[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]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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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 http://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