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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 [www.gpo.gov]
[FR Doc No: 2024-02402]

========================================================================
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.

========================================================================


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:
     Federal eRulemaking Portal: https://www.regulations.gov. 
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 
[email protected], by fax at (202) 606-4430, TDD at (202) 418-3134, 
or by email at [email protected].

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'' https://www.volckeralliance.org/sites/default/files/attachments/OPM-Final-Report-National-Academy-of-Public-Administration.pdf.
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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: 
https://www.opm.gov/media/dxrbwvmb/declaration-for-federal-employment-optional-form-august-2023.pdf) 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:
     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.
     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 https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/DCB.pdf). 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 https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2023/EX.pdf).
    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 https://www.acus.gov/sites/default/files/documents/tailoring-the-scope-of-judicial-remedies-in-administrative-law-final-report.pdf). 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 https://www.opm.gov/information-management/privacy-policy/sorn/opm-sorn-govt-1-general-personnel-records.pdf. Additional information regarding the collection--including 
all background materials--can be found at https://www.reginfo.gov/public/do/PRAMain 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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