[Federal Register: March 29, 1999 (Volume 64, Number 59)]
[Proposed Rules]
[Page 14842-14845]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29mr99-19]

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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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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

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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