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

Federal RegisterMar 29, 1999

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 300

RIN 3206-AI52

Statutory Bar to Appointment of Persons Who Fail to Register

Under Selective Service Law

AGENCY: Office of Personnel Management.

ACTION: Proposed regulations.

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SUMMARY: The Office of Personnel Management (OPM) is issuing proposed

regulations to delegate authority to executive agencies to determine

whether a man's failure to register with the Selective Service System

(Selective Service) was knowing and willful. This will permit faster

decisions for job seekers as well as applicants, and reduce paperwork.

The proposed regulations also delete duplicative material, eliminate

the ``Statement of Selective Service Registration,'' and include

editorial changes.

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

ADDRESSES: Send or deliver written comments to Mary Lou Lindholm,

Associate Director for Employment, Office of Personnel Management, Room

6500, 1900 E Street, NW., Washington, DC 20415-9000.

FOR FURTHER INFORMATION CONTACT: Sylvia Cole or Robert Grady on (202)

606-0830, TDD (202) 606-0023, or FAX (202) 606-0390.

SUPPLEMENTARY INFORMATION: In 1985, section 3328, ``Selective Service

registration,'' was added to title 5, United States Code. It provided

that men born in 1960 or later who are required to, but did not

U.S.C. App. 453), generally are ineligible for appointment to Federal

executive agencies. A non-registrant who is not yet 26 years old may

correct his ineligibility by registering. After age 26, a non-

registrant can no longer register to correct his failure. In the latter

situation, section 3328 authorized OPM alone to determine if an

individual's failure to register was knowing and willful. A 1987

amendment of the law permitted OPM to delegate the adjudication

responsibility to Federal executive agencies. Because the law was new

and we had little experience in reviewing cases of non-registrants, we

felt delegation was not appropriate at that time.

Delegation to Agencies

Based on our experience over the years, we now propose to delegate

to agencies the decision-making authority for adjudicating cases of

non-registrants to determine if their failure to register was knowing

and willful. This delegation will permit faster decisions for job

seekers as well as agencies, and reduce paperwork. The workload for an

individual agency would be minimal. In fact, only a few agencies

submitted cases to OPM on a recurring basis in the past.

OPM Experience in Adjudicating Cases

Most of the cases submitted to OPM for adjudication were obvious

and decision-making was not difficult. Very few were adjudicated

unfavorably. We often saw the same type of situation. For example, a

large number of non-registrants had served in the military and did not

realize that Selective Service registration was still required if they

were released from active duty before age 26 and had never registered.

Others were former non-immigrant aliens (e.g., those on student visas)

who were initially exempt from registration. However, when they became

permanent residents and their status changed, they were not aware they

had an obligation to register. Occasionally a person entered the United

States right before the deadline for registration. A few cases involved

individuals with a physical disability who knew they would not be able

to perform military service and believed the registration requirement

did not apply to them. Some of the other cases involved unique

circumstances. We based our decisions on a review of supporting

documentation submitted with each case such as a written statement

supplied by the applicant or employee, a copy of form DD 214

(Certificate of Release or Discharge from Active Duty), or a letter

from the Selective Service rendering a favorable advisory opinion.

Consultation with the Selective Service

Non-registrants must provide a preponderance of evidence that their

failure to register was not knowing and willful. In acting on

individual cases, we routinely consulted with the Selective Service,

and agencies will need to do likewise. To verify an individual's

registration status, agencies should call Selective Service at (847)

688-6888. (Occasionally an applicant will state he did not register,

when, in fact, he is registered.) Selective Service may also have other

information in its records that may be helpful to agencies such as

evidence that the individual was contacted about his registration

responsibility (including the address used and number of times

contacted), and it can verify an applicant's claim of being exempt from

the registration requirement. Since OPM's regulations were developed in

consultation with the Selective Service, we have listed some of the

most common exemptions under Selective Service law directly in the

regulations.

Elimination of ``Applicant's Statement of Selective Service

Registration Status''

OPM's current regulations, written in 1987, contain a self-

certification statement of Selective Service registration to be

completed by applicants and employees. Agencies reproduce this

statement on a separate form. In 1987, the application for Federal

employment, Standard Form 171, did not contain a question on Selective

Service registration. Therefore, a separate form was necessary to

collect the information required by 5 U.S.C. 3328. Today, agencies use

different forms when considering employees for Federal jobs--the resume

or the Optional Application for Federal Employment (OF 612), which are

used to determine basic qualifications for positions, and a Declaration

for Federal Employment (OF 306), used to determine an applicant's

acceptability and suitability for Federal positions.

To streamline the application process and reduce paperwork, we are

planning to eliminate the Applicant's Statement of Selective Service

Registration and add a question on Selective Service registration to

the OF 306. This form is completed by applicants who are under

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serious employment consideration. It is completed early enough in the

employment process so that if an agency encounters an applicant who did

not register with the Selective Service, the agency would have

sufficient time to determine if non-registration was knowing and

willful prior to the individual's beginning his tour of duty. Since the

revision of OF 306 requires approval by the Office of Management and

Budget in accordance with the Paperwork Reduction Act, OPM will request

public comments at a later time through a separate notice to appear in

the Federal Register relating specifically to revising the form.

Editorial Changes

The proposed regulations also contain editorial changes for clarity

or to make them easier to read. We added paragraph headings so that

information can be found more quickly, reformatted some of the

material, and deleted the text of the statutory bar to appointing

nonregistrants in executive agencies, because it is a duplication of 5

U.S.C. 3328.

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities (including

small businesses, small organizational units, and small governmental

jurisdictions) because the regulations only affect Federal job

applicants and employees.

E.O. 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with Executive Order 12866.

List of Subjects in 5 CFR Part 300

Freedom of information, Government employees, Reporting and

recordkeeping requirements, Selective Service System.

Office of Personnel Management.

Janice R. Lachance,

Director.

Accordingly, OPM proposes to amend 5 CFR part 300 as follows:

PART 300--EMPLOYMENT (GENERAL)

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

follows:

Authority: 5 U.S.C. 552, 3301, 3302; E.O. 10577, 3 CFR 1954-1958

Comp., page 218, unless otherwise noted.

Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201,

7204, and 7701; E.O. 11478, 3 CFR, 1966-1970 Comp., page 803.

Sec. 300.301 also issued under 5 U.S.C. 1104 and 3341.

Secs. 300.401 through 300.408 also issued under 5 U.S.C.

1302(c), 2301, and 2302.

Secs. 300.501 through 300.507 also issued under 5 U.S.C.

1103(a)(5).

Sec. 300.603 also issued under 5 U.S.C. 1104.

Secs. 300.701 through 300.707 also issued under 5 U.S.C. 3328.

2. Subpart G is revised to read as follows:

Subpart G--Statutory Bar to Appointment of Persons Who Fail to

Sec.

300.701 Statutory requirement.

300.702 Coverage.

300.703 Definitions.

300.704 Considering applicants for employment.

300.705 Agency action after determining registration status.

300.706 Adjudication.

300.707 Termination of employment.

Subpart G--Statutory Bar to Appointment of Persons Who Fail to

Sec. 300.701 Statutory requirement.

Section 3328 of title 5, United States Code, imposes compliance

with Selective Service registration requirements as a condition of

employment in executive agencies. This subpart contains the regulations

that the Office of Personnel Management (OPM) has prescribed to carry

out the statutory requirement.

Sec. 300.702 Coverage.

These regulations cover appointments in Federal executive agencies.

Sec. 300.703 Definitions.

In this subpart--

Appointment means any personnel action that brings onto the rolls

of an executive agency as a civil service officer or employee as

defined in 5 U.S.C. 2104 or 2105, respectively, a person who is not

currently employed in that agency. It includes initial employment as

well as transfer between agencies and subsequent employment after a

break in service. Personnel actions that move an employee within an

agency without a break in service are not covered. A break in service

is a period of 4 or more calendar days during which an individual is no

longer on the rolls of an executive agency.

Covered individual means a male--

(1) Whose application for appointment is under consideration by an

executive agency or who is an employee of an executive agency;

(2) Who was born after December 31, 1959, and is at least 18 years

of age or becomes 18 following appointment;

(3) Who is either a United States citizen or alien (including

permanent residents, parolees, refugees, and applicants for asylum)

residing in the U.S.; and

(4) Who is or was required to register under section 3 of the

Military Selective Service Act (50 U.S.C. App. 453).

Executive agency (or agency) means an agency of the Government of

the United States as defined in 5 U.S.C. 105.

Exemptions means those individuals determined to be excluded from

the requirement under section 3 and 6(a) of the Military Selective

Service Act (50 U.S.C. App. 453 and 456(a)) or Presidential

proclamation. Some of the individuals exempt from registration include:

(1) Non-immigrant aliens admitted under section 101(a)(15) of the

Immigration and Nationality Act (8 U.S.C. 1101) who are residing in the

United States temporarily, such as those on visitor or student visas

and members of diplomatic or trade missions and their families;

(2) Men who are unable to register due to circumstances beyond

their control, such as being hospitalized, institutionalized, or

incarcerated (although they must register within 30 days of their

release if they are not 26 years of age);

(3) Members of the Armed Forces on full-time active duty from their

18th through their 26th birthday. This exemption also applies to cadets

and midshipmen at the United States service academies; and

(4) Men who entered the U.S. for the first time after age 26.

Preponderance of the evidence means that degree of relevant

evidence that a reasonable person, considering the record as a whole,

would accept as sufficient to support a conclusion that the matter

asserted is more likely to be true than not true.

Registrant means an individual registered under Selective Service

law.

Selective Service law means the Military Selective Service Act,

rules and regulations, issued thereunder, and proclamations of the

President under the Act.

Selective Service System means the agency responsible for

administering the registration system and for determining who is

required to register and who is exempt.

Sec. 300.704 Considering applicants for appointment.

(a) Requirement to determine registration status. An executive

agency must determine the registration status of each covered

individual at an appropriate time during the

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consideration process prior to appointment, and of each covered

employee who becomes 18 after appointment. The individual must

complete, sign, and date in ink Optional Form 306, Declaration for

Federal Employment, or a form provided by the agency that requests

information on registration status, unless the applicant furnishes

other documentation as provided by paragraph (b) of this section.

(b) Other acceptable proof of registration. At his option, a

covered individual may submit, in lieu of the forms described in

paragraph (a) of this section, a copy of his Acknowledgement Letter or

other proof of registration or exemption issued by the Selective

Service System.

give no further consideration for appointment to individuals who fail

to provide the information on registration status described in

paragraphs (a) and (b) of this section.

(d) Prior evidence of registration. An executive agency considering

employment of a covered individual who is a current or former Federal

employee, is not required to inquire about his registration status if

it determined that the individual's Official Personnel Folder contains

evidence indicating the individual is registered or was never required

to register.

(e) Individuals not yet eligible to register. An agency hiring a

male under the age of 18 must require the individual to provide proof

that he registered with the Selective Service System within 6 months

after his 18th birthday.

Sec. 300.705 Agency action after determining registration status.

(a) Verifying registration status. Agencies must resolve conflicts

of information and other questions concerning an individual's

registration status prior to appointment. An agency may verify an

individual's registration status by requesting the individual provide

proof of registration or exemption issued by the Selective Service

System, or by contacting the Selective Service System directly.

(b) When registration requirement has been met. An agency may

continue regular pre-employment consideration of individuals who have

demonstrated they have registered or are exempt.

take the following actions when a covered individual who is required to

(1) Advise him to register promptly and, if he wishes further

consideration, to submit a new Optional Form 306, agency form or other

appropriate document from the Selective Service immediately to the

agency once he has registered. The agency may set a time limit for

submitting this documentation.

(2) Provide written notice to an individual who still does not

ineligible for appointment according to 5 U.S.C. 3328 and will be given

no further employment consideration.

(d) An individual age 26 or over who did not register. An agency

will take the following actions when a covered individual who is age 26

or over was required to register prior to his 26th birthday, and has

not done so:

(1) Provide written notice to the individual that, in accordance

with 5 U.S.C. 3328, he is ineligible for appointment unless his failure

to register was neither knowing nor willful and that the agency will

decide whether this failure to register was knowing and willful if he

submits a written request for such decision along with an explanation

of his failure to register.

(2) Submit the individual's application, the Optional Form 306 or

agency form, a copy of the written notice, his request for a decision

and explanation of his failure to register, and any other papers

pertinent to his registration status for determination to the official

or employee the agency has designated to make determinations.

(3) An agency is not required to keep a vacancy open for an

individual who seeks a determination.

(e) Ineligibility for employment. Individuals under age 26

described in paragraph (c) of this section who do not submit a

documentation of registration or exception are not eligible for

employment consideration, or continued employment if a current

employee. Individuals age 26 or over described in paragraph (d) of this

section are not eligible for employment consideration unless the agency

finds that failure to register was neither knowing nor willful.

Agencies are not required to follow the objection-to-eligibles

procedures described in Sec. 332.406 of this chapter concerning such

individuals who were certified or otherwise referred by an OPM

examining office or other office delegated examining authority by OPM.

As part of its examining report, an agency will provide to the

examining office a copy of the written notice sent to the individual.

Sec. 300.706 Adjudication.

(a) Determining if non-registration was knowing and willful. The

official or employee designated by the employing agency will determine

whether failure to register was knowing and willful when an individual

has requested a decision and presented a written explanation, as

described in Sec. 300.705. The designated official or employee will

make a determination based on the written explanation provided by the

individual and any guidance the Office of Personnel Management and the

Selective Service may provide. The burden of proof will be on the

individual to show that failure to register was neither knowing nor

willful.

(b) Consultation with Selective Service System. In making

determinations, an agency should consult with the Selective Service

System for any information that might be in its records which will

assist in the adjudication process, e.g. evidence that the individual

was contacted about his registration responsibility.

will notify the individual in writing of the determination. An

individual may appeal an agency's determination by following the

agency's administrative appeal process. The agency determination is

final unless reconsidered by the Director of OPM or his or her

designee. There is no further right to administrative review.

(d) Determination by OPM. The Director of OPM or his or her

designee may reopen and reconsider a determination made by an agency.

Individuals who believe they have been unfairly denied access to an

agency's adjudication procedure may request a determination to be made

by OPM.

(e) Accepting the determination made by another agency. A

subsequent employing agency shall accept the determination of the

initial employing agency, unless it can demonstrate to OPM that a

different determination is clearly appropriate because it found

additional or contradictory information since the original decision.

Sec. 300.707 Termination of employment.

A covered individual who is serving under an appointment made on or

after November 8, 1985, and who is not exempt from registration, will

be terminated by his agency under these regulations if he has not

registered as required, unless he registers. If he is no longer

eligible to register, the individual may continue serving only if the

agency determines in response to his

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explanation that his failure to register was neither knowing nor

willful.

[FR Doc. 99-7416 Filed 3-26-99; 8:45 am]

BILLING CODE 6325-01-P

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.