[Federal Register Volume 64, Number 59 (Monday, March 29, 1999)]
[Proposed Rules]
[Pages 14842-14845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7416]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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. 64, No. 59 / Monday, March 29, 1999 / 
Proposed Rules  

[[Page 14842]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 300

RIN 3206-AI52


Statutory Bar to Appointment of Persons Who Fail to Register 
Under Selective Service Law

AGENCY: Office of Personnel Management.

ACTION: Proposed regulations.

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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed 
regulations to delegate authority to executive agencies to determine 
whether a man's failure to register with the Selective Service System 
(Selective Service) was knowing and willful. This will permit faster 
decisions for job seekers as well as applicants, and reduce paperwork. 
The proposed regulations also delete duplicative material, eliminate 
the ``Statement of Selective Service Registration,'' and include 
editorial changes.

DATES: Comments must be received on or before April 28, 1999.

ADDRESSES: Send or deliver written comments to Mary Lou Lindholm, 
Associate Director for Employment, Office of Personnel Management, Room 
6500, 1900 E Street, NW., Washington, DC 20415-9000.

FOR FURTHER INFORMATION CONTACT: Sylvia Cole or Robert Grady on (202) 
606-0830, TDD (202) 606-0023, or FAX (202) 606-0390.

SUPPLEMENTARY INFORMATION: In 1985, section 3328, ``Selective Service 
registration,'' was added to title 5, United States Code. It provided 
that men born in 1960 or later who are required to, but did not 
register under section 3 of the Military Selective Service Act (50 
U.S.C. App. 453), generally are ineligible for appointment to Federal 
executive agencies. A non-registrant who is not yet 26 years old may 
correct his ineligibility by registering. After age 26, a non-
registrant can no longer register to correct his failure. In the latter 
situation, section 3328 authorized OPM alone to determine if an 
individual's failure to register was knowing and willful. A 1987 
amendment of the law permitted OPM to delegate the adjudication 
responsibility to Federal executive agencies. Because the law was new 
and we had little experience in reviewing cases of non-registrants, we 
felt delegation was not appropriate at that time.

Delegation to Agencies

    Based on our experience over the years, we now propose to delegate 
to agencies the decision-making authority for adjudicating cases of 
non-registrants to determine if their failure to register was knowing 
and willful. This delegation will permit faster decisions for job 
seekers as well as agencies, and reduce paperwork. The workload for an 
individual agency would be minimal. In fact, only a few agencies 
submitted cases to OPM on a recurring basis in the past.

OPM Experience in Adjudicating Cases

    Most of the cases submitted to OPM for adjudication were obvious 
and decision-making was not difficult. Very few were adjudicated 
unfavorably. We often saw the same type of situation. For example, a 
large number of non-registrants had served in the military and did not 
realize that Selective Service registration was still required if they 
were released from active duty before age 26 and had never registered. 
Others were former non-immigrant aliens (e.g., those on student visas) 
who were initially exempt from registration. However, when they became 
permanent residents and their status changed, they were not aware they 
had an obligation to register. Occasionally a person entered the United 
States right before the deadline for registration. A few cases involved 
individuals with a physical disability who knew they would not be able 
to perform military service and believed the registration requirement 
did not apply to them. Some of the other cases involved unique 
circumstances. We based our decisions on a review of supporting 
documentation submitted with each case such as a written statement 
supplied by the applicant or employee, a copy of form DD 214 
(Certificate of Release or Discharge from Active Duty), or a letter 
from the Selective Service rendering a favorable advisory opinion.

Consultation with the Selective Service

    Non-registrants must provide a preponderance of evidence that their 
failure to register was not knowing and willful. In acting on 
individual cases, we routinely consulted with the Selective Service, 
and agencies will need to do likewise. To verify an individual's 
registration status, agencies should call Selective Service at (847) 
688-6888. (Occasionally an applicant will state he did not register, 
when, in fact, he is registered.) Selective Service may also have other 
information in its records that may be helpful to agencies such as 
evidence that the individual was contacted about his registration 
responsibility (including the address used and number of times 
contacted), and it can verify an applicant's claim of being exempt from 
the registration requirement. Since OPM's regulations were developed in 
consultation with the Selective Service, we have listed some of the 
most common exemptions under Selective Service law directly in the 
regulations.

Elimination of ``Applicant's Statement of Selective Service 
Registration Status''

    OPM's current regulations, written in 1987, contain a self-
certification statement of Selective Service registration to be 
completed by applicants and employees. Agencies reproduce this 
statement on a separate form. In 1987, the application for Federal 
employment, Standard Form 171, did not contain a question on Selective 
Service registration. Therefore, a separate form was necessary to 
collect the information required by 5 U.S.C. 3328. Today, agencies use 
different forms when considering employees for Federal jobs--the resume 
or the Optional Application for Federal Employment (OF 612), which are 
used to determine basic qualifications for positions, and a Declaration 
for Federal Employment (OF 306), used to determine an applicant's 
acceptability and suitability for Federal positions.
    To streamline the application process and reduce paperwork, we are 
planning to eliminate the Applicant's Statement of Selective Service 
Registration and add a question on Selective Service registration to 
the OF 306. This form is completed by applicants who are under

[[Page 14843]]

serious employment consideration. It is completed early enough in the 
employment process so that if an agency encounters an applicant who did 
not register with the Selective Service, the agency would have 
sufficient time to determine if non-registration was knowing and 
willful prior to the individual's beginning his tour of duty. Since the 
revision of OF 306 requires approval by the Office of Management and 
Budget in accordance with the Paperwork Reduction Act, OPM will request 
public comments at a later time through a separate notice to appear in 
the Federal Register relating specifically to revising the form.

Editorial Changes

    The proposed regulations also contain editorial changes for clarity 
or to make them easier to read. We added paragraph headings so that 
information can be found more quickly, reformatted some of the 
material, and deleted the text of the statutory bar to appointing 
nonregistrants in executive agencies, because it is a duplication of 5 
U.S.C. 3328.

Regulatory Flexibility Act

    I certify that these regulations will not have a significant 
economic impact on a substantial number of small entities (including 
small businesses, small organizational units, and small governmental 
jurisdictions) because the regulations only affect Federal job 
applicants and employees.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 300

    Freedom of information, Government employees, Reporting and 
recordkeeping requirements, Selective Service System.

    Office of Personnel Management.
Janice R. Lachance,
Director.
    Accordingly, OPM proposes to amend 5 CFR part 300 as follows:

PART 300--EMPLOYMENT (GENERAL)

    1. The authority citation for Part 300 is revised to read as 
follows:

    Authority: 5 U.S.C. 552, 3301, 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.
    Sec. 300.301 also issued under 5 U.S.C. 1104 and 3341.
    Secs. 300.401 through 300.408 also issued under 5 U.S.C. 
1302(c), 2301, and 2302.
    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 300.707 also issued under 5 U.S.C. 3328.

    2. Subpart G is revised to read as follows:

Subpart G--Statutory Bar to Appointment of Persons Who Fail to 
Register Under Selective Service Law

Sec.
300.701  Statutory requirement.
300.702  Coverage.
300.703  Definitions.
300.704  Considering applicants for employment.
300.705  Agency action after determining registration status.
300.706  Adjudication.
300.707  Termination of employment.

Subpart G--Statutory Bar to Appointment of Persons Who Fail to 
Register Under Selective Service Law


Sec. 300.701  Statutory requirement.

    Section 3328 of title 5, United States Code, imposes compliance 
with Selective Service registration requirements as a condition of 
employment in executive agencies. This subpart contains the regulations 
that the Office of Personnel Management (OPM) has prescribed to carry 
out the statutory requirement.


Sec. 300.702  Coverage.

    These regulations cover appointments in Federal executive agencies.


Sec. 300.703  Definitions.

    In this subpart--
    Appointment means any personnel action that brings onto the rolls 
of an executive agency as a civil service officer or employee as 
defined in 5 U.S.C. 2104 or 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. Personnel actions that move an employee within an 
agency without a break in service are not covered. A break in service 
is a period of 4 or more calendar days during which an individual is no 
longer on the rolls of an executive agency.
    Covered individual means a male--
    (1) Whose application for appointment is under consideration by an 
executive agency or who is an employee of an executive agency;
    (2) Who was born after December 31, 1959, and is at least 18 years 
of age or becomes 18 following appointment;
    (3) Who is either a United States citizen or alien (including 
permanent residents, parolees, refugees, and applicants for asylum) 
residing in the U.S.; and
    (4) Who is or was required to register under section 3 of the 
Military Selective Service Act (50 U.S.C. App. 453).
    Executive agency (or agency) means an agency of the Government of 
the United States as defined in 5 U.S.C. 105.
    Exemptions means those individuals determined to be excluded from 
the requirement under section 3 and 6(a) of the Military Selective 
Service Act (50 U.S.C. App. 453 and 456(a)) or Presidential 
proclamation. Some of the individuals exempt from registration include:
    (1) Non-immigrant aliens admitted under section 101(a)(15) of the 
Immigration and Nationality Act (8 U.S.C. 1101) who are residing in the 
United States temporarily, such as those on visitor or student visas 
and members of diplomatic or trade missions and their families;
    (2) Men who are unable to register due to circumstances beyond 
their control, such as being hospitalized, institutionalized, or 
incarcerated (although they must register within 30 days of their 
release if they are not 26 years of age);
    (3) Members of the Armed Forces on full-time active duty from their 
18th through their 26th birthday. This exemption also applies to cadets 
and midshipmen at the United States service academies; and
    (4) Men who entered the U.S. for the first time after age 26.
    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.
    Registrant means an individual registered under Selective Service 
law.
    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  Considering applicants for appointment.

    (a) Requirement to determine registration status. An executive 
agency must determine the registration status of each covered 
individual at an appropriate time during the

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consideration process prior to appointment, and of each covered 
employee who becomes 18 after appointment. The individual must 
complete, sign, and date in ink Optional Form 306, Declaration for 
Federal Employment, or a form provided by the agency that requests 
information on registration status, unless the applicant furnishes 
other documentation as provided by paragraph (b) of this section.
    (b) Other acceptable proof of registration. At his option, a 
covered individual may submit, in lieu of the forms described in 
paragraph (a) of this section, a copy of his Acknowledgement Letter or 
other proof of registration or exemption issued by the Selective 
Service System.
    (c) Failure to provide registration information. An agency will 
give no further consideration for appointment to individuals who fail 
to provide the information on registration status described in 
paragraphs (a) and (b) of this section.
    (d) Prior evidence of registration. An executive agency considering 
employment of a covered individual who is a current or former Federal 
employee, is not required to inquire about his registration status if 
it determined that the individual's Official Personnel Folder contains 
evidence indicating the individual is registered or was never required 
to register.
    (e) Individuals not yet eligible to register. An agency hiring a 
male under the age of 18 must require the individual to provide proof 
that he registered with the Selective Service System within 6 months 
after his 18th birthday.


Sec. 300.705  Agency action after determining registration status.

    (a) Verifying registration status. Agencies must resolve conflicts 
of information and other questions concerning an individual's 
registration status prior to appointment. An agency may verify an 
individual's registration status by requesting the individual provide 
proof of registration or exemption issued by the Selective Service 
System, or by contacting the Selective Service System directly.
    (b) When registration requirement has been met. An agency may 
continue regular pre-employment consideration of individuals who have 
demonstrated they have registered or are exempt.
    (c) An individual under age 26 who did not register. An agency will 
take the following actions when a covered individual who is required to 
register has not done so, and is under age 26:
    (1) Advise him to register promptly and, if he wishes further 
consideration, to submit a new Optional Form 306, agency form or other 
appropriate document from the Selective Service immediately to the 
agency once he has registered. The agency may set a time limit for 
submitting this documentation.
    (2) Provide written notice to an individual who still does not 
register after being informed of registration requirements, that he is 
ineligible for appointment according to 5 U.S.C. 3328 and will be given 
no further employment consideration.
    (d) An individual age 26 or over who did not register. An agency 
will take the following actions when a covered individual who is age 26 
or over was required to register prior to his 26th birthday, and has 
not done so:
    (1) Provide written notice to the individual that, in accordance 
with 5 U.S.C. 3328, he is ineligible for appointment unless his failure 
to register was neither knowing nor willful and that the agency will 
decide whether this failure to register was knowing and willful if he 
submits a written request for such decision along with an explanation 
of his failure to register.
    (2) Submit the individual's application, the Optional Form 306 or 
agency form, a copy of the written notice, his request for a decision 
and explanation of his failure to register, and any other papers 
pertinent to his registration status for determination to the official 
or employee the agency has designated to make determinations.
    (3) An agency is not required to keep a vacancy open for an 
individual who seeks a determination.
    (e) Ineligibility for employment. Individuals under age 26 
described in paragraph (c) of this section who do not submit a 
documentation of registration or exception are not eligible for 
employment consideration, or continued employment if a current 
employee. Individuals age 26 or over described in paragraph (d) of this 
section are not eligible for employment consideration unless the agency 
finds that failure to register was neither knowing nor willful. 
Agencies are not required to follow the objection-to-eligibles 
procedures described in Sec. 332.406 of this chapter concerning such 
individuals who were certified or otherwise referred by an OPM 
examining office or other office delegated examining authority by OPM. 
As part of its examining report, an agency will provide to the 
examining office a copy of the written notice sent to the individual.


Sec. 300.706  Adjudication.

    (a) Determining if non-registration was knowing and willful. The 
official or employee designated by the employing agency will determine 
whether failure to register was knowing and willful when an individual 
has requested a decision and presented a written explanation, as 
described in Sec. 300.705. The designated official or employee will 
make a determination based on the written explanation provided by the 
individual and any guidance the Office of Personnel Management and the 
Selective Service may provide. The burden of proof will be on the 
individual to show that failure to register was neither knowing nor 
willful.
    (b) Consultation with Selective Service System. In making 
determinations, an agency should consult with the Selective Service 
System for any information that might be in its records which will 
assist in the adjudication process, e.g. evidence that the individual 
was contacted about his registration responsibility.
    (c) Written notification of determination. The employing agency 
will notify the individual in writing of the determination. An 
individual may appeal an agency's determination by following the 
agency's administrative appeal process. The agency determination is 
final unless reconsidered by the Director of OPM or his or her 
designee. There is no further right to administrative review.
    (d) Determination by OPM. The Director of OPM or his or her 
designee may reopen and reconsider a determination made by an agency. 
Individuals who believe they have been unfairly denied access to an 
agency's adjudication procedure may request a determination to be made 
by OPM.
    (e) Accepting the determination made by another agency. A 
subsequent employing agency shall accept the determination of the 
initial employing agency, unless it can demonstrate to OPM that a 
different determination is clearly appropriate because it found 
additional or contradictory information since the original decision.


Sec. 300.707  Termination of employment.

    A covered individual who is serving under an appointment made on or 
after November 8, 1985, and who is not exempt from registration, will 
be terminated by his agency under these regulations if he has not 
registered as required, unless he registers. If he is no longer 
eligible to register, the individual may continue serving only if the 
agency determines in response to his

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explanation that his failure to register was neither knowing nor 
willful.
[FR Doc. 99-7416 Filed 3-26-99; 8:45 am]
BILLING CODE 6325-01-P