Statutory Bar to Appointment of Persons Who Fail To Register Under Selective Service Law, 73521-73526 [2011-30788]
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73521
Proposed Rules
Federal Register
Vol. 76, No. 229
Tuesday, November 29, 2011
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.
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Part 300
RIN 3206–AM06
Statutory Bar to Appointment of
Persons Who Fail To Register Under
Selective Service Law
U.S. Office of Personnel
Management.
ACTION: Proposed rule with request for
comments.
AGENCY:
The U.S. Office of Personnel
Management is issuing proposed
regulations to change its procedures for
determining whether an individual’s
failure to register with the Selective
Service System 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
proposed regulations delegate authority
to Federal agencies to make initial
determinations as to whether an
individual’s failure to register with the
Selective Service System was knowing
and willful. This delegation will
facilitate more efficient decisions and
reduce paperwork.
DATES: Comments must be received on
or before January 30, 2012.
ADDRESSES: You may submit comments
through the Federal eRulemaking Portal
at https://www.regulations.gov. All
submissions received through the portal
must include the agency name and
docket number of Regulation Identifier
Number (RIN) for this proposed
rulemaking.
You may also send, deliver, or fax
comments to Angela Bailey, Deputy
Associate Director for Recruitment and
Hiring, U.S. Office of Personnel
Management, Room 6551, 1900 E Street
NW., Washington, DC 20415–9700;
email at employ@opm.gov; or fax at
(202) 606–2329.
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FOR FURTHER INFORMATION CONTACT:
Mike Mahoney by telephone at (202)
606–0830; by fax at (202) 606–2329; by
TTY at (202) 418–3134; or by email at
michael.mahoney@opm.gov.
SUPPLEMENTARY INFORMATION: Under the
Military Selective Service Act of 1948,
as amended (hereafter referred to as ‘‘the
Act’’), all males between the ages of 18
and 26 who were born after December
31, 1959, are required to register with
the Selective Service System, unless the
Act exempts them. (50 U.S.C. App. 453).
In addition, the Act establishes that
‘‘[e]very person shall be deemed to have
notice of the requirements of this title
[sections 451 to 471a of this Appendix]
upon publication by the President of a
proclamation or other public notice
fixing a time for any registration under
section 3 [section 453 of this
Appendix].’’ (50 U.S.C. App. 465(a)). 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 section
3328 of title 5, United States Code,
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 Military Selective Service Act
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 the Office of Personnel
Management (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 delegate decision-making
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authority to agencies (Pub. 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 Military Selective
Service Act (50 U.S.C. App. 453 and
456(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. After 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 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 consideration process.
* * *’’ (5 CFR 300.704(a)). Accordingly,
as a practical matter, OPM is called
upon to adjudicate a case involving
failure to register only if registration is
precluded due to the covered
individual’s age.
The Applicable Standard
The statute OPM is required to
implement contains an ambiguity.
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
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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 Military Selective Service Act of
1948 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.
OPM proposes to resolve the
ambiguity by amending the regulations
to provide that an applicant is eligible
unless the failure to register was both
knowing and willful. In other words,
the applicant or employee could
establish eligibility 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), that a failure to
register was either not knowing or not
willful. 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. Moreover, the
legislative history, which indicates that
Congress was concerned with drafteligible 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. This interpretation, which
suggests that the term ‘‘willful’’ has a
meaning distinct from ‘‘knowing’’ and
should not be read out of the statute,
seems particularly appropriate in light
of the presumption under the Act that
notice has been given. In other words,
if a showing of knowledge alone were
sufficient to make the 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.
The proposed regulations also
establish new procedures for submitting
evidence to be used by the decisionmaker in undertaking the inquiry
required by section 3328. The existing
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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
individuals to establish, through these
limited procedures, that their failure to
register was not knowing and 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
concerning his explanation for his
failure to register.
OPM believes that the proposed
procedures would provide individuals
with a more meaningful opportunity to
explain why their failure to register
meets the statutory and regulatory
standard of proof. They would also
provide the adjudicator a more complete
record on which to base his or her
determination.
Delegation
The proposed regulation would
directly assign to Executive agencies the
authority to make the initial
determination as to whether an
individual’s failure to register with the
Selective Service System was knowing
and willful. This will permit faster
decisions and reduce paperwork.
Reconsideration
OPM’s proposed regulations,
however, also provide 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. The proposed
regulations also authorize OPM to audit
and oversee agencies’ performance of
this function, and to revoke the
delegation as to any particular agency,
if the agency fails to carry out the
function in accordance with applicable
law. If OPM revokes a delegation to 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. The proposed regulations also
provide that, once one agency has made
a determination regarding whether an
individual’s failure to register was
knowing and willful, a subsequent
agency would need to obtain permission
from OPM before it could deviate from
the first agency’s finding.
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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
must consult with the Selective Service
System. The Selective Service Web site
provides easy and immediate access to
verify individuals’ registration status,
and agencies can request relevant
documents from the Selective Service.
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. Agencies
reproduce this statement on a separate
form. In recent years, however, OPM has
taken steps to streamline the application
process and reduce paperwork. A
question on Selective Service
registration is now part of Optional
Form (‘‘OF’’) 306, Declaration for
Federal Employment, which is used to
determine an applicant’s acceptability
and suitability for Federal positions.
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.
To accomplish the objectives
described above, these proposed
regulations would make the following
specific changes in subpart G of part 300
of title 5, Code of Federal Regulations:
The revised section 300.701 would
replace the relevant statutory text that is
repeated in the current section 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
Selective Service System, but who
knowingly and willfully failed to
register before reaching age 26.
The new section 300.702 would
replace the statement about coverage of
the subpart that is currently in that
section with a shorter and clearer
statement that the subpart applies to all
appointments in Executive agencies, as
defined in 5 U.S.C. 105.
In section 300.703, which defines
terms used in subpart G, we are
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
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of an applicant or employee covered by
subpart G to register with the Selective
Service System was knowing and
willful.
The proposed regulations revise the
remaining sections of subpart G to
clarify the responsibilities of agencies
regarding job applicants and employees
who are required to register with the
Selective Service System. The proposed
regulations also set forth the procedures
for initial 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 the proposed
regulations requires a Federal agency,
before hiring a job applicant who is
required to register with the Selective
Service System, 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.
Section 300.705 of the proposed
regulations concerns acceptable proof of
registration status. The agency must
require the individual either to
(1) Complete and sign Optional Form
306 (Declaration for Federal
Employment) or another similar form
provided by the agency, documenting
his registration status, or (2) provide a
copy of his Selective Service
acknowledgement card or other proof of
registration or exemption that the
Selective Service System furnishes. 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, or
if an employee fails to provide
acceptable documentation and there is
nothing in his Official Personnel Folder
indicating his registration status has not
been resolved previously, then the
agency must comply with the
requirements detailed in section
300.706.
Section 300.706 of the proposed
regulations sets forth an agency’s
responsibility concerning applicants
who are required to register with the
Selective Service System 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.
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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
whom the obligation to register has not
arisen at the time of appointment that a
future failure to register will preclude
any subsequent appointment in the civil
service).
In the case of an individual who is
over age 26, and whose failure to
register was not detected by the agency
until after it had appointed him, the
agency must inform him that it will
deem him ineligible for retention in his
position 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
termination of his employment by the
agency.
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 the proposed
regulations 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 check with OPM to
see whether OPM or another agency had
previously made a determination in the
individual’s case. If the matter had
previously been adjudicated by OPM
pursuant to a reconsideration request
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73523
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, the agency would have
to investigate and adjudicate the matter.
This would include consulting with the
Selective Service System and
questioning the individual and any
others who submitted sworn statements
on his behalf. If there was no decision
upon reconsideration by OPM but
another agency or OPM, in an initial
decision, had previously adjudicated
the matter, and, after investigation, the
current agency disagreed with the
earlier finding, the previous agency’s
decision could be superseded only if
OPM agreed to permit a different
outcome.
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 agency’s decision. Section 300.707
also would require OPM to keep a
repository of agency determinations
under subpart G.
Proposed section 300.708 provides for
reconsideration by OPM of an agency
determination that an individual’s
failure to register with the Selective
Service System was knowing and
willful. OPM may do so either when it
receives a request from 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 on the
grounds that his appointment was not
lawfully made.
Executive Order 13563 and Executive
Order 12866, Regulatory Review
This proposed rule has been reviewed
by the Office of Management and
Budget in accordance with Executive
Order 13563 and Executive Order
12866.
Regulatory Flexibility Act
I certify that these regulations would
not have a significant economic impact
on a substantial number of small entities
(including small businesses, small
organizational units, and small
governmental jurisdictions) because
they would affect only some Federal
agencies, employees, and job applicants.
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Federalism
We have examined this rule in
accordance with Executive Order 13132,
Federalism, and have determined that
this rule will not have any negative
impact on the rights, roles, and
responsibilities of State, local, or tribal
governments.
List of Subjects in 5 CFR Part 300
Administrative practice and
procedure, Reporting and recordkeeping
requirements, Government employees,
organization and functions.
Office of Personnel Management.
John Berry,
Director.
Accordingly, the Office of Personnel
Management is proposing to amend part
300 of title 5, Code of Federal
Regulations, as follows:
PART 300—EMPLOYMENT (GENERAL)
1. The authority citation for part 300
is amended to add at the end of the
Authority citations that were last
revised, effective March 9, 2009, after
the citation for sections 300.501 through
300.507, the following:
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.
300.706 Agency responsibility regarding
individuals who have not registered.
300.707 Agency determination of whether
failure to register was knowing and
willful.
300.708 Reconsideration by OPM.
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§ 300.701
Purpose.
This subpart implements section 3328
of title 5, United States Code, 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
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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 section 105 of title 5, United
States Code.
Appointment means any personnel
action that brings onto the rolls of an
agency as a civil service 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.
Covered individual means a male—
(1) Whose application for
appointment is under consideration by
an agency or who is currently employed
by an agency;
(2) Who was born after December 31,
1959, and is at least 18 years of age; and
(3) Who is either (i) an applicant who
is or was required to register under
section 3 of the Military Selective
Service Act (50 U.S.C. App. 453) at any
time prior to or concurrent with the
consideration of his application or (ii)
an appointee who is or was required to
register under section 3 of the Military
Selective Service Act (50 U.S.C. App.
453) at any time prior to his current
appointment.
Exempt refers to those individuals
excluded from the requirement to
register with the Selective Service
System by sections 3 and 6(a) of the
Military Selective Service Act (50 U.S.C.
App. 453 and 456(a)) or by Presidential
proclamation.
Preponderance of the evidence means
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.
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
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registration system and for determining
who is required to register and who is
exempt.
§ 300.704 Agency responsibility to
determine registration status.
(a) Pursuant to Congress’s direction in
5 U.S.C. 3328, the authorized agency
official is obligated to determine the
registration status of a covered
individual before he may be appointed.
An agency’s failure to make a required
registration status determination prior to
an 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) 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, and unless the individual
furnishes other documentation as
provided by paragraph (a)(2) of this
section, an agency must require a
covered individual to 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.
(2) The agency must allow a covered
individual to submit, in lieu of the
forms 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 Office
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.
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§ 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
Web site;
(2) A statement requiring the
individual to submit a new Optional
Form 306, agency form, or other
appropriate document from the
Selective Service System to prove that
he has registered;
(3) 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 before 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
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 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 appropriate.
§ 300.707 Agency of whether-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
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15:19 Nov 28, 2011
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authorized agency official 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) An individual who requests a
determination referred to in paragraph
(a)(1) of this section must submit to the
authorized agency official his Optional
Form 306 or agency form, 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, his sworn
statement explaining his failure to
register, 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 authorized agency official
must contact the Office of Personnel
Management (OPM) to 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 not previously
adjudicated, or if it was previously
adjudicated only in an initial decision
by OPM or another agency, 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 official 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.
(c) If, after considering the entire
record, the agency reaches a different
conclusion from the initial decision
made by another agency, the earlier
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
73525
decision may be superseded only with
the agreement of OPM. The agency must
provide to OPM whatever documents
OPM decides it needs to determine
whether to permit the earlier decision to
be superseded.
(d) 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) 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.
(f) If the agency finds that the failure
to register was knowing and willful, a
covered individual is ineligible for
further employment consideration, or
for continued employment if he has
already been appointed.
(g)(1) OPM will maintain a repository
for agency decisions under this section
and may prescribe guidance for the
submission of agency decisions under
this paragraph.
(2) 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 initial
determinations for that agency under
this section while that suspension or
revocation is in effect.
§ 300.708
Reconsideration by OPM.
(a) When a request for reconsideration
is filed with OPM in a timely manner,
OPM will inform the agency or
individual that it has received the
request.
(b) The Director of OPM, or other
OPM authorized official, at the request
of the individual or on his or her own
initiative, may review the initial
decision of an agency under § 300.707
and make a determination based on all
documentation provided, to affirm or
overrule the agency’s decision.
Consistent with § 300.707, the
authorized 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
E:\FR\FM\29NOP1.SGM
29NOP1
73526
Federal Register / Vol. 76, No. 229 / Tuesday, November 29, 2011 / Proposed Rules
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 individual who requested
reconsideration 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.
[FR Doc. 2011–30788 Filed 11–28–11; 8:45 am]
BILLING CODE 6325–39–P
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the
Currency
12 CFR Parts 1, 5, 16, 28, and 160
[Docket No. OCC–2011–0019]
RIN 1557–AD36
Alternatives to the Use of External
Credit Ratings in the Regulations of
the OCC
Office of the Comptroller of the
Currency (OCC), Treasury.
ACTION: Notice of proposed rulemaking.
AGENCY:
Section 939A of the DoddFrank Wall Street Reform and Consumer
Protection Act (Dodd-Frank Act)
contains two directives to Federal
agencies including the OCC. First,
section 939A directs all Federal
agencies to review, no later than one
year after enactment, any regulation that
requires the use of an assessment of
creditworthiness of a security or money
market instrument and any references
to, or requirements in, such regulations
regarding credit ratings. Second, the
agencies are required to remove any
references to, or requirements of
reliance on, credit ratings and substitute
such standard of credit-worthiness as
each agency determines is appropriate.
The statute further provides that the
agencies shall seek to establish, to the
extent feasible, uniform standards of
creditworthiness, taking into account
the entities the agencies regulate and the
purposes for which those entities would
rely on such standards.
Through this notice of proposed
rulemaking (NPRM), the OCC seeks
comment on a proposal to revise its
pmangrum on DSK3VPTVN1PROD with PROPOSALS-1
SUMMARY:
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15:19 Nov 28, 2011
Jkt 226001
regulations pertaining to investment
securities, securities offerings, and
foreign bank capital equivalency
deposits to replace references to credit
ratings with alternative standards of
creditworthiness.
The OCC also is proposing to amend
its regulations pertaining to financial
subsidiaries of national banks to better
reflect the language of the underlying
statute, as amended by section 939(d) of
the Dodd-Frank Act.
DATES: Comments must be received by
December 29, 2011.
ADDRESSES: Commenters are encouraged
to use the title ‘‘Alternatives to the Use
of Credit Ratings in the Regulations of
the OCC’’ to facilitate the organization
and review of comments. Because paper
mail in the Washington, DC area and at
the OCC is subject to delay, commenters
are encouraged to submit comments by
the Federal eRulemaking Portal or
email, if possible. Please use the title
‘‘Alternatives to the Use of Credit
Ratings in the Regulations of the OCC’’
to facilitate the organization and review
of the comments. You may submit
comments by any of the following
methods:
• Federal eRulemaking Portal—
‘‘Regulations.gov’’: Go to https://
www.regulations.gov, under the ‘‘More
Search Options’’ tab click next to the
‘‘Advanced Docket Search’’ option
where indicated, select ‘‘Comptroller of
the Currency’’ from the agency dropdown menu, then click ‘‘Submit.’’ In the
‘‘Docket ID’’ column, select ‘‘OCC–
2011–0019’’ to submit or view public
comments and to view supporting and
related materials for this proposed rule.
The ‘‘How to Use This Site’’ link on the
Regulations.gov home page provides
information on using Regulations.gov,
including instructions for submitting or
viewing public comments, viewing
other supporting and related materials,
and viewing the docket after the close
of the comment period.
• Email:
regs.comments@occ.treas.gov.
• Mail: Office of the Comptroller of
the Currency, 250 E Street SW., Mail
Stop 2–3, Washington, DC 20219.
• Fax: (202) 874–5274.
• Hand Delivery/Courier: 250 E Street
SW., Mail Stop 2–3, Washington, DC
20219.
Instructions: You must include
‘‘OCC’’ as the agency name and ‘‘Docket
Number OCC–2011–0019’’ in your
comment. In general, OCC will enter all
comments received into the docket and
publish them on the Regulations.gov
Web site without change, including any
business or personal information that
you provide such as name and address
PO 00000
Frm 00006
Fmt 4702
Sfmt 4702
information, email addresses, or phone
numbers. Comments received, including
attachments and other supporting
materials, are part of the public record
and subject to public disclosure. Do not
enclose any information in your
comment or supporting materials that
you consider confidential or
inappropriate for public disclosure.
You may review comments and other
related materials that pertain to this
proposed rulemaking by any of the
following methods:
• Viewing Comments Electronically:
Go to https://www.regulations.gov, under
the ‘‘More Search Options’’ tab click
next to the ‘‘Advanced Document
Search’’ option where indicated, select
‘‘Comptroller of the Currency’’ from the
agency drop-down menu, then click
‘‘Submit.’’ In the ‘‘Docket ID’’ column,
select ‘‘OCC–2011–0019’’ to view public
comments for this rulemaking action.
• Viewing Comments Personally: You
may personally inspect and photocopy
comments at the OCC, 250 E Street SW.,
Washington, DC. For security reasons,
the OCC requires that visitors make an
appointment to inspect comments. You
may do so by calling (202) 874–4700.
Upon arrival, visitors will be required to
present valid government-issued photo
identification and submit to security
screening in order to inspect and
photocopy comments.
• Docket: You may also view or
request available background
documents and project summaries using
the methods described above.
FOR FURTHER INFORMATION CONTACT:
Kerri Corn, Director for Market Risk,
Credit and Market Risk Division, (202)
874–4660; Carl Kaminski, Senior
Attorney, or Kevin Korzeniewski,
Attorney, Legislative and Regulatory
Activities Division, (202) 874–5090; or
Eugene H. Cantor, Counsel, Securities
and Corporate Practices Division, (202)
874–5210, Office of the Comptroller of
the Currency, 250 E Street SW.,
Washington, DC 20219.
SUPPLEMENTARY INFORMATION:
I. Background
Section 939A of the Dodd-Frank Wall
Street Reform and Consumer Protection
Act 1 (the Dodd-Frank Act) contains two
directives to Federal agencies including
the OCC. First, section 939A directs all
Federal agencies to review, no later than
one year after enactment, any regulation
that requires the use of an assessment of
creditworthiness of a security or money
market instrument and any references to
or requirements in such regulations
regarding credit ratings. Second, the
1 Public Law 111–203, Section 939A, 124 Stat.
1376, 1887 (July 21, 2010).
E:\FR\FM\29NOP1.SGM
29NOP1
]]>Agencies
[Federal Register Volume 76, Number 229 (Tuesday, November 29, 2011)]
[Proposed Rules]
[Pages 73521-73526]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30788]
========================================================================
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. 76, No. 229 / Tuesday, November 29, 2011 /
Proposed Rules
[[Page 73521]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 300
RIN 3206-AM06
Statutory Bar to Appointment of Persons Who Fail To Register
Under Selective Service Law
AGENCY: U.S. Office of Personnel Management.
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The U.S. Office of Personnel Management is issuing proposed
regulations to change its procedures for determining whether an
individual's failure to register with the Selective Service System 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 proposed regulations delegate
authority to Federal agencies to make initial determinations as to
whether an individual's failure to register with the Selective Service
System was knowing and willful. This delegation will facilitate more
efficient decisions and reduce paperwork.
DATES: Comments must be received on or before January 30, 2012.
ADDRESSES: You may submit comments through the Federal eRulemaking
Portal at https://www.regulations.gov. All submissions received through
the portal must include the agency name and docket number of Regulation
Identifier Number (RIN) for this proposed rulemaking.
You may also send, deliver, or fax comments to Angela Bailey,
Deputy Associate Director for Recruitment and Hiring, U.S. Office of
Personnel Management, Room 6551, 1900 E Street NW., Washington, DC
20415-9700; email at employ@opm.gov; or fax at (202) 606-2329.
FOR FURTHER INFORMATION CONTACT: Mike Mahoney by telephone at (202)
606-0830; by fax at (202) 606-2329; by TTY at (202) 418-3134; or by
email at michael.mahoney@opm.gov.
SUPPLEMENTARY INFORMATION: Under the Military Selective Service Act of
1948, as amended (hereafter referred to as ``the Act''), all males
between the ages of 18 and 26 who were born after December 31, 1959,
are required to register with the Selective Service System, unless the
Act exempts them. (50 U.S.C. App. 453). In addition, the Act
establishes that ``[e]very person shall be deemed to have notice of the
requirements of this title [sections 451 to 471a of this Appendix] upon
publication by the President of a proclamation or other public notice
fixing a time for any registration under section 3 [section 453 of this
Appendix].'' (50 U.S.C. App. 465(a)). 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 section 3328 of title 5, United States
Code, 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 Military
Selective Service Act 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 the Office of Personnel Management (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 delegate decision-making
authority to agencies (Pub. 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 Military Selective Service Act (50 U.S.C. App. 453 and 456(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. After 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 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 consideration process. * * *'' (5 CFR
300.704(a)). Accordingly, as a practical matter, OPM is called upon to
adjudicate a case involving failure to register only if registration is
precluded due to the covered individual's age.
The Applicable Standard
The statute OPM is required to implement contains an ambiguity.
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
[[Page 73522]]
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 Military Selective Service
Act of 1948 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.
OPM proposes to resolve the ambiguity by amending the regulations
to provide that an applicant is eligible unless the failure to register
was both knowing and willful. In other words, the applicant or employee
could establish eligibility 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), that a failure to register was either not knowing
or not willful. 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. 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. This interpretation, which
suggests that the term ``willful'' has a meaning distinct from
``knowing'' and should not be read out of the statute, seems
particularly appropriate in light of the presumption under the Act that
notice has been given. In other words, if a showing of knowledge alone
were sufficient to make the 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.
The proposed regulations also establish new procedures for
submitting evidence to be used by the decision-maker 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
individuals to establish, through these limited procedures, that their
failure to register was not knowing and 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
concerning his explanation for his failure to register.
OPM believes that the proposed procedures would provide individuals
with a more meaningful opportunity to explain why their failure to
register meets the statutory and regulatory standard of proof. They
would also provide the adjudicator a more complete record on which to
base his or her determination.
Delegation
The proposed regulation would directly assign to Executive agencies
the authority to make the initial determination as to whether an
individual's failure to register with the Selective Service System was
knowing and willful. This will permit faster decisions and reduce
paperwork.
Reconsideration
OPM's proposed regulations, however, also provide 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. The proposed regulations also authorize OPM to audit and
oversee agencies' performance of this function, and to revoke the
delegation as to any particular agency, if the agency fails to carry
out the function in accordance with applicable law. If OPM revokes a
delegation to 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. The proposed
regulations also provide that, once one agency has made a determination
regarding whether an individual's failure to register was knowing and
willful, a subsequent agency would need to obtain permission from OPM
before it could deviate from the first agency's finding.
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 must consult with the Selective Service
System. The Selective Service Web site provides easy and immediate
access to verify individuals' registration status, and agencies can
request relevant documents from the Selective Service.
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. Agencies reproduce this statement on a separate form. In
recent years, however, OPM has taken steps to streamline the
application process and reduce paperwork. A question on Selective
Service registration is now part of Optional Form (``OF'') 306,
Declaration for Federal Employment, which is used to determine an
applicant's acceptability and suitability for Federal positions.
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.
To accomplish the objectives described above, these proposed
regulations would make the following specific changes in subpart G of
part 300 of title 5, Code of Federal Regulations:
The revised section 300.701 would replace the relevant statutory
text that is repeated in the current section 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 Selective Service System, but who
knowingly and willfully failed to register before reaching age 26.
The new section 300.702 would replace the statement about coverage
of the subpart that is currently in that section with a shorter and
clearer statement that the subpart applies to all appointments in
Executive agencies, as defined in 5 U.S.C. 105.
In section 300.703, which defines terms used in subpart G, we are
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
[[Page 73523]]
of an applicant or employee covered by subpart G to register with the
Selective Service System was knowing and willful.
The proposed regulations revise the remaining sections of subpart G
to clarify the responsibilities of agencies regarding job applicants
and employees who are required to register with the Selective Service
System. The proposed regulations also set forth the procedures for
initial 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 the proposed regulations requires a Federal
agency, before hiring a job applicant who is required to register with
the Selective Service System, 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.
Section 300.705 of the proposed regulations concerns acceptable
proof of registration status. The agency must require the individual
either to (1) Complete and sign Optional Form 306 (Declaration for
Federal Employment) or another similar form provided by the agency,
documenting his registration status, or (2) provide a copy of his
Selective Service acknowledgement card or other proof of registration
or exemption that the Selective Service System furnishes. 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, or if an employee fails to
provide acceptable documentation and there is nothing in his Official
Personnel Folder indicating his registration status has not been
resolved previously, then the agency must comply with the requirements
detailed in section 300.706.
Section 300.706 of the proposed regulations sets forth an agency's
responsibility concerning applicants who are required to register with
the Selective Service System 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 whom the obligation to register has not
arisen at the time of appointment that a future failure to register
will preclude any subsequent appointment in the civil service).
In the case of an individual who is over age 26, and whose failure
to register was not detected by the agency until after it had appointed
him, the agency must inform him that it will deem him ineligible for
retention in his position 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 termination
of his employment by the agency.
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 the proposed regulations 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 check with OPM to see whether OPM or another agency had
previously made a determination in the individual's case. 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, the agency would have to
investigate and adjudicate the matter. This would include consulting
with the Selective Service System and questioning the individual and
any others who submitted sworn statements on his behalf. If there was
no decision upon reconsideration by OPM but another agency or OPM, in
an initial decision, had previously adjudicated the matter, and, after
investigation, the current agency disagreed with the earlier finding,
the previous agency's decision could be superseded only if OPM agreed
to permit a different outcome.
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 agency's
decision. Section 300.707 also would require OPM to keep a repository
of agency determinations under subpart G.
Proposed section 300.708 provides for reconsideration by OPM of an
agency determination that an individual's failure to register with the
Selective Service System was knowing and willful. OPM may do so either
when it receives a request from 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 on the grounds that his appointment was not
lawfully made.
Executive Order 13563 and Executive Order 12866, Regulatory Review
This proposed rule has been reviewed by the Office of Management
and Budget in accordance with Executive Order 13563 and Executive Order
12866.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities (including
small businesses, small organizational units, and small governmental
jurisdictions) because they would affect only some Federal agencies,
employees, and job applicants.
[[Page 73524]]
Federalism
We have examined this rule in accordance with Executive Order
13132, Federalism, and have determined that this rule will not have any
negative impact on the rights, roles, and responsibilities of State,
local, or tribal governments.
List of Subjects in 5 CFR Part 300
Administrative practice and procedure, Reporting and recordkeeping
requirements, Government employees, organization and functions.
Office of Personnel Management.
John Berry,
Director.
Accordingly, the Office of Personnel Management is proposing to
amend part 300 of title 5, Code of Federal Regulations, as follows:
PART 300--EMPLOYMENT (GENERAL)
1. The authority citation for part 300 is amended to add at the end
of the Authority citations that were last revised, effective March 9,
2009, after the citation for sections 300.501 through 300.507, the
following:
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.
300.706 Agency responsibility regarding individuals who have not
registered.
300.707 Agency determination of whether failure to register was
knowing and willful.
300.708 Reconsideration by OPM.
Sec. 300.701 Purpose.
This subpart implements section 3328 of title 5, United States
Code, 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 section 105 of title
5, United States Code.
Appointment means any personnel action that brings onto the rolls
of an agency as a civil service 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.
Covered individual means a male--
(1) Whose application for appointment is under consideration by an
agency or who is currently employed by an agency;
(2) Who was born after December 31, 1959, and is at least 18 years
of age; and
(3) Who is either (i) an applicant who is or was required to
register under section 3 of the Military Selective Service Act (50
U.S.C. App. 453) at any time prior to or concurrent with the
consideration of his application or (ii) an appointee who is or was
required to register under section 3 of the Military Selective Service
Act (50 U.S.C. App. 453) at any time prior to his current appointment.
Exempt refers to those individuals excluded from the requirement to
register with the Selective Service System by sections 3 and 6(a) of
the Military Selective Service Act (50 U.S.C. App. 453 and 456(a)) or
by Presidential proclamation.
Preponderance of the evidence means 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.
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) Pursuant to Congress's direction in 5 U.S.C. 3328, the
authorized agency official is obligated to determine the registration
status of a covered individual before he may be appointed. An agency's
failure to make a required registration status determination prior to
an 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) 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, and unless the individual furnishes other
documentation as provided by paragraph (a)(2) of this section, an
agency must require a covered individual to 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.
(2) The agency must allow a covered individual to submit, in lieu
of the forms 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 Office
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.
[[Page 73525]]
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 Web site;
(2) A statement requiring the individual to submit a new Optional
Form 306, agency form, or other appropriate document from the Selective
Service System to prove that he has registered;
(3) 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 before 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 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 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 appropriate.
Sec. 300.707 Agency of whether-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 authorized agency official 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) An individual who requests a determination referred to in
paragraph (a)(1) of this section must submit to the authorized agency
official his Optional Form 306 or agency form, 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, his sworn
statement explaining his failure to register, 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
authorized agency official must contact the Office of Personnel
Management (OPM) to 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 not previously adjudicated, or if it was
previously adjudicated only in an initial decision by OPM or another
agency, 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 official 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.
(c) If, after considering the entire record, the agency reaches a
different conclusion from the initial decision made by another agency,
the earlier decision may be superseded only with the agreement of OPM.
The agency must provide to OPM whatever documents OPM decides it needs
to determine whether to permit the earlier decision to be superseded.
(d) 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) 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.
(f) If the agency finds that the failure to register was knowing
and willful, a covered individual is ineligible for further employment
consideration, or for continued employment if he has already been
appointed.
(g)(1) OPM will maintain a repository for agency decisions under
this section and may prescribe guidance for the submission of agency
decisions under this paragraph.
(2) 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 initial
determinations for that agency under this section while that suspension
or revocation is in effect.
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 or individual that it has
received the request.
(b) The Director of OPM, or other OPM authorized official, at the
request of the individual or on his or her own initiative, may review
the initial 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. Consistent with Sec. 300.707, the
authorized 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
[[Page 73526]]
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 individual who requested
reconsideration 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.
[FR Doc. 2011-30788 Filed 11-28-11; 8:45 am]
BILLING CODE 6325-39-P
