivery
services. On average applicants respond within one week depending on
which method they use. OPM estimates that this response time and the
various methods used to send requested information will not change as a
result of this rulemaking.
D. Benefits
The benefits associated with this proposed rule will be realized by
both hiring/employing agencies as well as the applicants and employees
who failed to register with the SSS. The proposed rule provides that
agencies may make initial determinations of an applicant's or
employee's failure to register with SSS or leverage a decision
previously made by another agency. By having more control over this
process, agencies will be better able to manage their caseloads, which
will reduce the length of time it takes for an adjudication and thus
shorten the time to hire. (Hiring actions typically are delayed during
the adjudication process).
This proposed rule also allows one agency to leverage or apply an
adjudication decision made by another Federal agency. This flexibility
will improve the efficiency of this process in general and may be a
significant benefit to those agencies with relatively limited resources
which may be unable to perform this function in a timely manner. Job
applicants who have not registered with SSS will realize a faster, more
efficient process without any changes to the appeals process they are
currently subject to. OPM expects the proposed changes to yield
economies of scale within and across agencies once agencies become
proficient in making initial determinations. OPM will provide training
to agencies en masse, or on an individual basis, in addition to issuing
supplemental guidance to the final rule, and plans to develop an
accessible repository of past OPM decisions as well as agency decisions
made after the final rule becomes effective.
E. Regulatory Alternatives
The regulatory alternative to this proposed rule is the option of
OPM retaining primary responsibility for making initial determinations
of Selective Service registration and eligibility for appointment.
Under current regulations, agencies seeking an initial adjudication
request in writing from OPM a decision on a particular applicant or
employee. OPM reviews the materials submitted for review and renders a
decision as to whether the individual's failure to register was knowing
and willful. Thus, two entities are involved in the current process:
the requesting agency and OPM. The proposed rule streamlines this
process by allowing agencies to complete the initial determination
process in house. (The proposed rule preserves the
[[Page 8358]]
current mechanism that allows an individual to appeal an initial
determination to OPM.) This proposal also provides agencies with a
standardized set of criteria to follow when making their initial
determinations to ensure consistency across government in the
adjudication process. Lastly, the proposed rule further streamlines the
current process by providing for agencies to leverage a determination
already made by another hiring or employing agency. This streamlined
process will benefit both agencies as well as the individuals for whom
a decision is being sought by reducing the length of time inherent in
the adjudication process. This rule proposes to give agencies more
control over this process than is currently the case.
Procedural Issues and Regulatory Review
Severability
Severability is an important remedial doctrine that arises in cases
challenging the legality of statutes and agency rules. When reviewing a
rule, if a court determines that a particular provision is unlawful,
severability addresses whether judicial relief should extend to the
entire rule or whether it can be limited to the invalid provision,
leaving in effect the remainder of the rule (see <a href="https://www.acus.gov/sites/default/files/documents/tailoring-the-scope-of-judicial-remedies-in-administrative-law-final-report.pdf">https://www.acus.gov/sites/default/files/documents/tailoring-the-scope-of-judicial-remedies-in-administrative-law-final-report.pdf</a>). OPM intends and expects that,
if any part or section is held to be invalid or unenforceable as
applied to any person or circumstance, a reviewing court should
construe that part or section so as to continue to give the maximum
effect to the provision permitted by law, including as applied to
persons not similarly situated or to dissimilar circumstances, unless
such holding is that the provision is invalid and unenforceable in all
circumstances, in which event the provision should be severable from
the remainder of this.
In particular, OPM considers the interpretation of the statutory
language regarding ``knowing and willful'' to be severable from the
procedural changes proposed. OPM also considers the regulatory changes
proposed with respect to allowing agencies to conduct the initial
adjudication to be severable from the changes to the information an
applicant (or employee) must provide as part of the adjudicatory
process. OPM invites comment on the severability of these provisions.
Regulatory Review
Executive Orders 12866 (Sept. 30, 1993), 13563 (Jan. 18, 2011), and
14094 (Apr. 6, 2023) 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,
distributive 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. A regulatory impact
analysis must be prepared for major rules with economically significant
effects of $200 million or more in any one year. While this rule does
not reach the economic effect of $200 million or more, this rule was
reviewed by the Office of Management and Budget as a significant, but
not economically significant rule.
Regulatory Flexibility Act
The Director of the Office of Personnel Management certifies that
this rule will not have a significant economic impact on a substantial
number of small entities.
Federalism
OPM examined this rule in accordance with Executive Order 13132,
``Federalism,'' and determined that this rule will not have any
negative impact on the rights, roles and responsibilities of State,
local, or tribal governments.
Civil Justice Reform
This regulation meets the applicable standard set forth in section
3(a) and (b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of more
than $100 million or more in any year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Paperwork Reduction Act (44 U.S.C. 3501-3521)
This rule does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act (PRA). The existing
regulation at 5 CFR 300.704(b) codified OMB Control Number 3206-0166,
which is no longer in use (note the current regulation erroneously
displays an expiration date of October 31, 1989.) OPM is proposing to
eliminate the codified form as there is an OMB-approved collection of
information titled Declaration for Federal Employment (OF 306), OMB
Control Number 3206-0182, which covers this information and eliminates
the need for OMB Control No. 3206-0166. OPM does not anticipate any
changes to the data elements, costs, or burden for the current
collection with this proposed rule. The system of record notice for the
currently approved collection is <a href="https://www.opm.gov/information-management/privacy-policy/sorn/opm-sorn-govt-1-general-personnel-records.pdf">https://www.opm.gov/information-management/privacy-policy/sorn/opm-sorn-govt-1-general-personnel-records.pdf</a>. Additional information regarding the collection--including
all background materials--can be found at <a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a> by using the search function to enter either the
title of the collection or the OMB Control Number.
List of Subjects in 5 CFR Part 300
Freedom of information, Government employees, Reporting and
recordkeeping requirements, Selective Service System.
Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.
Accordingly, the Office of Personnel Management proposes to amend 5
CFR part 300 as follows:
PART 300--EMPLOYMENT (GENERAL)
0
1. The authority citation for part 300 is revised to read as follows:
Authority: 5 U.S.C. 552, 2301, 2302, 3301, and 3302; E.O. 10577,
3 CFR 1954-1958 Comp., page 218, unless otherwise noted. Secs.
300.101 through 300.104 also issued under 5 U.S.C. 7201, 7204, and
7701; E.O. 11478, 3 CFR 1966-1970 Comp., page 803, E.O. 13087; and
E.O. 13152. Secs. 300.401 through 300.408 also issued under 5 U.S.C.
1302(c). Secs. 300.501 through 300.507 also issued under 5 U.S.C.
1103(a)(5). Sec. 300.603 also issued under 5 U.S.C. 1104. Secs.
300.701 through 300.709 also issued under 5 U.S.C. 3328(b).
0
2. Subpart G is revised to read as follows:
Subpart G--Statutory Bar to Appointment of Persons Who Fail To
Register Under the Selective Service Law
Sec.
300.701 Purpose.
300.702 Coverage.
300.703 Definitions.
300.704 Agency responsibility to determine registration status.
300.705 Proof of registration.
[[Page 8359]]
300.706 Agency responsibility regarding covered individuals who have
not registered.
300.707 Agency determination of whether the failure to register was
knowing and willful.
300.708 Reconsideration by OPM.
300.709 OPM Oversight.
Sec. 300.701 Purpose.
This subpart implements 5 U.S.C. 3328, which bars from employment
in an Executive agency an individual who was required to register with
the Selective Service System and ``who is not so registered or
knowingly and willfully did not so register before the requirement
terminated or became inapplicable to the individual.'' The bar on
employment does not apply to such an individual who can demonstrate by
a preponderance of the evidence either that the failure to register was
not knowing or that the failure to register was not willful.
Sec. 300.702 Coverage.
This subpart covers all appointments to positions in Executive
agencies.
Sec. 300.703 Definitions.
In this subpart--
Agency means an Executive agency as defined in 5 U.S.C. 105.
Appointment means any personnel action that brings onto the rolls
of an agency as an officer or employee as defined in 5 U.S.C. 2104 and
2105, respectively, a person who is not currently employed in that
agency. It includes initial employment as well as transfer between
agencies and subsequent employment after a break in service. A
personnel action that moves an employee within an agency without a
break in service of more than 3 days is not an appointment for purposes
of this subpart.
Authorized agency official means the head of an agency or an
official who is authorized to act for the head of the agency in the
matter concerned, except that delegation from the head of an agency is
limited to the agency's Chief Human Capital Officer or equivalent. If
the head of an agency (or equivalent) requests that OPM provide the
initial adjudication, the authorized agency official means an official
designated by the OPM Director to act for the Director in the matter
concerned.
Covered individual means a male--
(a) Whose application for appointment is under consideration by an
agency or who is currently employed by an agency;
(b) Who was born after December 31, 1959, and is at least 18 years
of age; and
(c) Who is either (1) an applicant who is or was required to
register under Selective Service law at any time prior to or concurrent
with the consideration of his application; or (2) an appointee who is
or was required to register under 50 U.S.C. 3802 at any time prior to
his current appointment.
Exempt refers to those individuals excluded from the requirement to
register with the Selective Service System under Selective Service law
or by Presidential proclamation.
Preponderance of the evidence means that degree of relevant
evidence that a reasonable person, considering the record as a whole,
would accept as sufficient to support a conclusion that the matter
asserted is more likely to be true than not true.
Selective Service law means the Military Selective Service Act,
rules and regulations issued thereunder, and proclamations of the
President under the Act.
Selective Service System means the agency responsible for
administering the registration system and for determining who is
required to register and who is exempt.
Sec. 300.704 Agency responsibility to determine registration status.
(a) An agency seeking to appoint a covered individual must
determine the covered individual's eligibility before he may be
appointed. An agency's failure to make a required registration status
determination prior to a covered individual's appointment, however,
does not relieve the agency from having to make such a determination
when the agency becomes aware of the omission thereafter and does not
relieve the covered individual from the obligation to cooperate with
the agency in reaching a determination. The agency must take all
appropriate steps to make the determination as soon as it discovers the
omission, regardless of the intervening appointment.
(b) As provided by Sec. 300.707(e) of this part, an agency may,
but is not obligated to, hold open a vacancy while the individual takes
steps to resolve the registration issue.
Sec. 300.705 Proof of registration.
(a)(1) At an appropriate time during the consideration process
prior to appointment, an agency must require a covered individual to
complete Optional Form 306, Declaration for Federal Employment, or a
form provided by the agency that requests information on registration
status.
(2) The agency must allow a covered individual to submit, in
addition to the form(s) described in paragraph (a)(1) of this section,
a copy of his Selective Service acknowledgement card or other proof of
registration or exemption issued by the Selective Service System.
(b) An agency may give no further consideration for appointment to
a covered individual who fails, within 7 business days, or another
reasonable time specified by the agency, to provide the information on
registration status as required by paragraph (a) of this section.
(c) An agency considering appointment of a covered individual who
is a current or former Federal appointee is not required to inquire
about his registration status if the agency determined that his
application materials or Official Personnel Folder contains evidence
that the individual is registered, is exempt, or has had a prior
determination under this subpart that his failure to register was not
knowing and willful.
Sec. 300.706 Agency responsibility regarding covered individuals who
have not registered.
(a) In the case of a covered individual who is under age 26 and has
not registered with the Selective Service System, and in order to
further Congress's purpose in enacting 5 U.S.C. 3328, the agency must
provide the individual with a written notice that advises him to
register promptly and includes the following:
(1) Information about how to register online on the Selective
Service System's website;
(2) A statement requiring the individual to submit a new Optional
Form 306, ``Declaration for Federal Employment'' agency form, or a copy
of his Selective Service acknowledgement card or other proof of
registration or exemption issued by the Selective Service System to
prove that he has complied;
(3) A statement requiring the individual to submit any additional
documentation the agency deems necessary to establish that the
individual has registered;
(4) A deadline for submitting the required documentation; and
(5) A statement that, if the individual fails to provide the
required documentation by the deadline, he will no longer be eligible
for appointment, or, in the case of a covered individual who has
already been appointed, a statement that the failure to register will
result in the individual being terminated on the ground that he was
ineligible for appointment at the time he was appointed.
(b) In the case of a covered individual who is age 26 or older and
has not registered with the Selective Service System, the agency, when
it learns of the failure to register, must notify the
[[Page 8360]]
individual in writing that, as required by 5 U.S.C. 3328, he is
ineligible for appointment or for continued employment unless his
failure to register was not knowing and willful. The notice must inform
the individual that he may request in writing a determination by the
agency that his failure to register was not knowing and willful if he
provides, along with his request, a written explanation of his failure
to register, as described in Sec. 300.707. The notice must specify how
to submit the request (e.g., to whom, in what format) and by when the
request must be received. The individual's failure to submit this
request within a reasonable time, as determined by the agency,
obligates the agency to eliminate the individual from further
consideration for an appointment or to commence steps to terminate the
individual's continued employment, as applicable.
Sec. 300.707 Agency determination of whether the failure to register
was knowing and willful.
(a)(1) An individual who, as provided in Sec. 300.706(b), requests
a determination that his failure to register was not knowing and
willful must submit to the agency a sworn statement that explains why
he failed to register. The sworn statement must set forth all relevant
facts and circumstances, including whether this issue has ever been
adjudicated by another agency. This sworn statement must be signed and
must include the following statement, ``I declare, under penalty of
perjury, that the facts stated in this statement are true and
correct.'' He may also submit any other documents that support his
claim, including sworn statements from other individuals with first-
hand knowledge of the relevant facts.
(2) The record for review by the authorized agency official must
include the documents submitted pursuant to paragraph (a)(1) of this
section, the documentation submitted pursuant to Sec. 300.705(a), a
copy of the written notice referred to in Sec. 300.706(b), his request
for a determination that his failure to register was not knowing and
willful, and any other relevant documents. The individual must
demonstrate by a preponderance of the evidence that his failure to
register was not knowing and willful.
(b) Upon receiving a request for a determination that an
individual's failure to register was not knowing and willful, the
agency may proceed with the adjudication process.
(c) When building the record to evaluate the issue of whether the
failure to register was knowing and willful, the agency may investigate
the information in the documents provided by all appropriate means,
including questioning the covered individual or employee and any other
person who submitted a statement in support of his claim, and
consulting with the Selective Service System. Refusal of any individual
who submits a sworn statement under this section to be interviewed may
be grounds for a determination that the covered individual's failure to
register was knowing and willful.
(d) If the agency chooses to pursue adjudication, the agency must
determine whether the issue was previously adjudicated by OPM or
another agency.
(1) If the issue was previously adjudicated by OPM pursuant to a
reconsideration request under Sec. 300.708, that decision is final.
(2) If the issue was previously adjudicated by another Federal
agency, that agency's decision is final unless the hiring agency has
documentary evidence showing the initial agency erred or did not have
complete information when making its determination. In such instances,
the hiring agency may request OPM reconsideration of another agency's
decision pursuant to Sec. 300.708. The agency must provide to OPM
whatever documents OPM decides it needs to determine whether to permit
the earlier decision to be superseded.
(3) If the issue was not previously adjudicated, the authorized
agency official must examine the individual's request and reach his or
her own conclusion as to whether the failure to register was knowing
and willful. The agency must inform the individual in writing of its
decision. The decision must inform the individual that he may request
reconsideration of the agency's determination under Sec. 300.708
within 30 days after the date of receipt of the decision, at which time
the agency's decision becomes final unless the individual has timely
filed a request for reconsideration with OPM.
(e) If the individual is an employee, the agency must file a copy
of the decision in the employee's official personnel folder.
(f) An agency is not required to keep a vacant position open for a
covered individual who seeks a determination under this section, unless
otherwise required by law. An agency always has the option of
disqualifying the applicant and considering the next eligible and
available candidate.
(g) If the agency finds that the failure to register was knowing
and willful, a covered individual is ineligible for further employment
consideration by that agency, or for continued Federal employment if he
has already been appointed.
Sec. 300.708 Reconsideration by OPM.
(a) When a request for reconsideration is filed with OPM in a
timely manner, OPM will inform the agency and the individual that it
has received the request.
(b) The Director of OPM, or other authorized OPM official
designated by the Director, on his or her own initiative or at the
request of the individual, may review the decision of an agency under
Sec. 300.707 and make a determination based on all documentation
provided to affirm or overrule the agency's decision. The authorized
OPM official may investigate the information in the documents provided
by all appropriate means, including questioning the covered individual
or any other person who submitted a statement in support of his claim,
and consulting with the Selective Service System. The official will
examine the individual's request and make his or her own conclusion as
to whether the failure to register was knowing and willful. The
decision of OPM is final. There is no further right to administrative
review.
(c) OPM will provide the agency and the covered individual with a
copy of its decision.
(d) If OPM affirms the agency's determination that the failure to
register was knowing and willful, the agency must cease considering the
individual for appointment or, if the individual is a current employee,
initiate steps to terminate his employment.
Sec. 300.709 OPM Oversight.
OPM may audit agency decisions under this subpart and may suspend
or revoke an agency's authority under this subpart if it determines the
agency is not carrying out its responsibilities under this subpart in
accordance with applicable law and regulations. In the event of such a
suspension or revocation, the Director of OPM must designate an
authorized OPM official who will make the determinations for that
agency under this section while that suspension or revocation is in
effect.
[FR Doc. 2024-02402 Filed 2-6-24; 8:45 am]
BILLING CODE 6325-39-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.