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.

Proposed Rules Federal Register

8352 

Vol. 89, No. 26 

Wednesday, February 7, 2024 

1National 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-ReportNational-Academy-of-Public-Administration.pdf. 

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. 

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 mike.mahoney@

opm.gov, by fax at (202) 606–4430, TDD 

at (202) 418–3134, or by email at 

employ@opm.gov. 

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, decisionmaking 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. 

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. 


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2Section 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. 

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 § 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. 

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 


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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 selfcertification 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. 


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3An agency that uses a similar form provided by 

the agency must comply with the Paperwork 

Reduction Act for that form. 

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 § 300.701 would replace the 

relevant statutory text that is repeated in 

the current § 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 

§ 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 § 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-forfederal-employment-optional-formaugust-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. 

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 selfcertifying 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 § 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 § 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 


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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 § 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 § 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 § 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 § 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 


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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, DCMD-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 


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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-ofjudicial-remedies-in-administrative-lawfinal-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 OMBapproved 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/informationmanagement/privacy-policy/sorn/opmsorn-govt-1-general-personnelrecords.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) 

■ 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). 

■ 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. 


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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. 

§ 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. 

§ 300.702 Coverage. 

This subpart covers all appointments 

to positions in Executive agencies. 

§ 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. 

§ 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 § 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. 

§ 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. 

§ 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 


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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 

§ 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. 

§ 300.707 Agency determination of 

whether the failure to register was knowing 

and willful. 

(a)(1) An individual who, as provided 

in § 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 

§ 300.705(a), a copy of the written notice 

referred to in § 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 § 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 § 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 § 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. 

§ 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 

§ 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. 

§ 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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